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Pledge Agreement - TEREX CORP - 3-30-1998

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Pledge  Agreement - TEREX CORP - 3-30-1998 Powered By Docstoc
					1 PLEDGE AGREEMENT dated as of March 6, 1998, among TEREX CORPORATION, a Delaware corporation ("Terex"), each subsidiary of Terex listed on Schedule I hereto (each such subsidiary individually a "Subsidiary Pledgor" and collectively, the "Subsidiary Pledgors"; Terex and the Subsidiary Pledgors are referred to collectively herein as the "Pledgors") and CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York branch ("CSFB"), as collateral agent (in such capacity, the "Collateral Agent") for the Secured Parties (as defined in the Credit Agreement referred to below). Reference is made to (a) the Credit Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Terex, Terex Equipment Limited, a company organized under the laws of Scotland, P.P.M. S.A., a company organized under the laws of the Republic of France, Unit Rig (Australia) Pty. Ltd., a company organized under the laws of New South Wales, and P.P.M. Sp.A., a company organized under the laws of the Republic of Italy, the Lenders (as defined in Article I thereto), the Issuing Banks (as defined in Article I thereto) and CSFB, as administrative agent and as collateral agent for the Lenders, (b) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Subsidiary Guarantee Agreement") among the Subsidiary Pledgors and the Collateral Agent and (c) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Terex Guarantee Agreement") between Terex and the Collateral Agent. Capitalized terms used herein and not defined herein shall have meanings assigned to such terms in the Credit Agreement. The Lenders have agreed to make Loans to the Borrowers and the Issuing Banks have agreed to issue Letters of Credit for the account of the Borrowers, pursuant to, and upon the terms and subject to the conditions specified in, the Credit Agreement. The Subsidiary Pledgors have agreed to guarantee, among other things, all the obligations of the Borrower under the Credit Agreement pursuant to the Subsidiary Guarantee Agreement. Terex has agreed to guarantee, among other things, all the obligations of the Subsidiary Borrowers under the Credit Agreement pursuant to the Terex Guarantee Agreement. The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are conditioned upon, among other things, the execution and delivery by the Pledgors of a Pledge Agreement in the form hereof to secure (a) the due and punctual payment by the Borrowers of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by any Borrower under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrowers to the Secured Parties under the Credit Agreement and the other Loan Documents, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Credit Agreement and the other Loan Documents, (c) the due and punctual payment and performance of all the covenants, agreements, obligations and liabilities of each Subsidiary Pledgor under or pursuant to the Subsidiary Guarantee Agreement or the other Loan Documents and (d) the due and punctual payment and performance of all obligations of the Borrowers under each Hedging Agreement entered into with any counterparty that was a Lender (or an Affiliate thereof) at the time such Hedging Agreement was entered into (all the monetary and other obligations referred to in the preceding clauses (a) through (d) being referred to collectively as the "Obligations"); provided, however, that the total principal amount

2 of indebtedness or obligations secured by the Pledged Stock consisting of shares of capital stock of a corporation incorporated in New South Wales shall not exceed $4,000,000. Accordingly, the Pledgors and the Collateral Agent, on behalf of itself and each Secured Party (and each of their

2 of indebtedness or obligations secured by the Pledged Stock consisting of shares of capital stock of a corporation incorporated in New South Wales shall not exceed $4,000,000. Accordingly, the Pledgors and the Collateral Agent, on behalf of itself and each Secured Party (and each of their respective successors or assigns), hereby agree as follows: SECTION 1.1 Pledge. As security for the payment and performance, as the case may be, in full of the Obligations, each Pledgor hereby transfers, grants, bargains, sells, conveys, hypothe cates, pledges, sets over and delivers unto the Collateral Agent, its successors and assigns, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest in all of the Pledgor's right, title and interest in, to and under (a) the shares of capital stock owned by it and listed on Schedule II hereto and any shares of capital stock of or any Subsidiary obtained in the future by the Pledgor and the certificates representing all such shares (the "Pledged Stock"); provided that the Pledged Stock shall not include (i), more than 65% of the issued and outstanding shares of stock of any Foreign Subsidiary, (ii) to the extent that applicable law requires that a Subsidiary of the Pledgor issue directors' qualifying shares, such qualifying shares or (iii) the Irish Shares or the Related Rights (as both terms are defined hereinafter); (b)(i) the debt securities listed opposite the name of the Pledgor on Schedule II hereto, (ii) any debt securities in the future issued to the Pledgor and (iii) the promissory notes and any other instruments evidencing such debt securities (the "Pledged Debt Securities"); (c) all other property that may be delivered to and held by the Collateral Agent pursuant to the terms hereof; (d) subject to Section 5, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed, in respect of, in exchange for or upon the conversion of the securities referred to in clauses (a) and (b) above; (e) subject to Section 5, all rights and privileges of the Pledgor with respect to the securities and other property referred to in clauses (a), (b), (c) and (d) above; and (f) all proceeds of any of the foregoing (the items referred to in clauses (a) through (f) above and the Irish Shares and the Related Rights referred to in Section 1.2 below, being collectively referred to as the "Collateral"). Upon delivery to the Collateral Agent, (a) any stock certificates, notes or other securities now or hereafter included in the Collateral (the "Pledged Securities") shall be accompanied by stock powers duly executed in blank or other instruments of transfer satisfactory to the Collateral Agent and by such other instruments and documents as the Collateral Agent may reasonably request and (b) all other property comprising part of the Collateral shall be accompanied by proper instruments of assignment duly executed by the applicable Pledgor and such other instruments or documents as the Collateral Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing the securities theretofore and then being pledged hereunder, which schedule shall be attached hereto as Schedule II and made a part hereof. Each schedule so delivered shall supersede any prior schedules so delivered. SECTION 1.2 Mortgage over Irish Shares. Terex as legal and beneficial owner of the shares in Terex Aerials Limited ("TAL") referred to in Schedule II hereto (the "Irish Shares") hereby mortgages and charges all its interests both legal and beneficial in the Irish Shares, including any dividends or interest paid or payable in relation to the Irish Shares and any rights, moneys or property accruing or offered at any time in relation to the Irish Shares by way of redemption, substitution, exchange, bonus or preference, under option rights or otherwise (the "Related Rights") to the collateral Agent, its successors and assigns, by way of a first mortgage or charge as a continuing security for the payment and performance, as the case may be, in full of the Obligations. TO HAVE AND TO HOLD the Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter set forth. SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly to deliver or cause to be delivered to the Collateral Agent any and all Pledged Securities, and any and all

3 certificates or other instruments or documents representing the Collateral (including in the case of the mortgage over the Irish Shares referred to above a stock transfer form executed in blank by Terex in a form satisfactory to

3 certificates or other instruments or documents representing the Collateral (including in the case of the mortgage over the Irish Shares referred to above a stock transfer form executed in blank by Terex in a form satisfactory to the Collateral Agent). (b) Each Pledgor will cause any Indebtedness (except for any intercompany Indebtedness not evidenced by notes and subordinated by its terms to the payment of the Obligations) for borrowed money owed to the Pledgor by any person to be evidenced by a duly executed promissory note that is pledged and delivered to the Collateral Agent pursuant to the terms thereof. (c) Notwithstanding anything to the contrary contained in this Section 2 or Section 1 hereof, if any Pledged Securities (whether now owned or hereafter acquired) are uncertificated securities, the respective Pledgor shall promptly notify the Collateral Agent thereof, and shall promptly take all actions required to perfect the security interest of the Collateral Agent under applicable law (including, in any event, under Section 9-115 of the New York UCC, if applicable). Each Pledgor further agrees to take such actions as the Collateral Agent deems reasonably necessary or desirable to effect the foregoing and to permit the Collateral Agent to exercise any of its rights and remedies hereunder, and agrees to provide an opinion of counsel reasonably satisfactory to the Collateral Agent (which may be counsel employed by Terex) with respect to the creation and perfection of any such pledge of uncertificated Pledged Securities promptly upon request of the Collateral Agent. SECTION 3. Representations, Warranties and Covenants. Each Pledgor hereby represents, warrants and covenants, as to itself and the Collateral pledged by it hereunder, to and with the Collateral Agent that: (a) the Pledged Stock and the Irish Shares represent that percentage as set forth on Schedule II of the issued and outstanding shares of each class of the capital stock of the issuer with respect thereto; (b) except for the security interest granted hereunder, the Pledgor (i) is and will at all times continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II, (ii) holds the same free and clear of all Liens, (iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Collateral, other than pursuant hereto or to the Credit Agreement, and (iv) subject to Section 5 and Section 2(c), will cause any and all Collateral, whether for value paid by the Pledgor or otherwise, to be forthwith deposited with the Collateral Agent and pledged or assigned hereunder; (c) the Pledgor (i) has the corporate power and authority to pledge the Collateral in the manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein against any and all Liens (other than the Lien created by this Agreement), however arising, of all persons whomsoever; (d) no consent of any other person (including stockholders or creditors of any Pledgor) and no consent or approval of any Governmental Authority or any securities exchange was or is necessary to the validity of the pledge effected hereby; (e) by virtue of the execution and delivery by the Pledgors of this Agreement, when the Pledged Securities, certificates or other documents representing or evidencing the Collateral (together with an executed stock transfer form in the case of the Irish Shares) are delivered to the Collateral Agent in accordance with this Agreement (or, in the case of uncertificated stock, the actions required by Section 2(c) are taken), the Collateral Agent will obtain a valid and perfected first lien upon and security interest in such Pledged Securities as security for the payment and performance of the Obligations;

4 (f) the pledge effected hereby is effective to vest in the Collateral Agent, on behalf of the Secured Parties, the rights of the Collateral Agent in the Collateral as set forth herein; (g) all of the Pledged Stock and the Irish Shares have been duly authorized and validly issued and are fully paid and nonassessable;

4 (f) the pledge effected hereby is effective to vest in the Collateral Agent, on behalf of the Secured Parties, the rights of the Collateral Agent in the Collateral as set forth herein; (g) all of the Pledged Stock and the Irish Shares have been duly authorized and validly issued and are fully paid and nonassessable; (h) all information set forth herein relating to the Pledged Stock and the Irish Shares is accurate and complete in all material respects as of the date hereof; and (i) the pledge of the Pledged Stock pursuant to this Agreement does not violate Regulation G, T, U or X of the Federal Reserve Board or any successor thereto as of the date hereof; and Terex covenants, as the sole shareholder of TAL, that it will not vote to amend the provisions concerning the transfer of shares (and, in particular, article 8(b)) contained in the articles of association of TAL (as amended by a written resolution of the single member of TAL dated 5th March, 1998) without the prior written consent of the Collateral Agent. SECTION 4. Registration in Nominee Name; Denominations. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the Pledgors, endorsed or assigned in blank or in favor of the Collateral Agent. Each Pledgor will promptly give to the Collateral Agent copies of any notices or other communications received by it with respect to Pledged Securities registered in the name of such Pledgor. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement. SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing: (i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Loan Documents; provided, however, that such Pledgor will not be entitled to exercise any such right if the result thereof could reasonably be expected to materially and adversely affect the rights inuring to a holder of the Pledged Securities or the rights and remedies of any of the Secured Parties under this Agreement or the Credit Agreement or any other Loan Document or the ability of the Secured Parties to exercise the same. (ii) The Collateral Agent shall execute and deliver to each Pledgor, or cause to be executed and delivered to each Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above and to receive the cash dividends it is entitled to receive pursuant to subparagraph (iii) below. (iii) Each Pledgor shall be entitled to receive and retain any and all cash dividends, interest and principal paid on the Pledged Securities to the extent and only to the extent that such cash dividends, interest and principal are permitted by, and otherwise paid in accordance with, the terms and conditions of the Credit Agreement, the other Loan Documents and applicable laws. All noncash dividends, interest and principal, and all dividends, interest and principal paid or payable in cash or otherwise in connection with a partial or total liquidation or dissolution, return of capital, capital surplus or paid-in surplus, and all other distributions (other than distributions

5 referred to in the preceding sentence) made on or in respect of the Pledged Securities, whether paid or payable in cash or otherwise, whether resulting from a subdivision, combination or reclassification of the outstanding capital stock of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof,

5 referred to in the preceding sentence) made on or in respect of the Pledged Securities, whether paid or payable in cash or otherwise, whether resulting from a subdivision, combination or reclassification of the outstanding capital stock of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent and shall be forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement). (b) Upon the occurrence and during the continuance of an Event of Default, all rights of any Pledgor to dividends, interest or principal that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest or principal. All dividends, interest or principal received by the Pledgor contrary to the provisions of this Section 5 shall be held in trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of such Pledgor and shall be forthwith delivered to the Collateral Agent upon demand in the same form as so received (with any necessary endorsement). Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 7. After all Events of Default have been cured or waived, the Collateral Agent shall, within five Business Days after all such Events of Default have been cured or waived, repay to each Pledgor all cash dividends, interest or principal (without interest), that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) above and which remain in such account. (c) Upon the occurrence and during the continuance of an Event of Default, all rights of any Pledgor to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 5, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 5, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers, provided that, unless otherwise directed by the Required Lenders, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived, such Pledgor will have the right to exercise the voting and consensual rights and powers that it would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above. SECTION 6. Remedies upon Default. Upon the occurrence and during the continuance of an Event of Default, subject to applicable regulatory and legal requirements, the Collateral Agent may sell the Collateral, or any part thereof, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Pledgor, and, to the extent permitted by applicable law, the Pledgors hereby waive all rights of redemption, stay, valuation and appraisal any Pledgor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.

6 The Collateral Agent shall give a Pledgor 10 days' prior written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions) of the Collateral Agent's intention to make any sale of such Pledgor's Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker's board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such

6 The Collateral Agent shall give a Pledgor 10 days' prior written notice (which each Pledgor agrees is reasonable notice within the meaning of Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions) of the Collateral Agent's intention to make any sale of such Pledgor's Collateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker's board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid in full by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by applicable law, private) sale made pursuant to this Section 6, any Secured Party may bid for or purchase, free from any right of redemption, stay or appraisal on the part of any Pledgor (all said rights being also hereby waived and released), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to it from such Pledgor as a credit against the purchase price, and it may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to such Pledgor therefor. For purposes hereof, (a) a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof, (b) the Collateral Agent shall be free to carry out such sale pursuant to such agreement and (c) such Pledgor shall not be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose upon the Collateral and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this Section 6 shall be deemed to conform to the commercially reasonable standards as provided in Section 9-504(3) of the Uniform Commercial Code as in effect in the State of New York or its equivalent in other jurisdictions. SECTION 7. Application of Proceeds of Sale. The proceeds of any sale of Collateral pursuant to Section 6, as well as any Collateral consisting of cash, shall be applied by the Collateral Agent as follows: FIRST, to the payment of all reasonable costs and expenses incurred by the Collateral Agent in connection with such sale or otherwise in connection with this Agreement, any other Loan Document or any of the Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any other Loan Document on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document; SECOND, to the payment in full of the Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Obligations owed to them on the date of any such distribution); and

7 THIRD, to the Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money

7 THIRD, to the Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. SECTION 8. Reimbursement of Collateral Agent. (a) Each Pledgor jointly and severally agrees to pay upon demand to the Collateral Agent the amount of any and all reasonable expenses, including the reasonable fees, other charges and disbursements of its counsel and of any experts or agents, that the Collateral Agent may incur in connection with (i) the administration of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise, enforcement or protection of any of the rights of the Collateral Agent hereunder or (iv) the failure of any Pledgor to perform or observe any of the provisions hereof. (b) Without limitation of its indemnification obligations under the other Loan Documents, each Pledgor jointly and severally agrees to indemnify the Collateral Agent and the Indemnitees (as defined in Section 9.05 of the Credit Agreement) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, other charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated thereby or (ii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Indemnitee. (c) Any amounts payable as provided hereunder shall be additional Obligations secured hereby and by the other Security Documents. The provisions of this Section 8 shall remain operative and in full force and effect regardless of the termination of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document or any investigation made by or on behalf of the Collateral Agent or any other Secured Party. All amounts due under this Section 8 shall be payable on written demand therefor and shall bear interest at the rate specified in Section 2.07 of the Credit Agreement. SECTION 9. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor for the purpose of carrying out the provisions of this Agreement and taking any action and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof and without limitation to the foregoing to execute and complete in favor of the Collateral Agent or its nominees or of any purchaser any transfers or other documents which the Collateral Agent may require for perfecting its title to or for vesting the Collateral in the Collateral Agent or its nominees or in any purchaser, which appointment is irrevocable and coupled with an interest. The Collateral Agent shall have the right, upon the occurrence and during the continuance of an Event of Default, with full power of substitution either in the Collateral Agent's name or in the name of such Pledgor, to ask for, demand, sue for, collect, receive and give acquittance for any and all moneys due or to become due under

8 and by virtue of any Collateral, to endorse checks, drafts, orders and other instruments for the payment of money payable to the Pledgor representing any interest or dividend or other distribution payable in respect of the Collateral or any part thereof or on account thereof and to give full discharge for the same, to settle, compromise,

8 and by virtue of any Collateral, to endorse checks, drafts, orders and other instruments for the payment of money payable to the Pledgor representing any interest or dividend or other distribution payable in respect of the Collateral or any part thereof or on account thereof and to give full discharge for the same, to settle, compromise, prosecute or defend any action, claim or proceeding with respect thereto, and to sell, assign, endorse, pledge, transfer and to make any agreement respecting, or otherwise deal with, the same; provided, however, that nothing herein contained shall be construed as requiring or obligating the Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to any Pledgor for any act or failure to act hereunder, except for their own gross negligence or wilful misconduct. SECTION 10. Waivers; Amendment. (a) No failure or delay of the Collateral Agent in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Collateral Agent hereunder and of the Secured Parties under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provisions of this Agreement or consent to any departure by any Pledgor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Pledgor in any case shall entitle such Pledgor or any other Pledgor to any other or further notice or demand in similar or other circumstances. (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to a written agreement entered into between the Collateral Agent and the Pledgor or Pledgors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 9.08 of the Credit Agreement. SECTION 11. Securities Act, etc. In view of the position of the Pledgors in relation to the Pledged Securities, or because of other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the "Federal Securities Laws") with respect to any disposition of the Pledged Securities permitted hereunder. Each Pledgor understands that compliance with the Federal Securities Laws might very strictly limit the course of conduct of the Collateral Agent if the Collateral Agent were to attempt to dispose of all or any part of the Pledged Securities, and might also limit the extent to which or the manner in which any subsequent transferee of any Pledged Securities could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Collateral Agent in any attempt to dispose of all or part of the Pledged Securities under applicable Blue Sky or other state securities laws or similar laws analogous in purpose or effect. Each Pledgor recognizes that in light of such restrictions and limitations the Collateral Agent may, with respect to any sale of the Pledged Securities, limit the purchasers to those who will agree, among other things, to acquire such Pledged Securities for their own account, for investment, and not with a view to the distribution or resale thereof. Each Pledgor acknowledges and agrees that in light of such restrictions and limitations, the Collateral Agent, in its sole and absolute discretion, (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Pledged Securities or part thereof shall have been filed under the Federal Securities Laws and (b) may approach and negotiate with a single potential purchaser to effect such sale. Each Pledgor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sales,

9 the Collateral Agent shall incur no responsibility or liability for selling all or any part of the Pledged Securities at a price that the Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale

9 the Collateral Agent shall incur no responsibility or liability for selling all or any part of the Pledged Securities at a price that the Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a single purchaser were approached. The provisions of this Section 11 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Collateral Agent sells. SECTION 12. Registration, etc. Each Pledgor agrees that, upon the occurrence and during the continuance of an Event of Default hereunder, if for any reason the Collateral Agent desires to sell any of the Pledged Securities (except for Pledged Securities issued by a Foreign Subsidiary) at a public sale, it will, at any time and from time to time, upon the written request of the Collateral Agent, use its best efforts to take or to cause the issuer of such Pledged Securities to take such action and prepare, distribute and/or file such documents, as are required or advisable in the reasonable opinion of counsel for the Collateral Agent to permit the public sale of such Pledged Securities. Each Pledgor further agrees to indemnify, defend and hold harmless the Collateral Agent, each other Secured Party, any underwriter and their respective officers, directors , affiliates and controlling persons from and against all loss, liability, expenses, costs of counsel (including, without limitation, reasonable fees and expenses to the Collateral Agent of legal counsel), and claims (including the costs of investigation) that they may incur insofar as such loss, liability, expense or claim arises out of or is based upon any alleged untrue statement of a material fact contained in any prospectus (or any amendment or supplement thereto) or in any notification or offering circular, or arises out of or is based upon any alleged omission to state a material fact required to be stated therein or necessary to make the statements in any thereof not misleading, except insofar as the same may have been caused by any untrue statement or omission based upon information furnished in writing to such Pledgor or the issuer of such Pledged Securities by the Collateral Agent or any other Secured Party expressly for use therein. Each Pledgor further agrees, upon such written request referred to above, to use its best efforts to qualify, file or register, or cause the issuer of such Pledged Securities to qualify, file or register, any of the Pledged Securities under the Blue Sky or other securities laws of such states as may be requested by the Collateral Agent and keep effective, or cause to be kept effective, all such qualifications, filings or registrations. Each Pledgor will bear all costs and expenses of carrying out its obligations under this Section 12. Each Pledgor acknowledges that there is no adequate remedy at law for failure by it to comply with the provisions of this Section 12 and that such failure would not be adequately compensable in damages, and therefore agrees that its agreements contained in this Section 12 may be specifically enforced. SECTION 13. Security Interest Absolute. All rights of the Collateral Agent hereunder, the grant of a security interest in the Collateral and all obligations of each Pledgor hereunder, shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Loan Document or any other agreement or instrument relating to any of the foregoing, (c) any exchange, release or nonperfection of any other collateral, or any release or amendment or waiver of or consent to or departure from any guaranty, for all or any of the Obligations or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the Obligations or in respect of this Agreement (other than the payment in full of all the Obligations). SECTION 14. Termination or Release. (a) This Agreement and the security interests granted hereby shall terminate when all the Obligations have been paid in full, the Lenders have no further commitment to lend under the Credit Agreement, the L/C Exposure has been reduced to zero and the Issuing Banks have

10 no further obligation to issue Letters of Credit under the Credit Agreement. (b) Upon any sale or other transfer by any Pledgor of any Collateral that is permitted under the Credit Agreement to any person that is not a Pledgor, or, upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section 9.08(b) of the Credit Agreement, the security interest in such Collateral shall be automatically released.

10 no further obligation to issue Letters of Credit under the Credit Agreement. (b) Upon any sale or other transfer by any Pledgor of any Collateral that is permitted under the Credit Agreement to any person that is not a Pledgor, or, upon the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral pursuant to Section 9.08(b) of the Credit Agreement, the security interest in such Collateral shall be automatically released. (c) In connection with any termination or release pursuant to paragraph (a) or (b), the Collateral Agent shall execute and deliver to any Pledgor, at such Pledgor's expense, all documents that such Pledgor shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section 14 shall be without recourse to or warranty by the Collateral Agent. SECTION 15. Notices. All communications and notices hereunder shall be in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to any Subsidiary Pledgor shall be given to it in care of Terex. SECTION 16. Further Assurances. Each Pledgor agrees to do such further acts and things, and to execute and deliver such additional conveyances, assignments, agreements and instruments, as the Collateral Agent may at any time reasonably request in connection with the administration and enforcement of this Agreement or with respect to the Collateral or any part thereof or in order better to assure and confirm unto the Collateral Agent its rights and remedies hereunder. SECTION 17. Binding Effect; Several Agreement; Assignments. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any Pledgor that are contained in this Agreement shall bind and inure to the benefit of its successors and assigns. This Agreement shall become effective as to any Pledgor when a counterpart hereof executed on behalf of such Pledgor shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such Pledgor and the Collateral Agent and their respective successors and assigns, and shall inure to the benefit of such Pledgor, the Collateral Agent and the other Secured Parties, and their respective successors and assigns, except that no Pledgor shall have the right to assign its rights hereunder or any interest herein or in the Collateral (and any such attempted assignment shall be void), except as expressly contemplated by this Agreement or the other Loan Documents. If all of the capital stock of a Pledgor is sold, transferred or otherwise disposed of to a person that is not an Affiliate of Terex pursuant to a transaction permitted by Section 6.05 of the Credit Agreement, such Pledgor shall be released from its obligations under this Agreement without further action. This Agreement shall be construed as a separate agreement with respect to each Pledgor and may be amended, modified, supplemented, waived or released with respect to any Pledgor without the approval of any other Pledgor and without affecting the obligations of any other Pledgor hereunder SECTION 18. Survival of Agreement; Severability. (a) All covenants, agreements, representations and warranties made by each Pledgor herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Collateral Agent and the other Secured Parties and shall survive the making by the Lenders of the Loans and the issuance of the Letters of Credit by the Issuing Banks, regardless of any investigation made by the Secured Parties or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any other fee or amount payable under this Agreement or any other Loan Document is outstanding and unpaid or the L/C Exposure does not equal zero and as long as the Commitments and the L/C Commitments have not been terminated.

11 (b) In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable

11 (b) In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. SECTION 19. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute a single contract (subject to Section 17), and shall become effective as provided in Section 17. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Agreement. SECTION 21. Rules of Interpretation. The rules of interpretation specified in Section 1.02 of the Credit Agreement shall be applicable to this Agreement. Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting this Agreement. SECTION 22. Jurisdiction; Consent to Service of Process. (a) Each Pledgor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that, to the extent permitted by applicable law, all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Collateral Agent or any other Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against any Pledgor or its properties in the courts of any jurisdiction. (b) Each Pledgor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. (c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 15. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law. SECTION 23. Waiver Of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF

12 LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS

12 LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. SECTION 24. Additional Pledgors. Pursuant to Section 5.11 of the Credit Agreement, each Domestic Subsidiary of Terex that was not in existence or not a Domestic Subsidiary on the date of the Credit Agreement is required to enter in this Agreement as a Subsidiary Pledgor upon becoming a Domestic Subsidiary if such Domestic Subsidiary owns or possesses property of a type that would be considered Collateral hereunder. Upon execution and delivery by the Collateral Agent and a Subsidiary of an instrument in the form of Annex 1, such Subsidiary shall become a Subsidiary Pledgor hereunder with the same force and effect as if originally named as a Subsidiary Pledgor herein. The execution and delivery of such instrument shall not require the consent of any Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall remain in full force and effect notwithstanding the addition of any new Subsidiary Pledgor as a party to this Agreement. SECTION 25. Credit Agreement. Notwithstanding any provision of this Agreement to the contrary, each Pledgor may do any act or omit to do any act or cause or permit any condition or circumstance to exist, in each case to the extent expressly permitted by the Credit Agreement. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. TEREX CORPORATION, by Name:

Title: THE SUBSIDIARY PLEDGORS LISTED ON SCHEDULE I HERETO, by Name:

Title: Authorized Officer CREDIT SUISSE FIRST BOSTON, as Collateral Agent, by Name:

Title: Authorized Officer by Name:

Title: Authorized Officer

13 Schedule I to the Pledge Agreement SUBSIDIARY PLEDGORS Name [Address]

14 Schedule II to the Pledge Agreement CAPITAL STOCK Issuer Number of Registered Number and Percentage of Certificate Owner Class of Shares Shares DEBT SECURITIES Issuer Principal Date of Note Maturity Date Amount

1 SUPPLEMENT NO. dated as of , to the PLEDGE AGREEMENT dated as of March 6, 1998, among TEREX CORPORATION, a Delaware corporation ("Terex") and each subsidiary of the Terex listed on Schedule I hereto (each such subsidiary individually a "Subsidiary Pledgor" and collectively, the "Subsidiary Pledgors"; Terex and Subsidiary Pledgors are referred to collectively herein as the "Pledgors") and CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York branch ("CSFB"), as collateral agent (in such capacity, the "Collateral Agent") for the Secured Parties (as defined in the Credit Agreement referred to below) A. Reference is made to (a) the Credit Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Terex, Terex Equipment Limited, a company organized under the laws of Scotland, P.P.M. S.A., a company organized under the laws of the Republic of France, Unit Rig (Australia) Pty. Ltd., a company organized under the laws of New South Wales, and P.P.M. Sp.A., a company organized under the laws of the Republic of Italy, the Lenders (as defined in Article I thereto), the Issuing Banks (as defined in Article I thereto) and CSFB, as administrative agent and as collateral agent for the Lenders, (b) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Subsidiary Guarantee Agreement") among the Subsidiary Pledgors and the Collateral Agent and (c) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Terex Guarantee Agreement") between Terex and the Collateral Agent. B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. C. The Pledgors have entered into the Pledge Agreement in order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit. Pursuant to Section 5.11 of the Credit Agreement, each Domestic Subsidiary that was not in existence or not a Domestic Subsidiary on the date of the Credit Agreement is required to enter into the Pledge Agreement as a Subsidiary Pledgor upon becoming a Domestic Subsidiary if such Domestic Subsidiary owns or possesses property of a type that would be considered Collateral under the Pledge Agreement. Pursuant to Section 5.13 of the Credit Agreement, Foreign Subsidiaries of Terex may be required to enter into the Pledge Agreement as Subsidiary Pledgors. Section 24 of the Pledge Agreement provides that such Subsidiaries may become Subsidiary Pledgors under the Pledge Agreement by execution and delivery of an

13 Schedule I to the Pledge Agreement SUBSIDIARY PLEDGORS Name [Address]

14 Schedule II to the Pledge Agreement CAPITAL STOCK Issuer Number of Registered Number and Percentage of Certificate Owner Class of Shares Shares DEBT SECURITIES Issuer Principal Date of Note Maturity Date Amount

