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Exhibit 4.4
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL
INDENTURE"), dated as of December 15, 1998, is made by and between ARGO-TECH
CORPORATION, a Delaware corporation (the "COMPANY"), ARGO-TECH CORPORATION
(HBP), a Delaware corporation ("HBP"), ARGO-TECH CORPORATION (OEM), a Delaware
corporation ("OEM"), ARGO-TECH CORPORATION (AFTERMARKET), a Delaware corporation
("AFTERMARKET") and X.X. XXXXXX COMPANY, INC., a California corporation
("XXXXXX," and together with HBP, OEM and Aftermarket, the "SUBSIDIARY
GUARANTORS") and XXXXXX TRUST AND SAVINGS BANK, as trustee (the "TRUSTEE").
RECITALS:
A. The Company, the Subsidiary Guarantors and the Trustee have entered
into an Indenture dated as of September 26, 1997 (the "INDENTURE").
B. Pursuant to the Indenture, the Company issued and the Trustee
authenticated and delivered an aggregate principal amount of $140,000,000 of the
Company's 85/8% Senior Subordinated Notes due 2007.
C. Section 9.02 of the Indenture provides, among other things, that
with the written consent of Securityholders holding not less than a majority in
principal amount of the Securities then outstanding (the "REQUISITE CONSENTS"),
the Company may from time to time amend or supplement the Indenture, subject to
certain exceptions specified in Section 9.02 of the Indenture.
D. On December 7, 1998, the Company mailed a Consent Solicitation
Statement to each Holder of record as of December 7, 1998. The Company has
obtained the Requisite Consents.
E. This Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Company.
F. The Company has delivered, or caused to be delivered, to the
Trustee, an Officer's Certificate and an Opinion of Counsel meeting the
requirements of Section 9.06 of the Indenture and stating that all conditions
precedent and covenants, if any, provided for in the Indenture relating to this
Supplemental Indenture have been satisfied.
NOW THEREFORE, each party agrees for the benefit of the other party and
for the equal and ratable benefit of all Securityholders, as follows:
AGREEMENT:
SECTION 1. DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined herein have the meanings given them in the
Indenture.
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SECTION 2. AMENDMENT TO SECTION 4.04 OF THE INDENTURE. At the
Effectiveness Time (as defined below), Section 4.04 of the Indenture will hereby
be amended by the addition of a new clause (b)(vi) thereto, reading as set forth
below:
(vi) the payment by the Company of a dividend or distribution on
its Capital Stock to Parent, or the making of a loan by the
Company to Parent, in an amount not to exceed $50,000,000, the
proceeds of which will be used, together with the proceeds
from the issuance by Parent of its Cumulative Exchangeable
Redeemable Preferred Stock, to finance the payment of the
purchase price, not to exceed $80,000,000, for 639,510 shares
of Capital Stock of Parent held by AT Holdings, LLC; provided,
however, that such dividend, distribution or loan shall be
excluded from the calculation of the amount of Restricted
Payments.
As used herein, "Effectiveness Time" means the latest of:
(a) the consummation of the issuance by Parent of
Cumulative Exchangeable Preferred Stock to Chase
Venture Capital Associates, L.P. having a liquidation
preference of $30.0 million;
(b) the waiver by the parties to the Stockholders
Agreement of all of their rights provided under such
agreement;
(c) the consummation of the repurchase by Parent of
639,510 shares of its Common Stock from AT Holdings,
LLC;
(d) the effectiveness of an amendment to the Credit
Agreement to permit the transactions described in (a)
- (c) of this Section; and
(e) the termination of the Stockholders Agreement and the
execution of a new stockholders agreement with
respect to Parent.
SECTION 3. MISCELLANEOUS.
3.1 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution and delivery
of this Supplemental Indenture by the Company, the Subsidiary Guarantors and the
Trustee, the Indenture shall be supplemented in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every Securityholder holding Securities that have been heretofore or hereafter
authenticated and delivered under the Indenture shall be bound thereby. Except
as supplemented hereby, all provisions of the Indenture shall remain in full
force and effect.
3.2 INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER. This
Supplemental Indenture is an indenture supplemental to and in implementation of
the Indenture, and the Indenture and this Supplemental Indenture shall
henceforth be read and construed together.
3.3 CONFIRMATION AND PRESERVATION OF THE INDENTURE. The Indenture as
supplemented by this Supplemental Indenture is in all respects confirmed and
preserved.
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3.4 CONFLICT WITH TRUST INDENTURE ACT. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act of 1939, as amended (the "ACT"), that is required under such
Act to be part of and govern any provision of this Supplemental Indenture, the
provision of such Act shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the Act that may be so modified
or excluded, the provisions of the Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this Supplemental Indenture, as the case may
be.
3.5 SEPARABILITY CLAUSE. In case any provision of this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
3.6 EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
3.7 BENEFITS OF SUPPLEMENTAL INDENTURE. Nothing in this Supplemental
Indenture, the Indenture, or the Securities, express or implied, shall give to
any Person, other than the parties hereto and thereto and their successors
hereunder and thereunder, and the Securityholders, any benefit of any legal or
equitable right, remedy or claim under the Indenture, the Supplemental Indenture
or the Securities.
3.8 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Supplemental Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
3.9 NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
3.10 COUNTERPARTS. This Supplemental Indenture may be executed in
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
3.11 TERMINATION. If the Effectiveness Time does not occur before
January 15, 1999, this Supplemental Indenture shall not become effective and the
Indenture shall remain in full force and effect unmodified by this Supplemental
Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date and the year first
above written.
ARGO-TECH CORPORATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
ARGO-TECH CORPORATION (HBP)
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
ARGO-TECH CORPORATION (OEM)
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
ARGO-TECH CORPORATION
(AFTERMARKET)
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
X.X. XXXXXX COMPANY, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
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XXXXXX TRUST AND SAVINGS BANK, as
Trustee
By:/s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
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