TEREX CORPORATION
$250,000,000
13 1/4% Senior Secured Notes due 2002
Series A and Series B
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of February 18, 1998
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UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee
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FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, dated as of February 18, 1998, between
TEREX CORPORATION, a Delaware corporation (the "Company"), and UNITED STATES
TRUST COMPANY OF NEW YORK, a New York corporation, as trustee (the "Trustee").
WHEREAS, the Company, and CMH Acquisition Corp., Clark Material
Handling Company, CMH Acquisition International Corp., Koehring Cranes, Inc.,
Legris Industries, Inc., PPM Cranes, Inc., as guarantors (collectively, the
"Original Guarantors") and the Trustee are parties to an Indenture, dated as of
May 9, 1995 (said Indenture, as it may heretofore or hereafter from time to time
be amended, the "Indenture") providing for the issuance of the Company's 13 1/4%
Series A Senior Secured Notes due 2002 and the Company's 13-1/4% Series B Senior
Secured Notes due 2002 (collectively, the "Notes");
WHEREAS, the Company and the Trustee entered into a First Supplemental
Indenture, dated as of April 7, 1997, pursuant to which Terex-Telelect Inc.,
Terex Aerial Inc., Terex Atlantico Inc., Terex-Ro Corporation, Terex West Coast
Inc., and Terex Aviation Ground Equipment Inc. became additional guarantors
under the Indenture (the "Additional Guarantors");
WHEREAS, the Company and the Trustee entered into a Second
Supplemental Indenture, dated as of April 14, 1997, pursuant to which Terex
Baraga Products, Inc. and M & M Enterprises of Baraga, Inc. (the "Baraga
Guarantors") became additional guarantors under the Indenture;
WHEREAS, the Company and the Trustee entered into a Third Supplemental
Indenture, dated as of December 9, 1997, pursuant to which Terex Cranes, Inc.
(formerly known as Terex/PPM Cranes Holdings, Inc.) ("Terex Cranes") became an
additional guarantor under the Indenture;
WHEREAS, the Company and the Trustee entered into a Fourth
Supplemental Indenture, dated as of January 5, 1998, pursuant to which Payhauler
Corp. and Progressive Components, Inc. became additional guarantors under the
Indenture (together with the Original Guarantors, the Additional Guarantors, the
Baraga Guarantors and Terex Cranes, the "Guarantors"); and
WHEREAS, holders of at least a majority of the principal amount of the
Notes outstanding have consented in writing to certain amendments to the
Indenture pursuant to Section 9.2 thereof, and the Company, the Guarantors and
the Trustee desire to make such amendments to the Indenture.
NOW, THEREFORE, the Company, the Guarantors and the Trustee agree as
follows for the equal and ratable benefit of the Holders of the Notes.
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ARTICLE 1
AMENDMENT TO THE INDENTURE
Section 1.01. Article 1 of the Indenture is hereby amended as follows:
(a) The following definitions are hereby deleted: Acquired Debt,
Acquisition, Acquisition Agreement, Capital Lease Obligation, Cash Equivalent,
Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income,
Consolidated Net Worth, Eligible Inventory, Eligible Receivables, Existing
Credit Facility, Floor Plan Guaranty, Interest Coverage Ratio, Net Assets, Net
Income, Permitted Investments, Permitted Proceeds, PPM Funded Debt, PPM
Subordinated Note, Restricted Investment, Revolving Credit Facility and Weighted
Average Life to Maturity.
(b) The definition of "Permitted Liens" is hereby amended by (i)
inserting on the third to last line thereof after the words "leases and
subleases," a new clause (xii) which shall read as follows: "(xii) Liens junior
to the Liens granted by the Company or any of its Subsidiaries on any of their
respective properties, assets or revenues pursuant to the Security Documents,"
(ii) renumbering current clause (xii) as clause (xiii) and (iii) changing the
number "(xi)" on the last line thereof to the number "(xii)."
(c) The definition of "Purchase Money Liens" is hereby amended in its
entirety to read as follows:
"Purchase Money Liens" means (i) Liens to secure or
securing Purchase Money Obligations and (ii) Liens to secure
Indebtedness issued in exchange for, or the proceeds of which
are contemporaneously used to extend, refinance, renew,
replace, or refund outstanding Indebtedness of the Company or
any of its Restricted Subsidiaries incurred solely to
refinance Purchase Money Obligations provided that such
refinancing indebtedness is incurred no later than 180 days
after the satisfaction of such Purchase Money Obligations.
(d) Section 1.2 is hereby amended by (i) deleting the references to
"Affiliate Transaction," "Excess Proceeds," "Purchase Money Indebtedness,"
"Refinance," "Refinance Indebtedness" and "Restricted Payments" and (ii)
changing the references to "Excess Proceeds Offer," "Excess Proceeds Offer
Period" and "Excess Proceeds Payment Date" to "Net Proceeds Offer," "Net
Proceeds Offer Period" and "Net Proceeds Payment Date," respectively.