1 SUPPLEMENT NO. dated as of , to the PLEDGE AGREEMENT dated as of March 6, 1998, among TEREX CORPORATION, a Delaware corporation ("Terex") and each subsidiary of the Terex listed on Schedule I hereto (each such subsidiary individually a "Subsidiary Pledgor" and collectively, the "Subsidiary Pledgors"; Terex and Subsidiary Pledgors are referred to collectively herein as the "Pledgors") and CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York branch ("CSFB"), as collateral agent (in such capacity, the "Collateral Agent") for the Secured Parties (as defined in the Credit Agreement referred to below) A. Reference is made to (a) the Credit Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Terex, Terex Equipment Limited, a company organized under the laws of Scotland, P.P.M. S.A., a company organized under the laws of the Republic of France, Unit Rig (Australia) Pty. Ltd., a company organized under the laws of New South Wales, and P.P.M. Sp.A., a company organized under the laws of the Republic of Italy, the Lenders (as defined in Article I thereto), the Issuing Banks (as defined in Article I thereto) and CSFB, as administrative agent and as collateral agent for the Lenders, (b) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Subsidiary Guarantee Agreement") among the Subsidiary Pledgors and the Collateral Agent and (c) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Terex Guarantee Agreement") between Terex and the Collateral Agent. B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. C. The Pledgors have entered into the Pledge Agreement in order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit. Pursuant to Section 5.11 of the Credit Agreement, each Domestic Subsidiary that was not in existence or not a Domestic Subsidiary on the date of the Credit Agreement is required to enter into the Pledge Agreement as a Subsidiary Pledgor upon becoming a Domestic Subsidiary if such Domestic Subsidiary owns or possesses property of a type that would be considered Collateral under the Pledge Agreement. Pursuant to Section 5.13 of the Credit Agreement, Foreign Subsidiaries of Terex may be required to enter into the Pledge Agreement as Subsidiary Pledgors. Section 24 of the Pledge Agreement provides that such Subsidiaries may become Subsidiary Pledgors under the Pledge Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the "New Pledgor") is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Subsidiary Pledgor under

14 Schedule II to the Pledge Agreement CAPITAL STOCK Issuer Number of Registered Number and Percentage of Certificate Owner Class of Shares Shares DEBT SECURITIES Issuer Principal Date of Note Maturity Date Amount

1 SUPPLEMENT NO. dated as of , to the PLEDGE AGREEMENT dated as of March 6, 1998, among TEREX CORPORATION, a Delaware corporation ("Terex") and each subsidiary of the Terex listed on Schedule I hereto (each such subsidiary individually a "Subsidiary Pledgor" and collectively, the "Subsidiary Pledgors"; Terex and Subsidiary Pledgors are referred to collectively herein as the "Pledgors") and CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York branch ("CSFB"), as collateral agent (in such capacity, the "Collateral Agent") for the Secured Parties (as defined in the Credit Agreement referred to below) A. Reference is made to (a) the Credit Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Terex, Terex Equipment Limited, a company organized under the laws of Scotland, P.P.M. S.A., a company organized under the laws of the Republic of France, Unit Rig (Australia) Pty. Ltd., a company organized under the laws of New South Wales, and P.P.M. Sp.A., a company organized under the laws of the Republic of Italy, the Lenders (as defined in Article I thereto), the Issuing Banks (as defined in Article I thereto) and CSFB, as administrative agent and as collateral agent for the Lenders, (b) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Subsidiary Guarantee Agreement") among the Subsidiary Pledgors and the Collateral Agent and (c) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Terex Guarantee Agreement") between Terex and the Collateral Agent. B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. C. The Pledgors have entered into the Pledge Agreement in order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit. Pursuant to Section 5.11 of the Credit Agreement, each Domestic Subsidiary that was not in existence or not a Domestic Subsidiary on the date of the Credit Agreement is required to enter into the Pledge Agreement as a Subsidiary Pledgor upon becoming a Domestic Subsidiary if such Domestic Subsidiary owns or possesses property of a type that would be considered Collateral under the Pledge Agreement. Pursuant to Section 5.13 of the Credit Agreement, Foreign Subsidiaries of Terex may be required to enter into the Pledge Agreement as Subsidiary Pledgors. Section 24 of the Pledge Agreement provides that such Subsidiaries may become Subsidiary Pledgors under the Pledge Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the "New Pledgor") is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Subsidiary Pledgor under the Pledge Agreement in order to induce the Lenders to make additional Loans and the Issuing Bank to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued. Accordingly, the Collateral Agent and the New Pledgor agree as follows: SECTION 1. In accordance with Section 24 of the Pledge Agreement, the New Pledgor by its signature below becomes a Pledgor under the Pledge Agreement with the same force and effect as if originally named therein as a Pledgor and the New Pledgor hereby agrees (a) to all the terms and provisions of the Pledge Agreement applicable to it as a Pledgor thereunder and (b) represents and warrants that the representations and warranties

1 SUPPLEMENT NO. dated as of , to the PLEDGE AGREEMENT dated as of March 6, 1998, among TEREX CORPORATION, a Delaware corporation ("Terex") and each subsidiary of the Terex listed on Schedule I hereto (each such subsidiary individually a "Subsidiary Pledgor" and collectively, the "Subsidiary Pledgors"; Terex and Subsidiary Pledgors are referred to collectively herein as the "Pledgors") and CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York branch ("CSFB"), as collateral agent (in such capacity, the "Collateral Agent") for the Secured Parties (as defined in the Credit Agreement referred to below) A. Reference is made to (a) the Credit Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Terex, Terex Equipment Limited, a company organized under the laws of Scotland, P.P.M. S.A., a company organized under the laws of the Republic of France, Unit Rig (Australia) Pty. Ltd., a company organized under the laws of New South Wales, and P.P.M. Sp.A., a company organized under the laws of the Republic of Italy, the Lenders (as defined in Article I thereto), the Issuing Banks (as defined in Article I thereto) and CSFB, as administrative agent and as collateral agent for the Lenders, (b) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Subsidiary Guarantee Agreement") among the Subsidiary Pledgors and the Collateral Agent and (c) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Terex Guarantee Agreement") between Terex and the Collateral Agent. B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. C. The Pledgors have entered into the Pledge Agreement in order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit. Pursuant to Section 5.11 of the Credit Agreement, each Domestic Subsidiary that was not in existence or not a Domestic Subsidiary on the date of the Credit Agreement is required to enter into the Pledge Agreement as a Subsidiary Pledgor upon becoming a Domestic Subsidiary if such Domestic Subsidiary owns or possesses property of a type that would be considered Collateral under the Pledge Agreement. Pursuant to Section 5.13 of the Credit Agreement, Foreign Subsidiaries of Terex may be required to enter into the Pledge Agreement as Subsidiary Pledgors. Section 24 of the Pledge Agreement provides that such Subsidiaries may become Subsidiary Pledgors under the Pledge Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the "New Pledgor") is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Subsidiary Pledgor under the Pledge Agreement in order to induce the Lenders to make additional Loans and the Issuing Bank to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued. Accordingly, the Collateral Agent and the New Pledgor agree as follows: SECTION 1. In accordance with Section 24 of the Pledge Agreement, the New Pledgor by its signature below becomes a Pledgor under the Pledge Agreement with the same force and effect as if originally named therein as a Pledgor and the New Pledgor hereby agrees (a) to all the terms and provisions of the Pledge Agreement applicable to it as a Pledgor thereunder and (b) represents and warrants that the representations and warranties made by it as a Pledgor there under are true and correct on and as of the date hereof. In furtherance of the foregoing, the New Pledgor, as security for the payment and performance in full of the Obligations (as defined in the Pledge Agreement), does hereby create and grant to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all of the New Pledgor's right, title and interest in and to the Collateral (as defined in the Pledge Agreement) of the New Pledgor. Each reference to a "Subsidiary Pledgor" or a

2 "Pledgor" in the Pledge Agreement shall be deemed to include the New Pledgor. The Pledge Agreement is hereby incorporated herein by reference. SECTION 2. The New Pledgor represents and warrants to the Collateral Agent and the other Secured Parties

2 "Pledgor" in the Pledge Agreement shall be deemed to include the New Pledgor. The Pledge Agreement is hereby incorporated herein by reference. SECTION 2. The New Pledgor represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Pledgor and the Collateral Agent. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement. SECTION 4. The New Pledgor hereby represents and warrants that set forth on Schedule I attached hereto is a true and correct schedule of all its Pledged Securities. SECTION 5. Except as expressly supplemented hereby, the Pledge Agreement shall remain in full force and effect. SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 7. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, neither party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Pledge Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 15 of the Pledge Agreement. All communications and notices hereunder to the New Pledgor shall be given to it in care of Terex. SECTION 9. The Collateral Agent shall be reimbursed, in accordance with Section 9.05(a) of the Credit Agreement, for its reasonable out-of-pocket expenses incurred in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent. IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly executed this Supplement to the Pledge Agreement as of the day and year first above written. [Name of New Pledgor], by Name:

Title: Address: CREDIT SUISSE FIRST BOSTON, as Collateral Agent,

by Name:

Title: by Name:

Title:

3 Schedule I to Supplement No. to the Pledge Agreement Pledged Securities of the New Pledgor CAPITAL STOCK Issuer Number of Registered Number and Percentage of Certificate Owner Class of Shares Shares DEBT SECURITIES Issuer Principal Date of Note Maturity Date Amount

MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT By [] Mortgagor, To CREDIT SUISSE FIRST BOSTON Mortgagee, Relating to Premises in: [] DATED AS OF: March 6, 1998 This instrument prepared by and, after recording, please return to: Cravath, Swaine & Moore Worldwide Plaza

3 Schedule I to Supplement No. to the Pledge Agreement Pledged Securities of the New Pledgor CAPITAL STOCK Issuer Number of Registered Number and Percentage of Certificate Owner Class of Shares Shares DEBT SECURITIES Issuer Principal Date of Note Maturity Date Amount

MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT By [] Mortgagor, To CREDIT SUISSE FIRST BOSTON Mortgagee, Relating to Premises in: [] DATED AS OF: March 6, 1998 This instrument prepared by and, after recording, please return to: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, New York 10019-7475 Attention: David V. Armstrong

1 MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT THIS MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT dated as of March 6, 1998 (this "Mortgage"), by [ ], an [ ] corporation, having an office at [ ] (the "Mortgagor"), to CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York branch ("CSFB"), having an office at

MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT By [] Mortgagor, To CREDIT SUISSE FIRST BOSTON Mortgagee, Relating to Premises in: [] DATED AS OF: March 6, 1998 This instrument prepared by and, after recording, please return to: Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, New York 10019-7475 Attention: David V. Armstrong

1 MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT THIS MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT dated as of March 6, 1998 (this "Mortgage"), by [ ], an [ ] corporation, having an office at [ ] (the "Mortgagor"), to CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York branch ("CSFB"), having an office at 11 Madison Avenue, New York, New York 10010, as Collateral Agent (in such capacity, the "Collateral Agent") for the benefit of the Secured Parties (as defined below) (the "Mortgagee"). WITNESSETH THAT: A. Reference is made to (a) the Credit Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among [Terex Corporation, a Delaware corporation] [the Mortgagor], Terex Equipment Limited, a company organized under the laws of Scotland, P.P.M. S.A., a company organized under the laws of the Republic of France, Unit Rig (Australia) Pty. Ltd., a company organized under the laws of New South Wales, and P.P.M. Sp.A., a company organized under the laws of the Republic of Italy, the Lenders (as defined in Article I thereto), the Issuing Banks (as defined in Article I thereto) and CSFB, as administrative agent and as collateral agent for the Lenders,(b) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Subsidiary Guarantee Agreement") among the subsidiaries of Terex listed on Schedule I thereto and the Collateral Agent and (c) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Terex Guarantee Agreement") between Terex and the Collateral Agent. Each capitalized term used herein but not defined herein shall have the meaning assigned to such term in

1 MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT THIS MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT dated as of March 6, 1998 (this "Mortgage"), by [ ], an [ ] corporation, having an office at [ ] (the "Mortgagor"), to CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York branch ("CSFB"), having an office at 11 Madison Avenue, New York, New York 10010, as Collateral Agent (in such capacity, the "Collateral Agent") for the benefit of the Secured Parties (as defined below) (the "Mortgagee"). WITNESSETH THAT: A. Reference is made to (a) the Credit Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among [Terex Corporation, a Delaware corporation] [the Mortgagor], Terex Equipment Limited, a company organized under the laws of Scotland, P.P.M. S.A., a company organized under the laws of the Republic of France, Unit Rig (Australia) Pty. Ltd., a company organized under the laws of New South Wales, and P.P.M. Sp.A., a company organized under the laws of the Republic of Italy, the Lenders (as defined in Article I thereto), the Issuing Banks (as defined in Article I thereto) and CSFB, as administrative agent and as collateral agent for the Lenders,(b) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Subsidiary Guarantee Agreement") among the subsidiaries of Terex listed on Schedule I thereto and the Collateral Agent and (c) the Guarantee Agreement dated as of March 6, 1998 (as amended, supplemented or otherwise modified from time to time, the "Terex Guarantee Agreement") between Terex and the Collateral Agent. Each capitalized term used herein but not defined herein shall have the meaning assigned to such term in the Credit Agreement. As used herein, the term "Secured Parties" shall mean (i) the Lenders, (ii) the Administrative Agent, (iii) the Collateral Agent, (iv) the Issuing Banks, (v) each counterparty to a Hedging Agreement entered into with any Borrower if such counterparty was a Lender at the time the Hedging Agreement was entered into, (vi) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (vii) the successors and assigns of each of the foregoing. Pursuant to the Credit Agreement, (i) the Lenders have lent or have

2 agreed to lend to the Borrowers (a) on a term basis, Term Loans in an aggregate principal amount not in excess of $375,000,000, and (b) on a revolving basis, Revolving Loans, at any time and from time to time prior to the Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not in excess of $125,000,000 and (ii) the Issuing Banks have issued and have agreed to issue Letters of Credit in an aggregate face amount at any time outstanding not in excess of $35,000,000 in each case on the terms and subject to the conditions of the Credit Agreement. B. In order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit, the Subsidiary Guarantors have agreed to guarantee, pursuant to the Subsidiary Guarantee Agreement, among other things, all the obligations of the Borrowers under the Credit Agreement. Terex has agreed to guarantee, pursuant to the Terex Guarantee Agreement, among other things, all the obligations of the Subsidiary Borrowers under the Credit Agreement. C. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit under the Credit Agreement are conditioned upon, among other things, the execution and delivery by the Mortgagor of this Mortgage in the form hereof, to secure (a) the due and punctual payment by the Borrowers of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by any Borrower under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest

2 agreed to lend to the Borrowers (a) on a term basis, Term Loans in an aggregate principal amount not in excess of $375,000,000, and (b) on a revolving basis, Revolving Loans, at any time and from time to time prior to the Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not in excess of $125,000,000 and (ii) the Issuing Banks have issued and have agreed to issue Letters of Credit in an aggregate face amount at any time outstanding not in excess of $35,000,000 in each case on the terms and subject to the conditions of the Credit Agreement. B. In order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit, the Subsidiary Guarantors have agreed to guarantee, pursuant to the Subsidiary Guarantee Agreement, among other things, all the obligations of the Borrowers under the Credit Agreement. Terex has agreed to guarantee, pursuant to the Terex Guarantee Agreement, among other things, all the obligations of the Subsidiary Borrowers under the Credit Agreement. C. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit under the Credit Agreement are conditioned upon, among other things, the execution and delivery by the Mortgagor of this Mortgage in the form hereof, to secure (a) the due and punctual payment by the Borrowers of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by any Borrower under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrowers to the Secured Parties under the Credit Agreement and the other Loan Documents, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to the Credit Agreement and the other Loan Documents, (c) the due and punctual

3 payment and performance of all the covenants, agreements, obligations and liabilities of each other Loan Party under or pursuant to this Mortgage and the other Loan Documents and (d) the due and punctual payment and performance of all obligations of the Borrowers under each Hedging Agreement entered into with any counterparty that was a Lender at the time such Hedging Agreement was entered into (all the monetary and other obligations referred to in this paragraph C being referred to collectively as the "Obligations")[; provided, however, that this Mortgage shall secure no more than $[ ] of the total amount of the Obligations]1. D. Pursuant to the requirements of the Credit Agreement, the Mortgagor is entering into this Mortgage to create a security interest in the Mortgaged Property (as defined herein) to secure the performance and payment of the Obligations. The Credit Agreement also requires the granting by the Mortgagor and certain other Loan Parties of other mortgages and deeds of trust (the "Other Mortgages") that create security interests in certain Mortgaged Properties other than the Mortgaged Property to secure the performance of the Obligations. Granting Clauses NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure (A) the due and punctual payment and performance of the Obligations[; provided, however, that this Mortgage shall secure no more than $[ ] of the total amount of the Obligations,]2 (B) the due and punctual payment by the Mortgagor of all taxes and insurance premiums relating to the Mortgaged Property and (C) all disbursements made by Mortgagee for the payment of taxes, common area charges or insurance premiums, all fees, expenses or advances in connection with or relating to the Mortgaged Property, and interest on such disbursements and other amounts not timely paid in accordance with the terms of the Credit Agreement, this Mortgage and the other Loan Documents, Mortgagor hereby grants, conveys, mortgages, assigns and pledges to the Mortgagee (for the ratable benefit of the Secured Parties), a security interest in, all the following described property (the "Mortgaged Property") whether now owned or held or 1 To be included in mortgage tax states only 2 To be included in mortgage tax

3 payment and performance of all the covenants, agreements, obligations and liabilities of each other Loan Party under or pursuant to this Mortgage and the other Loan Documents and (d) the due and punctual payment and performance of all obligations of the Borrowers under each Hedging Agreement entered into with any counterparty that was a Lender at the time such Hedging Agreement was entered into (all the monetary and other obligations referred to in this paragraph C being referred to collectively as the "Obligations")[; provided, however, that this Mortgage shall secure no more than $[ ] of the total amount of the Obligations]1. D. Pursuant to the requirements of the Credit Agreement, the Mortgagor is entering into this Mortgage to create a security interest in the Mortgaged Property (as defined herein) to secure the performance and payment of the Obligations. The Credit Agreement also requires the granting by the Mortgagor and certain other Loan Parties of other mortgages and deeds of trust (the "Other Mortgages") that create security interests in certain Mortgaged Properties other than the Mortgaged Property to secure the performance of the Obligations. Granting Clauses NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure (A) the due and punctual payment and performance of the Obligations[; provided, however, that this Mortgage shall secure no more than $[ ] of the total amount of the Obligations,]2 (B) the due and punctual payment by the Mortgagor of all taxes and insurance premiums relating to the Mortgaged Property and (C) all disbursements made by Mortgagee for the payment of taxes, common area charges or insurance premiums, all fees, expenses or advances in connection with or relating to the Mortgaged Property, and interest on such disbursements and other amounts not timely paid in accordance with the terms of the Credit Agreement, this Mortgage and the other Loan Documents, Mortgagor hereby grants, conveys, mortgages, assigns and pledges to the Mortgagee (for the ratable benefit of the Secured Parties), a security interest in, all the following described property (the "Mortgaged Property") whether now owned or held or 1 To be included in mortgage tax states only 2 To be included in mortgage tax states only 4 hereafter acquired: (1) all Mortgagor's right, title and interest in all the land more particularly described on Exhibit A hereto (the "Owned Land"); (2) all Mortgagor's right, title and interest in and to each leasehold estate created pursuant to the lease or leases more particularly described in Exhibit B hereto (such lease or leases, as amended, supplemented, or otherwise modified from time to time, individually, a "Subject Lease" and, collectively, the "Subject Leases") and affecting the land more particularly described in Exhibit B hereto (the "Leased Land", together with the Owned Land, the "Land"), including, without limitation, all rights of the lessee under each Subject Lease; (3) all Mortgagor's right, title and interest in all rights appurtenant to the Land, including the easements over certain other adjoining land granted by any easement agreements, covenant or restrictive agreements and all air rights, mineral rights, water rights, oil and gas rights and development rights, if any, relating thereto, and also together with all of the other easements, rights, privileges, interests, hereditaments and appurtenances thereunto belonging or in anyway appertaining and all of the estate, right, title, interest, claim or demand whatsoever of Mortgagor therein and in the streets and ways adjacent thereto, either in law or in equity, in possession or expectancy, now or hereafter acquired (the Land and the property described in this subparagraph (3), the "Premises"); (4) all Mortgagor's right, title and interest in all buildings, improvements, structures, paving, parking areas, walkways and landscaping now or hereafter erected or located upon the Land, and all fixtures of every kind and type affixed to the Premises or attached to or forming part of any structures, buildings or improvements and replacements thereof now or hereafter erected or located upon the Land (the "Improvements"); (5) all Mortgagor's right, title and interest in all apparatus, movable appliances, building materials, equipment, fittings, furnishings, furniture, machinery and other articles of tangible

4 hereafter acquired: (1) all Mortgagor's right, title and interest in all the land more particularly described on Exhibit A hereto (the "Owned Land"); (2) all Mortgagor's right, title and interest in and to each leasehold estate created pursuant to the lease or leases more particularly described in Exhibit B hereto (such lease or leases, as amended, supplemented, or otherwise modified from time to time, individually, a "Subject Lease" and, collectively, the "Subject Leases") and affecting the land more particularly described in Exhibit B hereto (the "Leased Land", together with the Owned Land, the "Land"), including, without limitation, all rights of the lessee under each Subject Lease; (3) all Mortgagor's right, title and interest in all rights appurtenant to the Land, including the easements over certain other adjoining land granted by any easement agreements, covenant or restrictive agreements and all air rights, mineral rights, water rights, oil and gas rights and development rights, if any, relating thereto, and also together with all of the other easements, rights, privileges, interests, hereditaments and appurtenances thereunto belonging or in anyway appertaining and all of the estate, right, title, interest, claim or demand whatsoever of Mortgagor therein and in the streets and ways adjacent thereto, either in law or in equity, in possession or expectancy, now or hereafter acquired (the Land and the property described in this subparagraph (3), the "Premises"); (4) all Mortgagor's right, title and interest in all buildings, improvements, structures, paving, parking areas, walkways and landscaping now or hereafter erected or located upon the Land, and all fixtures of every kind and type affixed to the Premises or attached to or forming part of any structures, buildings or improvements and replacements thereof now or hereafter erected or located upon the Land (the "Improvements"); (5) all Mortgagor's right, title and interest in all apparatus, movable appliances, building materials, equipment, fittings, furnishings, furniture, machinery and other articles of tangible

5 property of every kind and nature, and replacements thereof, now or at any time hereafter placed upon or used in any way in connection with the use, enjoyment, occupancy or operation of the Improvements or the Premises, including all of Mortgagor's books and records relating thereto and including all pumps, tanks, goods, machinery, tools, equipment, lifts (including fire sprinklers and alarm systems, fire prevention or control systems, cleaning rigs, air conditioning, heating, boilers, refrigerating, electronic monitoring, water, loading, unloading, lighting, power, sanitation, waste removal, entertainment, communications, computers, recreational, window or structural, maintenance, truck or car repair and all other equipment of every kind), restaurant, bar and all other indoor or outdoor furniture (including tables, chairs, booths, serving stands, planters, desks, sofas, racks, shelves, lockers and cabinets), bar equipment, glasses, cutlery, uniforms, linens, memorabilia and other decorative items, furnishings, appliances, supplies, inventory, rugs, carpets and other floor coverings, draperies, drapery rods and brackets, awnings, venetian blinds, partitions, chandeliers and other lighting fixtures, freezers, refrigerators, walkin coolers, signs (indoor and outdoor), computer sys tems, cash registers and inventory control systems, and all other apparatus, equipment, furniture, furnishings, and articles used in connection with the use or operation of the Improvements or the Premises, it being understood that the enumeration of any specific articles of property shall in no way result in or be held to exclude any items of property not specifically mentioned (the property referred to in this subparagraph (3), the "Personal Property"); (6) all Mortgagor's right, title and interest in all general intangibles relating to design, development, operation, management and use of the Premises or the Improvements, all certificates of occupancy, zoning variances, building, use or other permits, approvals, authorizations and consents obtained from and all materials prepared for filing or filed with any governmental agency in connection with the development, use, operation or management of the Premises and Improvements, all construction, service, engineering, consulting, leasing, architectural and other similar contracts concerning the design, construction, management, operation, occupancy and/or use of the Premises and Improvements, all architectural drawings, plans,

5 property of every kind and nature, and replacements thereof, now or at any time hereafter placed upon or used in any way in connection with the use, enjoyment, occupancy or operation of the Improvements or the Premises, including all of Mortgagor's books and records relating thereto and including all pumps, tanks, goods, machinery, tools, equipment, lifts (including fire sprinklers and alarm systems, fire prevention or control systems, cleaning rigs, air conditioning, heating, boilers, refrigerating, electronic monitoring, water, loading, unloading, lighting, power, sanitation, waste removal, entertainment, communications, computers, recreational, window or structural, maintenance, truck or car repair and all other equipment of every kind), restaurant, bar and all other indoor or outdoor furniture (including tables, chairs, booths, serving stands, planters, desks, sofas, racks, shelves, lockers and cabinets), bar equipment, glasses, cutlery, uniforms, linens, memorabilia and other decorative items, furnishings, appliances, supplies, inventory, rugs, carpets and other floor coverings, draperies, drapery rods and brackets, awnings, venetian blinds, partitions, chandeliers and other lighting fixtures, freezers, refrigerators, walkin coolers, signs (indoor and outdoor), computer sys tems, cash registers and inventory control systems, and all other apparatus, equipment, furniture, furnishings, and articles used in connection with the use or operation of the Improvements or the Premises, it being understood that the enumeration of any specific articles of property shall in no way result in or be held to exclude any items of property not specifically mentioned (the property referred to in this subparagraph (3), the "Personal Property"); (6) all Mortgagor's right, title and interest in all general intangibles relating to design, development, operation, management and use of the Premises or the Improvements, all certificates of occupancy, zoning variances, building, use or other permits, approvals, authorizations and consents obtained from and all materials prepared for filing or filed with any governmental agency in connection with the development, use, operation or management of the Premises and Improvements, all construction, service, engineering, consulting, leasing, architectural and other similar contracts concerning the design, construction, management, operation, occupancy and/or use of the Premises and Improvements, all architectural drawings, plans,

6 specifications, soil tests, feasibility studies, appraisals, environmental studies, engineering reports and similar materials relating to any portion of or all of the Premises and Improvements, and all payment and performance bonds or warranties or guarantees relating to the Premises or the Improvements, all to the extent assignable (the "Permits, Plans and Warranties"); (7) Mortgagor's interest in and rights under any and all now or hereafter existing leases or licenses (under which Mortgagor is landlord or licensor) and subleases (under which Mortgagor is sublandlord), concession, management, mineral or other agreements of a similar kind that permit the use or occupancy of the Premises or the Improvements for any purpose in return for any payment, or the extraction or taking of any gas, oil, water or other minerals from the Premises in return for payment of any fee, rent or royalty (collectively, "Leases"), and all agreements or contracts for the sale or other disposition of all or any part of the Premises or the Improvements, now or hereafter entered into by Mortgagor, together with all charges, fees, income, issues, profits, receipts, rents, revenues or royalties payable thereunder ("Rents"); (8) all Mortgagor's right, title and interest in and to all real estate tax refunds and all proceeds of the conversion, voluntary or involuntary, of any of the Mortgaged Property into cash or liquidated claims ("Proceeds"), including Proceeds of insurance maintained by the Mortgagor and condemnation awards, any awards that may become due by reason of the taking by eminent domain or any transfer in lieu thereof of the whole or any part of the Premises or Improvements or any rights appurtenant thereto, and any awards for change of grade of streets, together with any and all moneys now or hereafter on deposit for the payment of real estate taxes, assessments or common area charges levied against the Mortgaged Property, unearned premiums on policies of fire and other insurance maintained by the Mortgagor covering any interest in the Mortgaged Property or required by the Credit Agreement; and (9) all Mortgagor's right, title and interest in and to all extensions, improvements, betterments, renewals, substitutes and replacements of and all additions and appurtenances to, the Land, the Premises, the Improvements, the Personal Property, the Permits, Plans and Warranties and the Leases, hereinafter acquired by or released to

6 specifications, soil tests, feasibility studies, appraisals, environmental studies, engineering reports and similar materials relating to any portion of or all of the Premises and Improvements, and all payment and performance bonds or warranties or guarantees relating to the Premises or the Improvements, all to the extent assignable (the "Permits, Plans and Warranties"); (7) Mortgagor's interest in and rights under any and all now or hereafter existing leases or licenses (under which Mortgagor is landlord or licensor) and subleases (under which Mortgagor is sublandlord), concession, management, mineral or other agreements of a similar kind that permit the use or occupancy of the Premises or the Improvements for any purpose in return for any payment, or the extraction or taking of any gas, oil, water or other minerals from the Premises in return for payment of any fee, rent or royalty (collectively, "Leases"), and all agreements or contracts for the sale or other disposition of all or any part of the Premises or the Improvements, now or hereafter entered into by Mortgagor, together with all charges, fees, income, issues, profits, receipts, rents, revenues or royalties payable thereunder ("Rents"); (8) all Mortgagor's right, title and interest in and to all real estate tax refunds and all proceeds of the conversion, voluntary or involuntary, of any of the Mortgaged Property into cash or liquidated claims ("Proceeds"), including Proceeds of insurance maintained by the Mortgagor and condemnation awards, any awards that may become due by reason of the taking by eminent domain or any transfer in lieu thereof of the whole or any part of the Premises or Improvements or any rights appurtenant thereto, and any awards for change of grade of streets, together with any and all moneys now or hereafter on deposit for the payment of real estate taxes, assessments or common area charges levied against the Mortgaged Property, unearned premiums on policies of fire and other insurance maintained by the Mortgagor covering any interest in the Mortgaged Property or required by the Credit Agreement; and (9) all Mortgagor's right, title and interest in and to all extensions, improvements, betterments, renewals, substitutes and replacements of and all additions and appurtenances to, the Land, the Premises, the Improvements, the Personal Property, the Permits, Plans and Warranties and the Leases, hereinafter acquired by or released to

7 the Mortgagor or constructed, assembled or placed by the Mortgagor on the Land, the Premises or the Improvements, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, deed of trust, conveyance, assignment or other act by the Mortgagor, all of which shall become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by the Mortgagor and specifically described herein. TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its successors and assigns, for the ratable benefit of the Secured Parties, forever, subject only to the Permitted Encumbrances (as hereinafter defined) and to satisfaction and cancelation as provided in Section 3.04. ARTICLE I Representations, Warranties and Covenants of Mortgagor Mortgagor agrees, covenants, represents and/or warrants as follows: SECTION 1.01. Title. (a) Mortgagor has good and marketable title to an indefeasible fee estate in the Owned Land and Improvements located thereon subject to no lien, charge or encumbrance other than Liens permitted by Section 6.02 of the Credit Agreement (collectively, the "Permitted Encumbrances"). Mortgagor is lawfully seized and possessed of and has a valid subsisting leasehold estate in the Leased Land and Improvements located thereon subject to no lien, charge or encumbrance other than the Permitted Encumbrances. This Mortgage is and will remain a valid and enforceable first and prior Lien on the Premises, Improvements and Rents subject only to the Permitted Encumbrances. The Permitted Encumbrances do not materially interfere with the current use, enjoyment, occupancy or operation of the Mortgaged Property.

