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EXHIBIT 4.4
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FIRST SUPPLEMENTAL INDENTURE
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THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") is made as of the 10th day of April, 1995 among XXXXXXX & XXXXX,
INC., an Ohio corporation (the "Company"), PNC BANK, OHIO, NATIONAL
ASSOCIATION, a national banking association, as Trustee (the "Trustee"), and
EAGLE INDUSTRIAL PRODUCTS CORPORATION, a Delaware corporation (the
"Noteholder"), under the following circumstances:
A. The Company, as Issuer, and the Trustee are
parties to an Indenture dated as of June 30, 1994 (the
"Indenture") pursuant to which the Company has issued two Senior
Subordinated Extendible Reset Notes in the aggregate principal
amount of $50,000,000 (the "Notes"); and
B. The Noteholder is the registered holder of the
Notes, which are the only notes outstanding under the Indenture.
C. The parties are entering into this Supplemental
Indenture pursuant to Section 902 and Section 903 of the
Indenture to amend certain of the terms of the Indenture.
NOW, THEREFORE, the Company, the Trustee and the
Noteholder agree as follows:
1. DEFINITION OF "PERMITTED INDEBTEDNESS".
Subsection (i) of the definition of "PERMITTED INDEBTEDNESS" in Section 101 of
Article One of the Indenture hereby is amended by substituting "$38,250,000"
for "$40,000,000 in clause (a) thereof and by substituting "$50,000,000" for
"$35,000,000" in clause (b) thereof.
2. EVENTS OF DEFAULT. Subsection (3) of Section
501 of Article Five of the Indenture hereby is amended by deleting the word
"or" immediately preceding part (e) thereof and by adding the following part
(f) at the end of Subsection (3):
"; or (f) a default in the performance, or
breach, of any covenant or agreement of the
Company or any Guarantor under the
Registration Rights Agreement;"
3. CERTAIN LIMITATIONS. Subsection (a) of
Section 1016 of Article Ten of the Indenture hereby is amended in its entirety
to read as follows:
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"(a) The Company will not permit any
Subsidiary, directly or indirectly, to secure
the payment of any Senior Indebtedness of the Company
or pledge any intercompany notes representing
obligations of any Subsidiary to secure the payment
of any Senior Indebtedness (other than Indebtedness
under the Bank Credit Agreement) unless (x) such
Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing
for a guarantee of payment of the Securities by such
Subsidiary, which guarantee shall be on the same
terms as the guarantee of the Senior Indebtedness (if
a guarantee of Senior Indebtedness is granted by any
such Subsidiary) except that the guarantee of the
Securities need not be secured and shall be
subordinated to the claims against such Subsidiary in
respect of Senior Indebtedness to the same extent as
the Securities are subordinated to Senior
Indebtedness of the Company under this Indenture and
(y) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of
any rights of reimbursement, indemnity or subrogation
or any other rights against the Company or any other
Subsidiary as a result of any payment by such
Subsidiary under its Guarantee."
4. CONSENT OF NOTEHOLDER. By execution of this
Supplemental Indenture, the Noteholder hereby consents to this Supplemental
Indenture pursuant to Section 902 and 104 of the Indenture and waives the
obligation of the Company to give notice of this Supplemental Indenture to the
Noteholder pursuant to Section 907 of the Indenture.
5. COUNTERPARTS. This Supplemental Indenture
may be executed in any number of counterparts, all of which together shall
constitute a single instrument. It shall not be necessary that any counterpart
be signed by all parties so long as each such party shall sign at least one
counterpart.
6. FULL FORCE AND EFFECT. As hereby
supplemented, the Indenture shall remain in full force and effect in accordance
with its terms.
7. ENTIRE AGREEMENT. This Supplemental
Indenture sets forth the entire agreement between the parties with respect to
the subject matters set forth herein.
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IN WITNESS WHEREOF, the parties have executed this Supplemental
Indenture as of the date and year first above written.
XXXXXXX & XXXXX, INC.
By:/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief
Financial Officer
PNC BANK, OHIO, NATIONAL ASSOCIATION,
as Trustee
By:/s/Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Bank Officer
EAGLE INDUSTRIAL PRODUCTS CORPORATION
By:/s/Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President-Treasurer
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SECOND SUPPLEMENTAL INDENTURE
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THIS SECOND SUPPLEMENTAL INDENTURE (this "Second
Supplemental Indenture") is made as of the 24th day of October, 1995 among
XXXXXXX & XXXXX, INC., an Ohio corporation (the "Company"), PNC BANK, OHIO,
NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee"), and NATIONSBANC CAPITAL MARKETS, INC. (the "Noteholder"), under the
following circumstances:
A. The Company, as Issuer, and the Trustee are
parties to an Indenture dated as of June 30, 1994, as
supplemented by a First Supplemental Indenture dated as of April
10, 1995 (collectively, the "Indenture"), pursuant to which the
Company has issued, and there now is outstanding, a Senior
Subordinated Extendible Reset Note in the principal amount of
$25,000,000 (the "Note"); and
B. The Noteholder is the registered holder of the
Note, which is the only note outstanding under the Indenture.
