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Exhibit 4.4
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XXXXXXX FASTENERS INC.,
as Issuer
and
XXXXXXX HOLDINGS INC.,
as Guarantor
$100,000,000
11 1/4% Senior Notes due 2007
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Second Supplemental Indenture
Dated as of June 20,2001
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United States Trust Company of New York, Trustee
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SECOND SUPPLEMENTAL INDENTURE dated as of June 20, 2001, among Xxxxxxx
Fasteners Inc., a Delaware corporation ("Fasteners"), Xxxxxxx Holdings Inc., a
Delaware corporation ("Holdings"), and United States Trust Company of New York,
as trustee (the "Trustee"). "Second Supplemental Indenture" or this
"Supplemental Indenture" means this instrument as originally executed or, if
amended or supplemented pursuant to the applicable provisions of the Indenture,
as amended or supplemented.
WHEREAS, Xxxxxxx Acquisition Inc., the predecessor of Fasteners (the
"Issuer"), Holdings and the Trustee entered into an Indenture dated as of
November 26, 1997, as amended by the First Supplemental Indenture dated as of
March 13, 1998 (the "Indenture") pursuant to which $100 million aggregate
principal amount of the Issuer's 11 1/4% Senior Notes due 2007 (the "Notes")
were issued; and
WHEREAS, Section 901(7) of the Indenture provides that the Indenture may
be amended, without the consent of the holders of the Notes, to cure any
ambiguity, defect or inconsistency; and
WHEREAS, the Indenture contains an incorrect cross-reference, a defect
which creates both ambiguity and inconsistency in the Indenture as it currently
exists; and
WHEREAS, all conditions and requirements necessary to make this Second
Supplemental Indenture a valid, binding and legal instrument in accordance with
its terms have been performed and fulfilled by the parties hereto and the
execution and delivery thereof have been in all respects duly authorized by the
parties hereto; and
WHEREAS, the entry into this Second Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture, and the
Trustee has determined that this Second Supplemental Indenture is in form
satisfactory to it;
NOW, THEREFORE, in consideration of the above premises, each party agrees,
for the benefit of the other and for the equal and ratable benefit of the
holders of the Notes, as follows:
ARTICLE I
MODIFICATION
Section 1.01. Section 902(4) of the Indenture is hereby amended by
deleting the reference to "1019" in the first line thereof and replacing it
with "1020."
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ARTICLE II
EFFECTIVE TIME
Section 2.01. This Second Supplemental Indenture shall become
effective immediately and without any further action by any person.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01. Indenture. As amended by this Second Supplemental
Indenture, the Indenture is in all respects ratified and confirmed, and all the
terms, conditions and provisions thereof shall remain in full force and effect.
Section 3.02. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of Fasteners and Holdings, and
the Trustee assumes no responsibility for their correctness, except for the
recital indicating the Trustee's approval of the form of this Second
Supplemental Indenture. The Trustee makes no representation as to the validity
or sufficiency of this Supplemental Indenture.
Section 3.03. Governing Law. The laws of the State of New York shall
govern this Second Supplemental Indenture.
Section 3.04. Successors and Assigns. All agreement of Fasteners in
this Second Supplemental Indenture and the Notes shall bind its successors and
all agreements of the Trustee in this Second Supplemental Indenture shall bind
its successors.
Section 3.05. Duplicate Originals. The parties may sign any number
of copies of this Second Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
date first above written.
XXXXXXX FASTENERS INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: President
XXXXXXX HOLDINGS INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: President
UNITED STATES TRUST COMPANY
OF NEW YORK, AS TRUSTEE
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
