EXECUTION VERSION
================================================================================
DII INDUSTRIES, LLC,
as Issuer,
and
JPMORGAN CHASE BANK,
as Trustee
---------------------------------
Second Supplemental Indenture
Dated as of October 27, 2003
---------------------------------
Unsecured Debentures, Notes and Other
Evidences of Indebtedness
================================================================================
SECOND SUPPLEMENTAL INDENTURE, dated as of October 27, 2003
(the "Second Supplemental Indenture"), by and between DII Industries, LLC
(formerly Dresser Industries, Inc.), a Delaware limited liability company (the
"Company"), and JPMorgan Chase Bank, a New York banking corporation (successor
by merger to Texas Commerce Bank National Association, a national banking
association), as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the holders of the Company's
unsecured debentures, notes and other evidences of indebtedness from time to
time authenticated and delivered pursuant to the Indenture (as defined below),
as supplemented hereby:
RECITALS
1. The Company and the Trustee are parties to that certain
Indenture, dated as of April 18, 1996 (the "Original
Indenture"), as supplemented by the First Supplemental
Indenture, dated as of August 6, 1996 (the "First Supplemental
Indenture"). The Original Indenture, as supplemented by the
First Supplemental Indenture, is herein referred to as the
"Indenture."
2. Section 9.02 of the Indenture provides that the Company and
the Trustee may amend the Indenture or the Securities
outstanding thereunder in a manner affecting the Securities
(as defined under Section 1.01 below) with the written consent
of the Holders (as defined under Section 1.01 below) of at
least 66-2/3% in principal amount of the then-outstanding
Securities of such series.
3. The Company's 7.60% debentures due 2096 (the "Debentures")
were issued pursuant to the Indenture. As of the date hereof,
$300 million aggregate principal amount of the Debentures are
outstanding. No other Securities have been issued or are
outstanding pursuant to the Indenture.
4. All things necessary to make this Second Supplemental
Indenture a valid and legally binding agreement of the Company
have been done, including receipt of consents to amend the
Indenture as set forth herein from the Holders of at least
66-2/3% in principal amount of the outstanding Debentures.
5. In connection with the Company's solicitation of consents to
amend the Indenture as set forth herein, Halliburton Company
extended to qualified holders an offer to issue its new 7.6%
debentures due 2096 (the "Halliburton Debentures") in exchange
for a like amount of outstanding Debentures, which offer is
referred to herein as the "Exchange Offer."
6. The Company and the Trustee hereby agree to amend the
Indenture as follows:
1
ARTICLE I
AMENDMENTS TO THE INDENTURE
Section 1.01. Restatement of Article 1.
Article 1 of the Indenture is hereby amended and replaced in
its entirety as follows:
"ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person. For
purposes of this definition, "control" of a Person shall mean the power
to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled"
shall have meanings correlative to the foregoing; provided that
beneficial ownership of 10% or more of the common equity of a Person
shall be deemed to be control.
"Agent" means any Registrar or Paying Agent.
"Board of Directors" or "Board" means the Board of
Directors of the Company or other body fulfilling the function of a
board of directors of a corporation including, without limitation, with
respect to a limited liability company, its members or any or other
body duly authorized, or committee of such Board or other body duly
authorized, with respect to any particular matter, to act by or on
behalf of the Board of Directors.
"Board Resolution" means a copy of a resolution
delivered to the Trustee and certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification.
"Capital Stock" of any person means any and all
shares (including ordinary shares or American Depositary Shares),
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) of capital
stock or other equity participations of such person and any rights
(other than debt securities convertible or exchangeable into an equity
iterest), warrants or options to acquire an equity interest in such
person.
2
"Company" means DII Industries, LLC or its successor.
"Company Order" means a written order of the Company,
signed by two Officers, one of whom shall be the principal executive,
financial or accounting officer of the Company, and delivered to the
Trustee.
"Default" means any event which is, or after notice
or the passage of time or both, would be, an Event of Default.
"Depositary" means a clearing agency registered under
the Securities Exchange Act of 1934, as amended, or any successor
thereto, which shall be designated by the Company pursuant to Section
2.01 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each person who is then a Depositary
hereunder, and if at any time there is more than one such person, shall
mean or include all such persons. "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with respect to
the Securities of that series.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and any successor statute.
"Generally accepted accounting principles" when used
with respect to any computation or interpretation required or permitted
hereunder means such accounting principles which are generally accepted
as of the date of this Indenture.
