Exhibit 4.8
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of April 4, 2002, among Columbus XxXxxxxx Corporation, a New York corporation,
the Guarantors (as defined in the Indenture referred to herein) and State Street
Bank and Trust Company, N.A., as trustee under the indenture referred to herein
(the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture (the "Original Indenture"), dated as of March 31, 1998
providing for the issuance of an aggregate principal amount of up to $300.0
million of 8 1/2% Senior Subordinated Notes due 2008 (the "Notes");
WHEREAS, the Company, the Guarantors and the Trustee amended the
Original Indenture by entering into a Supplemental Indenture dated as of March
31, 1998, a Second Supplemental Indenture dated as of February 12, 1999, a Third
Supplemental Indenture dated as of March 1, 1999 and a Fourth Supplemental
Indenture dated as of November 1, 1999 in order to add certain entities as
guarantors and to reflect the merger or disposition of certain Guarantors (the
Original Indenture, as supplemented by the First Supplemental Indenture, the
Second Supplemental Indenture, the Third Supplemental Indenture and the Fourth
Supplemental Indenture, the "Indenture"); and
WHEREAS, Section 9.02 of the Indenture provides that the Company, the
Guarantors and the Trustee may amend or supplement the Indenture with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding; and
WHEREAS, the Company, the Guarantors and the Trustee desire to amend
the Indenture as set forth in Section 2 hereof; and
WHEREAS, the Company has received consents to the amendments effected
by this Fifth Supplemental Indenture from the Holders of at least a majority in
principal amount of the Notes outstanding; and
WHEREAS, this Fifth Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of the Company and the Guarantors;
and
WHEREAS, all conditions precedent provided for in the Indenture
relating to this Fifth Supplemental Indenture have been complied with;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Guarantors and the Trustee mutually covenant and agree for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AMENDMENT TO INDENTURE. Section 5.01 of the Indenture is amended and
restated in its entirety to read as follows:
"SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS
(a) Neither the Company nor any Guarantor shall consolidate or merge
with or into (whether or not the Company or such Guarantor is the surviving
corporation), nor shall the Company sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions, to another corporation, Person or entity unless
(i) the Company or such Guarantor is the surviving corporation or the entity or
the Person formed by or surviving any such consolidation or merger (if other
than the Company or such Guarantor) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia; (ii) the entity or Person formed by or surviving any
such consolidation or merger (if other than the Company or such Guarantor) or
the entity or Person to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes all the obligations of the
Company under the Notes and this Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee and under the Registration
Rights Agreement; (iii) immediately after such transaction no Default or Event
of Default exists; and (iv) except in the case of a merger of the Company with
or into a Wholly Owned Subsidiary of the Company, the Company or the entity or
Person formed by or surviving any such consolidation or merger (if other than
the Company or such Guarantor), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made (a) shall have
Consolidated Net Worth immediately after the transaction equal to or greater
than the consolidated net worth of the Company immediately preceding the
transaction and (b) shall, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09 hereof.
(b) No Guarantor shall sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another corporation, Person or entity
unless immediately after such transaction no Default or Event of Default
exists."
3. EFFECTIVENESS AND EFFECT.
(a) This Fifth Supplemental Indenture shall take effect on the date
hereof (the "Effective Date").
(b) As of the Effective Date, the Indenture shall be modified and
amended in accordance with the provisions of this Fifth Supplemental Indenture,
and all the terms and
conditions of the Indenture and this Fifth Supplemental Indenture shall
be read together as though they constitute one instrument, except that, in the
case of conflict, the provisions of this Fifth Supplemental Indenture will
control. All references to the Indenture in the Indenture or in any other
agreement, document or instrument delivered in connection therewith or pursuant
thereto shall be deemed to refer to the Indenture as amended by this Fifth
Supplemental Indenture. The Indenture, as modified and amended by this Fifth
Supplemental Indenture, is hereby ratified and confirmed in all respects and
shall be binding upon all Holders.
4. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this Fifth
Supplemental Indenture limits, qualifies or conflicts with any provision of the
TIA that is required under the TIA to be part of and govern any provision of
this Fifth Supplemental Indenture, the provisions of the TIA shall control. If
any provision of this Fifth Supplemental Indenture modifies or excludes any
provision of the TIA that may be modified or excluded, the provision of the TIA
shall be deemed to (i) be applicable to the Indenture as so modified or (ii) be
excluded by this Fifth Supplemental Indenture, as the case may be.
5. SEVERABILITY. In the event any provision of this Fifth Supplemental
Indenture shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
6. SUCCESSORS. All covenants and agreements in this Fifth Supplemental
Indenture of the Company, the Guarantors and the Trustee shall bind their
successors and assigns, whether so expressed or not.
7. NEW YORK LAW TO GOVERN. This Fifth Supplemental Indenture shall be
governed by and construed in accordance with the internal laws of the State of
New York, as applied to contracts made and performed with in the State of New
York, without regard to principles of conflicts of law.
8. COUNTERPARTS. The parties may sign any number of copies of this
Fifth Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
9. EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Fifth
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company and the Guarantors. In
entering into this Fifth Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct or
affecting the liability or affording protection to the Trustee, whether or not
explicitly provided herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
COLUMBUS XxXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
CRANE, ENGINEERING & SERVICE GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
AUTOMATIC SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
LICO STEEL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
YALE INDUSTRIAL PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President and Treasurer
STATE STREET BANK AND TRUST COMPANY, N.A., as Trustee
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
