Exhibit 4.1
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DRESSER INDUSTRIES, INC.
AND
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Trustee
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 6, 1996
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Unsecured Debentures, Notes and Other
Evidences of Indebtedness
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FIRST SUPPLEMENTAL INDENTURE, dated as of August 6, 1996, (the "First
Supplemental Indenture") between DRESSER INDUSTRIES, INC., a corporation
incorporated and existing under the laws of the State of Delaware
("Company"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association, as Trustee ("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 OF THE COMPANY
The Company and the Trustee are parties to that certain Indenture, dated
as of April 18, 1996 (the "Indenture"). Section 9.01 of the Indenture
provides that the Company, when authorized by its Board of Directors, and the
Trustee may amend the Indenture or the Securities, without the consent of any
Securityholder to, among other things, make such provisions with respect to
matters or questions arising under the Indenture as may be desirable and not
inconsistent with the Indenture or with any Board Resolution establishing any
series of Securities, provided that such amendment does not adversely affect
the rights of Securityholders. This First Supplemental Indenture is being
executed for the purpose of modifying the defeasance provisions contained in
Article VIII of the Indenture.
All things necessary to make this First Supplemental Indenture a valid
and legally binding agreement of the Company have been done.
Capitalized Terms used but not defined herein shall have the meanings
ascribed thereto in the Indenture.
The Company and Trustee hereby agree to amend the Indenture as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
SECTION 1.01 RESTATEMENT OF ARTICLE 8.
Article 8 of the Identure is hereby amended and restated in its
entirety as follows:
"ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE. If at any time
(a) the Company shall have paid or caused to be paid the Principal of and
interest on all the Securities of any series outstanding hereunder, as and
when the same shall have become due and payable, or (b) the Company shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
as provided in Section 2.07 or paid), and if, in any such case, the
Company shall also pay or cause to be paid all other sums payable hereunder
by the Company with respect to Securities of such series, then this Indenture
shall cease to be of further effect with respect to Securities of such series
(except as to (i) rights of registration of transfer and exchange, and the
Company's right of optional redemption, if any, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii)
the rights, obligations and immunities of the Trustee hereunder, (iv) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property deposited with the Trustee payable to all or any of
them, (v) all other obligations of the Company in Sections 2.03, 2.04, 2.05,
2.06, 2.07, 7.07, 7.08 and 8.06 and (vi) the Company's rights pursuant to
Sections 7.08, 8.05 and 8.06), and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with
respect to Securities of such series. The Company agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred
and to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) The Company may, at its option by a Board Resolution, at any time,
with respect to Securities of any Series, elect to have either paragraph (b)
or paragraph (c) below be applied to the outstanding Securities of such
series upon compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities of such series on the date the conditions set forth below are
satisfied (hereinafter, "legal defeasance"). For this purpose, legal
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the outstanding Securities of such
series, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.04 and the other Sections of and matters under this
Indenture referred to in (i) and (ii) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Securities of such
series to receive solely from the trust fund described in paragraph (d) below
and as more fully set forth in such paragraph, payments in respect of the
Principal of and interest on such Securities when such payments are due, (ii)
the Company's obligations with respect to such Securities under Sections
2.02, 2.03, 2.05, 2.06, 2.07 and 4.06 and, with respect to the Trustee, under
Sections 7.07 and 7.08, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Section 8.02 and Sections
8.04, 8.05, 8.06 and 8.07. Subject to compliance with this Section 8.02, the
Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) below with respect to such
Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and
discharged from its obligations under any covenant contained in Sections 4.02
through 4.05 and from the operation of Sections 6.01(4), 6.01(5), 6.01(6) and
6.01(7) (except for obligations mandated by the TIA) with respect to the
outstanding Securities of such series on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"), and such
Securities shall thereafter be deemed to be not "outstanding" for the purpose
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants and
provisions, but shall continue to be deemed "outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that,
with respect to the outstanding Securities of such series, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply with any such
covenant shall not constitute a Default or an Event of Default under Section
6.01(3), but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities of any
series:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee funds in cash and/or U.S. Government Obligations
sufficient without reinvestment thereof, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge not
later than one day before the due date of any such payments, and which
shall be applied by the Trustee to pay and discharge when due, Principal of
and interest on the Securities of such series to Stated Maturity or
redemption, as the case may be, not theretofore delivered to the Trustee
for cancellation; PROVIDED that in order to have money available on a
payment date to pay Principal or interest on the Securities of such series,
the U.S. Government Obligations shall be payable as to principal and
interest on or before such payment date in such amounts as will provide the
necessary money;
(ii) the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States stating that (which may be based on an
Internal Revenue Service ruling) to the effect that the Holders of the
outstanding Securities of such series will not recognize income, gain or
loss for United States Federal income tax purposes as a result of such
deposit and legal defeasance or covenant defeasance, as the case may be,
and will be subject to United States Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such deposit and legal defeasance or covenant defeasance had not
occurred; and
(iii) such deposit, legal defeasance or covenant defeasance, as the
case may be, and discharge will not cause the Securities of such series
to be delisted from any securities exchange on which they are the listed.
