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EXHIBIT 4.4
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GS TECHNOLOGIES OPERATING CO., INC.,
Issuer
and
GS TECHNOLOGIES CORPORATION,
Guarantor
TO
FLEET NATIONAL BANK
(FORMERLY SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION),
Trustee
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Second Supplemental Indenture
Dated as of August 15, 1996
to Indenture
Dated as of August 30, 1994,
as amended by
First Supplemental Indenture
Dated as of October 5, 1995
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$125,000,000
12% Senior Notes due 2004
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SECOND SUPPLEMENTAL INDENTURE, dated as of August 15, 1996, between GS
TECHNOLOGIES OPERATING CO., INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), having
its principal office at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
GS TECHNOLOGIES CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Guarantor") having its
principal executive offices at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 and FLEET NATIONAL BANK (formerly Shawmut Bank Connecticut, National
Association), a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company, the Guarantor and the Trustee are parties to an Indenture,
dated as of August 30, 1994 (the "Original Indenture"), pursuant to which the
Company issued $125,000,000 in aggregate principal amount of its 12% Senior
Notes due 2004. The Original Indenture was amended by the First Supplemental
Indenture dated as of October 5, 1995 (the "First Supplemental Indenture", and
the Original Indenture, as amended by the First Supplemental Indenture, the
"Indenture") between the Company, the Guarantor and the Trustee.
Section 902 of the Indenture provides, among other things, that with
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities, the Company, when authorized by a Board Resolution,
and the Trustee may amend the Indenture in certain respects.
The Company desires to amend the Indenture.
Pursuant to a Consent Solicitation Statement, dated July 18, 1996, as
amended by a Notice from the Company dated July 30, 1996 (as amended, the
"Statement"), the Company solicited consents ("Consents") to certain proposed
amendments to the Indenture described in the Statement.
The Company has obtained the requisite Consents to amend the Indenture
as provided herein and has delivered such Consents to the Trustee, all as
required by Section 902 of the Indenture.
The Company has duly authorized the execution and delivery of this
Second Supplemental Indenture.
The execution and delivery of this instrument has been duly authorized
and all conditions and requirements necessary to make this instrument a valid
and binding agreement have been duly performed and complied with.
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RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Second Supplemental Indenture.
The execution and delivery of this instrument has been duly authorized
and all conditions and requirements necessary to make this instrument a valid
and binding agreement have been duly performed and complied with.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and other good and valuable
consideration, receipt and sufficiency of which are hereby acknowledged, it is
mutually covenanted and agreed, for the equal proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE 1. AMENDMENTS TO INDENTURE
Section 1.1. Section 101 of the Indenture is hereby amended by deleting
the definition of "Permitted Investments" in its entirety and inserting the
following in lieu thereof:
"Permitted Investments" means (a) certificates of deposit with
final maturities of one year or less issued by a U.S. commercial bank
or a U.S. branch of a foreign bank, having capital and surplus in
excess of $100 million and having a peer group rating of C or better
(or the equivalent thereof) by Xxxxxxxx BankWatch Inc. or outstanding
long-term debt rated A- or better (or the equivalent thereof) by
Standard & Poor's and A3 or better (or the equivalent thereof) by
Xxxxx'x Investors Service, Inc.; (b) commercial paper rated A-1 (or the
equivalent thereof) by Standard & Poor's or P-1 (or the equivalent
thereof) by Xxxxx'x Investor Service, Inc.; (c) direct obligations of
the United States government or a U.S. government agency; (d)
repurchase agreements in respect of direct U.S. government obligations;
(e) Investments in any Person as a result of which such Person becomes
a Wholly Owned Restricted Subsidiary; (f) Investments made after the
date of this Indenture pursuant to contractual obligations existing on
the date of this Indenture; (g) Investments in a Securitization
Subsidiary or by a Securitization Subsidiary in a Person established by
such Securitization Subsidiary in each case to effect a Securitization
Transaction; provided, such Investment is customary in such
Securitization Transaction; and (h) Investments having an unreturned
amount not exceeding $30 million in the aggregate in connection with
the development and construction of a scrap substitute facility.
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ARTICLE 2. MISCELLANEOUS
Section 2.1. The Trustee accepts the trusts created by the Indenture,
as supplemented by this Second Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
Second Supplemental Indenture.
Section 2.2. The recitals contained herein shall be taken as statements
of the Company and the Guarantor, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
Section 2.3. All capitalized terms used and not defined herein shall
have the respective meanings assigned to them in the Indenture.
Section 2.4. Each of the Company, the Guarantor and the Trustee hereby
confirms and reaffirms the Indenture in every particular except as amended by
this Second Supplemental Indenture.
Section 2.5. All covenants and agreements in this Second Supplemental
Indenture by the Company, the Guarantor or the Trustee shall bind each of their
respective successors and assigns, whether so expressed or not.
Section 2.6. In case any provisions in this Second 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.
Section 2.7. Nothing in this Second Supplemental Indenture express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders of the Securities, any benefit or
any legal or equitable right, remedy or claim under the Indenture.
Section 2.8. If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act of 1939, as it may be amended from
time to time, that is required under such Act to be a part of and govern this
Second Supplemental Indenture, the latter provision shall control. If any
provision hereof modifies or excludes any provision of such Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Second Supplemental Indenture as so modified or excluded, as the case may be.
SECTION 2.9. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.10. All provisions of this Second Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the Indenture; and
the Indenture, as supplemented by this Second Supplemental Indenture, shall be
read, taken and construed as one and the same instrument.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
GS TECHNOLOGIES OPERATING CO., INC.
By:
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Xxxx X. Xxxx, Senior Vice President
Attest:
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GS TECHNOLOGIES CORPORATION
By:
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Xxxx X. Xxxx, Senior Vice President
Attest:
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FLEET NATIONAL BANK (formerly Shawmut
Bank Connecticut, National
Association), as Trustee
By:
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Name:
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Title:
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Attest:
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STATE OF NORTH CAROLINA )
ss:
COUNTY OF MECKLENBURG )
On the 15th day of August, 1996, before me personally came Xxxx X.
Xxxx, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President of GS Technologies Operating Co., Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
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My commission expires:
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STATE OF NORTH CAROLINA )
ss:
COUNTY OF MECKLENBURG )
On the 15th day of August, 1996, before me personally came Xxxx X.
Xxxx, to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President of GS Technologies Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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My commission expires:
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STATE OF __________________ )
ss:
COUNTY OF ________________ )
On the ____ day of August, 1996, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is ___________________ of Fleet National Bank (formerly Shawmut Bank
Connecticut, National Association), one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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My commission expires: _______________
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