SECOND SUPPLEMENTAL INDENTUREIndenture Agreement |
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GSE CLAY LINING TECHNOLOGY CO | GSE INTERNATIONAL, INC | GSE LINING TECHNOLOGY, INC | GUNDLE/SLT ENVIRONMENTAL, INC | US BANK NATIONAL ASSOCIATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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SECOND
SUPPLEMENTAL INDENTURE
SECOND
SUPPLEMENTAL INDENTURE, dated as of July 19, 2007 (this "Supplemental
Indenture"), by and among Gundle/SLT Environmental, Inc., a Delaware corporation
(the "Company"), having its principal offices at 19103 Gundle Road, Houston,
Texas 77073, GSE Lining Technology, Inc., a Delaware corporation ("GSE
Lining"),
having its principal offices at 19103 Gundle Road, Houston, Texas 77073, GSE
International, Inc., a Delaware corporation ("GSE
International"
and,
together with GSE Lining, the "Delaware
Guarantors"),
having its principal offices at 19103 Gundle Road, Houston, Texas 77073, GSE
Clay Lining Technology Co., a South Dakota general partnership ("GSE
Clay Lining"
and,
together with the Delaware Guarantors, the "Guarantors"),
having its principal offices at 3150 1st Avenue, Spearfish, South Dakota, and
U.S. Bank National Association, a national banking association organized under
the laws of the United States of America, as trustee (the "Trustee"), having
its
principal Corporate Trust Office at U.S. Bank National Association, 60
Livingston Avenue, EP-MN-WS3C, St. Paul, MN 55107-2292.
RECITALS:
WHEREAS,
the Company executed and delivered its Indenture, dated as of May 18, 2004,
as
supplemented by the First Supplemental Indenture, dated as of May 18, 2004
(as
so supplemented, the "Original Indenture"), to the Trustee, pursuant to which
the Company has $150 million aggregate principal amount of 11% Series B Senior
Notes due 2012 (the "Notes") outstanding. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Original
Indenture;
WHEREAS,
Section 9.2 of the Original Indenture provides that the Company and the Trustee
may, with certain exceptions, amend the Indenture and the Notes with the consent
of the Holders of not less than a majority in principal amount of the
outstanding Notes affected by such supplemental indenture;
WHEREAS,
the Company has distributed a Consent Solicitation Statement, dated as of July
9, 2007 (the "Solicitation Statement"), and accompanying Consent, dated as
of
July 9, 2007, to the Holders of the Notes in connection with a certain proposed
amendment to the Indenture as described in the Solicitation Statement (the
"Proposed Amendment");
WHEREAS,
the Holders of more than a majority of the principal amount of the Notes
outstanding have duly consented to the Proposed Amendment;
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of the Company to authorize and approve the Proposed Amendment;
and
WHEREAS,
an Officers' Certificate and Opinion of Counsel have been delivered to the
Trustee in accordance with Sections 9.6, 11.4 and 11.5 of the Original
Indenture.
WHEREAS,
the execution and delivery of this Second Supplemental Indenture have been
duly
authorized by all necessary corporate action on the part of the Company and
the
Delaware Guarantors and all necessary general partnership action on the part
of
GSE Clay Lining and all conditions and requirements necessary to make this
instrument a valid and binding agreement have been duly performed and complied
with.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
Company and the Trustee mutually covenant and agree, for the equal and ratable
benefit of the Holders of the Notes, as follows:
ARTICLE
I
— AMENDMENT
SECTION
1.01. AMENDMENT TO THE REPORTING REQUIREMENTS IN THE ORIGINAL
INDENTURE.
Section
4.3 is amended to read as follows:
Whether
or not the Company is subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, so long as any Notes are outstanding, the Company
will furnish to the Trustee and to each Holder of Notes, within 10 days after
the expiration of the time periods specified in the Commission’s rules and
regulations applicable to non-accelerated filers (if the Company were subject
to
such rules and regulations):
(i)
a
consolidated balance sheet of the Company as of the end of each fiscal year,
including footnotes, and the related consolidated statements of income and
retained earnings and of cash flows for such fiscal year, including footnotes,
setting forth in comparative form consolidated figures for the preceding fiscal
year, together with a report thereon by the Company’s certified independent
public accountants, and a management’s discussion and analysis of financial
condition and results of operations for
such
periods;
(ii)
with
respect to each of the first three fiscal quarters in each fiscal year of the
Company, a consolidated balance sheet of the Company, including footnotes,
as of
the end of such fiscal quarter, and the related consolidated statements of
income and of cash flows for such fiscal quarter and the then elapsed portion
of
such fiscal year, including footnotes, setting forth in comparative form
consolidated figures for the corresponding periods of the preceding fiscal
year,
and a management’s discussion and analysis of financial condition and results of
operations for
such
periods;
and
(iii)
all
current reports that would be required to be filed with the Commission on Form
8-K pursuant to items 1.01, 1.02, 1.03, 2.01, 2.03, 2.04, 2.05, 2.06, 3.03,
4.01, 4.02, 5.01 and 5.02, but excluding executive compensation information
currently required by item 5.02(f), if the Company were required to file such
reports.
The
Company will (a) distribute such information and such reports (as well as the
details regarding the conference call described below) electronically to the
Trustee and (b) make them available to any Holder of Notes, any beneficial
owner
of Notes or any prospective investor, securities analyst or market maker in
the
Notes by posting such information and reports on IntraLinks or a comparable
password protected electronic transmission system, which will require a
confidentiality acknowledgement.
In
addition, within 105 days from the end of each fiscal year and within 60 days
from the end of each of the first three quarters of each fiscal year, the
Company will hold a conference call to discuss results of operations and allow
participants to ask questions at the end of such call, including any securities
analyst or market maker in the Notes. The Company will make the details
regarding the conference call available to any Holder of Notes, any beneficial
owner of Notes or any prospective investor, securities analyst or market maker