Section 1.02. Articles 4, 5, 6 and 8 of the Indenture are hereby
amended as follows:
(a) Sections 4.7, 4.8, 4.9, 4.11, 4.15 and 4.16 are hereby deleted in
their entirety.
(b) Section 4.10 is hereby amended in its entirety to read as follows:
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Section 4.10. Purchase of Notes Following Asset Sales.
If the Company or any Restricted Subsidiary (i)
elects to make an Asset Sale on such terms as it may
determine in its sole discretion and (ii) further elects to
offer to purchase the Notes with any or all of the Net
Proceeds of such Asset Sale (the "Net Proceeds Offer"), the
Company shall offer to purchase Notes having an aggregate
principal amount equal to the Net Proceeds of such Asset
Sale that the Company elects to apply to the purchase of
Notes (the "Purchase Amount"), at a purchase price equal to
100% of the aggregate principal amount thereof, plus accrued
and unpaid interest, if any, to the purchase date.
The Net Proceeds Offer shall remain open for a
period of 20 Business Days and no longer, unless a longer
period is required by law (the "Net Proceeds Offer Period").
Promptly after the termination of the Net Proceeds Offer
Period (the "Net Proceeds Payment Date"), the Company shall
purchase and mail or deliver payment for the Purchase Amount
for the Notes or portions thereof tendered, pro rata or by
such other method as may be required by law, or, if less
than the Purchase Amount has been tendered, all Notes
tendered pursuant to the Net Proceeds Offer. The principal
amount of Notes to be purchased pursuant to a Net Proceeds
Offer may be reduced by the principal amount of Notes
acquired by the Company through purchase or redemption
(other than pursuant to a Change of Control Offer)
subsequent to the date of an Asset Sale and surrendered to
the Trustee for cancellation.
The Net Proceeds Offer shall be conducted in
compliance with all applicable laws, including (without
limitation), Regulation 14E of the Exchange Act and the
rules thereunder and all other applicable Federal and state
securities laws.
The Company shall commence the Net Proceeds Offer
by mailing to the Trustee and each Holder, at such Holder's
last registered address, a notice, which shall govern the
terms of the Net Proceeds Offer, and shall state:
(1) that the Net Proceeds Offer is being made
pursuant to this Section 4.10, the principal amount of Notes
which shall be accepted for payment and that all Notes
validly tendered shall be accepted for payment on a pro rata
basis;
(2) the purchase price and the date of purchase;
(3) that any Notes not tendered or accepted for
payment pursuant to the Net Proceeds Offer shall continue to
accrue interest;
(4) that, unless the Company defaults in the
payment of the purchase price with respect to any Notes
tendered, Notes accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net
Proceeds Payment Date;
(5) that Holders electing to have Notes purchased
pursuant to a Net Proceeds Offer shall be required to
surrender their Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
completed, to the Company prior to the close of business on
the third Business Day immediately preceding the Net
Proceeds Payment Date;
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(6) that Holders shall be entitled to withdraw
their election if the Company receives, not later than the
close of business on the second Business Day preceding the
Net Proceeds Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of Notes the Holder delivered for
purchase and a statement that such Holder is withdrawing his
election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in
part shall be issued Notes representing the unpurchased
portion of the Notes surrendered; provided that each Note
purchased and each new Note issued shall be in principal
amount of $1,000 or whole multiples thereof; and
(8) the instructions that Holders must follow in
order to tender their Notes.
On or before the Net Proceeds Payment Date, the Company shall (i)
accept for payment on a pro rata basis the Notes or portions thereof tendered
pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted and (iii) deliver to the Trustee the Notes so accepted, together with
an Officer's Certificate stating that the Notes or portions thereof tendered to
the Company are accepted for payment. The Paying Agent shall promptly mail to
each Holder of Notes so accepted payment in an amount equal to the purchase
price of such Notes, and the Trustee shall promptly authenticate and mail to
such Holders new Notes equal in principal amount to any unpurchased portion of
the Note surrendered.
The Company shall make a public announcement of the results of the Net
Proceeds Offer as soon as practicable after the Net Proceeds Payment Date. For
the purposes of this Section 4.10, the Trustee shall act as the Paying Agent.
(c) Section 4.12 is hereby amended in its entirety to read as follows:
Section 4.12. Limitation on Liens.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create, incur,
assume or suffer to exist any Lien on any asset (real, personal,
tangible or intangible) now owned or hereafter acquired, or on any
income or profits therefrom, or assign or convey any right to receive
income therefrom, except (i) Liens on Accounts and Inventory and the
proceeds thereof (and contract rights and general intangibles relating
thereto and any other Mutual Collateral (as defined in the
Intercreditor Agreement)), (ii) Purchase Money Liens and (iii)
Permitted Liens.
(b) Anything in the Security Documents to the contrary
notwithstanding, the Company and its Subsidiaries may grant Liens in
accordance with this Section 4.12; provided, that no such Lien shall
affect the attachment, perfection or priority of the Lien of the
Security Documents. Subject to the foregoing, upon receipt of a
written notice from the Company or a pledging Subsidiary or another
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secured party stating that Collateral is subject to a security
interest under a security agreement executed by the pledgor which
contains a description of the security, the Trustee shall execute
appropriate instruments acknowledging that such Collateral is subject
to such other security interest.
