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EXHIBIT 99.3
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE (this "Supplement"), dated and effective
as of August 25, 1997, is entered into by and among EVI, Inc. (formerly known
as Energy Ventures, Inc.), a Delaware corporation (the "Company"), XLS Holding,
Inc., a Texas corporation and wholly owned subsidiary of the Company ("XLS"),
XL Systems, Inc., a Texas corporation and wholly owned subsidiary of XLS ("XL
Systems", together with XLS, the "New Guarantors"), and The Chase Manhattan
Bank (formerly known as Chemical Bank), a New York corporation, as Trustee (the
"Trustee").
RECITALS OF THE COMPANY AND THE NEW GUARANTORS
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
executed and delivered an Indenture dated as of March 15, 1994, among the
Company, the Subsidiary Guarantors and the Trustee (the "Original Indenture")
providing for the issuance by the Company of $120,000,000 aggregate principal
amount of the Company's 10 1/4% Senior Notes due 2004 (the "Securities") and
pursuant to which the Subsidiary Guarantors have agreed, jointly and severally,
to unconditionally guarantee the due and punctual payment of the principal of,
premium, if any, and interest on the Securities and all other amounts due and
payable under the Original Indenture and the Securities by the Company
("Indenture Obligations");
WHEREAS, the Company, Prideco, Inc., a Texas corporation and a wholly
owned subsidiary of the Company ("Prideco"), and the Trustee executed a First
Supplemental Indenture, dated as of June 30, 1995, pursuant to which Prideco
became a Subsidiary Guarantor and agreed to unconditionally guarantee the
Indenture Obligations;
WHEREAS, the Company, EVI Arrow, Inc., a Delaware corporation and a
wholly owned subsidiary of the Company ("EVI Arrow"), XXX Xxxxxx Packers, Inc.,
a Delaware corporation and a wholly owned subsidiary of the Company ("XXX
Xxxxxx"), and the Trustee executed a Second Supplemental Indenture, dated and
effective as of December 6, 1996, pursuant to which EVI Arrow and XXX Xxxxxx
became Subsidiary Guarantors and agreed to unconditionally guarantee the
Indenture Obligations;
WHEREAS, the Company, Ercon, Inc., a Delaware corporation and a wholly
owned subsidiary of the Company ("Ercon"), and the Trustee executed a Third
Supplemental Indenture, dated and effective as of May 1, 1997, pursuant to
which Ercon became a Subsidiary Guarantor and agreed to unconditionally
guarantee the Indenture Obligations (the Original Indenture, as supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture and the
Third Supplemental Indenture, is hereinafter referred to as the "Indenture");
WHEREAS, each of the New Guarantors has become a Material Restricted
Subsidiary and pursuant to Sections 12.3(b) and (d) of the Indenture is
obligated to enter into the Supplement thereby guaranteeing the punctual
payment of all Indenture Obligations as provided in Article XII of the
Indenture;
WHEREAS, pursuant to Section 8.1(f) of the Indenture, the Company, the
New Guarantors and the Trustee may enter into this Supplement without the
consent of any Holder;
WHEREAS, the execution and delivery of this Supplement have been duly
authorized by a Board Resolution of the respective Board of Directors of the
Company and each of the New Guarantors; and
WHEREAS, all conditions and requirements necessary to make the
Supplement valid and binding upon the Company and the New Guarantors, and
enforceable against the Company and the New Guarantors in accordance with its
terms, have been performed and fulfilled;
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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
THE NEW GUARANTEES
Section 101. For value received, each of the New Guarantors, in
accordance with Article Twelve of the Indenture, hereby unconditionally
guarantees (the "New Guarantee"), jointly and severally among themselves and
the Subsidiary Guarantors, to the Trustee and the Holders, the due and punctual
payment of the principal of, premium, if any, and interest on the Securities
and all other amounts due and payable under the Indenture and the Securities by
the Company, whether at maturity, by acceleration, redemption, repurchase or
otherwise as more specifically set forth in Section 12.1 of the Indenture,
including, without limitation, interest on the overdue principal of, premium,
if any, and interest on the Securities, to the extent lawful, all in accordance
with the terms of Article XII of the Indenture and subject to the limitations
set forth in Section 12.5 of the Indenture. Each of the agreements made and
obligations assumed hereunder by the New Guarantors shall constitute, and shall
be deemed to constitute, a Guarantee under the Indenture and for all purposes
of the Indenture, and each of the New Guarantors shall be considered a
Subsidiary Guarantor for all purposes of the Indenture as if it was originally
named therein as a Subsidiary Guarantor.
Section 102. The New Guarantees shall be automatically and
unconditionally released and discharged upon the occurrence of the events set
forth in Sections 3.1 and 12.4 of the Indenture.
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 (including the Guarantees incorporated
therein) and the 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. The recitals contained herein shall be taken as the
statements of the Company and the New Guarantors, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Supplement.
Section 204. This Supplement shall be governed by and construed in
accordance with the laws of the jurisdiction which govern the Indenture and its
construction.
Section 205. 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 and their respective seals to be affixed hereunto and duly
attested all as of the day and year first above written.
EVI, INC.
[Corporate Seal]
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Vice President and
Chief Financial Officer
Attest:
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Assistant Secretary
XLS HOLDING, INC.
[Corporate Seal]
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Vice President
Attest:
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Assistant Secretary
XL SYSTEMS, INC.
[Corporate Seal]
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Vice President
Attest:
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Assistant Secretary
THE CHASE MANHATTAN BANK
[Corporate Seal]
By: /s/ X.X. XXXXX
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Name: X.X. Xxxxx
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Title: Vice President
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Attest:
/s/ XXXXX XXXXXX
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Trust Officer
