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EXHIBIT 4.1
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplement"), dated and effective
as of May 27, 1998, is entered into by and among XXX Xxxxxxxxxxx, Inc.,
(formerly known as EVI, Inc.) a Delaware corporation ("XXX Xxxxxxxxxxx") and the
successor by merger to Xxxxxxxxxxx Enterra, Inc., a Delaware corporation (the
"Company"), and Bank of Montreal Trust Company, as Trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture dated as of May 17, 1996, between the Company and the Trustee (the
"Indenture"), providing for the issuance by the Company from time to time of its
unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more series as provided in the Indenture;
WHEREAS, on May 27, 1998, the Company merged with and into XXX
Xxxxxxxxxxx, and XXX Xxxxxxxxxxx, as successor to the Company, is required under
Article Eight of the Indenture to assume the observance and performance by the
Company of every covenant contained in the Indenture to be observed and
performed by the Company;
WHEREAS, pursuant to Section 901(1) of the Indenture, XXX Xxxxxxxxxxx
and the Trustee may enter into this Supplement without the consent of any
Holder; and
WHEREAS, the execution and delivery of this Supplement have been duly
authorized by a Board Resolution of the Board of Directors of XXX Xxxxxxxxxxx;
NOW, THEREFORE, in consideration of the above premises, each of the
parties hereto agrees, for the benefit of the others and for the equal and
proportionate benefit of the Holders of the Securities, as follows:
ARTICLE ONE
ASSUMPTION
Section 101. For value received, XXX Xxxxxxxxxxx hereby assumes the due
and punctual payment of the principal of and any premium and interest (including
all additional amounts, if any, payable pursuant to Section 1004 of the
Indenture) on all the Securities and the performance or observance of every
other covenant of the Indenture on the part of the Company to be performed or
observed.
Section 102. Effective as of the date hereof, XXX Xxxxxxxxxxx shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under the Indenture with the same effect as if XXX Xxxxxxxxxxx had
been named as the Company therein, and the Company shall be relieved of all
obligations and covenants under the Indenture and the Securities and coupons.
ARTICLE TWO
MISCELLANEOUS
Section 201. Except as otherwise expressly provided or unless the
context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture. Except as
supplemented hereby, the Indenture and the
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Securities are in all respects ratified and confirmed and all the terms and
provisions thereof shall remain in full force and effect.
Section 202. This Supplement shall be effective as of the date above
written.
Section 203. This Supplement shall be governed by and construed in
accordance with the laws of the jurisdiction which govern the Indenture and its
construction.
Section 204. This Supplement may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed as of the day and year first above written.
XXX XXXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Chief Financial Officer,
Senior Vice President and
Treasurer
BANK OF MONTREAL TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Vice President
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