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[Form of June 26, 1996] EXHIBIT (4d)
[Form of Supplemental Indenture. A Supplemental Indenture entered into between
the Company, the Guarantor and the Trustee with respect to each Series of
Senior Debt Securities issued pursuant to the Indenture, in definitive,
executed form, will be filed by the Company with the Commission as an Exhibit
to a current Report on Form 8-K shortly after the closing date for the issuance
of each such Series of Senior Debt Securities.]
FINA OIL AND CHEMICAL COMPANY,
as Issuer
FINA, INC.,
as Guarantor
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
SERIES _____ SUPPLEMENT
Dated as of __________, 199___
to
INDENTURE
Dated as of ___________, 199___
$_______________________
[SENIOR DEBT SECURITIES]
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SERIES ______ SUPPLEMENT, dated as of _____________, 199___, between
FINA OIL AND CHEMICAL COMPANY, a Delaware corporation (together with its
successors and assigns as provided in the Indenture referred to below, the
"Company"), FINA, INC., a Delaware corporation (together with its successors
and assigns as provided in the Indenture referred to below, the "Guarantor"),
and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association
(together with its successors in trust thereunder as provided in the Indenture
referred to below, the "Trustee"), as trustee under an Indenture dated as of
__________________, 199___, among the Company, the Guarantor and the Trustee
(the "Indenture").
PRELIMINARY STATEMENT
Section 2.02 of the Indenture provides, among other things, that the
Company, when authorized by its Board of Directors, the Guarantor and the
Trustee may at any time and from time to time enter into an indenture
supplemental to the Indenture for the purpose of authorizing a Series of Senior
Debt Securities and to specify certain terms of such Series of Senior Debt
Securities. The Board of Directors of the Company has duly authorized the
creation of a Series of Senior Debt Securities with an aggregate principal
amount of $___________________ to be known as the Company's [Senior Debt
Securities], (the "[Senior Debt Securities]") , and the Company, the Guarantor
and the Trustee are executing and delivering this Series _____ Supplement in
order to provide for the [Senior Debt Securities].
SECTION 1. Designation.
The [Senior Debt Securities] shall be designated as the Company's
[Senior Debt Securities].
SECTION 2. Date of [Senior Debt Securities].
The [Senior Debt Securities] which are authenticated and delivered by
the Trustee to or upon the order of the Company on the Closing Date for the
[Senior Debt Securities] shall be dated __________________, _____. All other
[Senior Debt Securities] which are authenticated after the Closing Date for any
other purpose under the Indenture shall be dated the date of their
authentication. For the purposes of this Section 2, "Closing Date" shall mean
the date on which the [Senior Debt Securities] are first executed,
authenticated and delivered.
SECTION 3. Aggregate Principal Amount.
The aggregate principal amount of [Senior Debt Securities] that may be
authenticated and delivered under the Indenture and this Series _____
Supplement is limited to $_____________________.
SECTION 4. Interest Rate.
The [Senior Debt Securities] shall bear interest at the rate of
______% per annum.
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SECTION 5. Interest Payment Dates.
The interest payment dates for the [Senior Debt Securities] are
[_________________], commencing on ___________________, 199___.
SECTION 6. Record Date.
The record date with respect to an interest payment date shall be the
_____ day of the calendar month preceding the month in which such interest
payment date falls, or in the case of defaulted interest, the close of business
on any special record date.
SECTION 7. Denominations of [Senior Debt Securities].
The [Senior Debt Securities] are issuable in denominations of
$_______________ and any integral thereof.
SECTION 8. Currency of Issuance and Payments.
The [Senior Debt Securities] shall be issued in the currency of
________________ and shall be paid in such currency.
[SECTION 9. Redemption Date and Price.
The [Senior Debt Securities] may be redeemed [in full] [in whole or in
part] at the Company's option at _____% of the principal amount thereof, plus
accrued interest, if redeemed prior to ________________, 199___, and at the
following prices (expressed as percentages of the principal amount) if redeemed
during the twelve month period beginning ________ of the years indicated below,
together in each case with interest accrued to the redemption date:
Redemption
Year Price
---- ----------
19___ $_________________
19___ $_________________
Beginning ________________, 19__, the Company may redeem the [Senior
Debt Securities] at 100% of the principal amount thereof together with interest
accrued to the redemption date.]
[SECTION 10. Sinking Fund.
