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EXHIBIT 4.9
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of August 18, 1998, between
XXXXX Material Handling Company, a Delaware corporation (the "Company"), and
United States Trust Company of New York, a New York corporation, as trustee (the
"Trustee").
WHEREAS, the Company has duly issued 10-3/4% Series C Senior Notes due
2006, in the aggregate principal amount of $20,000,000 pursuant to an Indenture
between the Company and the Trustee, dated July 17, 1998 (the "Indenture");
WHEREAS, Section 9.1 of the Indenture provides that the Company and the
Trustee may amend any provision of the Indenture without the consent of any
Holder and execute a supplemental indenture to cure any defect in the Indenture;
and
WHEREAS, it is provided in Section 9.4 of the Indenture that a
supplemental indenture becomes effective in accordance with its terms and
thereafter binds every Holder;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms not defined herein shall have the meanings given to
such terms in the Indenture.
SECTION 2. AMENDMENTS TO THE INDENTURE
Section 2.1 Amendments to Definitions
Section 1.1 of the Indenture is hereby amended by inserting the phrase
"date of the Original Indenture" in replacement of the phrase "date of this
Indenture" in the definitions of "GAAP" and "Restricted Investment".
Section 2.2 Amendment to "Limitation Restricted Payment" Provision.
Section 4.7 of the Indenture is hereby amended by inserting the phrase
"date of the Original Indenture" in replacement of the phrase "date of this
Indenture" wherever the phrase "date of this Indenture" appears in said section.
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SECTION 3. MISCELLANEOUS
Section 3.1. Governing Law.
THIS FIRST 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. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS
ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PURCHASER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
Section 3.2 Continuing Agreement
Except as herein amended, all terms, provisions and conditions of the
Indenture and all Exhibits thereto shall continue in full force and effect and
shall remain enforceable and binding in accordance with their terms.
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Section 3.3 Conflicts
In the event of a conflict between the terms and conditions of the
Indenture and the terms and conditions of this First Supplemental Indenture,
then the terms and conditions of this First Supplemental Indenture shall
prevail.
Section 3.4 Counterpart Originals
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 3.5 Headings, etc.
The Headings of the Sections of this First Supplemental Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Supplemental Indenture as of the date first written above.
XXXXX MATERIAL
HANDLING COMPANY
Attest: By: /s/ Xxxxxx X. Xxxxx
_______________________________
Xx. Xxxxxx X. Xxxxx, President
and Chief Executive Officer
/s/ Xxxxxx X. Xxxxx
____________________
Name Xxxxxx X. Xxxxx
Title Vice President
GUARANTORS
BLUE GIANT CORPORATION
By: /s/ Xxxxxx X. Xxxxx
_____________________________
Xx. Xxxxxx X. Xxxxx
President
HYDROLECTRIC LIFT TRUCKS, INC.
By: /s/ Xxxxxx X. Xxxxx
______________________________
Xx. Xxxxxx Xxxxx
President
THE UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
Attest: By: /s/ Xxxxxx X. Xxxxx
_________________________________
Xxxxxx X. Xxxxx
Senior Vice President
/s/ Sieosni Xxxxxxx
____________________
Sieosni Xxxxxxx
Assistant Secretary