7 the Mortgagor or constructed, assembled or placed by the Mortgagor on the Land, the Premises or the Improvements, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, deed of trust, conveyance, assignment or other act by the Mortgagor, all of which shall become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by the Mortgagor and specifically described herein. TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its successors and assigns, for the ratable benefit of the Secured Parties, forever, subject only to the Permitted Encumbrances (as hereinafter defined) and to satisfaction and cancelation as provided in Section 3.04. ARTICLE I Representations, Warranties and Covenants of Mortgagor Mortgagor agrees, covenants, represents and/or warrants as follows: SECTION 1.01. Title. (a) Mortgagor has good and marketable title to an indefeasible fee estate in the Owned Land and Improvements located thereon subject to no lien, charge or encumbrance other than Liens permitted by Section 6.02 of the Credit Agreement (collectively, the "Permitted Encumbrances"). Mortgagor is lawfully seized and possessed of and has a valid subsisting leasehold estate in the Leased Land and Improvements located thereon subject to no lien, charge or encumbrance other than the Permitted Encumbrances. This Mortgage is and will remain a valid and enforceable first and prior Lien on the Premises, Improvements and Rents subject only to the Permitted Encumbrances. The Permitted Encumbrances do not materially interfere with the current use, enjoyment, occupancy or operation of the Mortgaged Property. (b) The Mortgaged Property is served by water, gas, electric, septic, storm and sanitary sewage facilities, as may be applicable, and such utilities serving the Premises and the Improvements are located in and in the future will be located fully within the Premises or, in the case of such utilities, within

8 any right of way abutting the Premises. There is vehicular access to the Premises and the Improvements which is provided by either a public right-of-way abutting and contiguous with the Land or valid recorded unsubordinated easements. (c) Except as set forth on Schedule A, there are no leases (under which Mortgagor is the lessor) affecting a material portion of the Mortgaged Property. Each Lease is in full force and effect, and, except as set forth on Schedule A hereto, Mortgagor has not given nor received any uncured or unwaived notice of default with respect to any material obligation under any Lease. Each Lease is subject to no lien, charge or encumbrance other than this Mortgage and the Permitted Encumbrances. There is no pending or contemplated condemnation proceeding affecting the Mortgaged Property or any sale or disposition thereof in lieu of condemnation. Mortgagor is not obligated under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein. (d) All easement agreements, covenant or restrictive agreements, supplemental agreements and any other instruments hereinabove referred to and mortgaged hereby (collectively, the "Agreements") are and will remain valid, subsisting and in full force and effect, unless the failure to remain valid, subsisting and in full force and effect, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the use and operation of the Mortgaged Property by the Mortgagor for its intended use ("Material Adverse Effect"), and Mortgagor is not in default thereunder and has fully performed the material terms thereof required to be performed through the date hereof, and has no knowledge of any default thereunder or failure to fully perform the terms thereof by any other party, nor of the occurrence of any event that after notice or the passage of time or both will constitute a default thereunder except such default as could not reasonably be expected to have a Material Adverse Effect. The Mortgaged Property complies with all laws, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements pertaining to the Mortgaged Property

8 any right of way abutting the Premises. There is vehicular access to the Premises and the Improvements which is provided by either a public right-of-way abutting and contiguous with the Land or valid recorded unsubordinated easements. (c) Except as set forth on Schedule A, there are no leases (under which Mortgagor is the lessor) affecting a material portion of the Mortgaged Property. Each Lease is in full force and effect, and, except as set forth on Schedule A hereto, Mortgagor has not given nor received any uncured or unwaived notice of default with respect to any material obligation under any Lease. Each Lease is subject to no lien, charge or encumbrance other than this Mortgage and the Permitted Encumbrances. There is no pending or contemplated condemnation proceeding affecting the Mortgaged Property or any sale or disposition thereof in lieu of condemnation. Mortgagor is not obligated under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein. (d) All easement agreements, covenant or restrictive agreements, supplemental agreements and any other instruments hereinabove referred to and mortgaged hereby (collectively, the "Agreements") are and will remain valid, subsisting and in full force and effect, unless the failure to remain valid, subsisting and in full force and effect, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the use and operation of the Mortgaged Property by the Mortgagor for its intended use ("Material Adverse Effect"), and Mortgagor is not in default thereunder and has fully performed the material terms thereof required to be performed through the date hereof, and has no knowledge of any default thereunder or failure to fully perform the terms thereof by any other party, nor of the occurrence of any event that after notice or the passage of time or both will constitute a default thereunder except such default as could not reasonably be expected to have a Material Adverse Effect. The Mortgaged Property complies with all laws, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements pertaining to the Mortgaged Property (including any applicable environmental, zoning, building, fire, occupational health and safety, use and land use laws, ordinances, rules or regulations, approvals, building permits and certificates of occupancy (collectively, the "Legal Requirements")), except for any Legal Requirements, the failure to comply with which shall not materially and adversely affect the use of the Mortgaged

9 Property for the business conducted on, the Mortgaged Property. (e) To the extent required, certificates of occupancy and permits are in effect for the Mortgaged Property as currently constructed. (f) Mortgagor has good and lawful right and full power and authority to mortgage the Mortgaged Property and will forever warrant and defend its title to the Mortgaged Property, the rights of Mortgagee therein under this Mortgage and the validity and priority of the lien of this Mortgage thereon against the claims of all persons and parties except those having rights under Permitted Encumbrances to the extent of those rights. (g) This Mortgage, when duly recorded in the appropriate public records and when financing statements are duly filed in the appropriate public records, will create a valid, perfected and enforceable lien upon and security interest in all the Mortgaged Property and there are no defenses or offsets to this Mortgage or to any of the Obligations secured hereby. SECTION 1.02. Credit Agreement; Certain Amounts. (a) This Mortgage is given pursuant to the Credit Agreement. Each and every term and provision of the Credit Agreement (excluding the governing law provisions thereof), including the rights, remedies, obligations, covenants, conditions, agreements, indemnities, representations and warranties of the parties thereto, shall be considered as if a part of this Mortgage. (b) To the extent the representations and covenants contained in this Mortgage are more stringent or expansive than comparable representations and covenants contained in the Credit Agreement, the representations and covenants contained herein shall be construed to supplement the representations and covenants in the Credit Agreement without creating a conflict or inconsistency therewith, and Mortgagor shall be bound to the more stringent or expansive representations and covenants hereunder, provided, however, that any item, claim, action,

9 Property for the business conducted on, the Mortgaged Property. (e) To the extent required, certificates of occupancy and permits are in effect for the Mortgaged Property as currently constructed. (f) Mortgagor has good and lawful right and full power and authority to mortgage the Mortgaged Property and will forever warrant and defend its title to the Mortgaged Property, the rights of Mortgagee therein under this Mortgage and the validity and priority of the lien of this Mortgage thereon against the claims of all persons and parties except those having rights under Permitted Encumbrances to the extent of those rights. (g) This Mortgage, when duly recorded in the appropriate public records and when financing statements are duly filed in the appropriate public records, will create a valid, perfected and enforceable lien upon and security interest in all the Mortgaged Property and there are no defenses or offsets to this Mortgage or to any of the Obligations secured hereby. SECTION 1.02. Credit Agreement; Certain Amounts. (a) This Mortgage is given pursuant to the Credit Agreement. Each and every term and provision of the Credit Agreement (excluding the governing law provisions thereof), including the rights, remedies, obligations, covenants, conditions, agreements, indemnities, representations and warranties of the parties thereto, shall be considered as if a part of this Mortgage. (b) To the extent the representations and covenants contained in this Mortgage are more stringent or expansive than comparable representations and covenants contained in the Credit Agreement, the representations and covenants contained herein shall be construed to supplement the representations and covenants in the Credit Agreement without creating a conflict or inconsistency therewith, and Mortgagor shall be bound to the more stringent or expansive representations and covenants hereunder, provided, however, that any item, claim, action, omission or other matter expressly permitted by the Credit Agreement with respect to the Mortgaged Property shall be permitted hereunder. (c) If any remedy or right of Mortgagee pursuant hereto is acted upon by Mortgagee or if any actions or proceedings (including any bankruptcy,

10 insolvency or reorganization proceedings) are commenced in which Mortgagee is made a party and is obliged to defend or uphold or enforce this Mortgage or the rights of Mortgagee hereunder or the terms of any Lease, or if a condemnation proceeding is instituted affecting the Mortgaged Property, Mortgagor will pay all reasonable sums, including reasonable attorneys' fees and disbursements, incurred by Mortgagee related to the exercise of any remedy or right of Mortgagee pursuant hereto or for the expense of any such action or proceeding together with all statutory or other costs, disbursements and allowances, interest thereon from the date of demand for payment thereof at the rate specified in Section 2.07(d) of the Credit Agreement (the "Default Interest Rate"), and such sums and the interest thereon shall, to the extent permissible by law, be a lien on the Mortgaged Property prior to any right, title to, interest in or claim upon the Mortgaged Property attaching or accruing subsequent to the recording of this Mortgage and shall be secured by this Mortgage to the extent permitted by law. Any payment of amounts due under this Mortgage not made on or before the due date for such payments shall accrue interest daily without notice from the due date until paid at the Default Interest Rate, and such interest at the Default Interest Rate shall be immediately due upon demand by Mortgagee. SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except as may be expressly permitted by the Credit Agreement, Mortgagor will pay and discharge from time to time prior to the time when the same shall become delinquent, and before any interest or penalty accrues thereon or attaches thereto, all taxes of every kind and nature, all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents, all vault charges, and all other public charges, and all service charges, common area charges, private maintenance charges, utility charges and all other private charges, whether of a like or different nature, imposed upon or assessed against the Mortgaged Property or any part thereof or upon the Rents from the Mortgaged Property or arising in respect of the occupancy, use or possession thereof.

10 insolvency or reorganization proceedings) are commenced in which Mortgagee is made a party and is obliged to defend or uphold or enforce this Mortgage or the rights of Mortgagee hereunder or the terms of any Lease, or if a condemnation proceeding is instituted affecting the Mortgaged Property, Mortgagor will pay all reasonable sums, including reasonable attorneys' fees and disbursements, incurred by Mortgagee related to the exercise of any remedy or right of Mortgagee pursuant hereto or for the expense of any such action or proceeding together with all statutory or other costs, disbursements and allowances, interest thereon from the date of demand for payment thereof at the rate specified in Section 2.07(d) of the Credit Agreement (the "Default Interest Rate"), and such sums and the interest thereon shall, to the extent permissible by law, be a lien on the Mortgaged Property prior to any right, title to, interest in or claim upon the Mortgaged Property attaching or accruing subsequent to the recording of this Mortgage and shall be secured by this Mortgage to the extent permitted by law. Any payment of amounts due under this Mortgage not made on or before the due date for such payments shall accrue interest daily without notice from the due date until paid at the Default Interest Rate, and such interest at the Default Interest Rate shall be immediately due upon demand by Mortgagee. SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except as may be expressly permitted by the Credit Agreement, Mortgagor will pay and discharge from time to time prior to the time when the same shall become delinquent, and before any interest or penalty accrues thereon or attaches thereto, all taxes of every kind and nature, all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents, all vault charges, and all other public charges, and all service charges, common area charges, private maintenance charges, utility charges and all other private charges, whether of a like or different nature, imposed upon or assessed against the Mortgaged Property or any part thereof or upon the Rents from the Mortgaged Property or arising in respect of the occupancy, use or possession thereof. (b) In the event of the passage of any state, Federal, municipal or other governmental law, order, rule or regulation subsequent to the date hereof (i) deducting from the value of real property for the purpose of taxation any lien or encumbrance thereon or in any manner changing or modifying the laws now in force governing the taxation of this Mortgage or debts secured by mortgages

11 or deeds of trust (other than laws governing income, franchise and similar taxes generally) or the manner of collecting taxes thereon and (ii) imposing a tax to be paid by Mortgagee, either directly or indirectly, on this Mortgage or any of the Loan Documents or to require an amount of taxes to be withheld or deducted therefrom, Mortgagor will promptly after obtaining notice or having knowledge of such event notify Mortgagee of such event. In such event Mortgagor shall (i) agree to enter into such further instruments as may be reasonably necessary or desirable to obligate Mortgagor to make any applicable additional payments and (ii) Mortgagor shall make such additional payments. (c) At any time that an Event of Default shall have occurred hereunder and be continuing, or if required by any law applicable to Mortgagor or to Mortgagee, Mortgagee shall have the right to direct Mortgagor to make an initial deposit on account of real estate taxes and assessments, insurance premiums and common area charges, levied against or payable in respect of the Mortgaged Property in advance and thereafter semi-annually, each such deposit to be equal to one-half of any such annual charges estimated in a reasonable manner by Mortgagee in order to accumulate with Mortgagee sufficient funds to pay such taxes, assessments, insurance premiums and charges. SECTION 1.04. Payment of Closing Costs. Mortgagor shall pay all reasonable costs in connection with, relating to or arising out of the preparation, execution and recording of this Mortgage, including title company premiums and charges, inspection costs, survey costs, recording fees and taxes, reasonable attorneys' fees and disbursements and all other similar reasonable expenses of every kind. SECTION 1.05. Alterations and Waste; Plans. (a) Mortgagor will not alter, demolish, remove, renovate, expand, add to or erect any additions to the existing Improvements or other structures or any part thereof on the Premises which will materially interfere with the operation conducted thereon on the date hereof, without the written consent of Mortgagee (which consent will not be unreasonably withheld). Mortgagor will not commit any

11 or deeds of trust (other than laws governing income, franchise and similar taxes generally) or the manner of collecting taxes thereon and (ii) imposing a tax to be paid by Mortgagee, either directly or indirectly, on this Mortgage or any of the Loan Documents or to require an amount of taxes to be withheld or deducted therefrom, Mortgagor will promptly after obtaining notice or having knowledge of such event notify Mortgagee of such event. In such event Mortgagor shall (i) agree to enter into such further instruments as may be reasonably necessary or desirable to obligate Mortgagor to make any applicable additional payments and (ii) Mortgagor shall make such additional payments. (c) At any time that an Event of Default shall have occurred hereunder and be continuing, or if required by any law applicable to Mortgagor or to Mortgagee, Mortgagee shall have the right to direct Mortgagor to make an initial deposit on account of real estate taxes and assessments, insurance premiums and common area charges, levied against or payable in respect of the Mortgaged Property in advance and thereafter semi-annually, each such deposit to be equal to one-half of any such annual charges estimated in a reasonable manner by Mortgagee in order to accumulate with Mortgagee sufficient funds to pay such taxes, assessments, insurance premiums and charges. SECTION 1.04. Payment of Closing Costs. Mortgagor shall pay all reasonable costs in connection with, relating to or arising out of the preparation, execution and recording of this Mortgage, including title company premiums and charges, inspection costs, survey costs, recording fees and taxes, reasonable attorneys' fees and disbursements and all other similar reasonable expenses of every kind. SECTION 1.05. Alterations and Waste; Plans. (a) Mortgagor will not alter, demolish, remove, renovate, expand, add to or erect any additions to the existing Improvements or other structures or any part thereof on the Premises which will materially interfere with the operation conducted thereon on the date hereof, without the written consent of Mortgagee (which consent will not be unreasonably withheld). Mortgagor will not commit any waste on the Mortgaged Property or make any alteration to, or change in the use of, the Mortgaged Property that will diminish the utility thereof for the operation of the business except as may be permitted under the Credit Agreement or materially increase any ordinary fire or other hazard arising out of construction or operation, but in no event shall any such alteration or change by contrary to

12 the terms of any insurance policy required to be kept pursuant to Section 1.06. Mortgagor will maintain and operate the Improvements and Personal Property in commercially reasonable working order and condition. (b) To the extent the same exist on the date hereof or are obtained in connection with future permitted alterations, Mortgagor shall maintain a complete set of final plans, specifications, blueprints and drawings for the Mortgaged Property either at the Mortgaged Property or in a particular office at the headquarters of Mortgagor to which Mortgagee shall have access upon reasonable advance notice and at reasonable times. SECTION 1.06. Insurance. Mortgagor will keep, cause to be kept or ensure that Terex keeps the Improvements and Personal Property insured against such risks, and in the manner, required by Section 5.02 of the Credit Agreement. SECTION 1.07. Casualty and Condemnation. (a) The Mortgagor will furnish to the Mortgagee prompt written notice of any casualty or other insured damage to the Mortgaged Property or any portion thereof ("Casualty") or the taking of the Mortgaged Property or any part thereof or interest therein under power of eminent domain or by condemnation or similar proceeding ("Condemnation") or the commencement of any action or proceeding for Condemnation. (b) If any Casualty results in cash proceeds (whether in the form of insurance proceeds or otherwise) ("Casualty Proceeds") or any Condemnation results in cash proceeds ("Condemnation Proceeds", and together with Casualty Proceeds, "Proceeds"), the Mortgagee is authorized to collect such Proceeds and, if received by the Mortgagor, such Proceeds shall be paid over to the Mortgagee; provided that (i) if the aggregate Proceeds in respect of such event (other than proceeds of business interruption insurance) are less than $1,000,000, such Proceeds shall be paid over to the Mortgagor unless a Default or Event of Default has occurred and is continuing,

12 the terms of any insurance policy required to be kept pursuant to Section 1.06. Mortgagor will maintain and operate the Improvements and Personal Property in commercially reasonable working order and condition. (b) To the extent the same exist on the date hereof or are obtained in connection with future permitted alterations, Mortgagor shall maintain a complete set of final plans, specifications, blueprints and drawings for the Mortgaged Property either at the Mortgaged Property or in a particular office at the headquarters of Mortgagor to which Mortgagee shall have access upon reasonable advance notice and at reasonable times. SECTION 1.06. Insurance. Mortgagor will keep, cause to be kept or ensure that Terex keeps the Improvements and Personal Property insured against such risks, and in the manner, required by Section 5.02 of the Credit Agreement. SECTION 1.07. Casualty and Condemnation. (a) The Mortgagor will furnish to the Mortgagee prompt written notice of any casualty or other insured damage to the Mortgaged Property or any portion thereof ("Casualty") or the taking of the Mortgaged Property or any part thereof or interest therein under power of eminent domain or by condemnation or similar proceeding ("Condemnation") or the commencement of any action or proceeding for Condemnation. (b) If any Casualty results in cash proceeds (whether in the form of insurance proceeds or otherwise) ("Casualty Proceeds") or any Condemnation results in cash proceeds ("Condemnation Proceeds", and together with Casualty Proceeds, "Proceeds"), the Mortgagee is authorized to collect such Proceeds and, if received by the Mortgagor, such Proceeds shall be paid over to the Mortgagee; provided that (i) if the aggregate Proceeds in respect of such event (other than proceeds of business interruption insurance) are less than $1,000,000, such Proceeds shall be paid over to the Mortgagor unless a Default or Event of Default has occurred and is continuing, and (ii) all proceeds of business income insurance shall be paid over to the Mortgagor unless a Default or Event of Default has occurred and is continuing. All such Proceeds retained by or paid over to the Mortgagee shall be held by the Mortgagee and released or applied in accordance with this Section 1.07.

13 (c) Proceeds relating to the Mortgaged Property held by the Mortgagee pursuant to subsection (b) of this Section 1.07 shall be applied by the Mortgagee to the payment of the cost of restoring or replacing the Mortgaged Property so damaged, destroyed or taken or of the portion or portions of the Mortgaged Property not so taken (the "Work") and shall be paid out from time to time to the Mortgagor as and to the extent the Work (or the location and acquisition of any replacement of the Mortgaged Property) progresses for the payment thereof, but subject to each of the following conditions: (i) the Mortgagor must promptly commence the restoration process or the location, acquisition and replacement process in connection with the Mortgaged Property; (ii) the improvements shall (A) be in compliance with all requirements of applicable Governmental Authorities such that all representations and warranties of the Mortgagor relating to the compliance of such Mortgaged Property with applicable laws, rules or regulations in the Credit Agreement or this Mortgage will be correct in all respects and (B) be at least equal in value and general utility to the improvements that were on such Mortgaged Property (or that were on the Mortgaged Property that has been replaced, if applicable) prior to the casualty or condemnation, and in the case of a condemnation, subject to the effect of such condemnation; (iii) except as provided in (iv) below, each request for payment shall be made on three business days' prior notice to the Mortgagee and shall be accompanied by a certificate of the Mortgagor, stating (A) that the sum requested is justly required to reimburse the Mortgagor for payments by the Mortgagor to, or is justly due to, the contractor, subcontractors, materialmen, laborers, engineers, architects or other persons rendering services or materials for the Work (giving a brief description of such services and materials), (B) no Event of Default has occurred and is continuing and (C) that, when added to all sums previously paid out by the Mortgagee, the sum requested does not exceed the value of the Work done to the date of such certificate; (iv) each request for payment in connection with the acquisition of a replacement Mortgaged Property shall be

13 (c) Proceeds relating to the Mortgaged Property held by the Mortgagee pursuant to subsection (b) of this Section 1.07 shall be applied by the Mortgagee to the payment of the cost of restoring or replacing the Mortgaged Property so damaged, destroyed or taken or of the portion or portions of the Mortgaged Property not so taken (the "Work") and shall be paid out from time to time to the Mortgagor as and to the extent the Work (or the location and acquisition of any replacement of the Mortgaged Property) progresses for the payment thereof, but subject to each of the following conditions: (i) the Mortgagor must promptly commence the restoration process or the location, acquisition and replacement process in connection with the Mortgaged Property; (ii) the improvements shall (A) be in compliance with all requirements of applicable Governmental Authorities such that all representations and warranties of the Mortgagor relating to the compliance of such Mortgaged Property with applicable laws, rules or regulations in the Credit Agreement or this Mortgage will be correct in all respects and (B) be at least equal in value and general utility to the improvements that were on such Mortgaged Property (or that were on the Mortgaged Property that has been replaced, if applicable) prior to the casualty or condemnation, and in the case of a condemnation, subject to the effect of such condemnation; (iii) except as provided in (iv) below, each request for payment shall be made on three business days' prior notice to the Mortgagee and shall be accompanied by a certificate of the Mortgagor, stating (A) that the sum requested is justly required to reimburse the Mortgagor for payments by the Mortgagor to, or is justly due to, the contractor, subcontractors, materialmen, laborers, engineers, architects or other persons rendering services or materials for the Work (giving a brief description of such services and materials), (B) no Event of Default has occurred and is continuing and (C) that, when added to all sums previously paid out by the Mortgagee, the sum requested does not exceed the value of the Work done to the date of such certificate; (iv) each request for payment in connection with the acquisition of a replacement Mortgaged Property shall be made on

14 30 days' prior notice to the Mortgagee and, in connection therewith, (A) each such request shall be accompanied by a copy of the sales contract or other document governing the acquisition of the replacement property by the Mortgagor and a certificate of the Mortgagor stating that the sum requested represents the sales price under such contract or document and the related reasonable transaction fees and expenses (including brokerage fees) and setting forth in sufficient detail the various components of such requested sum and (B) the Mortgagor shall (I) in addition to any other items required to be delivered under this Section 1.07), provide the Mortgagee with such opinions, documents, certificates, title insurance policies, surveys and other insurance policies as they may reasonably request and (II) take such other actions as the Mortgagee may reasonably deem necessary or appropriate (including actions with respect to the delivery to the Mortgagee of a first priority Mortgage with respect to such real property for the ratable benefit of the Secured Parties); (v) upon request of the Mortgagee, the Mortgagor shall provide the Mortgagee with waivers of lien satisfactory to the Mortgagee covering that part of the Work for which payment or reimbursement is being requested and, if required by the Mortgagee, by a search prepared by a title company or licensed abstractor or by other evidence satisfactory to the Mortgagee, that there has not been filed with respect to such Mortgaged Property any mechanics' or other lien or instrument for the retention of title in respect of any part of the Work not discharged of record or bonded to the reasonable satisfaction of the Mortgagee; (vi) there shall be no Event of Default that has occurred and is continuing; (vii) the request for any payment after the Work has been completed shall be accompanied by a copy of any certificate or certificates required by law to render occupancy of the improvements being rebuilt, repaired or restored legal; and (viii) after commencing the Work, the Mortgagor shall continue to perform the Work diligently and in good faith to completion in

14 30 days' prior notice to the Mortgagee and, in connection therewith, (A) each such request shall be accompanied by a copy of the sales contract or other document governing the acquisition of the replacement property by the Mortgagor and a certificate of the Mortgagor stating that the sum requested represents the sales price under such contract or document and the related reasonable transaction fees and expenses (including brokerage fees) and setting forth in sufficient detail the various components of such requested sum and (B) the Mortgagor shall (I) in addition to any other items required to be delivered under this Section 1.07), provide the Mortgagee with such opinions, documents, certificates, title insurance policies, surveys and other insurance policies as they may reasonably request and (II) take such other actions as the Mortgagee may reasonably deem necessary or appropriate (including actions with respect to the delivery to the Mortgagee of a first priority Mortgage with respect to such real property for the ratable benefit of the Secured Parties); (v) upon request of the Mortgagee, the Mortgagor shall provide the Mortgagee with waivers of lien satisfactory to the Mortgagee covering that part of the Work for which payment or reimbursement is being requested and, if required by the Mortgagee, by a search prepared by a title company or licensed abstractor or by other evidence satisfactory to the Mortgagee, that there has not been filed with respect to such Mortgaged Property any mechanics' or other lien or instrument for the retention of title in respect of any part of the Work not discharged of record or bonded to the reasonable satisfaction of the Mortgagee; (vi) there shall be no Event of Default that has occurred and is continuing; (vii) the request for any payment after the Work has been completed shall be accompanied by a copy of any certificate or certificates required by law to render occupancy of the improvements being rebuilt, repaired or restored legal; and (viii) after commencing the Work, the Mortgagor shall continue to perform the Work diligently and in good faith to completion in

15 accordance with the approved plans and specifications. (d) If requested by Mortgagor, or if any Proceeds retained by or paid over to the Mortgagee as provided above continue to be held by the Mortgagee on the date that is 365 days after the occurrence of the event resulting in such Proceeds, then such Proceeds shall be applied to prepay Term Borrowings as provided in Section 2.13(f) of the Credit Agreement. (e) Nothing in this Section 1.07 shall prevent the Mortgagee from applying at any time all or any part of any Proceeds to (i) the curing of any Event of Default under the Credit Agreement or (ii) the payment of any of the Obligations after the occurrence and during the continuance of an Event of Default. SECTION 1.08. Assignment of Leases and Rents. (a) Mortgagor hereby irrevocably and absolutely grants, transfers and assigns and grants a security interest in all of its right title and interest in all Leases, together with any and all extensions and renewals thereof for purposes of securing and discharging the performance by Mortgagor of the Obligations. Mortgagor has not assigned or executed any assignment of, and will not assign or execute any assignment of, any other Lease or their respective Rents to anyone other than Mortgagee. (b) Without Mortgagee's prior written consent, Mortgagor will not modify, amend, terminate or consent to the cancelation, surrender or assignment of any Lease if such modification, amendment, termination or consent could reasonably be expected to be adverse to the interests of the Secured Parties or the lien created by this Mortgage or have a materially adverse effect on the value of the Mortgaged Property. (c) Subject to Section 1.08(d), Mortgagor has assigned and transferred to Mortgagee all of Mortgagor's right, title and interest in and to the Rents now or hereafter arising from each Lease heretofore or hereafter made or agreed to by Mortgagor, it being intended that this assignment establish, subject to Section 1.08(b), an absolute transfer and assignment of all Rents and all Leases to Mortgagee and not merely to grant a security interest therein. Subject to

15 accordance with the approved plans and specifications. (d) If requested by Mortgagor, or if any Proceeds retained by or paid over to the Mortgagee as provided above continue to be held by the Mortgagee on the date that is 365 days after the occurrence of the event resulting in such Proceeds, then such Proceeds shall be applied to prepay Term Borrowings as provided in Section 2.13(f) of the Credit Agreement. (e) Nothing in this Section 1.07 shall prevent the Mortgagee from applying at any time all or any part of any Proceeds to (i) the curing of any Event of Default under the Credit Agreement or (ii) the payment of any of the Obligations after the occurrence and during the continuance of an Event of Default. SECTION 1.08. Assignment of Leases and Rents. (a) Mortgagor hereby irrevocably and absolutely grants, transfers and assigns and grants a security interest in all of its right title and interest in all Leases, together with any and all extensions and renewals thereof for purposes of securing and discharging the performance by Mortgagor of the Obligations. Mortgagor has not assigned or executed any assignment of, and will not assign or execute any assignment of, any other Lease or their respective Rents to anyone other than Mortgagee. (b) Without Mortgagee's prior written consent, Mortgagor will not modify, amend, terminate or consent to the cancelation, surrender or assignment of any Lease if such modification, amendment, termination or consent could reasonably be expected to be adverse to the interests of the Secured Parties or the lien created by this Mortgage or have a materially adverse effect on the value of the Mortgaged Property. (c) Subject to Section 1.08(d), Mortgagor has assigned and transferred to Mortgagee all of Mortgagor's right, title and interest in and to the Rents now or hereafter arising from each Lease heretofore or hereafter made or agreed to by Mortgagor, it being intended that this assignment establish, subject to Section 1.08(b), an absolute transfer and assignment of all Rents and all Leases to Mortgagee and not merely to grant a security interest therein. Subject to Section 1.08(d), Mortgagee may in Mortgagor's name and stead (with or without first taking possession of any of the Mortgaged Property personally or by

16 receiver as provided herein) operate the Mortgaged Property and rent, lease or let all or any portion of any of the Mortgaged Property to any party or parties at such rental and upon such terms as Mortgagee shall, in its sole discretion, determine, and may collect and have the benefit of all of said Rents arising from or accruing at any time thereafter or that may thereafter become due under any Lease. (d) So long as an Event of Default shall not have occurred and be continuing, Mortgagee will not exercise any of its rights under Section 1.08(c), and Mortgagor shall receive and collect the Rents accruing under any Lease; but after the happening and during the continuance of any Event of Default, Mortgagee may, at its option, receive and collect all Rents and enter upon the Premises and Improvements through its officers, agents, employees or attorneys for such purpose and for the operation and maintenance thereof and otherwise may act in accordance with Section 2.03. Mortgagor hereby irrevocably authorizes and directs each tenant, if any, and each successor, if any, to the interest of any tenant under any Lease, respectively, to rely upon any notice of a claimed Event of Default sent by Mortgagee to any such tenant or any of such tenant's successors in interest, and thereafter to pay Rents to Mortgagee without any obligation or right to inquire as to whether an Event of Default actually exists and even if some notice to the contrary is received from the Mortgagor, who shall have no right or claim against any such tenant or successor in interest for any such Rents so paid to Mortgagee. Each tenant or any of such tenant's successors in interest from whom Mortgagee or any officer, agent, attorney or employee of Mortgagee shall have collected any Rents, shall be authorized to pay Rents to Mortgagor only after such tenant or any of their successors in interest shall have received written notice from Mortgagee that the Event of Default is no longer continuing, unless and until a further notice of an Event of Default is given by Mortgagee to such tenant or any of its successors in interest. (e) Mortgagee will not become a mortgagee in possession so long as it does not enter or take actual possession of the Mortgaged Property. In addition, Mortgagee shall not be responsible or liable for performing any of the

16 receiver as provided herein) operate the Mortgaged Property and rent, lease or let all or any portion of any of the Mortgaged Property to any party or parties at such rental and upon such terms as Mortgagee shall, in its sole discretion, determine, and may collect and have the benefit of all of said Rents arising from or accruing at any time thereafter or that may thereafter become due under any Lease. (d) So long as an Event of Default shall not have occurred and be continuing, Mortgagee will not exercise any of its rights under Section 1.08(c), and Mortgagor shall receive and collect the Rents accruing under any Lease; but after the happening and during the continuance of any Event of Default, Mortgagee may, at its option, receive and collect all Rents and enter upon the Premises and Improvements through its officers, agents, employees or attorneys for such purpose and for the operation and maintenance thereof and otherwise may act in accordance with Section 2.03. Mortgagor hereby irrevocably authorizes and directs each tenant, if any, and each successor, if any, to the interest of any tenant under any Lease, respectively, to rely upon any notice of a claimed Event of Default sent by Mortgagee to any such tenant or any of such tenant's successors in interest, and thereafter to pay Rents to Mortgagee without any obligation or right to inquire as to whether an Event of Default actually exists and even if some notice to the contrary is received from the Mortgagor, who shall have no right or claim against any such tenant or successor in interest for any such Rents so paid to Mortgagee. Each tenant or any of such tenant's successors in interest from whom Mortgagee or any officer, agent, attorney or employee of Mortgagee shall have collected any Rents, shall be authorized to pay Rents to Mortgagor only after such tenant or any of their successors in interest shall have received written notice from Mortgagee that the Event of Default is no longer continuing, unless and until a further notice of an Event of Default is given by Mortgagee to such tenant or any of its successors in interest. (e) Mortgagee will not become a mortgagee in possession so long as it does not enter or take actual possession of the Mortgaged Property. In addition, Mortgagee shall not be responsible or liable for performing any of the obligations of the landlord under any Lease, for any waste by any tenant, or others, for any dangerous or defective conditions of any of the Mortgaged Property, for negligence in the management, upkeep, repair or control of any of the Mortgaged Property or any other act or omission by any other person.