As and for a Sinking Fund for the retirement of the [Senior Debt
Securities], the Company covenants that on or before _____________, 19___, and
annually on or before _____________ of each year thereafter to and including
______________, ________, it will pay to the Trustee a sum in cash sufficient
to retire by redemption at a Sinking Fund redemption price set forth below, on
the next succeeding ______________, $_________________ principal amount of the
[Senior Debt Securities]; provided, however, that in any such year in which
_________________ is not a business day,
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such payment shall be made to the Trustee on the last business day preceding
such _____________________. In any year, the Company may, at its sole option,
increase the payment required to be made pursuant to this Section 10 for such
year by an amount not to exceed $______________; provided that such increase
shall be an integral multiple of $____________.
The Sinking Fund redemption price will be equal to the principal
amount of the [Senior Debt Securities] to be redeemed pursuant to this Section
10, together with accrued interest to the date fixed for redemption.]
SECTION 11. Form of [Senior Debt Securities].
The [Senior Debt Securities] shall be in the form attached hereto as
Exhibit A.
SECTION 12. Maturity Date.
The [Senior Debt Securities] will mature and be payable in accordance
with their terms on __________________, 19___.
SECTION 13. Book-Entry Matters.
Pursuant to Section 2.02 of the Indenture, the following provisions
shall apply to the [Senior Debt Securities], notwithstanding anything to the
contrary in the Indenture:
(a) The [Senior Debt Securities] will be issued in fully
registered form only. However, except as provided in paragraphs (d),
(e) and (f) of this Section 13, the registered owner of all of the
[Senior Debt Securities] initially shall be The Depository Trust
Company ("DTC") or its nominee, and such [Senior Debt Securities]
initially shall be registered in the name of DTC or its nominee.
Payment of the principal of or interest on [Senior Debt Securities]
registered in the name of DTC or its nominee shall be made in the
manner and at the address(es) specified in the Letter of
Representations, dated ____________, 199__, from the Company and the
Trustee to DTC, a copy of which is attached hereto as Exhibit B. DTC
(and any successor securities depository) and its (or their)
participating institutions (collectively "Participants") shall
maintain a book- entry registration and transfer system with respect
to ownership of beneficial interests in the [Senior Debt Securities]
(the "Book-Entry System").
(b) The [Senior Debt Securities] shall be initially
issued in the form of a separate, single, authenticated, fully
registered [Senior Debt Security] (the "Global Security") which (i)
pursuant to Section 2.01 of the Indenture, need not be in the form of
a lithographed or engraved certificate, but may be typewritten or
printed on ordinary paper or such paper as the Trustee may reasonably
request, (ii) shall represent and be denominated in an amount equal to
100% of the aggregate principal amount of the [Senior Debt Securities]
issued under
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this Series _____ Supplement, (iii) shall be executed by the Company
and authenticated by the Trustee in accordance with the provisions of
the Indenture, and delivered by the Trustee to DTC or its nominee or
an approved custodian for DTC (which may include the Trustee), (iv)
shall be registered in the Senior Debt Security Register in the name
of Cede & Co., as nominee of DTC, and (v) shall contain the following
legend on the face thereof:
Unless this [Senior Debt Security] is presented by an
authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered holder hereof, Cede & Co., has an
interest herein.
Unless and until it is exchanged in whole or in part for [Senior Debt
Securities] in definitive certificated form, the Global Security
representing the [Senior Debt Securities] may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to
DTC or another nominee of DTC or by DTC or any such nominee to a
successor securities depository or a nominee of any such successor
securities depository.
(c) The Trustee and the Company may treat DTC or its
nominee, or any successor securities depository or nominee thereof
(collectively, the "Depository"), as the sole and exclusive owner of
the [Senior Debt Securities] registered in its name for the purposes
of payment of the principal of or interest on the [Senior Debt
Securities], giving any notice permitted or required to be given to
holders of the [Senior Debt Securities] under the Indenture or this
Series _____ Supplement, registering the transfer of the [Senior Debt
Securities], obtaining any consent or other action to be taken by
holders of the [Senior Debt Securities] and for all other purposes
whatsoever, and neither the Trustee nor the Company shall be affected
by any notice to the contrary. Neither the Company nor the Trustee
shall have any responsibility or obligation to any Participant, any
person claiming a beneficial ownership interest in the [Senior Debt
Securities] under or through the Depository or any Participant, or any
other person which is not shown on the Senior Debt Security Register
as being a holder of the [Senior Debt Securities], with respect to (i)
the accuracy of any records maintained by the Depository or any
Participant; (ii) the payment by the Depository to any Participant of
any amount in respect of the
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principal of or interest on the [Senior Debt Securities]; or (iii) the
payment by any Participant to any owner of a beneficial ownership
interest in the [Senior Debt Securities] in respect of the principal
of or interest on the [Senior Debt Securities]. The Trustee shall pay
all principal of and interest on the [Senior Debt Securities] only to
or upon the order of the registered holder or holders of the [Senior
Debt Securities], as shown in the Senior Debt Security Register, and
all such payments shall be valid and effective to fully satisfy and
discharge the Company's obligations with respect to the principal of
and interest on the [Senior Debt Securities] to the extent of the sum
or sums so paid. No person other than a holder of the [Senior Debt
Securities], as shown in the Senior Debt Security Register, shall
receive an authenticated [Senior Debt Security] evidencing the
obligation of the Company to make payment of the principal of and
interest on the [Senior Debt Securities] pursuant to the Indenture and
this Series ____ Supplement. Upon delivery by DTC to the Trustee of
written notice to the effect that DTC has determined to substitute a
new nominee for Cede & Co., and subject to the provisions of the
Indenture and this Series _____ Supplement, the word "Cede & Co.", as
used in this Series _____ Supplement, shall refer to each new nominee
of DTC.
