SEVENTH SUPPLEMENTAL INDENTURE
SEVENTH SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
August 30, 2005, among Columbus XxXxxxxx Corporation, a New York corporation
(the "COMPANY"), the Guarantors (as defined in the Indenture referred to herein)
and U.S. Bank Trust National Association, formerly known as State Street Bank
and Trust Company, N.A., as trustee under the Indenture referred to below (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, a Fourth Supplemental
Indenture dated as of November 1, 1999, a Fifth Supplemental Indenture dated as
of April 4, 2002, and a Sixth Supplemental Indenture, dated as of August 5, 2002
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, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, and the Sixth 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 Sections 2 hereof to eliminate certain provisions
including substantially all of the material restrictive covenants and certain
events of default; and
WHEREAS, the Company has received consents to the amendments effected by
this Seventh Supplemental Indenture from the Holders of at least a majority in
principal amount of the Notes outstanding; and
WHEREAS this Seventh 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 Seventh 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 a s follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AMENDMENTS TO INDENTURE.
a. Sections 4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15
and 4.16 of the Indenture and all references and cross-references thereto are
deleted in their entirety.
b. 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.
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), or 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 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 or such Guarantor under the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee."
c. Section 5.02 of the Indenture is amended and restated in its
entirety to read as follows:
"SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with
Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease conveyance or other
disposition is made shall succeed to, and be substituted for (so
that from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Company" shall refer instead to the
successor corporation and not to the Company), and may exercise
every right and power of the Company under this Indenture with
the same effect as if such successor Person had been named as the
Company herein."
d. Section 11.05 of the Indenture is amended and restated in its
entirety to read as follows:
"SECTION 11.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
No Guarantor may consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another
Person whether or not affiliated with such Guarantor unless the
Person formed by or surviving any such consolidation or merger
(if other than a Guarantor or the Company) unconditionally
assumes all the obligations of such Guarantor, pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the Trustee under the Notes, this Indenture and
the Subsidiary Guarantee on the terms set forth herein or
therein.
In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Subsidiary Guarantee
endorsed upon the Notes and the due and punctual performance of
all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed
to and be substituted for the Guarantor with the same effect as
if it had been named herein as a Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All the Subsidiary
Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with
the terms of this Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.
Notwithstanding the above, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation
or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor."
e. Sections 6.01 (f), (g), (h) and (i) and any references or
cross-references thereto are deleted in their entirety.
f. Section 8.04(d) of the Indenture and any references or
cross-references thereto are deleted in its entirety.
g. Section 8.04(e) is amended and restated in its entirety to read as
follows:
"(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, the Indenture or any material agreement or instrument to
which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;".
h. A new Section 12.14 is added and shall read as follows:
"SECTION 12.14. SATISFACTION AND DISCHARGE.
When (a) the Company delivers to the Trustee all outstanding
Notes (other than Notes replaced pursuant to Section 2.07) for
cancellation or (b) all outstanding Notes have become due and
payable, whether at maturity or on a redemption date as a result
of the mailing of a notice of redemption pursuant to Article 3
hereof and the Company irrevocably deposits with the Trustee
funds sufficient to pay at maturity or upon redemption all
outstanding Notes, including interest thereon to maturity or such
redemption date (other than Notes replaced pursuant to Section
2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall cease
to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Company.
Notwithstanding the above paragraph, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07
and 7.08 shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations in Section 7.07 shall
survive.
3. EFFECTIVENESS AND EFFECT.
a. This Seventh 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 Seventh Supplemental
Indenture, and all terms and conditions of the Indenture and this Seventh
Supplemental Indenture shall be read together as though they constitute one
instrument, except that, in the case of conflict, the provisions of this
Seventh Supplemental Indenture shall 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 Seventh Supplemental Indenture. The Indenture, as
modified and amended by this Seventh 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 Seventh
Supplemental Indenture limits, qualifies or conflicts with any provisions of the
TIA that is required under the TIA to be part of and govern any provision of
this Seventh Supplemental Indenture, the provisions of the TIA shall control. If
any provision of this Seventh 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 (a) be applicable to the Indenture as so modified or (b) be
excluded by this Seventh Supplemental Indenture, as the case may be.
5. SEVERABILITY. In the event that any provision of this Seventh
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 Seventh 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 Seventh Supplemental Indenture shall be
governed by and construed in accordance with the internal laws of the State of
New York, as applied to contract made and performed within 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 Seventh
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 Seventh
Supplemental Indenture o 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 Seventh 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.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Supplemental Indenture to be duly executed and attested, all as of the date
first written above.
COLUMBUS XxXXXXXX CORPORATION
By: /S/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President - Treasurer
CRANE EQUIPMENT & SERVICE, INC.
By: /S/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
YALE INDUSTRIAL PRODUCTS, INC.
By: /S/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
AUDUBON EUROPE S.AR.L.
By: /S/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
By: /S/ Romain Thillens
-------------------
Name: Romain Thillens
Title: Manager
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /S/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