SECTION 8.03. SATISFACTION AND DISCHARGE OF SECURITIES. Securities of
a series shall be deemed to have been paid in full as between the Company and
the respective Holders (and future Holders) of Securities of such series upon
the satisfaction and discharge of the Indenture with respect to Securities of
such series pursuant to Section 8.01 or 8.02(b), except that in the case of
such satisfaction and discharge as a result of compliance with Section
8.02(b), the Securities of such series shall be deemed to have been paid in
full as between the Company and the respective Holders (and future Holders)
of Securities of such series only if the deposit in trust with the Trustee by
the Company of the funds in cash and/or U.S. Government Obligations as
provided in Section 8.02 is not subsequently deemed a preference under the
United States Bankruptcy Code as then in effect.
SECTION 8.04. APPLICATION BY TRUSTEE OF MONEY OR U.S. GOVERNMENT
OBLIGATIONS. Subject to Section 8.06, all money or U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.02 shall be held
in trust and applied by it to the payment, either directly or through the
Paying Agent to the Holders of the particular Securities of such series for
the payment or redemption of which such money or U.S. Government Obligations
shall have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest but money so held in trust need not be
segregated from other funds except to the extent required by law.
SECTION 8.05. REPAYMENT OF MONEY OR U.S. GOVERNMENT OBLIGATIONS BY
PAYING AGENT. All money or U.S. Government Obligations held by the Paying
Agent pursuant to Section 8.05 shall, upon demand of the Company, be paid or
delivered to the Trustee and thereupon the Paying Agent shall be released
from all further liability with respect to such money or U.S. Government
Obligations.
SECTION 8.06. RETURN OF MONEY, SECURITIES OR U.S. GOVERNMENT
OBLIGATIONS. The Trustee and the Paying Agent shall promptly pay to the
Company upon request any money, U.S. Government Obligations or Securities
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount required under Section 8.02. Any money
or U.S. Government Obligations deposited with or paid to the Trustee or the
Paying Agent for the payment of the Principal of, or interest on any Security
of any series and not applied but remaining unclaimed for two years after the
date upon which such Principal or interest shall become due and payable,
shall, upon the request of the Company and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, be repaid or delivered to the Company by the Trustee for such series or
by the Paying Agent, and the Holder of the Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder
may be entitled to collect, and all liability of the Trustee or the Paying
Agent with respect to such money or U.S. Government Obligations shall
thereupon cease.
SECTION 8.07. REINSTATEMENT. If the Trustee is unable to apply any
money or U.S. Government Obligations in accordance with Section 8.02 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture
and the Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 until such time as the Trustee is permitted
to apply all such money or U.S. Government Obligations in accordance with
Section 8.02."
ARTICLE II
MISCELLANEOUS
SECTION 2.01. CONFIRMATION OF INDENTURE. The Indenture, as supplemented and
amended by this First Supplemental Indenture, is in all respects ratified and
confirmed, and the Indenture, this First Supplemental Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and
the same instrument.
SECTION 2.02. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this First Supplemental
Indenture other than as set forth in the Indenture. Simultaneously with and
as a condition to the execution of this First Supplemental Indenture, the
Company is delivering to the Trustee an Officers' Certificate and an Opinion
of Counsel stating that the amendment of the Indenture as set forth in this
First Supplemental Indenture is authorized or permitted pursuant to the
Indenture and that it complies with the provisions thereof.
SECTION 2.03. GOVERNING LAW. This First Supplemental Indenture, the
Indenture and the Securities issued thereunder shall be governed by and
construed in accordance with the internal laws of the State of Texas.
SECTION 2.04. SEPARABILITY. In case any one or more of the provisions
contained in this First 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
First Supplemental Indenture, but this First Supplemental Indenture shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
SECTION 2.05. COUNTERPARTS. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused the First Indenture
Supplement to be duly executed and the Company has caused its seal to be
hereunto affixed and attested, all as of the day and year first above Written.
DRESSER INDUSTRIES, INC.
By
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B. D. St. John
Vice Chairman
Attest:
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Rebecca R. Morris
Secretary
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By
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Eric C. Lokker
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On the 6th day of August in the year one thousand nine hundred and
ninety-six before me personally came B. D. St. John to me known who, being
by me duly sworn, did depose and say that he is Vice Chairman of DRESSER
INDUSTRIES, INC., one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.
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Notary Public
STATE OF TEXAS )
) ss:
COUNTY OF HARRIS )
On the 6th day of August in the year one thousand nine hundred and
ninety-six before me personally came Eric C. Lokker to me known who, being by
me duly sworn, did depose and say that he is ______________________ of TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association and one
of the entities described in and which executed the above instrument, and
that he signed his name thereto by authority of the Board of Directors of
said entity.
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Notary Public