EX-4 4 exh4-9.txt EXH 4.9 - 3RD SUPPL INDENTURE DATED 11/25/03 ====================================================================== TEREX CORPORATION, as Issuer THE SUBSIDIARY GUARANTORS NAMED HEREIN, as Subsidiary Guarantors and THE BANK OF NEW YORK, (as successor trustee to United States Trust Company of New York) --------------------------------- THIRD SUPPLEMENTAL INDENTURE Dated as of November 25, 2003 -------------------------------- ====================================================================== THIRD SUPPLEMENTAL INDENTURE THIRD SUPPLEMENTAL INDENTURE, dated as of November 25, 2003, among TEREX CORPORATION, a Delaware corporation (the "Company"), the Subsidiary Guarantors listed on the signature pages hereto and THE BANK OF NEW YORK (AS SUCCESSOR TRUSTEE TO UNITED STATES TRUST COMPANY OF NEW YORK), a New York corporation, as trustee (the "Trustee"). WHEREAS, the Company, and Terex Cranes, Inc., Koehring Cranes, Inc., PPM Cranes, Inc., Payhauler Corp., Terex-Telelect Inc., Terex Aerials, Inc., Terex-Ro Corporation, Terex Mining Equipment, Inc., The American Crane Corporation and CMI Corporation, as guarantors (collectively, the "Original Guarantors"), and the Trustee are parties to an Indenture, dated as of December 17, 2001, as amended by First Supplemental Indenture dated as of September 30, 2002 and as further amended by Second Supplemental Indenture dated as of March 31, 2003 (said Indenture, as it may heretofore or hereafter from time to time be amended, the "Indenture") providing for the issuance of the Company's 9-1/4% Senior Subordinated Notes due 2011 (the "Notes"); WHEREAS, the Company has acquired all of the outstanding capital stock of Terex Financial Services, Inc., Terex Utilities South, Inc. and Spinnaker Insurance Company (collectively referred to as the "New Guarantors" and individually as a "New Guarantor"); WHEREAS, pursuant to the terms of the Indenture, the New Guarantors have become Restricted Subsidiaries organized under the laws of the United States and, as such, the Company is required to cause the New Guarantors to execute and deliver a supplemental indenture and the Subsidiary Guarantee endorsed on the Notes; and WHEREAS, the Company, the Original Guarantors and the Trustee desire to amend the Indenture to add each of the New Guarantors as a Subsidiary Guarantor under the Indenture. NOW, THEREFORE, the Company, the Original Guarantors, the New Guarantors and the Trustee agree as follows for the equal and ratable benefit of the Holders of the Notes. ARTICLE 1. AMENDMENT TO THE INDENTURE Section 1.01. Each New Guarantor shall hereby become a Subsidiary Guarantor under the Indenture effective as of the date hereof, and as such shall be entitled to all the benefits and be subject to all the obligations, of a Subsidiary Guarantor thereunder. Each New Guarantor agrees to be bound by all those provisions of the Indenture binding upon a Subsidiary Guarantor. ARTICLE 2. MISCELLANEOUS Section 2.01. The supplement to the Indenture effected hereby shall be binding upon all Holders of the Notes, their transferees and assigns. All Notes issued and outstanding on the date hereof shall be deemed to incorporate by reference or include the supplement to the Indenture effected hereby. 2 Section 2.02. All terms used in this Third Supplemental Indenture which are defined in the Indenture shall have the meanings specified in the Indenture, unless the context of this Third Supplemental Indenture otherwise requires. Section 2.03. This Third Supplemental Indenture shall become a binding agreement between the parties when counterparts hereof shall have been executed and delivered by each of the parties hereto. Section 2.04. This Third Supplemental Indenture shall be construed, interpreted and the rights of the parties determined in accordance with the laws of the State of New York, as applied to contracts made and performed within the State of New York, without regard to principles of conflicts of law. Section 2.05. This Third Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same amendment. Section 2.06. The recitals contained in this Third Supplemental Indenture are made by the Company and not by the Trustee and all of the provisions contained in the Indenture, in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect thereof as fully and with like effect as if set forth herein in full. IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date first above written. ATTEST: TEREX CORPORATION _____________________ By: --------------------- Jeffrey A. Gershowitz Name: Eric I Cohen Assistant Secretary Title: Senior Vice President THE BANK OF NEW YORK, AS SUCCESSOR TRUSTEE TO UNITED STATES TRUST ATTEST: COMPANY OF NEW YORK _____________________ By: ------------------- Name: Title: 3 (Signature Page to Third Supplemental Indenture) SUBSIDIARY GUARANTORS: KOEHRING CRANES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President