17 (f) Mortgagor shall furnish to Mortgagee, within 30 days after a request by Mortgagee to do so, a written statement containing the names of all tenants, subtenants and concessionaires of the Premises or Improvements, the terms of any Lease, the space occupied and the rentals or license fees payable thereunder. SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as expressly permitted by the Credit Agreement, Mortgagor shall not directly or indirectly sell, convey, deed over, alienate, assign, lease, sublease, license, mortgage, pledge, encumber or otherwise transfer, create, consent to or suffer the creation of any lien, charges or any form of encumbrance upon any interest in or any part of the Mortgaged Property, or be divested of its title to the Mortgaged Property or any interest therein in any manner or way, whether voluntarily or involuntarily (other than resulting from a condemnation), or engage in any common, cooperative, joint, timesharing or other congregate ownership of all or part thereof; provided, however, that Mortgagor may in the ordinary course of business within reasonable commercial standards, enter into easement or covenant agreements that relate to and/or benefit the operation of the Mortgaged Property and that do not materially and adversely affect the use and operation of the same (except for customary utility easements that service the Mortgaged Property, which are permitted). SECTION 1.10. Security Agreement. This Mortgage is both a mortgage of real property and a grant of a security interest in personal property, and shall constitute and serve as a "Security Agreement" within the meaning of the uniform commercial code as adopted in the state wherein the Premises are located ("UCC"). Mortgagor has hereby granted unto Mortgagee a security interest in and to all the Mortgaged Property described in this Mortgage that is not real property, and simultaneously with the recording of this Mortgage, Mortgagor has filed or will file UCC financing statements, and will file continuation statements prior to the lapse thereof, at the appropriate offices in the state in which the Premises are located to perfect the security interest granted by this Mortgage in all the Mortgaged Property that is not real property. Mortgagor hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in any and all capacities, to execute any document and to file the same in the appropriate offices (to the extent it may lawfully

17 (f) Mortgagor shall furnish to Mortgagee, within 30 days after a request by Mortgagee to do so, a written statement containing the names of all tenants, subtenants and concessionaires of the Premises or Improvements, the terms of any Lease, the space occupied and the rentals or license fees payable thereunder. SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as expressly permitted by the Credit Agreement, Mortgagor shall not directly or indirectly sell, convey, deed over, alienate, assign, lease, sublease, license, mortgage, pledge, encumber or otherwise transfer, create, consent to or suffer the creation of any lien, charges or any form of encumbrance upon any interest in or any part of the Mortgaged Property, or be divested of its title to the Mortgaged Property or any interest therein in any manner or way, whether voluntarily or involuntarily (other than resulting from a condemnation), or engage in any common, cooperative, joint, timesharing or other congregate ownership of all or part thereof; provided, however, that Mortgagor may in the ordinary course of business within reasonable commercial standards, enter into easement or covenant agreements that relate to and/or benefit the operation of the Mortgaged Property and that do not materially and adversely affect the use and operation of the same (except for customary utility easements that service the Mortgaged Property, which are permitted). SECTION 1.10. Security Agreement. This Mortgage is both a mortgage of real property and a grant of a security interest in personal property, and shall constitute and serve as a "Security Agreement" within the meaning of the uniform commercial code as adopted in the state wherein the Premises are located ("UCC"). Mortgagor has hereby granted unto Mortgagee a security interest in and to all the Mortgaged Property described in this Mortgage that is not real property, and simultaneously with the recording of this Mortgage, Mortgagor has filed or will file UCC financing statements, and will file continuation statements prior to the lapse thereof, at the appropriate offices in the state in which the Premises are located to perfect the security interest granted by this Mortgage in all the Mortgaged Property that is not real property. Mortgagor hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in any and all capacities, to execute any document and to file the same in the appropriate offices (to the extent it may lawfully do so), and to perform each and every act and thing

18 reasonably requisite and necessary to be done to perfect the security interest contemplated by the preceding sentence. Mortgagee shall have all rights with respect to the part of the Mortgaged Property that is the subject of a security interest afforded by the UCC in addition to, but not in limitation of, the other rights afforded Mortgagee hereunder and under the Security Agreement. SECTION 1.11. Filing and Recording. Mortgagor will cause this Mortgage, any other security instrument creating a security interest in or evidencing the lien hereof upon the Mortgaged Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the security interest of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing, registration or recording fees, and all expenses incidental to the execution and acknowledgment of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Personal Property, and any instrument of further assurance and all Federal, state, county and municipal recording, documentary or intangible taxes and other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution, delivery and recording of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Personal Property or any instrument of further assurance. SECTION 1.12. Further Assurances. Upon demand by Mortgagee, Mortgagor will, at the cost of Mortgagor and without expense to Mortgagee, do, execute, acknowledge and deliver all such further acts, deeds, conveyances, mortgages, assignments, notices of assignment, transfers and assurances as Mortgagee shall from time to time require for the better assuring, conveying, assigning, transferring and confirming unto Mortgagee the property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee, or for carrying out the intention or facilitating the performance of the terms of this Mortgage, or for filing, registering or recording this Mortgage, and on demand, Mortgagor will also execute and deliver and hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in any and all capacities, to execute

18 reasonably requisite and necessary to be done to perfect the security interest contemplated by the preceding sentence. Mortgagee shall have all rights with respect to the part of the Mortgaged Property that is the subject of a security interest afforded by the UCC in addition to, but not in limitation of, the other rights afforded Mortgagee hereunder and under the Security Agreement. SECTION 1.11. Filing and Recording. Mortgagor will cause this Mortgage, any other security instrument creating a security interest in or evidencing the lien hereof upon the Mortgaged Property and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the security interest of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing, registration or recording fees, and all expenses incidental to the execution and acknowledgment of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Personal Property, and any instrument of further assurance and all Federal, state, county and municipal recording, documentary or intangible taxes and other taxes, duties, imposts, assessments and charges arising out of or in connection with the execution, delivery and recording of this Mortgage, any mortgage supplemental hereto, any security instrument with respect to the Personal Property or any instrument of further assurance. SECTION 1.12. Further Assurances. Upon demand by Mortgagee, Mortgagor will, at the cost of Mortgagor and without expense to Mortgagee, do, execute, acknowledge and deliver all such further acts, deeds, conveyances, mortgages, assignments, notices of assignment, transfers and assurances as Mortgagee shall from time to time require for the better assuring, conveying, assigning, transferring and confirming unto Mortgagee the property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee, or for carrying out the intention or facilitating the performance of the terms of this Mortgage, or for filing, registering or recording this Mortgage, and on demand, Mortgagor will also execute and deliver and hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in any and all capacities, to execute and file to the extent it may lawfully do so, one or more financing statements, chattel mortgages or comparable security instruments reasonably requested by Mortgagee to evidence

19 more effectively the lien hereof upon the Personal Property and to perform each and every act and thing requisite and necessary to be done to accomplish the same. SECTION 1.13. Additions to Mortgaged Property. All right, title and interest of Mortgagor in and to all extensions, improvements, betterments, renewals, substitutes and replacements of, and all additions and appurtenances to, the Mortgaged Property hereafter acquired by or released to Mortgagor or constructed, assembled or placed by Mortgagor upon the Premises or the Improvements, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case without any further mortgage, conveyance, assignment or other act by Mortgagor, shall become subject to the lien and security interest of this Mortgage as fully and completely and with the same effect as though now owned by Mortgagor and specifically described in the grant of the Mortgaged Property above, but at any and all times Mortgagor will execute and deliver to Mortgagee any and all such further assurances, mortgages, conveyances or assignments thereof as Mortgagee may require for the purpose of expressly and specifically subjecting the same to the lien and security interest of this Mortgage. SECTION 1.14. No Claims Against Mortgagee. Nothing contained in this Mortgage shall constitute any consent or request by Mortgagee, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Mortgaged Property or any part thereof, nor as giving Mortgagor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against Mortgagee in respect thereof. SECTION 1.15. Fixture Filing. Certain of the Mortgaged Property is or will become "fixtures" (as that term is defined in the UCC) on the Land, and this Mortgage upon being filed for record in the real estate records of the county wherein such fixtures are situated shall operate also as a financing statement filed as a fixture filing in

19 more effectively the lien hereof upon the Personal Property and to perform each and every act and thing requisite and necessary to be done to accomplish the same. SECTION 1.13. Additions to Mortgaged Property. All right, title and interest of Mortgagor in and to all extensions, improvements, betterments, renewals, substitutes and replacements of, and all additions and appurtenances to, the Mortgaged Property hereafter acquired by or released to Mortgagor or constructed, assembled or placed by Mortgagor upon the Premises or the Improvements, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case without any further mortgage, conveyance, assignment or other act by Mortgagor, shall become subject to the lien and security interest of this Mortgage as fully and completely and with the same effect as though now owned by Mortgagor and specifically described in the grant of the Mortgaged Property above, but at any and all times Mortgagor will execute and deliver to Mortgagee any and all such further assurances, mortgages, conveyances or assignments thereof as Mortgagee may require for the purpose of expressly and specifically subjecting the same to the lien and security interest of this Mortgage. SECTION 1.14. No Claims Against Mortgagee. Nothing contained in this Mortgage shall constitute any consent or request by Mortgagee, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Mortgaged Property or any part thereof, nor as giving Mortgagor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against Mortgagee in respect thereof. SECTION 1.15. Fixture Filing. Certain of the Mortgaged Property is or will become "fixtures" (as that term is defined in the UCC) on the Land, and this Mortgage upon being filed for record in the real estate records of the county wherein such fixtures are situated shall operate also as a financing statement filed as a fixture filing in accordance with the applicable provisions of said UCC upon such of the Mortgaged Property that is or may become fixtures.

20 ARTICLE II Defaults and Remedies SECTION 2.01. Events of Default. Any Event of Default under the Credit Agreement (as such term is defined therein) shall constitute an Event of Default under this Mortgage. SECTION 2.02. Demand for Payment. If an Event of Default shall occur and be continuing, then, upon written demand of Mortgagee, Mortgagor will pay to Mortgagee all amounts due hereunder and such further amount as shall be sufficient to cover the costs and expenses of collection, including attorneys' fees, disbursements and expenses incurred by Mortgagee and Mortgagee shall be entitled and empowered to institute an action or proceedings at law or in equity for the collection of the sums so due and unpaid, to prosecute any such action or proceedings to judgment or final decree, to enforce any such judgment or final decree against Mortgagor and to collect, in any manner provided by law, all moneys adjudged or decreed to be payable. SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues. (a) If an Event of Default shall occur and be continuing, Mortgagor shall, upon demand of Mortgagee, forthwith surrender to Mortgagee actual possession of the Mortgaged Property and, if and to the extent not prohibited by applicable law, Mortgagee itself, or by such officers or agents as it may appoint, may then enter and take possession of all the Mortgaged Property without the appointment of a receiver or an application therefor, exclude Mortgagor and its agents and employees wholly therefrom, and have access to the books, papers and accounts of Mortgagor. (b) If Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after such demand by Mortgagee, Mortgagee may to the extent not prohibited by applicable law, obtain a judgment or decree conferring upon Mortgagee the right to immediate possession or requiring Mortgagor to deliver immediate

20 ARTICLE II Defaults and Remedies SECTION 2.01. Events of Default. Any Event of Default under the Credit Agreement (as such term is defined therein) shall constitute an Event of Default under this Mortgage. SECTION 2.02. Demand for Payment. If an Event of Default shall occur and be continuing, then, upon written demand of Mortgagee, Mortgagor will pay to Mortgagee all amounts due hereunder and such further amount as shall be sufficient to cover the costs and expenses of collection, including attorneys' fees, disbursements and expenses incurred by Mortgagee and Mortgagee shall be entitled and empowered to institute an action or proceedings at law or in equity for the collection of the sums so due and unpaid, to prosecute any such action or proceedings to judgment or final decree, to enforce any such judgment or final decree against Mortgagor and to collect, in any manner provided by law, all moneys adjudged or decreed to be payable. SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues. (a) If an Event of Default shall occur and be continuing, Mortgagor shall, upon demand of Mortgagee, forthwith surrender to Mortgagee actual possession of the Mortgaged Property and, if and to the extent not prohibited by applicable law, Mortgagee itself, or by such officers or agents as it may appoint, may then enter and take possession of all the Mortgaged Property without the appointment of a receiver or an application therefor, exclude Mortgagor and its agents and employees wholly therefrom, and have access to the books, papers and accounts of Mortgagor. (b) If Mortgagor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after such demand by Mortgagee, Mortgagee may to the extent not prohibited by applicable law, obtain a judgment or decree conferring upon Mortgagee the right to immediate possession or requiring Mortgagor to deliver immediate possession of the Mortgaged Property to Mortgagee, to the entry of which judgment or decree Mortgagor hereby specifically consents. Mortgagor will pay to Mortgagee, upon demand, all reasonable expenses of obtaining such judgment or decree, including reasonable compensation to Mortgagee's attorneys and agents with interest thereon at the

21 Default Interest Rate; and all such expenses and compensation shall, until paid, be secured by this Mortgage. (c) Upon every such entry or taking of possession, Mortgagee may, to the extent not prohibited by applicable law, hold, store, use, operate, manage and control the Mortgaged Property, conduct the business thereof and, from time to time, (i) make all necessary and proper maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon, (ii) purchase or otherwise acquire additional fixtures, personalty and other property, (iii) insure or keep the Mortgaged Property insured, (iv) manage and operate the Mortgaged Property and exercise all the rights and powers of Mortgagor to the same extent as Mortgagor could in its own name or otherwise with respect to the same, and (v) enter into any and all agreements with respect to the exercise by others of any of the powers herein granted Mortgagee, all as may from time to time be directed or determined by Mortgagee to be in its best interest and Mortgagor hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in any and all capacities, to perform any of the foregoing acts. Mortgagee may collect and receive all the Rents, issues, profits and revenues from the Mortgaged Property, including those past due as well as those accruing thereafter, and, after deducting (i) all expenses of taking, holding, managing and operating the Mortgaged Property (including compensation for the services of all persons employed for such purposes), (ii) the costs of all such maintenance, repairs, renewals, replacements, additions, betterments, improvements, purchases and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and other similar charges as Mortgagee may at its option pay, (v) other proper charges upon the Mortgaged Property or any part thereof and (vi) the compensation, expenses and disbursements of the attorneys and agents of Mortgagee, Mortgagee shall apply the remainder of the moneys and proceeds so received first to the payment of the Mortgagee for the satisfaction of the Obligations, and second, if there is any surplus, to Mortgagor, subject to the entitlement of others thereto under applicable law.

21 Default Interest Rate; and all such expenses and compensation shall, until paid, be secured by this Mortgage. (c) Upon every such entry or taking of possession, Mortgagee may, to the extent not prohibited by applicable law, hold, store, use, operate, manage and control the Mortgaged Property, conduct the business thereof and, from time to time, (i) make all necessary and proper maintenance, repairs, renewals, replacements, additions, betterments and improvements thereto and thereon, (ii) purchase or otherwise acquire additional fixtures, personalty and other property, (iii) insure or keep the Mortgaged Property insured, (iv) manage and operate the Mortgaged Property and exercise all the rights and powers of Mortgagor to the same extent as Mortgagor could in its own name or otherwise with respect to the same, and (v) enter into any and all agreements with respect to the exercise by others of any of the powers herein granted Mortgagee, all as may from time to time be directed or determined by Mortgagee to be in its best interest and Mortgagor hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in any and all capacities, to perform any of the foregoing acts. Mortgagee may collect and receive all the Rents, issues, profits and revenues from the Mortgaged Property, including those past due as well as those accruing thereafter, and, after deducting (i) all expenses of taking, holding, managing and operating the Mortgaged Property (including compensation for the services of all persons employed for such purposes), (ii) the costs of all such maintenance, repairs, renewals, replacements, additions, betterments, improvements, purchases and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and other similar charges as Mortgagee may at its option pay, (v) other proper charges upon the Mortgaged Property or any part thereof and (vi) the compensation, expenses and disbursements of the attorneys and agents of Mortgagee, Mortgagee shall apply the remainder of the moneys and proceeds so received first to the payment of the Mortgagee for the satisfaction of the Obligations, and second, if there is any surplus, to Mortgagor, subject to the entitlement of others thereto under applicable law. (d) Whenever, before any sale of the Mortgaged Property under Section 2.06, all Obligations that are then due shall have been paid and all Events of Default fully cured, Mortgagee will surrender possession of the Mortgaged Property back to Mortgagor, its successors or assigns. The same right of taking

22 possession shall, however, arise again if any subsequent Event of Default shall occur and be continuing. SECTION 2.04. Right To Cure Failure to Perform. Should Mortgagor [or Terex]3 fail in the payment, performance or observance of any term, covenant or condition required by this Mortgage or the Credit Agreement (with respect to the Mortgaged Property), Mortgagee may at any time after ten days notice to the Mortgager (or, to the extent the Mortgagee deems it necessary to act prior the end of such ten day notice period in order to preserve the Mortgaged Property, the Mortgagor's rights to and use of the Mortgaged Property or the lien created by this Mortgage any shorter notice period) pay, perform or observe the same, and all payments made or costs or expenses incurred by Mortgagee in connection therewith shall be secured hereby and shall be, without demand, immediately repaid by Mortgagor to Mortgagee with interest thereon at the Default Interest Rate. Mortgagee shall be the sole judge of the necessity for any such actions and of the amounts to be paid. Mortgagee is hereby empowered to enter and to authorize others to enter upon the Premises or the Improvements or any part thereof for the purpose of performing or observing any such defaulted term, covenant or condition without having any obligation to so perform or observe and without thereby becoming liable to Mortgagor, to any person in possession holding under Mortgagor or to any other person. SECTION 2.05. Right to a Receiver. If an Event of Default shall occur and be continuing, Mortgagee, upon application to a court of competent jurisdiction, shall be entitled as a matter of right to the appointment of a receiver to take possession of and to operate the Mortgaged Property and to collect and apply the Rents. The receiver shall have all of the rights and powers permitted under the laws of the state wherein the Mortgaged Property is located. Mortgagor shall pay to Mortgagee upon demand all expenses, including receiver's fees, attorney's fees and disbursements, costs and agent's compensation incurred pursuant to the provisions of this Section 2.05; and all such expenses shall be secured by this Mortgage and shall be, without demand, immediately repaid by Mortgagor to Mortgagee with interest thereon at the Default Interest Rate. SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall occur and be continuing, Mortgagee may elect to sell the Mortgaged Property or

22 possession shall, however, arise again if any subsequent Event of Default shall occur and be continuing. SECTION 2.04. Right To Cure Failure to Perform. Should Mortgagor [or Terex]3 fail in the payment, performance or observance of any term, covenant or condition required by this Mortgage or the Credit Agreement (with respect to the Mortgaged Property), Mortgagee may at any time after ten days notice to the Mortgager (or, to the extent the Mortgagee deems it necessary to act prior the end of such ten day notice period in order to preserve the Mortgaged Property, the Mortgagor's rights to and use of the Mortgaged Property or the lien created by this Mortgage any shorter notice period) pay, perform or observe the same, and all payments made or costs or expenses incurred by Mortgagee in connection therewith shall be secured hereby and shall be, without demand, immediately repaid by Mortgagor to Mortgagee with interest thereon at the Default Interest Rate. Mortgagee shall be the sole judge of the necessity for any such actions and of the amounts to be paid. Mortgagee is hereby empowered to enter and to authorize others to enter upon the Premises or the Improvements or any part thereof for the purpose of performing or observing any such defaulted term, covenant or condition without having any obligation to so perform or observe and without thereby becoming liable to Mortgagor, to any person in possession holding under Mortgagor or to any other person. SECTION 2.05. Right to a Receiver. If an Event of Default shall occur and be continuing, Mortgagee, upon application to a court of competent jurisdiction, shall be entitled as a matter of right to the appointment of a receiver to take possession of and to operate the Mortgaged Property and to collect and apply the Rents. The receiver shall have all of the rights and powers permitted under the laws of the state wherein the Mortgaged Property is located. Mortgagor shall pay to Mortgagee upon demand all expenses, including receiver's fees, attorney's fees and disbursements, costs and agent's compensation incurred pursuant to the provisions of this Section 2.05; and all such expenses shall be secured by this Mortgage and shall be, without demand, immediately repaid by Mortgagor to Mortgagee with interest thereon at the Default Interest Rate. SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall occur and be continuing, Mortgagee may elect to sell the Mortgaged Property or 3 Include where Mortgagor is not Terex. 23 any part of the Mortgaged Property by exercise of the power of foreclosure or of sale granted to Mortgagee by applicable law or this Mortgage. In such case, Mortgagee may commence a civil action to foreclose this Mortgage, or it may proceed and sell the Mortgaged Property to satisfy any Obligation. Mortgagee or an officer appointed by a judgment of foreclosure to sell the Mortgaged Property, may sell all or such parts of the Mortgaged Property as may be chosen by Mortgagee at the time and place of sale fixed by it in a notice of sale, either as a whole or in separate lots, parcels or items as Mortgagee shall deem expedient, and in such order as it may determine, at public auction to the highest bidder. Mortgagee or an officer appointed by a judgment of foreclosure to sell the Mortgaged Property may postpone any foreclosure or other sale of all or any portion of the Mortgaged Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement or subsequently noticed sale. Without further notice, Mortgagee or an officer appointed to sell the Mortgaged Property may make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Any person, including Mortgagor or Mortgagee or any designee or affiliate thereof, may purchase at such sale. (b) The Mortgaged Property may be sold subject to unpaid taxes and Permitted Encumbrances, and, after deducting all costs, fees and expenses of Mortgagee (including costs of evidence of title in connection with the sale), Mortgagee or an officer that makes any sale shall apply the proceeds of sale in the manner set forth in Section 2.08. (c) Any foreclosure or other sale of less than the whole of the Mortgaged Property or any defective or irregular sale made hereunder shall not exhaust the power of foreclosure or of sale provided for herein; and subsequent sales may be made hereunder until the Obligations have been satisfied, or the entirety of the Mortgaged Property has been sold. (d) If an Event of Default shall occur and be continuing, Mortgagee may instead of, or in addition to, exercising

23 any part of the Mortgaged Property by exercise of the power of foreclosure or of sale granted to Mortgagee by applicable law or this Mortgage. In such case, Mortgagee may commence a civil action to foreclose this Mortgage, or it may proceed and sell the Mortgaged Property to satisfy any Obligation. Mortgagee or an officer appointed by a judgment of foreclosure to sell the Mortgaged Property, may sell all or such parts of the Mortgaged Property as may be chosen by Mortgagee at the time and place of sale fixed by it in a notice of sale, either as a whole or in separate lots, parcels or items as Mortgagee shall deem expedient, and in such order as it may determine, at public auction to the highest bidder. Mortgagee or an officer appointed by a judgment of foreclosure to sell the Mortgaged Property may postpone any foreclosure or other sale of all or any portion of the Mortgaged Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement or subsequently noticed sale. Without further notice, Mortgagee or an officer appointed to sell the Mortgaged Property may make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Any person, including Mortgagor or Mortgagee or any designee or affiliate thereof, may purchase at such sale. (b) The Mortgaged Property may be sold subject to unpaid taxes and Permitted Encumbrances, and, after deducting all costs, fees and expenses of Mortgagee (including costs of evidence of title in connection with the sale), Mortgagee or an officer that makes any sale shall apply the proceeds of sale in the manner set forth in Section 2.08. (c) Any foreclosure or other sale of less than the whole of the Mortgaged Property or any defective or irregular sale made hereunder shall not exhaust the power of foreclosure or of sale provided for herein; and subsequent sales may be made hereunder until the Obligations have been satisfied, or the entirety of the Mortgaged Property has been sold. (d) If an Event of Default shall occur and be continuing, Mortgagee may instead of, or in addition to, exercising the rights described in Section 2.06(a) above and either with or without entry or taking possession as herein permitted, proceed by a suit or suits in law or in equity or by any other appropriate proceeding or remedy (i) to specifically enforce payment of some or all of the Obligations, or the performance of any term, covenant, condition or agreement of this Mortgage or any other Loan Document or any other right, or

24 (ii) to pursue any other remedy available to Mortgagee, all as Mortgagee shall determine most effectual for such purposes. SECTION 2.07. Other Remedies. (a) In case an Event of Default shall occur and be continuing, Mortgagee may also exercise, to the extent not prohibited by law, any or all of the remedies available to a secured party under the UCC. (b) In connection with a sale of the Mortgaged Property or any Personal Property and the application of the proceeds of sale as provided in Section 2.08, Mortgagee shall be entitled to enforce payment of and to receive up to the principal amount of the Obligations, plus all other charges, payments and costs due under this Mortgage, and to recover a deficiency judgment for any portion of the aggregate principal amount of the Obligations remaining unpaid, with interest. SECTION 2.08. Application of Sale Proceeds and Rents. After any foreclosure sale of all or any of the Mortgaged Property, Mortgagee shall receive the proceeds of sale, no purchaser shall be required to see to the application of the proceeds and Mortgagee shall apply the proceeds of the sale together with any Rents that may have been collected and any other sums that then may be held by Mortgagee under this Mortgage as follows: FIRST, to the payment of all costs and expenses incurred by the Mortgagee, Administrative Agent or the Collateral Agent (in their capacities as such hereunder or under any other Loan Document) in connection with such collection or sale or otherwise in connection with this Mortgage or any of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Mortgagee hereunder, the Collateral Agent under any other Loan Document on behalf of the Mortgagor or any other Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy

