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 00000 Xxxxxx Xxxx, Xxxxxxx,
Xxxxx 00000, GSE Lining Technology, Inc., a Delaware corporation ("GSE
Lining"),
having its principal offices at 00000 Xxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, GSE
International, Inc., a Delaware corporation ("GSE
International"
and,
together with GSE Lining, the "Delaware
Guarantors"),
having its principal offices at 00000 Xxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, 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 0000 0xx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxx, 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, 00
Xxxxxxxxxx Xxxxxx, XX-XX-XX0X, Xx. Xxxx, XX 00000-0000.
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
in the Notes on Intralinks or a comparable password protected electronic
transmission system, which will require a confidentiality acknowledgement.
Securities analysts or market makers will not be deemed to have violated any
confidentiality obligation to the Company as a result of the publication of
research or other reports in each case in the ordinary course of their business
or as a result of providing information to investors or prospective investors
in
the ordinary course of their business.
ARTICLE
II — MISCELLANEOUS
SECTION
2.01. EFFECT OF SUPPLEMENTAL INDENTURE. From and after the effective date of
this Second Supplemental Indenture, the Original Indenture and the Notes shall
be supplemented in accordance herewith, and this Second Supplemental Indenture
shall form a part of the Original Indenture and the Notes for all purposes,
and
every Holder of Notes heretofore or hereafter authenticated and delivered under
the Original Indenture shall be bound thereby.
SECTION
2.02. INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except as supplemented by
this
Second Supplemental Indenture, all provisions in the Original Indenture and
the
Notes shall remain in full force and effect.
SECTION
2.03. REFERENCES TO SUPPLEMENTAL INDENTURE. Any and all notices, requests,
certificates and other instruments executed and delivered after the execution
and delivery of this Second Supplemental Indenture may refer to the Original
Indenture without making specific reference to this Second Supplemental
Indenture, but nevertheless all such references shall include this Second
Supplemental Indenture unless the context requires otherwise.
SECTION
2.04. CONFLICT WITH TRUST INDENTURE ACT. The Company will comply with the
provisions of the TIA. If any provision of this Second Supplemental Indenture
limits, qualifies or conflicts with any provision of the TIA that is required
under the TIA to be part of and govern any provision of this Second Supplemental
Indenture, the provision of the TIA shall control. If any provision of this
Second Supplemental Indenture modifies or excludes any provision of the TIA
that
may be so modified or excluded, the provision of the TIA shall be deemed to
apply to the Indenture as so modified or to be excluded by this Second
Supplemental Indenture, as the case may be.
SECTION
2.05. SEVERABILITY. If any court of competent jurisdiction shall determine
that
any provision 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
2.06. HEADINGS. The Article and Section headings of this Second Supplemental
Indenture have been inserted for convenience of reference only, are not to
be
considered a part of this Second Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION
2.07. BENEFITS OF SECOND SUPPLEMENT INDENTURE. Nothing in this Second
Supplemental Indenture or the Notes, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of the Notes any benefit of any legal or
equitable right, remedy or claim under the Original Indenture, this Second
Supplemental Indenture or the Notes.
SECTION
2.08. SUCCESSORS AND ASSIGNS. All agreements by the Company in this Second
Supplemental Indenture shall bind its successors and assigns, whether or not
so
expressed. All agreements by the Trustee in this Second Supplemental Indenture
shall bind its successors, whether or not so expressed.
SECTION
2.09. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals contained herein shall
be taken as the statements of the Company and the Trustee assumes no
responsibility for their correctness.
SECTION
2.10. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In entering into
this
Second Supplemental Indenture, the Trustee shall be entitled to the benefit
of
every provision of the Original Indenture and the Notes relating to the conduct
or affecting the liability or affording protection to the Trustee, whether
or
not elsewhere herein so provided.
SECTION
2.11. GOVERNING LAW. This Second Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York. This Second
Supplemental Indenture is subject to the provisions of the TIA that are required
to be part of this Second Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION
2.12. COUNTERPART ORIGINALS. This Second Supplemental Indenture may be executed
in any number of counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, but all of such counterparts shall
together constitute one and the same instrument.
SECTION
2.13. EFFECTIVENESS. This Second Supplemental Indenture shall become effective
upon the acceptance for payment by the Company of any Notes tendered pursuant
to
the Consent Solicitation.
SECTION
2.14. CONFIRMATION. Each of the Company and the Trustee hereby confirms and
reaffirms the Original Indenture in every particular except as amended and
supplemented by this Second Supplemental Indenture.
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the date first above written.
| GUNDLE/SLT ENVIRONMENTAL, INC. | ||
| |
|
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| By: | /s/ Xxxxxx X. English, Jr. | |
|
Name: Xxxxxx
X. English, Jr.
Title:
Vice President, Chief Financial
Officer/Treasurer/Assistant
Secretary
|
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| GSE LINING TECHNOLOGY, INC. | ||
| |
|
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| By: | /s/ Xxxxxx X. English, Jr. | |
|
Name: Xxxxxx X. English, Jr.
Title: Vice
President/Chief Financial Officer/Treasurer
|
||
| GSE INTERNATIONAL, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx X. English, Jr. | |
|
Name: Xxxxxx X. English, Jr.
Title:
Vice
President/Treasurer/Assistant Secretary
|
||
| GSE CLAY LINING TECHNOLOGY CO. | ||
| |
|
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| By: | /s/ Xxxxxx X. English, Jr. | |
|
Name: Xxxxxx X. English, Jr.
Title: Authorized
Signatory
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| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxxx | |
|
Name:
Xxxxxxx Xxxxxxxx
Title:
Vice President
|
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