"Global Security" means a Security registered in the
name of the Depositary or its nominee evidencing all or part of a
series of Securities, which is executed by the Company and
authenticated and delivered to the Depositary or pursuant to the
Depositary's instructions, all in accordance with this Indenture and
pursuant to a Company Order.
"Holder" or "Securityholder" means a person in whose
name a Security is registered in the Security Register.
"Indenture" means this Indenture as amended from time
to time pursuant to applicable provisions of this Indenture, and shall
include the form and terms of each particular series of Securities
established pursuant to Section 2.01 hereof.
"Interest Payment Date" means the date on which
payment of an installment of interest on the Securities of any series
is due.
"Maturity" when used with respect to any Security
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption, pursuant to a sinking fund or otherwise.
3
"Officer" means the Chairman of the Board, Vice
Chairman of the Board, President, any Vice President, the Treasurer,
any Assistant Treasurer, the Secretary or any Assistant Secretary of
the Company.
"Officers' Certificate" means a certificate signed by
two Officers, one of whom shall be the principal executive, financial
or accounting officer.
"Opinion of Counsel" means a written opinion from
legal counsel who is reasonably acceptable to the Trustee. Such counsel
may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security
that provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Stated
Maturity thereof pursuant to Section 6.02.
"Person" means any individual, corporation,
partnership, limited liability company, joint venture, incorporated or
unincorporated association, joint stock company, trust, estate,
unincorporated organization or government or other agency,
instrumentality or political subdivision thereof or other entity of any
kind.
"Principal" of a Security means the principal of the
Security, plus the premium, if any, on the Security.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 2.01.
"SEC" means the Securities and Exchange Commission.
"Securities" means the unsecured debentures, notes
and other evidences of indebtedness (including any Global Securities)
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended.
"Stated Maturity" when used with respect to any
Security or any installment of principal thereof means the date
specified in such Security as the fixed date on which the principal of
such Security or such installment of principal is due and payable.
"Subsidiary" of any Person means (a) any corporation,
association or other business entity (other than a partnership, joint
venture, limited liability company or similar entity) of which more
than 50% of the total ordinary voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof (or persons
performing similar functions) or (b) any partnership, joint venture,
limited liability company or similar entity of which more than 50% of
4
the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable,
is, in the case of clauses (a) and (b), at the time owned or
controlled, directly or indirectly, by (1) such Person, (2) such Person
and one or more Subsidiaries of such Person or (3) one or more
Subsidiaries of such Person. Unless otherwise specified herein, each
reference to a Subsidiary will refer to a Subsidiary of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code ss.ss. 77aaa-77bbbb) as in effect on the date first above written.
"Trustee" means the party named as such above or any
other trustee appointed with respect to the Securities of any series as
contemplated by Section 2.01, in each case until a successor replaces
it with respect to the Securities of one or more series pursuant to the
applicable provisions of this Indenture, and thereafter with respect to
the Securities of such one or more series shall mean the successor.
"Trust Officer" means any officer or assistant
officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"United States" means the United States of America
(including the States and the District of Columbia) and its territories
and possessions, which include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
"U.S. Government Obligations" means direct
obligations of the United States for the payment of which the full
faith and credit of the United States is pledged and which are not
callable at the issuer's option.
SECTION 1.02. Other Definitions.
Defined in
Term Section
"Event of Default"........................ 6.01
"Legal Holiday"........................... 10.07
"Paying Agent"............................ 2.03
"Registrar"............................... 2.03
"Security Register"....................... 2.03
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act.
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by r eference in and made a part of
this Indenture (and if the Indenture is not qualified under the TIA at
5
that time, as if it were so qualified unless otherwise provided). All
terms used in this Indenture that are defined by the TIA, defined by a
TIA reference to another statute or defined by an SEC rule under the
TIA have the meanings so assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance
with generally accepted accounting
principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural,
and in the plural include the singular; and
(5) provisions apply to successive events and
transactions."
Section 1.02. Amendments to Article 4.
Article 4 of the Indenture is hereby amended and replaced
in its entirety as follows:
"ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the Principal of and any
interest on the Securities on the dates and in the manner provided
in the Securities. Principal and interest shall be considered paid
on the date due if the Paying Agent holds on that date money deposited
with it by or on behalf of the Company sufficient to pay all Principal
and interest then due.
The Company shall pay interest on overdue principal
at the rate borne by such Securities or otherwise as provided in the
Securities; it shall pay interest on overdue installments of interest
at the same rate to the extent permitted by law.
Each payment by the Company to the Trustee or the
Paying Agent shall be accompanied by a written notice from the Company
that specifies the series to which such payment relates.
