EXHIBIT 4.12
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this " First Supplemental
Indenture"), dated as of June 4, 2001, among Dresser Entech, Inc., and Ring-O
Valve, Incorporated (each, a "Guaranteeing Subsidiary" and collectively, the
"Guaranteeing Subsidiaries"), subsidiaries of Dresser, Inc. (or its permitted
successor), a Delaware corporation (the "Company"), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and State Street
Bank and Trust Company, as trustee under the indenture referred to below (the
"Trustee").
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of April 10, 2001 providing for
the issuance of an aggregate principal amount of up to $300,000,000 million of 9
3/8% Senior Subordinated Notes due 2011 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances
each Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture pursuant to which each Guaranteeing Subsidiary shall
unconditionally guarantee all of the Company's Obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Guarantee");
and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee
is authorized to execute and deliver this First Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
each Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Guarantors named in the Indenture, to
jointly and severally Guarantee to each Holder of a
Note authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes will
be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay
the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the
absence of any action to enforce the same, any waiver
or consent by any Holder of the Notes with respect to
any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of
a guarantor.
(c) The following is hereby waived: diligence, presentment,
demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the
Company, protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by
complete performance of the obligations contained in
the Notes and the Indenture or pursuant to Section 6
hereof.
(e) If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Guarantors,
or any custodian, Trustee, liquidator or other similar
official acting in relation to either the Company or
the Guarantors, any amount paid by either to the
Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full
force and effect.
(f) No Guaranteeing Subsidiary shall be entitled to any
right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture
for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed
hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article
6 of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable
by the Guarantors for the purpose of this Guarantee.
(h) The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as
the exercise of such right does not impair the rights
of the Holders under the Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, after
giving effect to any maximum amount and any other
contingent and fixed liabilities that are relevant
under any applicable Bankruptcy or fraudulent
conveyance laws (including, without limitation, all
Senior Debt of such Guarantor), and after giving effect
to any collections from, rights to receive contribution
from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other
Guarantor under Article 11 of the Indenture shall
result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent transfer or
conveyance.
3. SUBORDINATION. The Obligations of each Guaranteeing
Subsidiary under its Guarantee pursuant to this First Supplemental Indenture
shall be junior and subordinated to the Senior Debt of such Guaranteeing
Subsidiary on the same basis as the Notes are junior and subordinated to the
Senior Debt of the Company. For the purposes of the foregoing sentence, the
Trustee and the Holders shall have the right to receive and/or retain payments
by such Guaranteeing Subsidiary only at such time as they may receive and/or
retain payments in respect of the Notes pursuant to the Indenture, including
Article 10 thereof.
4. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees
that the Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
5. Guaranteeing Subsidiary May Consolidate, Etc. on Certain
Terms.
(a) No Guaranteeing Subsidiary may consolidate with or
merge with or into (whether or not such Guarantor is
the surviving Person) another corporation, Person or
entity whether or not affiliated with such Guarantor
unless:
(i) subject to Section 11.05 of the Indenture, the
Person formed by or surviving any such consolidation or
merger (if other than a Guarantor or the Company) shall be a
corporation organized and validly existing under the laws of
the United States or any state thereof or the District of
Columbia, and unconditionally assumes all the obligations of
such Guarantor, pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the Trustee, under
the Notes, the Indenture and the Guarantee on the terms set
forth herein or therein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(iii) the Company would be permitted, immediately after
giving effect to such transaction, to incur at least $1.00
of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.09 of the Indenture.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor
Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to
the Trustee, of the Guarantee endorsed upon the Notes
and the due and punctual performance of all of the
covenants and conditions of the Indenture to be
performed by the Guarantor, such successor Person shall
succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a
Guarantor. Such successor Person thereupon may cause to
be signed any or all of the Guarantees to be endorsed
upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Guarantees so
issued shall in all respects have the same legal rank
and benefit under the Indenture as the Guarantees
theretofore and thereafter issued in accordance with
the terms of the Indenture as though all of such
Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 of the
Indenture, and notwithstanding clauses(a)(iii) above,
nothing contained in the Indenture or in any of the
Notes shall prevent any consolidation or merger of a
Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of
the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another
Guarantor.
6. RELEASES. In the event of a sale or other disposition of all
of the assets of any Guarantor, by way of merger, consolidation or otherwise, or
a sale or other disposition of all to the capital stock of any Guarantor, then
such Guarantor (in the event of a sale or other disposition, by way of merger,
consolidation or otherwise, of all of the capital stock of such
Guarantor) or the corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of such Guarantor)
will be released and relieved of any obligations under its Guarantee; provided
that the Net Cash Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with the
applicable provisions of the Indenture, including without limitation Section
4.10 of the Indenture, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Guarantee.
Any Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under the Indenture
as provided in Article 11 of the Indenture.
7. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of any
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Guarantees,
the Indenture or this First Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
the Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the Commission that such a waiver is against public policy.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
9. COUNTERPARTS. The parties may sign any number of copies of
this First Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
10. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this First
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by each Guaranteeing Subsidiary and the
Company. IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: June 4, 2001
DRESSER ENTECH, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Asst.
Secretary
RING-O VALVE, INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Asst.
Secretary
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx X. Xxxx Xx.
-------------------------------------
Name: Xxxxxx X. Xxxx Xx.
Title: Vice President