C. The parties are entering into this Supplemental
Indenture pursuant to Section 902 and Section 903 of the
Indenture to amend certain of the terms of the Indenture.
NOW, THEREFORE, the Company, the Trustee and the
Noteholder agree as follows:
1. PAYMENT TO THE NOTEHOLDER. Upon execution of
this Second Supplemental Indenture by the Company and the Noteholder, the
Company shall make a payment of $375,000 to the Noteholder by wire transfer in
accordance with the instructions set forth on EXHIBIT A hereto.
2. DEFINITION OF "RESET RATE". The table set forth
in the definition of "RESET RATE" in Section 101 of Article One of the
Indenture hereby is amended to read in its entirety as follows:
IF THE APPLICABLE RATING IS: THEN THE RESET RATE IS:
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A or A- or equivalent rating . . . . . . . . . . . 175 basis points over three-year U.S. Treasuries on
the Reset Date
BBB+, BBB, BBB- or equivalent . . . . . . . . . . . 220 basis points over three-year U.S. Treasuries on
the Reset Date
XXx, XX, BB- or equivalent . . . . . . . . . . . . 425 basis points over three-year U.S. Treasuries on
the Reset Date, but in no event less than 11%
B+, or less or equivalent . . . . . . . . . . . . . 525 basis points over three-year U.S. Treasuries on
the Reset Date, but in no event less than 12%
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3. LIMITATION ON INDEBTEDNESS. The periods and
ratios set forth at the end of Section 1008 of Article Ten of the Indenture
hereby are amended to read as follows:
Year Ratio
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September 1, 1995 and thereafter 3.00:1:00
4. EXCEPTION TO LIMITATION ON RESTRICTED PAYMENTS.
Subsection (b) of Section 1009 of Article Ten of the Indenture hereby is
amended as follows:
(a) The parenthetical phrase "(clauses (i) through
(vi) being referred to as a PERMITTED PAYMENT")" in the third
and fourth lines of the subsection is amended in its entirety to
read as follows: "(clauses (i) through (vii) being referred to
as a "PERMITTED PAYMENT")";
(b) the word "and" shall be deleted from the end of
Subsection (b)(v);
(c) the period at the end of Subsection (b)(vi)
shall be replaced by the following: ";and"; and
(d) the following new Subsection (b)(vii) shall be
added:
"(vii) any payment made by the Company upon
the exercise of, or in connection with any repurchase
of, any of the stock appreciation rights issued
pursuant to the SAR Agreement, except for (1)
$2,000,000 of any payment made by the Company to
Eagle Industries, Inc. in October 1995 in connection
with its exercise, or surrender to the Company for
cancellation, of the 1,800,000 stock appreciation
rights held by Eagle Industries, Inc. and (2) any
payment made by the Company in connection with the
exercise, or surrender to the Company for
cancellation, of the 100,000 stock appreciation
rights held by M.H.M. & Co.,Ltd. or by any assignee
or successor to such 100,000 stock appreciation
rights."
5. CONSENT OF NOTEHOLDER. By execution of this
Supplemental Indenture, the Noteholder hereby consents to this Supplemental
Indenture pursuant to Section 902 and 104 of the Indenture and waives the
obligation of the Company to give notice of this Supplemental Indenture to the
Noteholder pursuant to Section 907 of the Indenture.
6. COUNTERPARTS. This Supplemental Indenture may be
executed in any number of counterparts, all of which together shall constitute
a single instrument. It shall not be necessary that any counterpart be signed
by all parties so long as each such party shall sign at least one counterpart.
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7. FULL FORCE AND EFFECT. As hereby supplemented,
the Indenture shall remain in full force and effect in accordance with its
terms.
8. ENTIRE AGREEMENT. This Supplemental Indenture
sets forth the entire agreement between the parties with respect to the subject
matters set forth herein.
IN WITNESS WHEREOF, the parties have executed this
Supplemental Indenture as of the date and year first above written.
XXXXXXX & XXXXX, INC.
By:__________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief
Financial Officer
PNC BANK, OHIO, NATIONAL ASSOCIATION,
as Trustee
By:__________________________________
Name:
Title:
NATIONSBANC CAPITAL MARKETS, INC.
By:__________________________________
Name:
Title:
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Exhibit A
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Wire Transfer Instructions
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