EXHIBIT 4.4
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FIRST SUPPLEMENTAL INDENTURE, dated as of June 28, 1995, among EMCOR Group,
Inc., a Delaware corporation ("EMCOR"), MES Holdings Corporation, a Delaware
corporation ("MES"), and Shawmut Bank Connecticut, National Association (the
"Trustee"), as Trustee under the Indenture hereinafter referred to.
WHEREAS, EMCOR, MES and the Trustee have previously entered into an
Indenture dated as of December 15, 1994 (the "Indenture") relating to the 11%
Series C Notes, Due 2001, of EMCOR (the "Notes");
WHEREAS, Section 9.02 of the Indenture provides that EMCOR and the Trustee
may, with the written consent of the holders of at least a majority in aggregate
principal amount of the outstanding Notes, amend the Indenture as provided
herein;
WHEREAS, the holders of not less than a majority in aggregate principal
amount of the outstanding Notes have consented to this First Supplemental
Indenture; and
WHEREAS, all acts and things prescribed by law and by the respective
Certificate of Incorporation and the By-laws (each as now in effect) of EMCOR
necessary to make this First Supplemental Indenture a valid instrument legally
binding on EMCOR for the purposes herein expressed, in accordance with its
terms, have been duly done and performed.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged,
EMCOR, MES and the Trustee hereby agree for the benefit of each other and the
equal and ratable benefit of the holders of the Notes as follows:
1. Amendment of Article 4, Section 4.11. Paragraphs (a) and (b) of Section
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4.11 of the Indenture are hereby amended to delete the Measurement Period
of January 1, 1995 through June 30, 1995.
2. Construction. For all purposes of this First Supplemental Indenture,
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except as otherwise herein expressly provided or unless the context
otherwise requires: (i) the terms and expressions used herein shall have
the same meanings as corresponding terms and expressions used in the
Indenture; and (ii) the words "herein", "hereof" and "hereby" and other
words of similar import used in this First Supplemental Indenture refer to
this First Supplemental Indenture as a whole and not to any particular
Section hereof.
3. Trustee Acceptance. The Trustee accepts the amendment of the Indenture
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effected by this First Supplemental Indenture and agrees to execute the
trust created by the Indenture, as hereby amended, but only upon the terms
and conditions set forth in the Indenture, as hereby amended, including the
terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall in like
manner define and limit its liabilities and responsibilities in the
performance of the trust created by the Indenture, as hereby amended, and,
without limiting the generality of the foregoing, the Trustee has no
responsibility for the correctness of the recitals of fact herein contained
which shall be taken as the statements of EMCOR and makes no
representations as to the validity or sufficiency of this First
Supplemental Indenture and shall incur no liability or responsibility in
respect of the validity hereof.
4. Indenture Ratified. Except as expressly amended hereby, the Indenture is
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in all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect.
5. Holders Bound. This First Supplemental Indenture shall form a part of the
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Indenture for all purposes, and every Holder of the Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
6. Successors and Assigns. This First Supplemental Indenture shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
7. Counterparts. This First Supplemental Indenture may be executed in any
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number of counterparts, each of which when so executed shall be deemed to
be an original, and all of such counterparts shall together constitute one
and the same instrument.
8. Governing Law. This First Supplemental Indenture shall be deemed to be a
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contract made under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with such laws.
IN WITNESS WHEREOF, EMCOR, MES and the Trustee have caused this First
Supplemental Indenture to be signed and executed as of the day and year first
above written.
EMCOR GROUP, INC.
/s/ Xxxxx X. XxxXxxxx
By: _______________________
Name: Xxxxx X. XxxXxxxx
Title: Chairman of the Board and President
MES HOLDING CORPORATION
/s/ Xxxxx X. XxxXxxxx
By: _______________________
Name: Xxxxx X. XxxXxxxx
Title: President
SHAWMUT BANK CONNECTICUT
NATIONAL ASSOCIATION
/s/ Xxxxxx X. Xxxxxxxx
By: _______________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