24 (ii) to pursue any other remedy available to Mortgagee, all as Mortgagee shall determine most effectual for such purposes. SECTION 2.07. Other Remedies. (a) In case an Event of Default shall occur and be continuing, Mortgagee may also exercise, to the extent not prohibited by law, any or all of the remedies available to a secured party under the UCC. (b) In connection with a sale of the Mortgaged Property or any Personal Property and the application of the proceeds of sale as provided in Section 2.08, Mortgagee shall be entitled to enforce payment of and to receive up to the principal amount of the Obligations, plus all other charges, payments and costs due under this Mortgage, and to recover a deficiency judgment for any portion of the aggregate principal amount of the Obligations remaining unpaid, with interest. SECTION 2.08. Application of Sale Proceeds and Rents. After any foreclosure sale of all or any of the Mortgaged Property, Mortgagee shall receive the proceeds of sale, no purchaser shall be required to see to the application of the proceeds and Mortgagee shall apply the proceeds of the sale together with any Rents that may have been collected and any other sums that then may be held by Mortgagee under this Mortgage as follows: FIRST, to the payment of all costs and expenses incurred by the Mortgagee, Administrative Agent or the Collateral Agent (in their capacities as such hereunder or under any other Loan Document) in connection with such collection or sale or otherwise in connection with this Mortgage or any of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Mortgagee hereunder, the Collateral Agent under any other Loan Document on behalf of the Mortgagor or any other Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document; SECOND, to the payment in full of the Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Obligations owed to them on the date of any such distribution); and

25 THIRD, to the Mortgagor, its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Mortgagee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Mortgage. Upon any sale of the Mortgaged Property by the Mortgagee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Mortgagee or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Mortgaged Property so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Mortgagee or such officer or be answerable in any way for the misapplication thereof. SECTION 2.09. Mortgagor as Tenant Holding Over. If Mortgagor remains in possession of any of the Mortgaged Property after any foreclosure sale by Mortgagee, at Mortgagee's election Mortgagor shall be deemed a tenant holding over and shall forthwith surrender possession to the purchaser or purchasers at such sale or be summarily dispossessed or evicted according to provisions of law applicable to tenants holding over. SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws. Mortgagor waives, to the extent not prohibited by law, (i) the benefit of all laws now existing or that hereafter may be enacted providing for any appraisement of any portion of the Mortgaged Property, (ii) the benefit of all laws now existing or that may be hereafter enacted in any way extending the time for the enforcement or the collection of amounts due under any of the Obligations or creating or extending a period of redemption from any sale made in collecting said debt or any other amounts due Mortgagee, (iii) any right to at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, homestead exemption, valuation, stay, statute of limitations, extension or redemption, or sale of the Mortgaged Property as separate tracts, units or estates or as a single parcel in the event of foreclosure or notice of deficiency, and (iv) all

25 THIRD, to the Mortgagor, its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Mortgagee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Mortgage. Upon any sale of the Mortgaged Property by the Mortgagee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Mortgagee or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Mortgaged Property so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Mortgagee or such officer or be answerable in any way for the misapplication thereof. SECTION 2.09. Mortgagor as Tenant Holding Over. If Mortgagor remains in possession of any of the Mortgaged Property after any foreclosure sale by Mortgagee, at Mortgagee's election Mortgagor shall be deemed a tenant holding over and shall forthwith surrender possession to the purchaser or purchasers at such sale or be summarily dispossessed or evicted according to provisions of law applicable to tenants holding over. SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws. Mortgagor waives, to the extent not prohibited by law, (i) the benefit of all laws now existing or that hereafter may be enacted providing for any appraisement of any portion of the Mortgaged Property, (ii) the benefit of all laws now existing or that may be hereafter enacted in any way extending the time for the enforcement or the collection of amounts due under any of the Obligations or creating or extending a period of redemption from any sale made in collecting said debt or any other amounts due Mortgagee, (iii) any right to at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in force providing for any appraisement, homestead exemption, valuation, stay, statute of limitations, extension or redemption, or sale of the Mortgaged Property as separate tracts, units or estates or as a single parcel in the event of foreclosure or notice of deficiency, and (iv) all rights of redemption, valuation, appraisement, stay of execution, notice of election to mature or declare due the whole of or each of the Obligations and marshaling in the event of foreclosure of this Mortgage. SECTION 2.11. Discontinuance of Proceedings. In case Mortgagee shall proceed to enforce any right, power or remedy under this Mortgage by

26 foreclosure, entry or otherwise, and such proceedings shall be discontinued or abandoned for any reason, or shall be determined adversely to Mortgagee, then and in every such case Mortgagor and Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of Mortgagee shall continue as if no such proceeding had been taken. SECTION 2.12. Suits To Protect the Mortgaged Property. Mortgagee shall have power (a) to institute and maintain suits and proceedings to prevent any impairment of the Mortgaged Property by any acts that may be unlawful or in violation of this Mortgage, (b) to preserve or protect its interest in the Mortgaged Property and in the Rents arising therefrom and (c) to restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of or compliance with such enactment, rule or order would impair the security or be prejudicial to the interest of Mortgagee hereunder. SECTION 2.13. Filing Proofs of Claim. In case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted by law, be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Mortgagee allowed in such proceedings for the Obligations secured by this Mortgage at the date of the institution of such proceedings and for any interest accrued, late charges and additional interest or other amounts due or that may become due and payable hereunder after such date. SECTION 2.14. Possession by Mortgagee. Notwithstanding the appointment of any receiver, liquidator or trustee of Mortgagor, any of its property or the Mortgaged Property, Mortgagee shall be entitled, to the extent not prohibited by law, to remain in possession and control of all parts of the Mortgaged Property now or hereafter granted under this Mortgage to Mortgagee in accordance with the terms hereof and applicable law.

26 foreclosure, entry or otherwise, and such proceedings shall be discontinued or abandoned for any reason, or shall be determined adversely to Mortgagee, then and in every such case Mortgagor and Mortgagee shall be restored to their former positions and rights hereunder, and all rights, powers and remedies of Mortgagee shall continue as if no such proceeding had been taken. SECTION 2.12. Suits To Protect the Mortgaged Property. Mortgagee shall have power (a) to institute and maintain suits and proceedings to prevent any impairment of the Mortgaged Property by any acts that may be unlawful or in violation of this Mortgage, (b) to preserve or protect its interest in the Mortgaged Property and in the Rents arising therefrom and (c) to restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of or compliance with such enactment, rule or order would impair the security or be prejudicial to the interest of Mortgagee hereunder. SECTION 2.13. Filing Proofs of Claim. In case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted by law, be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of Mortgagee allowed in such proceedings for the Obligations secured by this Mortgage at the date of the institution of such proceedings and for any interest accrued, late charges and additional interest or other amounts due or that may become due and payable hereunder after such date. SECTION 2.14. Possession by Mortgagee. Notwithstanding the appointment of any receiver, liquidator or trustee of Mortgagor, any of its property or the Mortgaged Property, Mortgagee shall be entitled, to the extent not prohibited by law, to remain in possession and control of all parts of the Mortgaged Property now or hereafter granted under this Mortgage to Mortgagee in accordance with the terms hereof and applicable law. SECTION 2.15. Waiver. (a) No delay or failure by Mortgagee to exercise any right, power or remedy accruing upon any breach or Event of Default shall exhaust or impair any such right, power or remedy or be construed to be a waiver of any

27 such breach or Event of Default or acquiescence therein; and every right, power and remedy given by this Mortgage to Mortgagee may be exercised from time to time and as often as may be deemed expedient by Mortgagee. No consent or waiver by Mortgagee to or of any breach or default by Mortgagor in the performance of the Obligations shall be deemed or construed to be a consent or waiver to or of any other breach or Event of Default in the performance of the same or any other Obligations by Mortgagor hereunder. No failure on the part of Mortgagee to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall constitute a waiver by Mortgagee of its rights hereunder or impair any rights, powers or remedies consequent on any future Event of Default by Mortgagor. (b) Even if Mortgagee (i) grants some forbearance or an extension of time for the payment of any sums secured hereby, (ii) takes other or additional security for the payment of any sums secured hereby, (iii) waives or does not exercise some right granted herein or under the Loan Documents, (iv) releases a part of the Mortgaged Property from this Mortgage, (v) agrees to change some of the terms, covenants, conditions or agreements of any of the Loan Documents, (vi) consents to the filing of a map, plat or replat affecting the Premises, (vii) consents to the granting of an easement or other right affecting the Premises or (viii) makes or consents to an agreement subordinating Mortgagee's lien on the Mortgaged Property hereunder; no such act or omission shall preclude Mortgagee from exercising any other right, power or privilege herein granted or intended to be granted in the event of any breach or Event of Default then made or of any subsequent default; nor, except as otherwise expressly provided in an instrument executed by Mortgagee, shall this Mortgage be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or part of the Mortgaged Property, Mortgagee is hereby authorized and empowered to deal with any vendee or transferee with reference to the Mortgaged Property secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the original parties hereto and without in any way releasing or discharging any liabilities, obligations or undertakings.

27 such breach or Event of Default or acquiescence therein; and every right, power and remedy given by this Mortgage to Mortgagee may be exercised from time to time and as often as may be deemed expedient by Mortgagee. No consent or waiver by Mortgagee to or of any breach or default by Mortgagor in the performance of the Obligations shall be deemed or construed to be a consent or waiver to or of any other breach or Event of Default in the performance of the same or any other Obligations by Mortgagor hereunder. No failure on the part of Mortgagee to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall constitute a waiver by Mortgagee of its rights hereunder or impair any rights, powers or remedies consequent on any future Event of Default by Mortgagor. (b) Even if Mortgagee (i) grants some forbearance or an extension of time for the payment of any sums secured hereby, (ii) takes other or additional security for the payment of any sums secured hereby, (iii) waives or does not exercise some right granted herein or under the Loan Documents, (iv) releases a part of the Mortgaged Property from this Mortgage, (v) agrees to change some of the terms, covenants, conditions or agreements of any of the Loan Documents, (vi) consents to the filing of a map, plat or replat affecting the Premises, (vii) consents to the granting of an easement or other right affecting the Premises or (viii) makes or consents to an agreement subordinating Mortgagee's lien on the Mortgaged Property hereunder; no such act or omission shall preclude Mortgagee from exercising any other right, power or privilege herein granted or intended to be granted in the event of any breach or Event of Default then made or of any subsequent default; nor, except as otherwise expressly provided in an instrument executed by Mortgagee, shall this Mortgage be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or part of the Mortgaged Property, Mortgagee is hereby authorized and empowered to deal with any vendee or transferee with reference to the Mortgaged Property secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the original parties hereto and without in any way releasing or discharging any liabilities, obligations or undertakings. SECTION 2.16. Remedies Cumulative. No right, power or remedy conferred upon or reserved to Mortgagee by this Mortgage is intended to be exclusive of any other right, power or remedy, and each and every such right, power and

28 remedy shall be cumulative and concurrent and in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity or by statute. ARTICLE III Miscellaneous SECTION 3.01. Partial Invalidity. In the event any one or more of the provisions contained in this Mortgage should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein, at the option of Mortgagee, shall not in any way be affected or impaired

28 remedy shall be cumulative and concurrent and in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity or by statute. ARTICLE III Miscellaneous SECTION 3.01. Partial Invalidity. In the event any one or more of the provisions contained in this Mortgage should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein, at the option of Mortgagee, shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. SECTION 3.02. Notices. All notices and communications hereunder shall be in writing and given as provided in Section 9.01 of the Credit Agreement. [All communications and notices hereunder to the Mortgagor shall be given to it in care of Terex.]4 SECTION 3.03. Successors and Assigns. All of the grants, covenants, terms, provisions and conditions herein shall run with the Premises and the Improvements and shall apply to, bind and inure to, the benefit of the permitted successors and assigns of Mortgagor and the successors and assigns of Mortgagee. SECTION 3.04. Satisfaction and Cancelation. (a) The conveyance to Mortgagee of the Mortgaged Property as security, created and consummated by this Mortgage shall be null and void when all the Obligations have been paid in full, the Lenders have no further commitment to lend under the Credit Agreement, the L/C Exposure has been reduced to zero and the Issuing Bank has no further obligation to issue Letters of Credit under the Credit Agreement. 4 Include where Mortgagee is not Terex. 29 (b) Upon a sale or other transfer by the Mortgagor to any Person who is not a Loan Party of all or any portion of the Mortgaged Property that is permitted under the Credit Agreement and the application of the Net Cash Proceeds of such sale or financing in accordance with the Credit Agreement, or, upon the effectiveness of any written consent to the release of the lien of this Mortgage in all or any portion of the Mortgaged Property, the lien of this Mortgage shall be released from the applicable portion of the Mortgaged Property. The Mortgagor shall give the Mortgagee reasonable written notice of any sale or financing of the Mortgaged Property prior to the closing of such sale or financing. (c) In connection with any termination or release pursuant to paragraph (a) or (b), the Mortgage shall be marked "satisfied" by the Mortgagee, and this Mortgage shall be canceled of record at the request and at the expense of the Mortgagor. Mortgagee shall execute any documents reasonably requested by Mortgagor to evidence the foregoing and Mortgagor will pay all costs and expenses, including reasonable attorneys' fees, disbursements and other charges, incurred by Mortgagee in connection with the preparation and execution of such documents. SECTION 3.05. Definitions. As used in this Mortgage, the singular shall include the plural as the context requires and the following words and phrases shall have the following meanings: (a) "including" shall mean "including but not limited to"; (b) "provisions" shall mean "provisions, terms, covenants and/or conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation, duty, covenant and/or condition"; and (e) "any of the Mortgaged Property" shall mean "the Mortgaged Property or any part thereof or interest therein". Any act that Mortgagee is permitted to perform hereunder may be performed at any time and from time to time by Mortgagee or any person or entity designated by Mortgagee. Any act that is prohibited to Mortgagor hereunder is also prohibited to all lessees of any of the Mortgaged Property. Each appoint ment of Mortgagee as attorney-in-fact for Mortgagor under the Mortgage is irrevocable,

29 (b) Upon a sale or other transfer by the Mortgagor to any Person who is not a Loan Party of all or any portion of the Mortgaged Property that is permitted under the Credit Agreement and the application of the Net Cash Proceeds of such sale or financing in accordance with the Credit Agreement, or, upon the effectiveness of any written consent to the release of the lien of this Mortgage in all or any portion of the Mortgaged Property, the lien of this Mortgage shall be released from the applicable portion of the Mortgaged Property. The Mortgagor shall give the Mortgagee reasonable written notice of any sale or financing of the Mortgaged Property prior to the closing of such sale or financing. (c) In connection with any termination or release pursuant to paragraph (a) or (b), the Mortgage shall be marked "satisfied" by the Mortgagee, and this Mortgage shall be canceled of record at the request and at the expense of the Mortgagor. Mortgagee shall execute any documents reasonably requested by Mortgagor to evidence the foregoing and Mortgagor will pay all costs and expenses, including reasonable attorneys' fees, disbursements and other charges, incurred by Mortgagee in connection with the preparation and execution of such documents. SECTION 3.05. Definitions. As used in this Mortgage, the singular shall include the plural as the context requires and the following words and phrases shall have the following meanings: (a) "including" shall mean "including but not limited to"; (b) "provisions" shall mean "provisions, terms, covenants and/or conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation, duty, covenant and/or condition"; and (e) "any of the Mortgaged Property" shall mean "the Mortgaged Property or any part thereof or interest therein". Any act that Mortgagee is permitted to perform hereunder may be performed at any time and from time to time by Mortgagee or any person or entity designated by Mortgagee. Any act that is prohibited to Mortgagor hereunder is also prohibited to all lessees of any of the Mortgaged Property. Each appoint ment of Mortgagee as attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power of substitution and coupled with an interest. Subject to the applicable provisions hereof, Mortgagee has the right to refuse to grant its consent, approval or acceptance or to indicate its satisfaction, in its sole discretion, whenever such consent, approval, acceptance or satisfaction is required hereunder.

30 SECTION 3.06. Multisite Real Estate Transaction. Mortgagor acknowledges that this Mortgage is one of a number of Other Mortgages and Security Documents that secure the Obligations. Mortgagor agrees that the lien of this Mortgage shall be absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever of Mortgagee and without limiting the generality of the foregoing, the lien hereof shall not be impaired by any acceptance by the Mortgagee of any security for or guarantees of any of the Obligations hereby secured, or by any failure, neglect or omission on the part of Mortgagee to realize upon or protect any Obligation or indebtedness hereby secured or any collateral security therefor including the Other Mortgages and other Security Documents. The lien hereof shall not in any manner be impaired or affected by any release (except as to the property released), sale, pledge, surrender, compromise, settlement, renewal, extension, indulgence, alteration, changing, modification or disposition of any of the Obligations secured or of any of the collateral security therefor, including the Other Mortgages and other Security Documents or of any guarantee thereof, and Mortgagee may at its discretion foreclose, exercise any power of sale, or exercise any other remedy available to it under any or all of the Other Mortgages and other Security Documents without first exercising or enforcing any of its rights and remedies hereunder. Such exercise of Mortgagee's rights and remedies under any or all of the Other Mortgages and other Security Documents shall not in any manner impair the indebtedness hereby secured or the lien of this Mortgage and any exercise of the rights or remedies of Mortgagee hereunder shall not impair the lien of any of the Other Mortgages and other Security Documents or any of Mortgagee's rights and remedies thereunder. Mortgagor specifically consents and agrees that Mortgagee may exercise its rights and remedies hereunder and under the Other Mortgages and other Security Documents separately or concurrently and in any order that it may deem appropriate and waives any rights of subrogation. ARTICLE IV Subject Leases SECTION 4.01. The Subject Leases. (a) Each Subject Lease is in full force and effect in accordance with the

30 SECTION 3.06. Multisite Real Estate Transaction. Mortgagor acknowledges that this Mortgage is one of a number of Other Mortgages and Security Documents that secure the Obligations. Mortgagor agrees that the lien of this Mortgage shall be absolute and unconditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever of Mortgagee and without limiting the generality of the foregoing, the lien hereof shall not be impaired by any acceptance by the Mortgagee of any security for or guarantees of any of the Obligations hereby secured, or by any failure, neglect or omission on the part of Mortgagee to realize upon or protect any Obligation or indebtedness hereby secured or any collateral security therefor including the Other Mortgages and other Security Documents. The lien hereof shall not in any manner be impaired or affected by any release (except as to the property released), sale, pledge, surrender, compromise, settlement, renewal, extension, indulgence, alteration, changing, modification or disposition of any of the Obligations secured or of any of the collateral security therefor, including the Other Mortgages and other Security Documents or of any guarantee thereof, and Mortgagee may at its discretion foreclose, exercise any power of sale, or exercise any other remedy available to it under any or all of the Other Mortgages and other Security Documents without first exercising or enforcing any of its rights and remedies hereunder. Such exercise of Mortgagee's rights and remedies under any or all of the Other Mortgages and other Security Documents shall not in any manner impair the indebtedness hereby secured or the lien of this Mortgage and any exercise of the rights or remedies of Mortgagee hereunder shall not impair the lien of any of the Other Mortgages and other Security Documents or any of Mortgagee's rights and remedies thereunder. Mortgagor specifically consents and agrees that Mortgagee may exercise its rights and remedies hereunder and under the Other Mortgages and other Security Documents separately or concurrently and in any order that it may deem appropriate and waives any rights of subrogation. ARTICLE IV Subject Leases SECTION 4.01. The Subject Leases. (a) Each Subject Lease is in full force and effect in accordance with the terms thereof, and has not been modified except as expressly set forth on Exhibit B hereto. Mortgagor has delivered to Mortgagee a true, correct and complete copy of each Subject Lease. No material

31 default exists, and to the best knowledge of Mortgagor, no event or act has occurred and no condition exists which with the passage of time or the giving of notice or both would constitute a default, under any Subject Lease. The execution and delivery of this Mortgage by Mortgagor (i) does not require the consent or approval of the landlord under any Subject Lease (or, if any consent or approval of the landlord is required, such has been obtained and a copy of such consent or approval has been delivered to Mortgagee or the Mortgagor will use commercially reasonable efforts to obtain such consent or approval) and (ii) will not violate or result in a default under any Subject Lease. (b) Without the prior written consent of Mortgagee, Mortgagor shall not modify, amend, or in any way alter the terms of any Subject Lease if such modification, amendment or alteration would increase the monetary obligations of the Mortgagor under the Subject Lease or otherwise be adverse in any respect to the interests of Mortgagee or materially lower the value of the Mortgaged Property. Except to the extent expressly permitted under the Credit Agreement, without the prior written consent of Mortgagee (which consent shall not be unreasonably withheld) Mortgagor shall not (i) in any way cancel, release, terminate, surrender or reduce the term of any Subject Lease, (ii) waive, excuse, condone or in any way release or discharge landlord of or from the obligations, covenants, conditions and agreements by said landlord to be done and performed or (iv) consent to the subordination of any Subject Lease to any mortgage unless such subordination is required by the terms of such Subject Lease; provided that the Mortgagor shall take all commercially reasonable steps to ensure such Subject Lease does not require such consent. Any attempt on the part of Mortgagor to do any of the foregoing without such written consent of Mortgagee shall be null and void and of no effect and shall constitute a Default hereunder. (c) Mortgagor shall at all times promptly and faithfully keep and perform in all material respects, or cause to be kept and performed in all material respects, all the covenants and conditions contained in each Subject Lease by the lessee therein to be kept and performed and shall in all material respects conform to and comply with the terms and conditions of each Subject Lease and Mortgagor further covenants that it will not do or permit anything

31 default exists, and to the best knowledge of Mortgagor, no event or act has occurred and no condition exists which with the passage of time or the giving of notice or both would constitute a default, under any Subject Lease. The execution and delivery of this Mortgage by Mortgagor (i) does not require the consent or approval of the landlord under any Subject Lease (or, if any consent or approval of the landlord is required, such has been obtained and a copy of such consent or approval has been delivered to Mortgagee or the Mortgagor will use commercially reasonable efforts to obtain such consent or approval) and (ii) will not violate or result in a default under any Subject Lease. (b) Without the prior written consent of Mortgagee, Mortgagor shall not modify, amend, or in any way alter the terms of any Subject Lease if such modification, amendment or alteration would increase the monetary obligations of the Mortgagor under the Subject Lease or otherwise be adverse in any respect to the interests of Mortgagee or materially lower the value of the Mortgaged Property. Except to the extent expressly permitted under the Credit Agreement, without the prior written consent of Mortgagee (which consent shall not be unreasonably withheld) Mortgagor shall not (i) in any way cancel, release, terminate, surrender or reduce the term of any Subject Lease, (ii) waive, excuse, condone or in any way release or discharge landlord of or from the obligations, covenants, conditions and agreements by said landlord to be done and performed or (iv) consent to the subordination of any Subject Lease to any mortgage unless such subordination is required by the terms of such Subject Lease; provided that the Mortgagor shall take all commercially reasonable steps to ensure such Subject Lease does not require such consent. Any attempt on the part of Mortgagor to do any of the foregoing without such written consent of Mortgagee shall be null and void and of no effect and shall constitute a Default hereunder. (c) Mortgagor shall at all times promptly and faithfully keep and perform in all material respects, or cause to be kept and performed in all material respects, all the covenants and conditions contained in each Subject Lease by the lessee therein to be kept and performed and shall in all material respects conform to and comply with the terms and conditions of each Subject Lease and Mortgagor further covenants that it will not do or permit anything to be done, the doing of which, or refrain from doing anything, the omission of which, will impair the security of this Mortgage or will be reason for

32 declaring a material default under any Subject Lease. (d) Mortgagor shall give Mortgagee notice in writing promptly after obtaining knowledge thereof of any material default on the part of the landlord under any Subject Lease or of the receipt by Mortgagor of any notice of default from the landlord thereunder by providing to Mortgagee a copy of any such notice received by Mortgagor from such landlord and this shall be done without regard to the fact that Mortgagee may be entitled to such notice directly from the landlord. Mortgagor shall promptly notify Mortgagee of any default under any Subject Lease by landlord or giving of any notice by the landlord to Mortgagor of such landlord's intention to end the term thereof. Mortgagor shall furnish to Mortgagee promptly upon Mortgagee's reasonable request any and all information concerning the performance by Mortgagor of the covenants of any Subject Lease and shall permit Mortgagee or its representative at all reasonable times, upon reasonable notice, to make investigation or examination concerning the performance by Mortgagor of the covenants of any Subject Lease. (e) Mortgagee may (but shall not be obligated to) at any time after ten days notice to the Mortgagor (or, to the extent the Mortgagee deems it necessary to act prior the end of such ten day notice period on order to preserve the Mortgaged Property, the Mortgagor's rights to and use of the Mortgaged Property or the lien created by this Mortgage, any shorter notice period) take any such action Mortgagee deems necessary or desirable to cure, in whole or in part, any failure of compliance by Mortgagor under any Subject Lease; and upon the receipt by Mortgagee from Mortgagor or the landlord under any Subject Lease of any written notice of default by Mortgagor as the lessee thereunder, Mortgagee may rely thereon, and such notice shall constitute full authority and protection to Mortgagee for any action taken or omitted to be taken in good faith reliance thereon. All sums, including reasonable attorneys' fees, so expended by the Mortgagee to cure or prevent any such default, or expended to sustain the lien of this Mortgage or its priority, shall be deemed secured by this Mortgage and shall be paid by the Mortgagor on demand, with interest accruing thereon at the Default Interest Rate. Subject to the provisions set forth in the first sentence of this Section 4.01(e), Mortgagor hereby expressly grants to Mortgagee (subject to the terms of each Subject Lease), and agrees that Mortgagee shall have, the absolute and immediate

32 declaring a material default under any Subject Lease. (d) Mortgagor shall give Mortgagee notice in writing promptly after obtaining knowledge thereof of any material default on the part of the landlord under any Subject Lease or of the receipt by Mortgagor of any notice of default from the landlord thereunder by providing to Mortgagee a copy of any such notice received by Mortgagor from such landlord and this shall be done without regard to the fact that Mortgagee may be entitled to such notice directly from the landlord. Mortgagor shall promptly notify Mortgagee of any default under any Subject Lease by landlord or giving of any notice by the landlord to Mortgagor of such landlord's intention to end the term thereof. Mortgagor shall furnish to Mortgagee promptly upon Mortgagee's reasonable request any and all information concerning the performance by Mortgagor of the covenants of any Subject Lease and shall permit Mortgagee or its representative at all reasonable times, upon reasonable notice, to make investigation or examination concerning the performance by Mortgagor of the covenants of any Subject Lease. (e) Mortgagee may (but shall not be obligated to) at any time after ten days notice to the Mortgagor (or, to the extent the Mortgagee deems it necessary to act prior the end of such ten day notice period on order to preserve the Mortgaged Property, the Mortgagor's rights to and use of the Mortgaged Property or the lien created by this Mortgage, any shorter notice period) take any such action Mortgagee deems necessary or desirable to cure, in whole or in part, any failure of compliance by Mortgagor under any Subject Lease; and upon the receipt by Mortgagee from Mortgagor or the landlord under any Subject Lease of any written notice of default by Mortgagor as the lessee thereunder, Mortgagee may rely thereon, and such notice shall constitute full authority and protection to Mortgagee for any action taken or omitted to be taken in good faith reliance thereon. All sums, including reasonable attorneys' fees, so expended by the Mortgagee to cure or prevent any such default, or expended to sustain the lien of this Mortgage or its priority, shall be deemed secured by this Mortgage and shall be paid by the Mortgagor on demand, with interest accruing thereon at the Default Interest Rate. Subject to the provisions set forth in the first sentence of this Section 4.01(e), Mortgagor hereby expressly grants to Mortgagee (subject to the terms of each Subject Lease), and agrees that Mortgagee shall have, the absolute and immediate right to enter in and upon the Leased Land and the

33 Improvements or any part thereof to such extent and as often as Mortgagee, in its discretion, deems necessary or desirable in order to cure any such default or alleged default by Mortgagor. (f) Upon the occurrence and continuance of any Event of Default hereunder, all lessee's options, elections and approval rights, together with the right of termination, cancelation, modification, change, supplement, alteration or amendment of each Subject Lease, all of which have been assigned for collateral purposes to Mortgagee, shall automatically vest exclusively in and be exercisable solely by Mortgagee. (g) INTENTIONALLY OMITTED (h) Mortgagor will give Mortgagee prompt written notice of the commencement of any arbitration or appraisal proceeding under and pursuant to the provisions of the Subject Lease. Upon the occurrence and continuance of any Event of Default hereunder, Mortgagee shall have the right, but not the obligation, to intervene and participate in any such proceeding and Mortgagor shall confer with Mortgagee to the extent which Mortgagee deems necessary for the protection of Mortgagee. Mortgagor may compromise any dispute or approval which is the subject of an arbitration or appraisal proceeding with the prior written consent of Mortgagee which will not be unreasonably withheld or delayed. (i) So long as this Mortgage is in effect, there shall be no merger of any Subject Lease or any interest therein, or of the leasehold estate created thereby, with the fee estate in the Land or any portion thereof by reason of the fact that such Subject Lease or such interest therein may be held directly or indirectly by or for the account of any person who shall hold the landlord's leasehold estate or fee estate in the Land or any portion thereof or any interest of the landlord under such Subject Lease. In case the Mortgagor acquires fee title to the Land, this Mortgage shall attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and be subject to the lien of and covered by this Mortgage. Mortgagor shall notify Mortgagee of any such acquisition and, on written

33 Improvements or any part thereof to such extent and as often as Mortgagee, in its discretion, deems necessary or desirable in order to cure any such default or alleged default by Mortgagor. (f) Upon the occurrence and continuance of any Event of Default hereunder, all lessee's options, elections and approval rights, together with the right of termination, cancelation, modification, change, supplement, alteration or amendment of each Subject Lease, all of which have been assigned for collateral purposes to Mortgagee, shall automatically vest exclusively in and be exercisable solely by Mortgagee. (g) INTENTIONALLY OMITTED (h) Mortgagor will give Mortgagee prompt written notice of the commencement of any arbitration or appraisal proceeding under and pursuant to the provisions of the Subject Lease. Upon the occurrence and continuance of any Event of Default hereunder, Mortgagee shall have the right, but not the obligation, to intervene and participate in any such proceeding and Mortgagor shall confer with Mortgagee to the extent which Mortgagee deems necessary for the protection of Mortgagee. Mortgagor may compromise any dispute or approval which is the subject of an arbitration or appraisal proceeding with the prior written consent of Mortgagee which will not be unreasonably withheld or delayed. (i) So long as this Mortgage is in effect, there shall be no merger of any Subject Lease or any interest therein, or of the leasehold estate created thereby, with the fee estate in the Land or any portion thereof by reason of the fact that such Subject Lease or such interest therein may be held directly or indirectly by or for the account of any person who shall hold the landlord's leasehold estate or fee estate in the Land or any portion thereof or any interest of the landlord under such Subject Lease. In case the Mortgagor acquires fee title to the Land, this Mortgage shall attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and be subject to the lien of and covered by this Mortgage. Mortgagor shall notify Mortgagee of any such acquisition and, on written request by Mortgagee, shall cause to be executed and recorded all such other and further assurances or other instruments in writing as may in the reasonable opinion of Mortgagee be necessary or appropriate to effect the intent and meaning hereof and shall