(d) Section 4.17 is hereby amended by deleting the following clause
which begins at the end of the twenty-first line thereof and ends on the
twenty-fourth line thereof: "and such Person shall be permitted by virtue of its
Fixed Charge Coverage Ratio to incur, immediately after giving effect to such
acquisition, at least $1.00 of additional Indebtedness pursuant to Section
4.9(a) of this Indenture."
(e) Section 5.1 of the Indenture is hereby amended by (i) adding the
word "and" after Section 5.1(ii), (ii) replacing the comma and the word "and" at
the end of Section 5.1(iii) with a period, (iii) deleting Section 5.1(iv) in its
entirety and (iv) inserting a new paragraph immediately following Section
5.1(iii) which shall read as follows:
Nothing in this Section 5.1 shall be construed to prohibit a
consolidation or merger between the Company, any Guarantor and/or any
Restricted Subsidiary or among Restricted Subsidiaries or Guarantors,
nor prohibit the sale, assignment, transfer, lease, conveyance or
other disposal by the Company or any Restricted Subsidiary of all or
substantially all of its properties or assets in one or more related
transactions to any Restricted Subsidiary or to the Company.
(f) Section 6.1 of the Indenture is hereby amended by (i) changing the
reference to "Excess Proceeds Offer" in Section 6.1(2) to "Net Proceeds Offer,"
(ii) amending Section 6.1(3) in its entirety to read as follows: "(3) the
Company defaults in the performance of or breaches any of the provisions of
Sections 4.10, 4.12 or 4.14 hereof" and (iii) deleting Sections 6.1(4), 6.1(6)
and 6.1(7) in their entirety.
(g) Section 8.1 of the Indenture is hereby amended by (i) deleting the
words "(as certified by a nationally recognized accounting firm designated by
the Company)" on the sixth and seventh lines of Section 8.1(1) and inserting
therefor the words "(as certified by an Officers' Certificate delivered by the
Company)", (ii) inserting the word "and" after Section 8.1(1), (iii) deleting
Sections 8.1(2) and 8.1(3) and (iv) deleting the first sentence of the paragraph
immediately following 8.1(4) which begins with the words "Then, this Indenture"
and replacing it with a new sentence which shall read as follows:
Then, this Indenture shall cease to be of further effect (except as
provided in this paragraph), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging confirmation
of and discharge under this Indenture in the case of clause (A) above,
and the Company's ability not to comply with restrictive covenants and
related Events of Default in the case of clause (B) above, and, in the
case of clauses (A) and (B) above, the release of the Liens created
under the Security Documents.
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ARTICLE 2
MISCELLANEOUS
Section 2.01. The supplement to the Indenture effected hereby shall be
binding upon all Holders of the Securities, their transferees and assigns. All
Securities issued and outstanding on the date hereof shall be deemed to
incorporate by reference or include the supplement to the Indenture effected
hereby.
Section 2.02. All terms used in this Fifth Supplemental Indenture which
are defined in the Indenture shall have the meanings specified in the Indenture
unless the context of this Supplemental Indenture otherwise requires.
Section 2.03. This Fifth 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. The amendments set forth in Article
1 shall become operative on the opening of business on the Acceptance Date, as
defined in the Company's Offer to Purchase and Consent Solicitation Statement,
dated February 2, 1998, relating to the Company's offer to purchase all of the
outstanding Notes.
Section 2.04. This Fifth 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 Fifth 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 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 Fifth
Supplemental Indenture to be duly executed as of the date first above written.
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TEREX CORPORATION
By:___________________________
Name: Brian J. Henry
ATTEST: Title: Vice President-Finance/Treasurer
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Eric I Cohen, Secretary
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:______________________________
Name:
ATTEST: Title:
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GUARANTORS:
KOEHRING CRANES, INC.
By:____________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
PPM CRANES, INC.
By:___________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
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TEREX-TELELECT INC.
By:___________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
TEREX AERIALS INC.
By:________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
TEREX WEST COAST INC.
By:________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
- --------------------------
Eric I Cohen, Secretary
TEREX ATLANTICO, INC.
By:_________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
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TEREX AVIATION GROUND EQUIPMENT INC.
By:________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
TEREX-RO CORPORATION
By:________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
- --------------------------
Eric I Cohen, Secretary
TEREX CRANES, INC.
By:________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
- --------------------------
Eric I Cohen, Secretary
PAYHAULER CORP.
By:________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
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TEREX BARAGA PRODUCTS, INC.
By:________________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
M & M ENTERPRISES OF BARAGA, INC.
By:_______________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary
PROGRESSIVE COMPONENTS, INC.
By:_______________________________
Name: Brian J. Henry
ATTEST: Title: Treasurer
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Eric I Cohen, Secretary