PAYHAULER CORP. By:___________________________ Name: Eric I Cohen Title: Vice President PPM CRANES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President TEREX CRANES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President TEREX MINING EQUIPMENT, INC. By:___________________________ Name: Eric I Cohen Title: Vice President 4 (Signature Page to Third Supplemental Indenture) TEREX-RO CORPORATION By:___________________________ Name: Eric I Cohen Title: Vice President TEREX-TELELECT, INC. By:___________________________ Name: Eric I Cohen Title: Vice President THE AMERICAN CRANE CORPORATION By:___________________________ Name: Eric I Cohen Title: Vice President O&K ORENSTEIN & KOPPEL, INC. By:___________________________ Name: Eric I Cohen Title: Vice President AMIDA INDUSTRIES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President 5 (Signature Page to Third Supplemental Indenture) CEDARAPIDS, INC. By:___________________________ Name: Eric I Cohen Title: Vice President STANDARD HAVENS, INC. By:___________________________ Name: Eric I Cohen Title: Senior Vice President STANDARD HAVENS PRODUCTS, INC. By:___________________________ Name: Eric I Cohen Title: Vice President BL-PEGSON (USA), INC. By:___________________________ Name: Eric I Cohen Title: Vice President BENFORD AMERICA, INC. By:___________________________ Name: Eric I Cohen Title: Vice President 6 (Signature Page to Third Supplemental Indenture) COLEMAN ENGINEERING, INC. By:___________________________ Name: Eric I Cohen Title: Vice President EARTHKING, INC. By:___________________________ Name: Eric I Cohen Title: Secretary FINLAY HYDRASCREEN USA, INC. By:___________________________ Name: Eric I Cohen Title: Vice President POWERSCREEN HOLDINGS USA, INC. By:___________________________ Name: Eric I Cohen Title: Vice President POWERSCREEN INTERNATIONAL LLC by Powerscreen North America, Inc., its Managing Member By:___________________________ Name: Eric I Cohen Title: Vice President 7 (Signature Page to Third Supplemental Indenture) POWERSCREEN NORTH AMERICA, INC. By:___________________________ Name: Eric I Cohen Title: Vice President POWERSCREEN USA, LLC by Powerscreen Holding USA Inc., its Managing Member By:___________________________ Name: Eric I Cohen Title: Vice President ROYER INDUSTRIES, INC. By:___________________________ Name: Eric I Cohen Title: Secretary TEREX BARTELL, INC. By:___________________________ Name: Eric I Cohen Title: Vice President CMI TEREX CORPORATION By:___________________________ Name: Eric I Cohen Title: Vice President CMIOIL CORPORATION By:___________________________ Name: Eric I Cohen Title: Vice President 8 (Signature Page to Third Supplemental Indenture) PRODUCT SUPPORT, INC. By:___________________________ Name: Eric I Cohen Title: Vice President SCHAEFF, INCORPORATED By:___________________________ Name: Eric I Cohen Title: Vice President FUCHS TEREX, INC. By:___________________________ Name: Eric I Cohen Title: Vice President TELELECT SOUTHEAST DISTRIBUTION, INC. By:___________________________ Name: Eric I Cohen Title: Vice President UTILITY EQUIPMENT, INC. By:___________________________ Name: Eric I Cohen Title: Vice President TEREX ADVANCE MIXER, INC. By:___________________________ Name: Eric I Cohen Title: Vice President TEREX UTILITIES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President 9 (Signature Page to Third Supplemental Indenture) GENIE HOLDINGS, INC. By:___________________________ Name: Eric I Cohen Title: Vice President GENIE ACCESS SERVICES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President GENIE INDUSTRIES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President GENIE FINANCIAL SERVICES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President GFS NATIONAL, INC. By:___________________________ Name: Eric I Cohen Title: Vice President GENIE MANUFACTURING, INC. By:___________________________ Name: Eric I Cohen Title: Vice President GENIE CHINA, INC. By:___________________________ Name: Eric I Cohen Title: Vice President 10 (Signature Page to Third Supplemental Indenture) GENIE INTERNATIONAL, INC. By:___________________________ Name: Eric I Cohen Title: Vice President LEASE SERVICING & FUNDING CORP. By:___________________________ Name: Eric I Cohen Title: Vice President GFS COMMERCIAL LLC by GFS National, Inc., its Managing Member By:___________________________ Name: Eric I Cohen Title: Vice President GO CREDIT CORPORATION By:___________________________ Name: Eric I Cohen Title: Vice President CMI DAKOTA COMPANY By:___________________________ Name: Eric I Cohen Title: Vice President TEREX FINANCIAL SERVICES, INC. By:___________________________ Name: Eric I Cohen Title: Vice President 11 TEREX UTILITIES SOUTH, INC. By:___________________________ Name: Eric I Cohen Title: Vice President SPINNAKER INSURANCE COMPANY By:___________________________ Name: Eric I Cohen Title: Vice President 12