34 deliver to Mortgagee an endorsement to Mortgagee's loan title insurance policy insuring that such fee title or other estate is subject to the lien of this Mortgage. (j) In the event that the Mortgagor as lessee under any Subject Lease exercises any option or right to purchase any parcel of land which option or right is granted under said Subject Lease, then upon the vesting of the title of such parcel in the Mortgagor, this Mortgage shall attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and be subject to the lien of and covered by this Mortgage. (k) If any action or proceeding shall be instituted to evict Mortgagor or to recover possession of any leasehold parcel or any part thereof or interest therein or any action or proceeding otherwise affecting any Subject Lease or this Mortgage shall be instituted, then Mortgagor will, promptly upon service thereof on or to Mortgagor, deliver to Mortgagee a notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or proceeding. (l) The lien of this Mortgage shall attach to all of Mortgagor's rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. 365(h), as the same may hereafter be amended (the "Bankruptcy Code"), including, without limitation, all of Mortgagor's rights to remain in possession of each leasehold parcel. (m) Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages arising from any rejection of any Subject Lease by the lessor or any other fee owner of any leasehold parcel or any portion thereof under the Bankruptcy Code. Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding

34 deliver to Mortgagee an endorsement to Mortgagee's loan title insurance policy insuring that such fee title or other estate is subject to the lien of this Mortgage. (j) In the event that the Mortgagor as lessee under any Subject Lease exercises any option or right to purchase any parcel of land which option or right is granted under said Subject Lease, then upon the vesting of the title of such parcel in the Mortgagor, this Mortgage shall attach to and cover and be a lien upon the fee title or such other estate so acquired, and such fee title or other estate shall, without further assignment, mortgage or conveyance, become and be subject to the lien of and covered by this Mortgage. (k) If any action or proceeding shall be instituted to evict Mortgagor or to recover possession of any leasehold parcel or any part thereof or interest therein or any action or proceeding otherwise affecting any Subject Lease or this Mortgage shall be instituted, then Mortgagor will, promptly upon service thereof on or to Mortgagor, deliver to Mortgagee a notice of motion, order to show cause and of all other provisions, pleadings, and papers, however designated, served in any such action or proceeding. (l) The lien of this Mortgage shall attach to all of Mortgagor's rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. 365(h), as the same may hereafter be amended (the "Bankruptcy Code"), including, without limitation, all of Mortgagor's rights to remain in possession of each leasehold parcel. (m) Mortgagor hereby unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor's claims and rights to the payment of damages arising from any rejection of any Subject Lease by the lessor or any other fee owner of any leasehold parcel or any portion thereof under the Bankruptcy Code. Mortgagee shall have the right to proceed in its own name or in the name of Mortgagor in respect of any claim, suit, action or proceeding relating to the rejection of the Subject Lease, including, without limitation, the right to file and prosecute, without joining or the joinder of Mortgagor, any proofs of claim, complaints, motions, applications, notices and other documents, in any case with respect to the lessor or any fee owner of all or a portion of any leasehold parcel under the Bankruptcy Code. This assignment

35 constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until, pursuant to Section 3.04 hereof, the conveyance of the Mortgaged Property to Mortgagee is null and void. Any amounts received by Mortgagee as damages arising out of the rejection of the Subject Lease as aforesaid shall be applied first to all costs and expenses of Mortgagee (including, without limitation, attorneys' fees) incurred in connection with the exercise of any of its rights or remedies under this paragraph. Mortgagor shall promptly make, execute, acknowledge and deliver, in form and substance satisfactory to Mortgagee, a UCC financing statement (Form UCC-1) and all such additional instruments, agreements and other documents, as may at any time hereafter be required by Mortgagee to effectuate and carry out the assignment pursuant to this paragraph. (n) If pursuant to Subsection 365(h)(2) of the Bankruptcy Code, 11 U.S.C. ss. 365(h)(2), Mortgagor shall seek to offset against the rent reserved in any Subject Lease the amount of any damages caused by the nonperformance by the lessor or any fee owner of any of their respective obligations under such Subject Lease after the rejection by the lessor or any fee owner of such Subject Lease under the Bankruptcy Code, then Mortgagor shall, prior to effecting such offset, notify Mortgagee of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Mortgagee shall have the right to object to all or any part of such offset that, in the reasonable judgment of Mortgagee, would constitute a breach of such Subject Lease, and in the event of such objection, Mortgagor shall not effect any offset of the amounts so objected to by Mortgagee. Neither Mortgagee's failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Mortgagee. (o) If any action, proceeding, motion or notice shall be commenced or filed in respect of the lessor or any fee owner of any leasehold parcel, or any portion thereof or interest therein, or any Subject Lease in connection with any case under the Bankruptcy Code, then Mortgagee shall have the option, exercisable upon written notice from Mortgagee to Mortgagor, to conduct and control any such litigation with counsel of Mortgagee's choice.

35 constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and remedies, and shall continue in effect until, pursuant to Section 3.04 hereof, the conveyance of the Mortgaged Property to Mortgagee is null and void. Any amounts received by Mortgagee as damages arising out of the rejection of the Subject Lease as aforesaid shall be applied first to all costs and expenses of Mortgagee (including, without limitation, attorneys' fees) incurred in connection with the exercise of any of its rights or remedies under this paragraph. Mortgagor shall promptly make, execute, acknowledge and deliver, in form and substance satisfactory to Mortgagee, a UCC financing statement (Form UCC-1) and all such additional instruments, agreements and other documents, as may at any time hereafter be required by Mortgagee to effectuate and carry out the assignment pursuant to this paragraph. (n) If pursuant to Subsection 365(h)(2) of the Bankruptcy Code, 11 U.S.C. ss. 365(h)(2), Mortgagor shall seek to offset against the rent reserved in any Subject Lease the amount of any damages caused by the nonperformance by the lessor or any fee owner of any of their respective obligations under such Subject Lease after the rejection by the lessor or any fee owner of such Subject Lease under the Bankruptcy Code, then Mortgagor shall, prior to effecting such offset, notify Mortgagee of its intent to do so, setting forth the amount proposed to be so offset and the basis therefor. Mortgagee shall have the right to object to all or any part of such offset that, in the reasonable judgment of Mortgagee, would constitute a breach of such Subject Lease, and in the event of such objection, Mortgagor shall not effect any offset of the amounts so objected to by Mortgagee. Neither Mortgagee's failure to object as aforesaid nor any objection relating to such offset shall constitute an approval of any such offset by Mortgagee. (o) If any action, proceeding, motion or notice shall be commenced or filed in respect of the lessor or any fee owner of any leasehold parcel, or any portion thereof or interest therein, or any Subject Lease in connection with any case under the Bankruptcy Code, then Mortgagee shall have the option, exercisable upon written notice from Mortgagee to Mortgagor, to conduct and control any such litigation with counsel of Mortgagee's choice. Mortgagee may proceed in its own name or in the name of Mortgagor in connection with any such litigation, and Mortgagor agrees to execute any and all powers, authorizations, consents or other documents required by Mortgagee in connection

36 therewith. Mortgagor shall, upon demand, pay to Mortgagee all costs and expenses (including attorneys' fees) paid or incurred by Mortgagee in connection with the prosecution or conduct of any such proceedings. Mortgagor shall not commence any action, suit, proceeding or case, or file any application or make any motion, in respect of any Subject Lease in any such case under Bankruptcy Code without the prior written consent of Mortgagee. (p) Mortgagor shall, after obtaining knowledge thereof, promptly notify Mortgagee of any filing by or against the lessor or fee owner of any leasehold parcel of a petition under the Bankruptcy Code. At Mortgagee's request, Mortgagor shall promptly deliver to Mortgagee, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Mortgagor in connection with any such petition and any proceedings relating thereto. (q) If there shall be filed by or against Mortgagor a petition under the Bankruptcy Code and Mortgagor, as lessee under any Subject Lease, shall determine to reject such Subject Lease pursuant to Section 365(a) of the Bankruptcy Code, then Mortgagor shall give Mortgagee not less than twenty days' prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court for authority to reject such Subject Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such twenty day period a notice stating that Mortgagee demands that Mortgagor assume and assign such Subject Lease to Mortgagee pursuant to Section 365 of the Bankruptcy Code. If Mortgagee shall serve upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject such Subject Lease and shall comply with the demand provided for in the preceding sentence. (r) Effective upon the entry of an order for relief with respect to Mortgagor under the Bankruptcy Code, Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the Bankruptcy Court under subsection 365(d)(4) of the Bankruptcy Code for an order extending the period during which any Subject

36 therewith. Mortgagor shall, upon demand, pay to Mortgagee all costs and expenses (including attorneys' fees) paid or incurred by Mortgagee in connection with the prosecution or conduct of any such proceedings. Mortgagor shall not commence any action, suit, proceeding or case, or file any application or make any motion, in respect of any Subject Lease in any such case under Bankruptcy Code without the prior written consent of Mortgagee. (p) Mortgagor shall, after obtaining knowledge thereof, promptly notify Mortgagee of any filing by or against the lessor or fee owner of any leasehold parcel of a petition under the Bankruptcy Code. At Mortgagee's request, Mortgagor shall promptly deliver to Mortgagee, following receipt, copies of any and all notices, summonses, pleadings, applications and other documents received by Mortgagor in connection with any such petition and any proceedings relating thereto. (q) If there shall be filed by or against Mortgagor a petition under the Bankruptcy Code and Mortgagor, as lessee under any Subject Lease, shall determine to reject such Subject Lease pursuant to Section 365(a) of the Bankruptcy Code, then Mortgagor shall give Mortgagee not less than twenty days' prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court for authority to reject such Subject Lease. Mortgagee shall have the right, but not the obligation, to serve upon Mortgagor within such twenty day period a notice stating that Mortgagee demands that Mortgagor assume and assign such Subject Lease to Mortgagee pursuant to Section 365 of the Bankruptcy Code. If Mortgagee shall serve upon Mortgagor the notice described in the preceding sentence, Mortgagor shall not seek to reject such Subject Lease and shall comply with the demand provided for in the preceding sentence. (r) Effective upon the entry of an order for relief with respect to Mortgagor under the Bankruptcy Code, Mortgagor hereby assigns and transfers to Mortgagee a non-exclusive right to apply to the Bankruptcy Court under subsection 365(d)(4) of the Bankruptcy Code for an order extending the period during which any Subject Lease may be rejected or assumed.

37 ARTICLE V Particular Provisions This Mortgage is subject to the following provisions relating to the particular laws of the state wherein the Premises are located: SECTION 5.01. Applicable Law; Certain Particular Provisions. This Mortgage shall be governed by and construed in accordance with the internal law of the State of New York; provided, however, that the provisions of this Mortgage relating to the creation, perfection and enforcement of the lien and security interest created by this Mortgage in respect of the Mortgaged Property and the exercise of each remedy provided hereby, including the power of foreclosure or power of sale procedures set forth in this Mortgage, shall be governed by and construed in accordance with the internal law of the state where the Mortgaged Property is located, and Mortgagor and Mortgagee agrees to submit to jurisdiction and the laying of venue for any suit on this Mortgage in such state. The terms and provisions set forth in Appendix A attached hereto are hereby incorporated by reference as though fully set forth herein. In the event of any conflict between the terms and provisions contained in the body of this Mortgage and the terms and provisions set forth in Appendix A, the terms and provisions set forth in Appendix A shall govern and control. IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered to Mortgagee by Mortgagor on the date of the acknowledgment attached hereto. [ ], by: Name:

37 ARTICLE V Particular Provisions This Mortgage is subject to the following provisions relating to the particular laws of the state wherein the Premises are located: SECTION 5.01. Applicable Law; Certain Particular Provisions. This Mortgage shall be governed by and construed in accordance with the internal law of the State of New York; provided, however, that the provisions of this Mortgage relating to the creation, perfection and enforcement of the lien and security interest created by this Mortgage in respect of the Mortgaged Property and the exercise of each remedy provided hereby, including the power of foreclosure or power of sale procedures set forth in this Mortgage, shall be governed by and construed in accordance with the internal law of the state where the Mortgaged Property is located, and Mortgagor and Mortgagee agrees to submit to jurisdiction and the laying of venue for any suit on this Mortgage in such state. The terms and provisions set forth in Appendix A attached hereto are hereby incorporated by reference as though fully set forth herein. In the event of any conflict between the terms and provisions contained in the body of this Mortgage and the terms and provisions set forth in Appendix A, the terms and provisions set forth in Appendix A shall govern and control. IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered to Mortgagee by Mortgagor on the date of the acknowledgment attached hereto. [ ], by: Name:

Title: Seal:

38
STATE OF NEW YORK COUNTY OF NEW YORK ) ) )

I, the undersigned, a Notary Public in and for said County in said State, do hereby certify that _______________, whose name as of _______________, an ________ corporation, is signed to the foregoing instrument, and who is known to me, and known to be such officer, acknowledged before me on this day that, being informed of the contents of said instrument, (s)he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation. Given under my hand and official seal this the day of , 199__.

39 Exhibit A to Mortgage Legal Description

38
STATE OF NEW YORK COUNTY OF NEW YORK ) ) )

I, the undersigned, a Notary Public in and for said County in said State, do hereby certify that _______________, whose name as of _______________, an ________ corporation, is signed to the foregoing instrument, and who is known to me, and known to be such officer, acknowledged before me on this day that, being informed of the contents of said instrument, (s)he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation. Given under my hand and official seal this the day of , 199__.

39 Exhibit A to Mortgage Legal Description

40 Schedule A to Mortgage Leases of Mortgaged Property

41 Appendix A to Mortgage Local Law Provisions

42 EXHIBIT B to Mortgage Subject Leases

1 Doc.-No.____________/1997/124 Notarial Deed Transacted at Basel, Switzerland, this 18th (eighteenth) of December 1997 (nineteen hundred and ninety seven) Before me, the undersigned

39 Exhibit A to Mortgage Legal Description

40 Schedule A to Mortgage Leases of Mortgaged Property

41 Appendix A to Mortgage Local Law Provisions

42 EXHIBIT B to Mortgage Subject Leases

1 Doc.-No.____________/1997/124 Notarial Deed Transacted at Basel, Switzerland, this 18th (eighteenth) of December 1997 (nineteen hundred and ninety seven) Before me, the undersigned Dr. iur. Werner Wenger duly authorized and appointed Swiss Notary Public with offices at CH-4010 Basel, Aeschenvorstadt 55 there appeared today: 1. Dr. Alexander Loos, born 17 (seventeenth) May 1950, German citizen with residence at 40212 Dusseldorf, Konigsallee 92a acting not in his own name, but in the name and on behalf of Terex Mining Equipment Inc., a company duly incorporated under the laws of Delaware with registered offices in Westport, Connecticut, USA as attorney without authorization and subject to ratification. 2. Mr. Jurgen Georg Ralf Dircks, born 13 (thirteenth) January 1950, German citizen, with residence at D-44149 Dortmund, , Karl-Funke Stra(beta) 30, living at D-50453 Cologne, Peter-Burchem-Strasse 4, acting not in his own name, but in the name and on behalf of

40 Schedule A to Mortgage Leases of Mortgaged Property

41 Appendix A to Mortgage Local Law Provisions

42 EXHIBIT B to Mortgage Subject Leases

1 Doc.-No.____________/1997/124 Notarial Deed Transacted at Basel, Switzerland, this 18th (eighteenth) of December 1997 (nineteen hundred and ninety seven) Before me, the undersigned Dr. iur. Werner Wenger duly authorized and appointed Swiss Notary Public with offices at CH-4010 Basel, Aeschenvorstadt 55 there appeared today: 1. Dr. Alexander Loos, born 17 (seventeenth) May 1950, German citizen with residence at 40212 Dusseldorf, Konigsallee 92a acting not in his own name, but in the name and on behalf of Terex Mining Equipment Inc., a company duly incorporated under the laws of Delaware with registered offices in Westport, Connecticut, USA as attorney without authorization and subject to ratification. 2. Mr. Jurgen Georg Ralf Dircks, born 13 (thirteenth) January 1950, German citizen, with residence at D-44149 Dortmund, , Karl-Funke Stra(beta) 30, living at D-50453 Cologne, Peter-Burchem-Strasse 4, acting not in his own name, but in the name and on behalf of O&K Orenstein & Koppel Aktiengesellschaft with registered offices in Berlin and registered with the Commercial Register of the Amtsgericht Berlin-Charlottenburg under 93 HRB 1167 as attorney without authorization and subject to ratification. 2.1. The undersigned notary is requested to attach to this deed the simple written ratifications of Terex Mining Equipment, Inc. and of O&K Orenstein & Koppel Aktiengesellschaft after having received them.

41 Appendix A to Mortgage Local Law Provisions

42 EXHIBIT B to Mortgage Subject Leases

1 Doc.-No.____________/1997/124 Notarial Deed Transacted at Basel, Switzerland, this 18th (eighteenth) of December 1997 (nineteen hundred and ninety seven) Before me, the undersigned Dr. iur. Werner Wenger duly authorized and appointed Swiss Notary Public with offices at CH-4010 Basel, Aeschenvorstadt 55 there appeared today: 1. Dr. Alexander Loos, born 17 (seventeenth) May 1950, German citizen with residence at 40212 Dusseldorf, Konigsallee 92a acting not in his own name, but in the name and on behalf of Terex Mining Equipment Inc., a company duly incorporated under the laws of Delaware with registered offices in Westport, Connecticut, USA as attorney without authorization and subject to ratification. 2. Mr. Jurgen Georg Ralf Dircks, born 13 (thirteenth) January 1950, German citizen, with residence at D-44149 Dortmund, , Karl-Funke Stra(beta) 30, living at D-50453 Cologne, Peter-Burchem-Strasse 4, acting not in his own name, but in the name and on behalf of O&K Orenstein & Koppel Aktiengesellschaft with registered offices in Berlin and registered with the Commercial Register of the Amtsgericht Berlin-Charlottenburg under 93 HRB 1167 as attorney without authorization and subject to ratification. 2.1. The undersigned notary is requested to attach to this deed the simple written ratifications of Terex Mining Equipment, Inc. and of O&K Orenstein & Koppel Aktiengesellschaft after having received them. With regard to this deed there have been notarized three referenced deeds, namely the notarial deeds of notary Stephan Cueui, domiciled in Basel, Switzerland, A.-Prot 1992/297 of 16 and 17 December and A-Prot 1997/302 of 17 and 18 December 1992 as well as the notarial deed of the acting notary of 18 December 1997, A-Prot 1997/123 hereinafter collectively referred to as "Disclosure Memorandum." Such referenced deeds are hereby referred to. The referenced deeds have been available as originals during the notarization of this deed. Their contents are known to the attendants. The attendants have waived that such deeds be read out or attached.

42 EXHIBIT B to Mortgage Subject Leases

1 Doc.-No.____________/1997/124 Notarial Deed Transacted at Basel, Switzerland, this 18th (eighteenth) of December 1997 (nineteen hundred and ninety seven) Before me, the undersigned Dr. iur. Werner Wenger duly authorized and appointed Swiss Notary Public with offices at CH-4010 Basel, Aeschenvorstadt 55 there appeared today: 1. Dr. Alexander Loos, born 17 (seventeenth) May 1950, German citizen with residence at 40212 Dusseldorf, Konigsallee 92a acting not in his own name, but in the name and on behalf of Terex Mining Equipment Inc., a company duly incorporated under the laws of Delaware with registered offices in Westport, Connecticut, USA as attorney without authorization and subject to ratification. 2. Mr. Jurgen Georg Ralf Dircks, born 13 (thirteenth) January 1950, German citizen, with residence at D-44149 Dortmund, , Karl-Funke Stra(beta) 30, living at D-50453 Cologne, Peter-Burchem-Strasse 4, acting not in his own name, but in the name and on behalf of O&K Orenstein & Koppel Aktiengesellschaft with registered offices in Berlin and registered with the Commercial Register of the Amtsgericht Berlin-Charlottenburg under 93 HRB 1167 as attorney without authorization and subject to ratification. 2.1. The undersigned notary is requested to attach to this deed the simple written ratifications of Terex Mining Equipment, Inc. and of O&K Orenstein & Koppel Aktiengesellschaft after having received them. With regard to this deed there have been notarized three referenced deeds, namely the notarial deeds of notary Stephan Cueui, domiciled in Basel, Switzerland, A.-Prot 1992/297 of 16 and 17 December and A-Prot 1997/302 of 17 and 18 December 1992 as well as the notarial deed of the acting notary of 18 December 1997, A-Prot 1997/123 hereinafter collectively referred to as "Disclosure Memorandum." Such referenced deeds are hereby referred to. The referenced deeds have been available as originals during the notarization of this deed. Their contents are known to the attendants. The attendants have waived that such deeds be read out or attached. The attendants as identified by German Federal Identity card thereafter asked for the notarization of the following:

2 Share Purchase Agreement Section 1

1 Doc.-No.____________/1997/124 Notarial Deed Transacted at Basel, Switzerland, this 18th (eighteenth) of December 1997 (nineteen hundred and ninety seven) Before me, the undersigned Dr. iur. Werner Wenger duly authorized and appointed Swiss Notary Public with offices at CH-4010 Basel, Aeschenvorstadt 55 there appeared today: 1. Dr. Alexander Loos, born 17 (seventeenth) May 1950, German citizen with residence at 40212 Dusseldorf, Konigsallee 92a acting not in his own name, but in the name and on behalf of Terex Mining Equipment Inc., a company duly incorporated under the laws of Delaware with registered offices in Westport, Connecticut, USA as attorney without authorization and subject to ratification. 2. Mr. Jurgen Georg Ralf Dircks, born 13 (thirteenth) January 1950, German citizen, with residence at D-44149 Dortmund, , Karl-Funke Stra(beta) 30, living at D-50453 Cologne, Peter-Burchem-Strasse 4, acting not in his own name, but in the name and on behalf of O&K Orenstein & Koppel Aktiengesellschaft with registered offices in Berlin and registered with the Commercial Register of the Amtsgericht Berlin-Charlottenburg under 93 HRB 1167 as attorney without authorization and subject to ratification. 2.1. The undersigned notary is requested to attach to this deed the simple written ratifications of Terex Mining Equipment, Inc. and of O&K Orenstein & Koppel Aktiengesellschaft after having received them. With regard to this deed there have been notarized three referenced deeds, namely the notarial deeds of notary Stephan Cueui, domiciled in Basel, Switzerland, A.-Prot 1992/297 of 16 and 17 December and A-Prot 1997/302 of 17 and 18 December 1992 as well as the notarial deed of the acting notary of 18 December 1997, A-Prot 1997/123 hereinafter collectively referred to as "Disclosure Memorandum." Such referenced deeds are hereby referred to. The referenced deeds have been available as originals during the notarization of this deed. Their contents are known to the attendants. The attendants have waived that such deeds be read out or attached. The attendants as identified by German Federal Identity card thereafter asked for the notarization of the following:

2 Share Purchase Agreement Section 1 Subject Matter of this Agreement/Corporate Ownership 1. The registered (share) capital of O&K Mining GmbH with registered offices in Dortmund and registered with the Commercial Register of the Amtsgericht Dortmund under HRB 5486 amounts to DM 20,000,000. The share capital is divided as follows:
one share in the nominal amount of DM 19,000

2 Share Purchase Agreement Section 1 Subject Matter of this Agreement/Corporate Ownership 1. The registered (share) capital of O&K Mining GmbH with registered offices in Dortmund and registered with the Commercial Register of the Amtsgericht Dortmund under HRB 5486 amounts to DM 20,000,000. The share capital is divided as follows:
one one one one share share share share in in in in the the the the nominal nominal nominal nominal amount amount amount amount of of of of DM 19,000 DM 1,000 DM 30,000 DM 19,950,000 ----------------DM 20,000,000

O&K Orenstein & Koppel Aktiengesellschaft, hereinafter sometimes referred to as the "Seller," is the sole and unrestricted owner of the aforementioned shares. 2. On December 28, 1993 the Seller and O&K Mining GmbH entered into a controlling and profit and loss pooling agreement, which has been registered with the Commercial Register of O&K Mining GmbH on July 13, 1994. 3. O&K Mining GmbH is the sole owner of all shares in the following companies: 3.1. O&K Australia Pty. Ltd. (Construction and Mining Machinery) with registered offices at Seven Hills, Australia, and with a subscribed capital in the amount of 7,010,000 AUD; 3.2. O&K Orenstein & Koppel Ltd. with registered offices at Watford Village, Northampton, England, and with a subscribed capital in the amount of 8,253,000 GDP; O&K Orenstein & Koppel Ltd. is the sole shareholder of O&K Ireland Ltd. with registered office at Dublin, Ireland, and with a subscribed capital in the amount of 1,000 IEP; 3.3. O&K Orenstein & Koppel Inc. with registered offices at Winterburn, Alberta, Canada, and with a subscribed capital in the amount of 2,600,000 CAD; 3.4. O&K Far East Pte. Ltd. with registered offices in Singapore, Singapore and with a subscribed capital in the amount of 300,000 SGD; 3.5. O&K Orenstein & Koppel (South Africa) Pty. Ltd. with registered offices at Germiston, Republic of South Africa, and with a subscribed capital in the amount of 63,570,000 ZAR; 3.6. O&K Orenstein & Koppel Inc. with registered office at Austell, Georgia, USA, and with a subscribed capital in the amount of 1,200 USD.