SECTION 4.02. Maintenance of Office or Agency. The
Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency of the Trustee, Registrar and Paying Agent
where Securities may be presented or surrendered for payment, where
6
Securities may be surrendered for registration of transfer, exchange,
purchase or redemption, and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served.
Unless otherwise provided pursuant to Section 2.01, the office or
agency of the Trustee in the Borough of Manhattan, New York, New York,
shall initially be such office or agency for all of the aforesaid
purposes. The Company shall give prompt written notice to the Trustee
of the location, and of any change in the location, of any such office
or agency (other than a change in the location of the office of the
Trustee). If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in
Section 10.11.
SECTION 4.03. Further Assurances. From time to time
whenever reasonably requested by the Trustee, the Company will make,
execute and deliver, or cause to be made, executed or delivered, any
and all such further and other instruments and assurances as may be
reasonably necessary or proper to carry out the intention of or to
facilitate the performance of the terms of this Indenture or to secure
the rights and remedies of the Holders of Securities of any series
provided for in this Indenture, including, but not limited to,
furnishing all necessary information to the Trustee in connection with
calculations and tax reporting relating to any Original Issue Discount
Securities that may be issued by the Company hereunder."
Section 1.03. Amendment to Article 5.
Article 5 of the Indenture is hereby deleted in its entirety.
Section 1.04. Amendments to Article 6.
Section 6.01 of the Indenture is hereby amended and replaced
in its entirety as follows:
"SECTION 6.01. Events of Default. An "Event of
Default" with respect to Securities of any series occurs if:
(1) the Company defaults in the payment of interest
on any Security of such series when the same becomes due and
payable, which default continues for a period of 30 days; and
(2) the Company defaults in the payment of the
Principal of any Security of such series when the same becomes
due and payable at Maturity, upon redemption or otherwise."
Section 1.05. Amendments to Article 10.
Section 10.11 of the Indenture is hereby amended and replaced
in its entirety as follows:
7
"SECTION 10.11. Addresses.
The Company's address is:
4100 Clinton Drive
Bldg. 1 - 7th Floor
Houston, TX 77010
Attention: Treasurer
Facsimile No.: 713-753-2517
The Trustee's address is:
600 Travis, Suite 1150
Houston, Texas 77002
Attention: Institutional Trust Services
Facsimile No.: 713-577-5200
For purposes of the requirement of a New York office contained
in Section 4.02, the address of the Trustee's agent is:
JPMorgan Chase Bank
4 New York Plaza
Ground Floor
New York, NY 10004
Securities may also be presented or surrendered for payment or
for registration of transfer, exchange, purchase or redemption
at the address of the trustee set forth above.
ARTICLE II
MISCELLANEOUS
Section 2.01. Effective Date. This Second Supplemental Indenture is
effective as of the date first written above; however, the amendments to the
Indenture set forth in Article I hereof shall not become operative unless and
until validly tendered Debentures in an aggregate principal amount of at least
$200 million are exchanged for Halliburton Debentures pursuant to the Exchange
Offer.
Section 2.02. Ratification. Except as expressly amended and
supplemented by this Second Supplemental Indenture, the Indenture shall remain
unchanged and in full force and effect. This Second Supplemental Indenture shall
be construed as supplemental to the Indenture and shall form a part thereof.
Section 2.03. Governing Law. This Second Supplemental Indenture shall
be governed by, and construed in accordance with, the laws of the State of Texas
(except that, to the fullest extent permitted by law, no effect shall be given
to any conflict of law principles of the State of Texas that would require the
8
application of the laws of any other jurisdiction) and the applicable federal
laws of the United States.
Section 2.04. Counterparts. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which shall be deemed to be an
original and all of which taken together shall be deemed to be one and the same
instrument.
Section 2.05. Separability. In case any one or more of the provisions
contained in this Second Supplemental Indenture shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Second
Supplemental Indenture, but this Second Supplemental Indenture shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
Section 2.06. Concerning the Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Second Supplemental Indenture
other than as set forth in the Indenture.
9
IN WITNESS WHEREOF, each of the parties have duly executed and
delivered this Second Supplemental Indenture or have caused this Second
Supplemental Indenture to be duly executed on their respective behalf by their
respective officers thereunto duly authorized, as of the day and year first
above written.
DII INDUSTRIES, LLC
By: /s/ M. S. Bender
--------------------------------------
Name: M.S. Bender
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, as Trustee
By: /s/ Frank W. McCreary
---------------------------------------
Name: Frank W. McCreary
Title: Trust Officer