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EXHIBIT 4.7
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental
Indenture"), dated as of June 12, 2001, among LVF Holding Corporation (a
"Guaranteeing Subsidiary" ), subsidiary 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 the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the 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 Second Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the 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. The 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:
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(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) The 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.
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(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 the Guaranteeing
Subsidiary under its Guarantee pursuant to this 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. The 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) The Guaranteeing Subsidiary may not 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:
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(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
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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 the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or the Guaranteeing Subsidiary under the Notes, any Guarantees,
the Indenture or this Second 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 SECOND 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 Second 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
Second Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made solely by the Guaranteeing Subsidiary and
the Company. IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
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Dated: June 12, 2001
LVF HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President and Asst. Secretary
STATE STREET BANK AND TRUST COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxx Xx.
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Name: Xxxxxx X. Xxxx Xx.
Title: Vice President