3 4. O&K Mining GmbH and the aforementioned companies are hereinafter collectively sometimes referred to as "O&K Mining Group." 5. Neither O&K Mining GmbH nor any of its subsidiaries, as completely enumerated under para. 3.1 to 3.6 owns any shares, quotas, or other participation rights or any options to acquire or subscribe for such participation rights in any other company, enterprise or silent partnership nor is there any obligation of the O&K Mining Group to acquire or subscribe for any such participation right except with respect to the private limited company which is planned to be established as a wholly-owned subsidiary of O&K Mining GmbH with registered offices in

3 4. O&K Mining GmbH and the aforementioned companies are hereinafter collectively sometimes referred to as "O&K Mining Group." 5. Neither O&K Mining GmbH nor any of its subsidiaries, as completely enumerated under para. 3.1 to 3.6 owns any shares, quotas, or other participation rights or any options to acquire or subscribe for such participation rights in any other company, enterprise or silent partnership nor is there any obligation of the O&K Mining Group to acquire or subscribe for any such participation right except with respect to the private limited company which is planned to be established as a wholly-owned subsidiary of O&K Mining GmbH with registered offices in Jarkarta, Indonesia. 6. Seller shall take over the shares in O&K Ireland Ltd. with registered offices at Dublin, Ireland at the Closing Date, the latest Seller does not owe any consideration for the acquisition of shares in O&K Ireland Ltd. Section 2 Sale of the Shares in O&K Mining GmbH 1. The Seller herewith sells with economic effect as of the Effective Date (Section 5 of this Agreement) all of its shares in O&K Mining GmbH as described in Section 1 para. 1 of this Agreement, including all rights and obligations attached thereto, including all rights to receive dividends and profits for the fiscal year beginning on January 1, 1998, to Terex Mining Equipment, Inc., hereinafter sometimes referred to as the "Buyer." The Buyer hereby accepts such sale. 2. The controlling and profit and loss pooling agreement between the Seller and O&K Mining GmbH, as described in Section 1 para. 2 above, shall be terminated with effect of expiry of December 31, 1997. The Parties undertake to put each other for their internal relationship in a position they would be in if O&K Mining GmbH has neither gained any profits nor suffered any losses in the financial year ending December 31, 1997, and, subject to Section 4 para 4 last half sentence, hold each other harmless from all rights and obligations arising out of and in connection with the profit and loss pooling agreement. 3. The execution in rem and the assignment of the shares shall take place by virtue of a separate notarial deed, subject to the provisions of Section 5 of this Agreement. Section 3 Consideration/Purchase Price 1. Upon execution in rem of this Agreement (Section 5) the Buyer shall provide Seller with funds in the aggregate amount of DM 320,000,000.--

(say: three hundred and twenty million Deutschmarks) - hereinafter sometimes referred to as the "Consideration" Such funds shall be provided by Buyer to Seller as follows:

4 1.1. The Buyer shall pay to the Seller cash funds in the amount of DM 280 million by way of wire transfer to an account of the Seller to be denoted by the Seller. 1.2. The Buyer shall further issue to the Seller 8 bearer notes ("Inhaberschuldverschreibungen") in the nominal amount of 5 Mio DM each and in the total nominal amount of DM 40 millions bearing interest at a rate of 6-

4 1.1. The Buyer shall pay to the Seller cash funds in the amount of DM 280 million by way of wire transfer to an account of the Seller to be denoted by the Seller. 1.2. The Buyer shall further issue to the Seller 8 bearer notes ("Inhaberschuldverschreibungen") in the nominal amount of 5 Mio DM each and in the total nominal amount of DM 40 millions bearing interest at a rate of 6Month-LIBOR for DM plus 8 per cent, per annum in accordance with the wording agreed to. The Consideration can only be increased according to para. 8 hereinafter. 2. The funds in the aggregate amount of DM 320,000,000 to be provided for by Buyer to Seller pursuant to para. 1 shall become due and payable upon execution in rem (Section 5 of this Agreement) against "Zug um Zug") transfer of all shares not encumbered with rights of third parties, in O&K Mining GmbH. Out of these funds an amount of DM 160,000,000.--

(say: one hundred and sixty million Deutschmarks) shall be allocated as the purchase price for the shares in O&K Mining GmbH sold hereunder, including the rights to receive dividends and profits for the fiscal year 1998 and thereafter. - hereinafter sometimes referred to as the "Purchase Price." 3. The Seller undertakes and guarantees to use the remaining funds immediately for the repayment of Net Financial Liabilities pursuant to Section 4 of this Agreement. 4. As regards the Buyer's obligation to provide the Seller with funds in the aggregate amount of DM 320,000,000 pursuant to para. 1, any rights of the Buyer to set off and/or to withhold the Consideration or any part thereof vis-a-vis the Seller are hereby expressly waived and excluded, except for claims which have been conceded by the Seller, or which are subject to a final and binding decision of a competent court. 5. The Purchase Price is based on the Seller's commitment that the consolidated net financial liabilities of O&K Mining Group as of Closing Date (hereinafter referred to as "Net Financial Liabilities") does not exceed an amount of DM 160 million and that the consolidated working capital of the O&K Mining Group as of the Closing Date (hereinafter referred to as "Net Working Capital") amount to minimum DM 260 million. 5.1. The Net Financial Liabilities of the O&K Mining Group shall be the balance of 5.1.1. the liabilities of O&K Mining Group to external financial creditors from borrowings ("Darlehen"), liabilities in other currencies than DEM shall be converted to DEM on the basis of the selling rate determined by the Frankfurt Foreign Exchange for the respective currency on the last banking day preceding the Closing Date; 5.1.2. plus liabilities to Seller from intercompany cash management and clearing;

5 5.1.3. minus checks received and subsequently paid, cash at bank and in hand postal giro balances and central bank balances, if in other currencies than DEM converted to DEM on the basis of the purchase rate determined by the Frankfurt Foreign Exchange for the respective currency on the last banking day preceding the Closing Date. 5.2. The Net Working Capital of the O&K Mining Group shall be the balance of 5.2.1. all stock minus deposits received;

5 5.1.3. minus checks received and subsequently paid, cash at bank and in hand postal giro balances and central bank balances, if in other currencies than DEM converted to DEM on the basis of the purchase rate determined by the Frankfurt Foreign Exchange for the respective currency on the last banking day preceding the Closing Date. 5.2. The Net Working Capital of the O&K Mining Group shall be the balance of 5.2.1. all stock minus deposits received; 5.2.2. plus all accounts receivables including those accounts receivables vis-a-vis affiliated and associated companies other than the companies of the O&K Mining Group. 5.2.3. minus all accounts payable arising from trade liabilities including accounts payable arising from trade liabilities vis-a-vis affiliated and associated companies other than the companies of the O&K Mining Group. Stock, accounts receivables and accounts payable accounted for in other currencies than DEM shall be converted to DEM on the basis of the purchasing rate determined by the Frankfurt Foreign Exchange for the respective currency on the last banking day preceding the Closing Date. 5.3. The amount of the net Financial Liabilities as of the Closing Date shall be determined by the parties within a period of thirty (30) days after the Closing Date on the basis of the statements of the banks, and of statements relating to the group clearing accounts confirmed by C&L Deutsch Revision AG Wirtschaftsprufungsgesellschaft and confirmed by Dr. Kocke & Partner GmbH, member of Price Waterhouse, Dusseldorf. 5.4. The amount of the Net Working Capital as of Closing Date shall be determined within the same period. The Net Working Capital as of Closing Date shall be derived from the audited annual financial statements of the O&K Mining GmbH and the companies listed in Section 1 para. 3 as of December 31, 1997 which shall be submitted by Seller to the Buyer seven days prior to Closing Date, the latest (hereinafter the "Annual Financial Statements 1997"), and shall be brought down ("fortgeschrieben") to the Closing Date. The entries made to the Annual Financial statements 1997 to arrive at Net Working Capital at the Closing Date will be made in accordance with the German generally accepted accounting and valuation principles and, where permissible, in a manner that is consistent with the past practice of the company and that such entries fairly represent the changes to such accounts of the O&K Mining Group for the time since January 1, 1998. Such entries have to be confirmed by C&L Deutsche Revision AG Wirtschaftsprufungsgesellschaft and confirmed by Dr. Kocke & Partner GmbH, member of Price Waterhouse, Dusseldorf. 6. If and to the extent the actual Net Financial Liabilities exceed the aforementioned amount of DM 160 million as of Closing Date, the Seller shall be entitled to acquire with effect as of the Closing Date accounts receivables and/or other current assets of O&K Mining GmbH, and/or of one of the companies listed in Section 1 para. 3 above, in order to reduce the

6 Net Financial Liabilities to the target of DM 160 million, provided that the Net Working Capital meets or exceeds DM 260 Mio. The acquisition of accounts receivables shall be undertaken by way of factoring or forfeiting factoring. Accounts receivables in currencies other than DEM shall be converted according to the official middle rate determined by the Frankfurt foreign exchange at the last banking day prior to Closing Date. Seller shall select, at its own discretion but subject to the consent and approval of the Buyer, the accounts receivables and/or other current assets he acquires. Buyer shall not unreasonably withhold his consent and approval. The Buyer represents and warrants that the O&K Mining Group shall support the Seller by using its best efforts to collect the acquired accounts receivables and/or to realize the value of the other acquired assets respectively. If on the Closing Date, after any purchase of current assets according to the aforesaid, the Net Financial Liabilities exceed DM 160 million, then the Purchase Price will be reduced by the amount of such excess. 7. If and to the extent the Net Financial Liabilities shall be lower than the aforementioned amount and the Net

6 Net Financial Liabilities to the target of DM 160 million, provided that the Net Working Capital meets or exceeds DM 260 Mio. The acquisition of accounts receivables shall be undertaken by way of factoring or forfeiting factoring. Accounts receivables in currencies other than DEM shall be converted according to the official middle rate determined by the Frankfurt foreign exchange at the last banking day prior to Closing Date. Seller shall select, at its own discretion but subject to the consent and approval of the Buyer, the accounts receivables and/or other current assets he acquires. Buyer shall not unreasonably withhold his consent and approval. The Buyer represents and warrants that the O&K Mining Group shall support the Seller by using its best efforts to collect the acquired accounts receivables and/or to realize the value of the other acquired assets respectively. If on the Closing Date, after any purchase of current assets according to the aforesaid, the Net Financial Liabilities exceed DM 160 million, then the Purchase Price will be reduced by the amount of such excess. 7. If and to the extent the Net Financial Liabilities shall be lower than the aforementioned amount and the Net Working Capital meets or exceeds the amount of DM 260 million, the allocation of the Consideration to the Purchase Price shall be increased by the amount by which the Net Financial Liabilities fall short from the amount of DM 160 million. 8. If, after the purchase of current assets according to para. 6 hereof, the Net Financial Liabilities meet the amount of DM 160 million, whereas the Net Working Capital is less than DM 255 million, then the Seller is obliged to repay an amount equaling the shortfall from DM 255 million. If, after the purchase of current assets according to para. 6 hereof, the Net Financial Liabilities meet the amount of DM 160 million, whereas Net Working Capital on the Closing Date exceeds the amount of DM 265 million, then Buyer is obliged to pay the amount by which the Net Working Capital exceeds DM 265 million. Irrespective of the allowance ("Freibetrag") of DM 5 million to the committed Net Working Capital, Seller shall use its best efforts to secure that O&K Mining GmbH shall have a Net Working Capital on Closing Date of DM 260 million. Section 4 Assumption of the Financing Responsibility 1. Upon execution in rem of this Agreement, the Net Financial Liabilities of the O&K Mining Group as of the Closing Date in the amount of DM 160 million shall be repaid out of the Consideration to be provided by the Buyer to the Seller pursuant Section 3 para. 1 of this Agreement as follows: 1.1. Seller, in lieu of performance, shall accept for the repayment of a corresponding partial amount of the debit balance of O&K Mining Group on the group clearing account conducted by the Seller the bearer notes issued by Buyer to the Seller. 1.2. The Seller undertakes to use the cash funds provided by Buyer to Seller immediately for the repayment of liabilities of the companies of the O&K Mining Group to external financial creditors from loans. The remaining amount shall be deemed as full repayment of all Net Financial Liabilities of O&K Mining Group to the Seller from the group clearing account (Section 267 para. 1 German Civil Code/BGB).

7 1.3. If and to the extent the Net Financial Liabilities shall be lower than the amount of DM 160 million, Seller shall keep the amount which is not required for repayment of Net Financial Liabilities as additional Purchase Price pursuant to Section 3 para. 7 to settle the remaining Net Financial Liabilities. 1.4. If and to the extent the Net Financial Liabilities on Closing Date shall exceed the amount of DM 160 million, Seller is entitled and obliged to use the purchase price for accounts receivables and/or other current assets acquired by Seller as provided for in Section 3 para. 6 to settle the remaining Net Financial Liabilities. The Buyer represents and warrants that the O&K Mining Group shall support the Seller by taking all required measures in connection with the settlement of the remaining Net Financial Liabilities. The Seller represents and warrants that the Net Financial Liabilities of the O&K Mining Group reduced through any means arising from the acquisition of accounts receivables and/or other current assets under Section 3 para. 6 by the Seller will be completely settled through the funds provided by the Buyer to the Seller as

7 1.3. If and to the extent the Net Financial Liabilities shall be lower than the amount of DM 160 million, Seller shall keep the amount which is not required for repayment of Net Financial Liabilities as additional Purchase Price pursuant to Section 3 para. 7 to settle the remaining Net Financial Liabilities. 1.4. If and to the extent the Net Financial Liabilities on Closing Date shall exceed the amount of DM 160 million, Seller is entitled and obliged to use the purchase price for accounts receivables and/or other current assets acquired by Seller as provided for in Section 3 para. 6 to settle the remaining Net Financial Liabilities. The Buyer represents and warrants that the O&K Mining Group shall support the Seller by taking all required measures in connection with the settlement of the remaining Net Financial Liabilities. The Seller represents and warrants that the Net Financial Liabilities of the O&K Mining Group reduced through any means arising from the acquisition of accounts receivables and/or other current assets under Section 3 para. 6 by the Seller will be completely settled through the funds provided by the Buyer to the Seller as described above. 2. Upon execution in rem of this Agreement and settlement of the Net Financial Liabilities as described above, the Buyer shall assume the entire financing responsibility for the O&K Mining Group. 3. As of the execution in rem of this Agreement, the Buyer further undertakes to use its best efforts to release the Seller from all liabilities, in particular arising out of credit orders ("Kreditauftrage"), collaterals ("Burgschaften") and any warranties for the O&K Mining Group, guarantees ("Avalen"), comfort letters and group liability declarations, guarantees in connection with repurchase obligations and indemnity letters ("Ausfallgarantien") and the like assumed for customers of the O&K Mining Group. A survey of such liabilities as of October 31, 1997, has been disclosed in the Disclosure Memorandum and will be permanently updated up to Closing Date. 4. The Buyer represents and warrants that O&K Mining GmbH will comply with all of its obligations and liabilities for which Seller can be held liable for, including out of such securities Seller will possibly taken out in connection with the termination of the controlling and profit and loss pooling agreement between the Seller and O&K Mining GmbH according to Section 303 Stock Corporation Act/Aktiengesetz; it is being understood that neither O&K Mining GmbH nor Buyer will be required to provide securities. 5. With effect as of the execution in rem of this Agreement, the Seller is entitled to revoke all credit orders which it has issued in favor of O&K Mining GmbH and/or the companies mentioned in Section 1 para. 3. Without prejudice to this right, the Buyer shall guarantee to the Seller that the credit orders issued by the Seller and the credit lines provided or guaranteed by it shall no longer be used. Section 5 Effective Date / Execution in rem and Closing 1. The sale and the transfer of the shares in O&K Mining GmbH, including the rights to receive profits and dividends, shall become economically effective between the parties upon expiry of December 31, 1997 (heretofore

8 and hereinafter sometimes referred to as the "Effective Date"). Except as expressly provided for in this Agreement, the parties shall put each other upon execution in rem of this Agreement in a position they would have been if the Agreement had been executed in rem on the Effective Date. The Buyer shall not bear any costs or expenses in addition to the Consideration due to discrepancy ("Auseinanderfallen") of Effective Date and Closing Date. 2. The management board of Seller ("Vorstand") will seek approval by its shareholders' meeting for the concept of the sale of the mining business of the O&K group as a matter of legal precaution, in particular with respect to the decisions of the German Federal Supreme Court ("Bundesgerichtshof") regarding the participation of the

8 and hereinafter sometimes referred to as the "Effective Date"). Except as expressly provided for in this Agreement, the parties shall put each other upon execution in rem of this Agreement in a position they would have been if the Agreement had been executed in rem on the Effective Date. The Buyer shall not bear any costs or expenses in addition to the Consideration due to discrepancy ("Auseinanderfallen") of Effective Date and Closing Date. 2. The management board of Seller ("Vorstand") will seek approval by its shareholders' meeting for the concept of the sale of the mining business of the O&K group as a matter of legal precaution, in particular with respect to the decisions of the German Federal Supreme Court ("Bundesgerichtshof") regarding the participation of the shareholders' meeting with respect to essential structural measures (see BGHZ 83, 122). Therefore, the parties agree that an obligation to execute this Agreement in rem shall only exist under the condition precedent that 2.1. the shareholders' meeting will have approved the concept of the sale in the form as provided for by the requirements of the German Stock Corporation Law/Aktiengesetz and 2.2. the management board of the Seller, on the basis of its due assessment of the circumstances and in compliance with its obligations to the company in accordance with German Stock Corporation Law, is entitled to execute this Agreement in rem. Independent and regardless of the foregoing conditions precedent, the management board of the Seller will recommend the concept of the sale of the mining business and use its best efforts to obtain the shareholders' approval. 3. The Seller shall notify the Buyer as soon as the conditions for execution in rem as set forth in para. 2 above, have been met. Seller and Buyer then shall prepare the execution in rem within the following five weeks. Execution in rem of this Agreement shall take place on the 35th day following the receipt of the Seller's notification by Buyer pursuant to sentence 1 (heretofore and hereinafter sometimes referred to as "Closing Date"). 4. If the management board of the Seller does not notify the Buyer by 31st March, 1998 that the conditions of execution in rem have been met, Buyer shall be entitled to withdraw from this Agreement within fourteen days following the 31st March, 1998. If the management board of the Seller has not serviced the mentioned notification by 20th May, 1998, then either party shall be entitled to withdraw from this Agreement. The parties hereto agree that in case of such withdrawal, any further claims do not exist and are herewith expressly waived and excluded. 5. Upon execution in rem, the shares in O&K Mining GmbH shall be transferred and assigned to the Buyer, and all further actions and measures under this Agreement shall be taken against ("Zug um Zug") payment of the Consideration. 6. Notwithstanding the execution in rem of this Agreement, the Buyer shall grant access to all documents and information of the O&K Mining Group to the Seller as subject of the uniform structure for corporate tax purposes ("korperschaftsteurliche Organschaft") and, by way of an agreement in favor of third parties ("Vertrag zugunsten Dritter, Section 328 BGB"), to Fried, Krupp AG Hoesch-Krupp as subject of the uniform structure for purposes of

9 VAT and trade tax ("urnsatz- und gewerbesteuerliche Organschaft"), if and to the extent the seller and/or Fried Krupp AG Hoesch-Krupp require such documents and information for their tax purposes concerning the period until and including December 31, 1997. Section 6 Relationship between O&K Mining and Seller Based on the joint understanding and assumption that the existing delivery and services relationships and

9 VAT and trade tax ("urnsatz- und gewerbesteuerliche Organschaft"), if and to the extent the seller and/or Fried Krupp AG Hoesch-Krupp require such documents and information for their tax purposes concerning the period until and including December 31, 1997. Section 6 Relationship between O&K Mining and Seller Based on the joint understanding and assumption that the existing delivery and services relationships and agreements between O&K Mining GmbH and the companies listed in Section 1 para. 3 on the one side, and the Seller or the companies controlled by the Seller on the other side have to fit the interests of the companies of the O&K Mining Group, the Parties agree that in principle such existing delivery and services relationships and agreements shall survive Closing Date. Notwithstanding the aforesaid, Buyer shall review such existing delivery and services relationships and may withdraw from this Agreement by January 31, 1998, the latest, in case the review leads Buyer to the view that a continuation of such delivery and services relationships and agreements do not fit the interests of the O&K Mining Group. Section 7 Guarantees The Seller guarantees ("garantiert") in favor of Buyer within the meaning of an independent promise of guarantee ("selbstandiges Garantieversprechen") that subject to the provisions of Section 8 para. 6, the following is true and correct on the date of signing of this Agreement and, if expressly provided for hereinafter, on the Effective Date and/or the Closing Date: 1. Corporate Guarantees 1.1. All information given in Section 1 regarding the corporate structure of the O&K Mining Group and the ownership in the shares is complete and correct. The Seller has the corporate power and unrestricted authority to sell the shares in O&K Mining GmbH according to the provisions of this Agreement. 1.2. The shares in O&K Mining GmbH are the sole property of the Seller and are not encumbered with rights of third parties. There are no agreement with third parties with respect to the shares, in particular no preemptive rights ("Vorkaufsrechte"), call options ("Andienungspflichten"), shareholder agreements, trust or fiduciary relationships or similar arrangements. The rights and obligations of the shareholders are exclusively governed by the articles of association as disclosed on the Disclosure Memorandum. 1.3. The shares in the companies listed in Section 1 para. 3 are the sole property of the O&K Mining GmbH and they are not encumbered with rights of third parties. There are no arrangements with third parties with respect to the shares, in particular no preemptive rights ("Vorkaufsrechte"), put options ("Andienungspflichten"), shareholder agreements, trust or fiduciary relationships or similar arrangements. There are no other shareholder agreements than those disclosed in the Disclosure Memorandum.

10 1.4. O&K Mining GmbH is a limited liability company, duly established under the laws of the Federal Republic of Germany and validly existing under the articles of association as of June 28, 1994. There is no registration with the commercial register pending, regarding shareholders' resolutions to change or amend the articles of association. The companies listed in Section 1 para. 3 are duly established and validly existing under the laws of the relevant jurisdiction and the relevant articles of association as disclosed in the Disclosure Memorandum. 1.5. All shares and participation rights ("Beteiligungsrechte") presently owned by or existing in or subscribed for by any company of the O&K Mining Group are fully paid up, and any respective contribution in kind or in money has been made in full and has not been repaid neither directly nor indirectly to the respective holder, owner or subscriber or any third party closely connected ("nahestehende Dritte") with Seller. The GmbH interests are non

10 1.4. O&K Mining GmbH is a limited liability company, duly established under the laws of the Federal Republic of Germany and validly existing under the articles of association as of June 28, 1994. There is no registration with the commercial register pending, regarding shareholders' resolutions to change or amend the articles of association. The companies listed in Section 1 para. 3 are duly established and validly existing under the laws of the relevant jurisdiction and the relevant articles of association as disclosed in the Disclosure Memorandum. 1.5. All shares and participation rights ("Beteiligungsrechte") presently owned by or existing in or subscribed for by any company of the O&K Mining Group are fully paid up, and any respective contribution in kind or in money has been made in full and has not been repaid neither directly nor indirectly to the respective holder, owner or subscriber or any third party closely connected ("nahestehende Dritte") with Seller. The GmbH interests are non assessable ("nicht nachschu(beta)pflichtig"). There are no obligations to repay any contribution on shares and participation rights ("Beteiligungsrechte"). 1.6. There are no controlling or profit and loss pooling agreements or any other agreements within the scope of Section 291, 292 Stock Corporation Act ("Unternehmensvertrage") between O&K Mining GmbH or the companies listed in Section 1 para. 3 on the one side and third parties on the other side. Neither O&K Mining GmbH nor the companies listed in Section 1 para. 3 of this Agreement is party to an agreement according to which they have in toto or in part to transfer to or to share their profits with a third party. The aforesaid shall not apply to arrangements to share profits under labor law. The controlling and profit and loss pooling agreement referred to in Section 1 para. 2 shall be terminated with effect of expiry of December 31, 1997. 1.7. The O&K Mining Group is not overindebted ("uberschuldet") or insolvent ("zahlungsunfahig"). 1.8. The aforementioned guarantees under para 1.1 to 1.7 shall also be true and correct on Closing Date, except that Seller shall have acquired the O&K Ireland Ltd. by Closing Date, the latest (Section 1 para. 6 of this Agreement). 2. Annual Financial Statements 2.1. The annual financial statements of O&K Mining GmbH as of December 31, 1996 and as of December 31, 1997 bearing the unqualified certificate of C&L Deutsche Revision AG Wirtschaftsprufungsgesellschaft have been prepared with the due diligence of an orderly and prudent business man in accordance with the German generally accepted accounting and valuation principles and, where permissible, in a manner that is consistent with the past practice of the company. Such financial statements present a true and fair view of the asset position ("Vermogenslage"), financial position ("Finanzlage") and earnings position ("Ertragslage") of the company within the meaning of Section 264 para. 2 German Commercial Code/HGB at the relevant date of the balance sheet.

11 2.2. Taking into consideration that the companies listed in Section 1 para. 3 continued to be economically integral member entities of the O&K Mining Group, the annual financial statements of the companies listed in Section 1 para. 3 as of December 31, 1996 and as of December 31, 1997, have or will have been prepared and certified in accordance with the generally accepted accounting and valuation principles applicable in the respective country and, where permissible, in a manner that is consistent with the past practice of the company. Based on the aforesaid assumption, such financial statements converted for consolidation purposes into German law (balance sheet II/ "Handelsbilanz II") present a true and fair view of the asset position ("Vermogenslage"), financial position ("Finanslage") and earnings position ("Ertragslage") of the company within the meaning of Section 264 para. 2 German Commercial Code/HGB at the relevant date of the balance sheet. 2.3. Seller is not aware of any liabilities in excess of DM 100,000 in each individual case of the O&K Mining Group which are not reflected in the financial statements referred to in para. 2.1 and 2.2 and the notes thereto but which should have been reflected therein in accordance with the generally accepted accounting and valuation principles applicable in the respective country, except for ordinary course payments under agreements and arrangements previously disclosed or made available to Buyer. 2.4. The aforementioned guarantees under para. 1 to 3 shall also be true and correct on Closing Date.

11 2.2. Taking into consideration that the companies listed in Section 1 para. 3 continued to be economically integral member entities of the O&K Mining Group, the annual financial statements of the companies listed in Section 1 para. 3 as of December 31, 1996 and as of December 31, 1997, have or will have been prepared and certified in accordance with the generally accepted accounting and valuation principles applicable in the respective country and, where permissible, in a manner that is consistent with the past practice of the company. Based on the aforesaid assumption, such financial statements converted for consolidation purposes into German law (balance sheet II/ "Handelsbilanz II") present a true and fair view of the asset position ("Vermogenslage"), financial position ("Finanslage") and earnings position ("Ertragslage") of the company within the meaning of Section 264 para. 2 German Commercial Code/HGB at the relevant date of the balance sheet. 2.3. Seller is not aware of any liabilities in excess of DM 100,000 in each individual case of the O&K Mining Group which are not reflected in the financial statements referred to in para. 2.1 and 2.2 and the notes thereto but which should have been reflected therein in accordance with the generally accepted accounting and valuation principles applicable in the respective country, except for ordinary course payments under agreements and arrangements previously disclosed or made available to Buyer. 2.4. The aforementioned guarantees under para. 1 to 3 shall also be true and correct on Closing Date. 3. Business Premises and Sites 3.1. The list of all owned and/or leased real estate, business premises and sites as disclosed in the Disclosure Memorandum, including also the real estate not necessarily required for operations, is complete and correct. 3.2. Unless otherwise disclosed in the Disclosure Memorandum, O&K Mining GmbH and/or the companies listed in Section 1 para. 3 are either the sole owner of the real estate listed in the Disclosure Memorandum, or have a right to use the real estate on the basis of a rental or lease agreement or any other arrangement granting a right of use as disclosed in the Disclosure Memorandum. 3.3. To the best of Seller's knowledge, there are no restrictions or covenants which would affect the present use of the business premises and sites by O&K Mining GmbH or one of the companies listed in Section 1 para. 3 of this Agreement on the basis of a rental or lease agreement or any other arrangement granting the right of use as disclosed in the Disclosure Memorandum, or the continued conduct of the respective business in its present form as owner of the real estate. 4. Other Fixed Assets and Current assets By collateral agreement ("Raumsicherungsubereignungsvertrag") dated June 12, 1996, O&K Mining GmbH transferred and assigned the machinery, equipment and fittings of the Dortmund factory, except as those machinery, equipment and fittings are owned by the Seller as part of its real estate ("wesentliche Bestandteile"), as collateral for financial debts of the Seller to the Dresdner Bank AG, branch Essen/Dortmund, the latter acting as trustee for a banking pool secured

12 by charges on real property ("Grundschuldsicherheiten-Pool"). With commercial effect as per Closing Date, latest in exchange for the Buyers' performance of his obligations under section 3 and 4 above, the Seller undertakes and warrants as of the aforementioned machinery, equipment and fittings will be transferred to O&K Mining GmbH. Except as aforesaid, as of Closing Date all other fixed and current assets are sole and unrestricted property of the O&K Mining Group, and are free of rights of any third parties, with the exception of retention of title clauses and liens under law or other securities within the scope of the ordinary course of business. 1. Intellectual Property Rights 1.1. The Disclosure Memorandum sets out a correct and complete list of all patents including utility patents and design patents ("Patente", "Gebrauchsmuster" and "Geschmacksmuster"), and trademarks/service marks (including logos), including respective applications which are owned by, licensed to or used in the business of the

12 by charges on real property ("Grundschuldsicherheiten-Pool"). With commercial effect as per Closing Date, latest in exchange for the Buyers' performance of his obligations under section 3 and 4 above, the Seller undertakes and warrants as of the aforementioned machinery, equipment and fittings will be transferred to O&K Mining GmbH. Except as aforesaid, as of Closing Date all other fixed and current assets are sole and unrestricted property of the O&K Mining Group, and are free of rights of any third parties, with the exception of retention of title clauses and liens under law or other securities within the scope of the ordinary course of business. 1. Intellectual Property Rights 1.1. The Disclosure Memorandum sets out a correct and complete list of all patents including utility patents and design patents ("Patente", "Gebrauchsmuster" and "Geschmacksmuster"), and trademarks/service marks (including logos), including respective applications which are owned by, licensed to or used in the business of the O&K Mining Group for products designed, manufactured and distributed as of the date of this Agreement or in development as of the date of this Agreement (hereinafter the "Rights"). The Disclosure Memorandum sets out a correct and complete list of all of such Rights which are owned by the O&K Mining Group. 1.2. The O&K Mining Group has fully carried out its business activities and has used all the trademarks/service marks included in the Rights owned by the O&K Mining Group to the extent required by law for the O&K Mining Group to register and enforce such trademarks/service marks. Third parties neither have challenged nor have threatened to challenge the Rights by means of filing in writing objections and for taking action in writing for cancellation vis-a-vis Seller and/or the O&K Mining Group. 1.3. The O&K Mining Group owns and/or is entitled to use the business secrets and the other know-how of the O&K Mining Group used in its business (the business secrets and the know-how together "Know-How"). To the best knowledge of the Seller third parties do neither infringe the Rights nor make unauthorized use of the KnowHow. 1.4. To the best of Seller's knowledge, no intellectual property rights of third parties are conflicting with or prevent the unlimited use of the Rights and the Know-How unless disclosed in the documents deposited with the Notary. 1.5. All rights owned by the O&K Mining Group as per signing this Agreement and Effective Date in as far as registered at all are properly registered and maintained or valid, or a proper application for registration has been filed with regard to such Rights owned by the O&K Mining Group. 1.6. The Buyer is aware of the fact that O&K Mining GmbH has granted free, non-exclusive and non-assignable license rights to the Seller until the expiry of the patent to use the patents listed in the Disclosure Memorandum for the development, production, and distribution of hydraulic excavators. With the exception of such existing arrangements, the O&K Mining Group has not granted any license or agreed to pay or receive any royalty in respect of the Rights owned by the O&K Mining Group. The Rights owned by the O&K Mining Group are

13 free and clear of any liens, encumbrances and other rights of third parties except statutory claims according to the German Arbeitnehmererfindungsgesetz. 1.7. All rights licensed to, but not owned by the O&K Mining Group are shown in the Disclosure Memorandum and all such licenses are valid and enforceable and the O&K Mining Group is not in breach or default with respect to any such license or royalty agreements nor has it received any written notice of termination thereunder. 1.8. The Disclosure Memorandum sets out a correct and complete list of all copyrights ("Urheberrechte") registered for the O&K Mining Group. 1.9. The aforementioned guarantees under subpara. 2 (first sentence), subpara. 3 (first sentence), shall also be true and correct on Effective Date.

13 free and clear of any liens, encumbrances and other rights of third parties except statutory claims according to the German Arbeitnehmererfindungsgesetz. 1.7. All rights licensed to, but not owned by the O&K Mining Group are shown in the Disclosure Memorandum and all such licenses are valid and enforceable and the O&K Mining Group is not in breach or default with respect to any such license or royalty agreements nor has it received any written notice of termination thereunder. 1.8. The Disclosure Memorandum sets out a correct and complete list of all copyrights ("Urheberrechte") registered for the O&K Mining Group. 1.9. The aforementioned guarantees under subpara. 2 (first sentence), subpara. 3 (first sentence), shall also be true and correct on Effective Date. 2. Taxes and Other Levies 2.1. O&K Mining GmbH and the companies listed in Section 1 para. 3 have, unless otherwise disclosed in the Disclosure Memorandum, duly and properly submitted all tax declarations and declarations with respect to social security payments to be made until signing of this Agreement, and have paid all taxes, social security payments and other contributions or levies under public law due and payable. 2.2. O&K Mining GmbH and the companies listed in Section 1 para. 3 have paid the current and required advance payments for all relevant taxes, have duly withheld or collected all taxes the companies of O&K Mining Group is required to withhold or collect and, to the extent required, has paid such taxes to the proper governmental authorities. 2.3. The last tax field audit ("steuerliche Au(beta)enprufung") of the O&K Mining GmbH and of the companies listed in Section 1 para. 3 has been carried out as listed in the Disclosure Memorandum. 2.4. The aforementioned guarantees under para. 1 and 2 shall also be true and correct on Closing Date. 3. Licenses and Permits To the Seller's knowledge, O&K Mining GmbH and the companies listed in Section 1 para. 3 have all licenses and permits required under public and private law for the continuation of their current business and their operational facilities and equipment. 4. Personnel, Employees 4.1. The Disclosure Memorandum contains a complete list of all employees of O&K Mining GmbH and the companies listed in Section 1 para. 3 as of October 31, 1997 (including information on entries and leaves as far as foreseen by Seller as of signing this Agreement). The aggregate amount of salaries and wages ("Personalaufwand" within the meaning of Section 275 para. 2 number 6 of the German Commercial Code/HGB) paid by the O&K Mining Group to its employees from January 1, 1997 to

14 December 31, 1997, does not exceed DM 60 Mio (based on currency exchange rates prevailing in 1997). 4.2. The Disclosure Memorandum contains a complete list of all managing directors ("Geschaftsfuhrer") of O&K Mining GmbH and the companies listed in Section 1 para. 3 as of October 31, 1997. Except as disclosed in the Disclosure Memorandum, no managing director listed in the Disclosure Memorandum has given notice for early termination of his service agreement. 4.3. The Disclosure Memorandum contains a complete list of all shop agreements ("Betriebsvereinbarungen") entered into by O&K Mining GmbH and/or the companies listed in Section 1 para. 3, which provide for an

14 December 31, 1997, does not exceed DM 60 Mio (based on currency exchange rates prevailing in 1997). 4.2. The Disclosure Memorandum contains a complete list of all managing directors ("Geschaftsfuhrer") of O&K Mining GmbH and the companies listed in Section 1 para. 3 as of October 31, 1997. Except as disclosed in the Disclosure Memorandum, no managing director listed in the Disclosure Memorandum has given notice for early termination of his service agreement. 4.3. The Disclosure Memorandum contains a complete list of all shop agreements ("Betriebsvereinbarungen") entered into by O&K Mining GmbH and/or the companies listed in Section 1 para. 3, which provide for an average financial obligation of more than DM 500, per employee and per year. 4.4. The total amount of the cash value of the pension obligations imposed on O&K Mining GmbH has been disclosed in the Disclosure Memorandum by presentation of the corresponding actuarial expertise as of December 31, 1996. The underlying actuarial expertise opinions prepared by [Heissmann] comply with applicable tax laws and are correct under the principles under which they are prepared. 4.5. The pension accruals of O&K Mining GmbH and/or one of the companies listed in Section 1 para. 3 as shown in their annual financial statements as of December 1996 for present or former employees having vested rights, who have direct pension claims ("Pensions, Betriebsrenten oder sonstige Altersversorgungsanspruche") have been established in accordance with the applicable tax laws. According to Section 28 para 1 sent. 2 EGHGB, the obligations of O&K Mining GmbH to O&K-Hilfe GmbH, Berlin, arising from indirect pension commitments or similar undertakings in the amount of DM 6,984,000 as of December 31, 1996 have not been accrued for. 5. Insurances 5.1. All material insurance contracts of O&K Mining GmbH are managed by Westdeutsche Assekuranz-Kontor GmbH, Essen ("WAKO"). A respective confirmation of coverage under the insurance contracts listed true and correct in the Disclosure Memorandum for the period until the Closing Date has been provided by WAKO. 5.2. There are no claims filed by any company of the O&K Mining Group, but not yet regulated, for any of the listed insurance policies exceeding an aggregate amount of DM 1,000,000 or as a single claim the amount of DM 50,000 unless completely listed (by policy number, claimant, cause of damage, amount of damage, date of first knowledge of the insured risk coverage and state of regulation in the Disclosure Memorandum. 5.3. The insurance cover as taken out and existing for O&K Mining GmbH and all benefits as they have for any case or insured risk caused and materialized prior to the Closing Date and covered under the terms and conditions of the aforementioned insurance contracts will be available and obtainable for two years following Closing Date and is not subject to any setoff or other compensation due to or attributable to any

15 other case of damage, or to any insurance contract of any other company connected with seller (within the meaning of Section 15 German Stock Corporation Act/AktG) and will not be restricted on the Closing Date by a claims-made clause. 6. Guarantees The Disclosure Memorandum contains a list of all guarantees and other sureties which may lead to financial obligations of O&K Mining GmbH or any of the companies listed in Section 1 para. 3 for any party other than the aforesaid companies in excess of DM 100,000 in each individual case, with the exception of customary performance and warranty guaranties and those guaranties which have been assumed in the ordinary course of business. 7. Environmental

15 other case of damage, or to any insurance contract of any other company connected with seller (within the meaning of Section 15 German Stock Corporation Act/AktG) and will not be restricted on the Closing Date by a claims-made clause. 6. Guarantees The Disclosure Memorandum contains a list of all guarantees and other sureties which may lead to financial obligations of O&K Mining GmbH or any of the companies listed in Section 1 para. 3 for any party other than the aforesaid companies in excess of DM 100,000 in each individual case, with the exception of customary performance and warranty guaranties and those guaranties which have been assumed in the ordinary course of business. 7. Environmental 7.1. Seller has disclosed to Buyer the decontamination scheme for the former business premises at Trojan Circle, Batavia, NY, owned by O&K Orenstein & Koppel, Inc., Georgia, USA. Seller shall take full responsibility for any environmental liability arising from such contamination of the aforementioned premises and shall indemnify and hold harmless O&K Orenstein & Koppel, Inc. and/or O&K Mining GmbH from all costs and expenses connected with the execution of the decontamination scheme as far as the aggregate costs and expenses for such decontamination cannot be covered and financed by current and future consideration (less lessor's expenses) from the lease and sale of such premises to the present tenant of the premises. 7.2. To the best of Seller's knowledge, there is no further material contamination of soil and/or ground water and/or air by any toxic and/or hazardous substances on the business premises owned and/or leased by the O&K Mining Group the, cleaning up of which can be requested from the O&K Mining Group under any environmental laws as presently in full force and effect and as currently interpreted by the competent courts and which are not disclosed in the Disclosure Memorandum. 7.3. Except as disclosed in the Disclosure Memorandum the O&K Mining Group is not involved in any administrative or court proceedings against any of the companies of the O&K Mining Group pending or threatening, regarding any contamination of soil and ground water or air on the business premises. 8. Legal Disputes Litigation 8.1. Except for collection matters which involve an amount of not more than DM 100,000 in each individual case and except for the litigation matters listed in the Disclosure Memorandum, no company of the O&K Mining Group is involved as defendant or plaintiff in any litigation proceedings. The Seller is not aware that any further litigation matters have been threatened in writing. 8.2. To the best of Seller's knowledge, during the last three years prior to the Effective Date, neither product liability claims exceeding the amount of DM 10,000 in each case have been asserted against O&K Mining GmbH or one of the companies listed in Section 1 para. 3, nor have any of these companies notified an insurance company that such product liability claims have been asserted or settled.

16 8.3. Seller has disclosed to Buyer the contractual exposures resulting from (i) the Services Agreement entered into between O&K Orenstein & Koppel, Ltd. and Foster Yeoman, Ltd., dated May 5, 1989, and (ii) the Agreement regarding the Lease of Railway Rolling Stock by Norwich Union Insurance Group (Equipment Finance) Limited to Foster Yeoman Limited, dated March 8, 1989, and (iii) the Agreement regarding the Lease of Railway Rolling Stock by Eastlease Limited to Foster Yeoman Limited, dated March 12, 1989, Seller shall indemnify and hold harmless O&K Orenstein & Koppel Ltd., Watford and/or O&K Mining GmbH from all liabilities as incurred from time to time by O&K Orenstein & Koppel, Ltd. or O&K Mining GmbH less any revenues generated in connection therewith, provided that such claims lie within the responsibility and/or liability of O&K Orenstein & Koppel, Ltd. prior to Effective Date, Section 8 para. 5 of this Agreement shall apply.

16 8.3. Seller has disclosed to Buyer the contractual exposures resulting from (i) the Services Agreement entered into between O&K Orenstein & Koppel, Ltd. and Foster Yeoman, Ltd., dated May 5, 1989, and (ii) the Agreement regarding the Lease of Railway Rolling Stock by Norwich Union Insurance Group (Equipment Finance) Limited to Foster Yeoman Limited, dated March 8, 1989, and (iii) the Agreement regarding the Lease of Railway Rolling Stock by Eastlease Limited to Foster Yeoman Limited, dated March 12, 1989, Seller shall indemnify and hold harmless O&K Orenstein & Koppel Ltd., Watford and/or O&K Mining GmbH from all liabilities as incurred from time to time by O&K Orenstein & Koppel, Ltd. or O&K Mining GmbH less any revenues generated in connection therewith, provided that such claims lie within the responsibility and/or liability of O&K Orenstein & Koppel, Ltd. prior to Effective Date, Section 8 para. 5 of this Agreement shall apply. 9. Negative Representations The companies of the O&K Mining Group are not party or subject to: 9.1. rental, leasing or similar contracts with continuing obligations ("Dauerschuldverhaltnisse") which provide for an annual payment by the O&K Mining Group in excess of DM 500,000, in each individual case and which cannot be terminated by giving notice of up to twelve-months notice, with the exception of those listed in the Disclosure Memorandum; 9.2. consultancy agreements which provide for an annual payment in excess of DM 300,000 -- in each individual case with the exception of those listed in the Disclosure Memorandum; 9.3. obligations owed to a benevolent fund ("Hilfs-und Unterstutzungskassen") or to any other funds or parties other than employees of the O&K Mining Group with respect to pension arrangements or other agreements for payments in case of sickness disablement, or age with the exception of those listed in the Disclosure Memorandum; 9.4. agreements regarding compensation dependent on profit or turnover and/or profit sharing which have caused an annual payment in excess of DM 150,000 -- in each individual case during the last financial year 1996 except for those listed in the Disclosure Memorandum. 9.5. contractual competition restraints ("Wettbewerbsbeschrankung") restricting the present business activities of the O&K Mining Group in a detrimental way, except exclusivity agreements for distributors and/or agents or similar arrangements; 9.6. contingent or actual repayment obligations in connection with subsidies received by the O&K Mining Group except as disclosed to Buyer; 9.7. proceedings before court, administrative authorities, or arbitration bodies, investigations by administrative authorities where the O&K Mining Group is a party to and where properties or assets of the O&K

17 Mining Group are involved in, with an aggregate value in dispute ("Streitwert") in excess of DM 500,000, except as disclosed in the Disclosure Memorandum; 9.8. forward contracts regarding goods, foreign currencies and interest ("Waren, Devisen und Zinstermingeschafte"), except as listed in the Disclosure Memorandum and/or with the exception of hedging contracts ("Kurssicherungsgeschafte"), in connection with the delivery of products of the O&K Mining Group to foreign customers or with the purchase from foreign suppliers by the O&K Mining Group; 9.9. commitments to pay out loans, or loans which have been paid out, by the O&K Mining Group to third parties which provide for a repayment obligation of such third party in excess of DM 100,000 in each individual case, unless disclosed in the notarized Disclosure Memorandum.

17 Mining Group are involved in, with an aggregate value in dispute ("Streitwert") in excess of DM 500,000, except as disclosed in the Disclosure Memorandum; 9.8. forward contracts regarding goods, foreign currencies and interest ("Waren, Devisen und Zinstermingeschafte"), except as listed in the Disclosure Memorandum and/or with the exception of hedging contracts ("Kurssicherungsgeschafte"), in connection with the delivery of products of the O&K Mining Group to foreign customers or with the purchase from foreign suppliers by the O&K Mining Group; 9.9. commitments to pay out loans, or loans which have been paid out, by the O&K Mining Group to third parties which provide for a repayment obligation of such third party in excess of DM 100,000 in each individual case, unless disclosed in the notarized Disclosure Memorandum. 9.10.binding distribution agreements (distributorship or commercial agent agreements) ("Eigenhandler-oder Handelsvertrelervertrage") including commission arrangements under which a company of the O&K Mining Group has made a turnover during the financial year 1996 in excess of DM 5,000,000, in each individual case with the exception of those listed in the Disclosure Memorandum (disclosing separately the respective company of the O&K Mining Group as distributor or commercial agent and/or a third party as distributor or commercial agent of the respective company of the O&K Mining Group); 9.11.orders by the companies of the O&K Mining Group for investments in fixed assets exceeding DM 1.5 million in each individual case; the aforesaid does not apply to any such orders in the ordinary course of business or orders listed in the notarized Disclosure Memorandum. 9.12.any enforceable ("vollstreckbares") judgment or order rendered by court or administrative proceedings or by any settlements entered into in such context which would substantially impair or restrict the O&K Mining Group in conducting its business in acquiring or selling of goods or assets or in competing in the market. 9.13.any cash management and clearing except with Seller and/or any other company of the O&K Mining Group. 10. Course of Business Following January 1, 1997, and Following Signing of this Agreement 10.1.The business of O&K Mining GmbH and of the companies listed in Section 1 para. 3 has been conducted between January 1, 1997 and signing of this Agreement in the ordinary course of business. 10.2.The seller will conduct the business of O&K Mining GmbH and the companies listed in Section 1 para. 3 as of the date of signing of this Agreement through the date of execution in rem of this Agreement in the ordinary course of business. As this Agreement shall become economically effective upon expiry of December 31, 1997, as from January 1, 1998, Seller will consult in advance, or in case prior consultation is impossible, due to imminent risks or urgency, immediately thereafter, all major business decisions with the Buyer.

18 Major business decisions means those transactions and measures which require shareholders' approval pursuant to section 12 of the rules of procedures ("Geschaftsordnung") for the managing board of the O&K Mining GmbH disclosed in the Disclosure Memorandum. Seller shall properly take into consideration any objections which Buyer may raise against any such major business decision and shall take full responsibility pursuant to Section 8 hereof, in case seller sets aside any such objections. Section 8 Remedies for Breach of Guaranties/Liability of Seller 1. If one of the aforesaid guaranties is not true or correct at the date of signing of this Agreement or, if applicable, on the Effective Date and/or the Closing Date, the Seller shall put the Buyer and/or the O&K Mining Group in a position as if the respective guaranty had been true and correct. Damages which are covered by an insurance or

18 Major business decisions means those transactions and measures which require shareholders' approval pursuant to section 12 of the rules of procedures ("Geschaftsordnung") for the managing board of the O&K Mining GmbH disclosed in the Disclosure Memorandum. Seller shall properly take into consideration any objections which Buyer may raise against any such major business decision and shall take full responsibility pursuant to Section 8 hereof, in case seller sets aside any such objections. Section 8 Remedies for Breach of Guaranties/Liability of Seller 1. If one of the aforesaid guaranties is not true or correct at the date of signing of this Agreement or, if applicable, on the Effective Date and/or the Closing Date, the Seller shall put the Buyer and/or the O&K Mining Group in a position as if the respective guaranty had been true and correct. Damages which are covered by an insurance or which would have been covered by an insurance which existed at the Effective Date, but which has not been continued, cannot be claimed. Claims for consequential damages and a loss of profits are hereby expressly waived and excluded. 2. Guaranty claims and all statutory liability claims ("gesetzliche Haftungsanspruche"), if any, can only be made if and to the extent they exceed an amount of DM 1,000,000 in the aggregate plus those amounts which: 2.1. until the expiry of the guaranty period are paid on accounts receivables which have already been completely written off or depreciated in the last annual financial statements of O&K Mining GmbH and/or one of the companies listed in Section 1 para. 3 of this Agreement, or which, as far as the claims have only been partly written off or depreciated, are paid for such part written off or adjusted as to their value, or 2.2. until the expiry of the guaranty period result from the liquidation of accruals reflected in the 1997 Annual Financial Statements respectively the last annual financial statements of O&K Mining GmbH and/or one of the companies mentioned in Section 1 para. 3, because such accruals have become unnecessary or excessive. If the amount mentioned in sentence 1 above exceeded, only the exceeding amount can be claimed. 3. Guaranty claims for tax liabilities cannot be raised to the extent such an additional expenditure for taxes is compensated by future tax savings (due to mere periodic shifts). 4. If and to the extent a third party assets a claim against O&K Mining GmbH and/or one of the companies listed in Section 1 para. 3 and/or the Buyer which might lead to a liability of the Seller under the aforementioned guaranties, the Buyer shall notify the Seller immediately and shall give the Seller the unrestricted opportunity to defend such claims. All costs and expenses related thereto shall be advanced and shall be borne by the Seller. As far as it is necessary and appropriate in order to defend claims raised by third parties and/or the Buyer which may lead to liabilities of the Seller vis-a-vis the Buyer, the Buyer shall grant the Seller the right at Seller's own expense to inspect the books, records, and documents of O&K

19 Mining Group during normal business hours. In case the Buyer fails to comply with one of the aforesaid obligations, the respective claims of the Buyer against the Seller shall be excluded. 5. Except for Buyer's claims under Section 7, para. 11.1 para 12.3 hereabove, all claims of the Buyer based on the aforesaid provisions (including those from statutary liability claims, if any) shall become statute-barred 18 months following Closing Date. Claims under Section 7, para 1 and 11, paras. 2 and 3 shall become statutebarred five years following the Effective Date. The aforesaid limitation periods shall not apply to any claims based on additional tax liabilities or obligations to pay social security contributions or other public impositions, levies, and charges under the public law, if any. Such claims shall become statute-barred six months after the respective assessment or corrective assessment of the tax authorities, the social security authorities or of any other public authority will have become final or finally adjudicated (res judicata).

19 Mining Group during normal business hours. In case the Buyer fails to comply with one of the aforesaid obligations, the respective claims of the Buyer against the Seller shall be excluded. 5. Except for Buyer's claims under Section 7, para. 11.1 para 12.3 hereabove, all claims of the Buyer based on the aforesaid provisions (including those from statutary liability claims, if any) shall become statute-barred 18 months following Closing Date. Claims under Section 7, para 1 and 11, paras. 2 and 3 shall become statutebarred five years following the Effective Date. The aforesaid limitation periods shall not apply to any claims based on additional tax liabilities or obligations to pay social security contributions or other public impositions, levies, and charges under the public law, if any. Such claims shall become statute-barred six months after the respective assessment or corrective assessment of the tax authorities, the social security authorities or of any other public authority will have become final or finally adjudicated (res judicata). 6. Facts and/or circumstances disclosed, mentioned, or included in the Disclosure Memorandum to this Agreement, or in the document deposited with the Notary, or any document referred to in the Disclosure Memorandum shall constitute an integral part of the guaranties under Section 7, excluding any liability of the Seller, and shall be deemed to be disclosed and known to the Buyer. The same shall apply to those facts and circumstances which are known otherwise by the Buyer and/or its advisors upon signing of this Agreement. 7. The liability of the Seller arising out of and in connection with this Agreement or from statutory liability claims, if any, in particular, without limitation, relating to any guaranty claims, shall in the aggregate be limited to a part of the Purchase Price in a maximum amount of DM 40,000,000. 8. The parties agree that the guarantees under Section 7, paras. 11.1 and 12.3 shall not be subject to the DM 1 Mio. threshold under para 2, the maximum amount under para. 8, and shall become statute-barred within the period as stipulated in Section 195 German Civil Code. Section 9 Covenant Not to Compete 1. The Seller undertakes, for a period of three years as of the Effective Date, to refrain from competing with the O&K Mining Group in respect of large hydraulic excavators > RH 40, either indirectly or directly, in particular by incorporation of, participation in or consulting of other enterprises. 2. The Buyer hereby represents and guarantees that the O&K Mining Group shall in any case refrain from own distribution of the large hydraulic excavators RH 25 in the NAFTA markets at least until September 30, 2000, and that the O&K Mining Group shall deliver the RH 25s determined for these markets exclusively in an OEM version for the account of the construction machine division of the Seller to its customers in the NAFTA markets. 3. Seller undertakes, for a period of three years as of the Effective Date, not to develop and produce, either indirectly or directly, hydraulic excavators which compete with the RH 30 and RH 40 being part of the product program of O&K Mining GmbH, provided that Buyer supplies Seller with RH 30

20 and RH 40 from O&K Mining GmbH's production (or from the production of any third party as subcontractor for the O&K Mining Group) provided that Seller will not use such supplies in the mining business; the aforementioned undertaking shall not apply where such hydraulic excavators are obtainable on more favorable terms elsewhere and Buyer is not prepared to offer the same terms provided that Seller will not use such supplies in the mining business. Buyer undertakes for the same period that the O&K Mining Group shall not develop and produce, either indirectly or directly, hydraulic excavators which compete with the RH 25 of the product program of the construction business provided that Seller supplies Buyer with RH 25 from his own production (or from the production of any third party as subcontractor for Seller); the aforementioned undertaking shall not apply where such hydraulic excavator is obtainable on more favorable terms elsewhere and Seller is not prepared to offer the same terms.

20 and RH 40 from O&K Mining GmbH's production (or from the production of any third party as subcontractor for the O&K Mining Group) provided that Seller will not use such supplies in the mining business; the aforementioned undertaking shall not apply where such hydraulic excavators are obtainable on more favorable terms elsewhere and Buyer is not prepared to offer the same terms provided that Seller will not use such supplies in the mining business. Buyer undertakes for the same period that the O&K Mining Group shall not develop and produce, either indirectly or directly, hydraulic excavators which compete with the RH 25 of the product program of the construction business provided that Seller supplies Buyer with RH 25 from his own production (or from the production of any third party as subcontractor for Seller); the aforementioned undertaking shall not apply where such hydraulic excavator is obtainable on more favorable terms elsewhere and Seller is not prepared to offer the same terms. Section 10 Name and Trademark License 1. The Seller shall grant to O&K Mining GmbH and the companies listed in Section 1 para. 3 the assignable, free, and unlimited in time license to use within the mining business the elements of the name "O&K" and/or "Orenstein & Koppel" within its names, and to make use of the trademarks "O&K" internationally registered on behalf of the Seller in different configurations for the mining business, including designation of large hydraulic excavators and pertinent components, equipment, and parts produced by them as well as to utilize them in trade on business papers, catalogs, et al., except for the manufacturing distribution and marketing of RH 25. Such license is granted as an exclusive license with respect to mining equipment. Where the aforementioned trademarks can be registered separately from the construction business exclusively for the specific purposes of the mining business and assigned to the O&K Mining GmbH, Buyer may require that Seller shall assign at Buyer's expense such separated trademark for the mining business to O&K Mining GmbH. 2. The Buyer undertakes to ensure that the name and logo and the trademarks "O&K" and "Orenstein & Koppel" shall not be used by O&K Mining GmbH and the companies listed in Section 1 para. 3 in any other form than licensed. 3. All intellectual property rights (including, but not limited to, patents, trademarks, logos, know-how documentation of whatever kind, CAD licenses, etc., as hereafter referred to as Technology Rights as ever used by or for the benefit of O&K Mining Group, shall continue to be made available by Seller to O&K Mining Group as follows: 3.1. Technology Rights which have been solely and exclusively used by/for O&K Mining Group or its products and which will be or have been registered in Seller's name shall be assigned and transferred to O&K Mining GmbH so that O&K Mining GmbH shall become new registered owner. 3.2. Technology Rights, which (i) have been used mutually by/for O&K Mining Group and O&K AG, and (ii) which have been used predominantly (to be ascertained by turn-over derived from such use) by O&K Mining Group or its products, shall be assigned and transferred to O&K Mining GmbH as under (3.1), however, with the proviso that O&K Mining GmbH shall grant a non-transferable, exclusive and royalty-free license for the

21 construction business of O&K AG, which is unlimited in time. 3.3. Technology Rights other than under (3.1) and (3.2) shall be made available by Seller to O&K Mining Group by a non-transferable, exclusive, royalty-free license for the design, manufacture and/or distribution of mining equipment, which shall be unlimited in time. It is understood that any such Technology Right made available to O&K Mining Group shall be for the purpose of designing, manufacturing and/or distributing mining equipment only. Where legally possible, the use of such Technology Right for the design, production, or distribution of construction equipment may be retained or kept by Seller or Seller's respective affiliates.

21 construction business of O&K AG, which is unlimited in time. 3.3. Technology Rights other than under (3.1) and (3.2) shall be made available by Seller to O&K Mining Group by a non-transferable, exclusive, royalty-free license for the design, manufacture and/or distribution of mining equipment, which shall be unlimited in time. It is understood that any such Technology Right made available to O&K Mining Group shall be for the purpose of designing, manufacturing and/or distributing mining equipment only. Where legally possible, the use of such Technology Right for the design, production, or distribution of construction equipment may be retained or kept by Seller or Seller's respective affiliates. Section 11 Merger Control 1. This Agreement is subject to the condition precedent that Seller and/or Buyer have obtained a nil obstat letter (Nichtuntersagungsverfugung") of the German Federal Cartel Office or that the respective applicable time period (Section 24a, para. 2 Act against Restraint of Competition/GWB) during which the Federal Cartel Office may prohibit the transaction contemplated hereunder pursuant to Section 24 Act against Restraint of Competition/GWB has expired without the German Federal Cartel Office having prohibited the transaction contemplated hereunder. The parties shall use their best efforts to notify the merger hereunder under Section 23, et seq. Act against Restraint of Competition/GWB to the Federal Cartel Office as well as to any other authorities competent for the merger control immediately after signing of this Agreement and to obtain a nil obstat letter (Nichtuntersagungsverfugung") of the German Federal Cartel Office and of any other authority competent for the merger control. 2. This Agreement is further subject to approval of the competente US merger control authorities under the [US Hart-Scott-Rodino Anti-Trust Improvements Act of 1976, as amended and the rules and regulations thereunder or the elapse of the respective applicable waiting periods.] Section 12 Costs and Taxes 1. Each party shall bear its own costs and expenses which have accrued or will accrue in connection with the preparation and execution of this Agreement, including the costs of their advisors, including cartel law advisors. 2. Costs of this Agreement and its consummation, in particular the notarization costs shall be borne by Buyer. The same applies with respect to all costs out of and in connection with the merger control in the US. Any registration costs and the costs of the authorities competent for the

22 merger control in Germany and any other country outside the US shall be shared equally by Buyer and Seller. 3. Any transfer taxes ("Verkehrsteuern") imposed in connection with the execution and consummation of this Agreement shall be shared equally by Buyer and Seller. Section 13 Final Provision Any further claims of the Buyer of whatsoever nature or on whatsoever legal basis, in particular, without limitation, any guaranty claims of the Buyer other than those expressly agreed upon under this Agreement, are

22 merger control in Germany and any other country outside the US shall be shared equally by Buyer and Seller. 3. Any transfer taxes ("Verkehrsteuern") imposed in connection with the execution and consummation of this Agreement shall be shared equally by Buyer and Seller. Section 13 Final Provision Any further claims of the Buyer of whatsoever nature or on whatsoever legal basis, in particular, without limitation, any guaranty claims of the Buyer other than those expressly agreed upon under this Agreement, are hereby expressly waived and excluded. This shall in particular apply to claims based on breach of contract ("positive Forderungsverletzung") and/or claims to reduce the Purchase Price or any right to rescind this Agreement ("Wandlung"). The aforementioned does not apply for claims for precontractual default (culpa in contrahendo). The right to withdraw from this Agreement, notwithstanding the provision under Section 5, paras. 4 and Section 6, is hereby also waived and excluded. Section 14 Miscellaneous 1. This Agreement shall be subject to the substantive law of the Federal Republic of Germany. Exclusive jurisdiction for any and all disputes arising out of or in connection with this Agreement and its consummation shall be with the competent courts of Berlin. 2. Changes and amendments to this Agreement shall be made in writing, unless notarization is required. The same shall apply to any change of this clause itself. 3. Should any provision of this Agreement be or become invalid, the validity of the remaining provisions of this Agreement shall remain unaffected thereby. The same shall apply if the Agreement contains any omission. The invalid provision or the omission shall be replaced or completed by such provision which, to the extent legally possible, comes as close as possible to what the parties hereto had intended, in particular as to measure of performance, time or time limits, or to what they would have intended, if they had considered the specific issue. 4. The parties hereto shall agree on all press releases in connection with the execution and consummation of this Agreement. 5. This Agreement will be executed in the German language only.

ARTICLE 5 MULTIPLIER: 1,000

PERIOD TYPE FISCAL YEAR END PERIOD END CASH SECURITIES RECEIVABLES ALLOWANCES INVENTORY CURRENT ASSETS PP&E DEPRECIATION TOTAL ASSETS CURRENT LIABILITIES BONDS PREFERRED MANDATORY PREFERRED

12 Mos DEC 31 1997 DEC 31 1997 28,700 0 143,800 4,500 232,100 426,500 83,000 35,200 588,500 236,100 273,500 0 0

ARTICLE 5 MULTIPLIER: 1,000

PERIOD TYPE FISCAL YEAR END PERIOD END CASH SECURITIES RECEIVABLES ALLOWANCES INVENTORY CURRENT ASSETS PP&E DEPRECIATION TOTAL ASSETS CURRENT LIABILITIES BONDS PREFERRED MANDATORY PREFERRED COMMON OTHER SE TOTAL LIABILITY AND EQUITY SALES TOTAL REVENUES CGS TOTAL COSTS OTHER EXPENSES LOSS PROVISION INTEREST EXPENSE INCOME PRETAX INCOME TAX INCOME CONTINUING DISCONTINUED EXTRAORDINARY CHANGES NET INCOME EPS PRIMARY EPS DILUTED

12 Mos DEC 31 1997 DEC 31 1997 28,700 0 143,800 4,500 232,100 426,500 83,000 35,200 588,500 236,100 273,500 0 0 200 59,400 588,500 842,300 842,300 702,700 702,700 0 0 39,400 31,000 700 30,300 0 (14,800) 0 15,500 0.66 0.60