(d) In the event that after the occurrence of an Event of
Default that has not been cured or waived, holders of a majority in
aggregate principal amount of the beneficial interests in the [Senior
Debt Securities], as reflected in the books and records of the
Depository, notify the Trustee, through the Depository or any
Participant, that the continuation of the Book-Entry System is no
longer in the best interests of such holders of beneficial interests
in the [Senior Debt Securities], then the Trustee shall notify the
Depository and the Company, and the Depository will notify the
Participants of the availability through the Depository of definitive
certificated [Senior Debt Securities]. In such event, the Company
shall execute, and the Trustee, upon receipt of a written order of the
Company, signed by its President or a Vice President and by its
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary (an
"Issuer Order"), for the authentication and delivery of definitive
certificated [Senior Debt Securities], will authenticate and deliver
[Senior Debt Securities] in definitive certificated form, in any
authorized denominations, all pursuant to the provisions of the
Indenture, to the person or persons specified to the Trustee in
writing by the Depository in the aggregate principal amount of the
Global Security and in exchange for such Global Security.
(e) If at any time the Depository notifies the Company
that it is unwilling or unable to continue as Depository for the
[Senior Debt Securities] or if at any time the Depository shall no
longer be registered as a clearing agency in good standing under the
Securities Exchange Act of 1934, as
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amended, or other applicable statute or regulation, the Company shall
appoint a successor Depository with respect to the [Senior Debt
Securities]. If a successor Depository for the [Senior Debt
Securities] is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, the
Company will execute, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive certificated [Senior
Debt Securities], will authenticate and deliver [Senior Debt
Securities] in definitive certificated form, in any authorized
denominations, all pursuant to the provisions of the Indenture, to the
person or persons specified to the Trustee in writing by the
Depository in the aggregate principal amount of the Global Security
and in exchange for such Global Security.
(f) The Company may at any time and in its sole
discretion determine that the [Senior Debt Securities] shall no longer
be represented by a Global Security. In such event the Company will
execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive certificated [Senior Debt
Securities], will authenticate and deliver [Senior Debt Securities] in
definitive certificated form, in any authorized denominations, all
pursuant to the provisions of the Indenture, to the person or persons
specified to the Trustee in writing by the Depository in the aggregate
principal amount of the Global Security and in exchange for such
Global Security.
(g) Upon the exchange of a Global Security for [Senior
Debt Securities] in definitive certificated form, in authorized
denominations, such Global Security shall be cancelled by the Trustee.
(h) Whenever the Depository requests the Company and the
Trustee to do so, the Trustee and the Company will cooperate with the
Depository in taking appropriate action after reasonable notice to (i)
make available one or more separate Global Securities evidencing the
[Senior Debt Securities] to any Participant having [Senior Debt
Securities] credited to its account at the Depository, or (ii) arrange
for another Depository to maintain custody of the Global Security or
Securities evidencing the [Senior Debt Securities].
(i) In connection with any notice or other communication
to be provided to holders of the [Senior Debt Securities] pursuant to
the Indenture and this Series _____ Supplement by the Company or the
Trustee with respect to any consent or other action to be taken by
holders of the [Senior Debt Securities], the Company or the Trustee,
as the case may be, shall establish a record date for such consent or
other action and give the Depository notice of such record date not
less than 15 calendar days in advance of such record date to the
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extent possible. Such notice to the Depository shall be given only so
long as a Depository or its nominee is the sole record holder of the
[Senior Debt Securities].
SECTION 14. Confirmation of FINA, Inc. Guarantee.
The Guarantor hereby acknowledges and confirms that its Guarantee with
respect to each Series of Senior Debt Securities, on the terms and subject to
the conditions set forth in Article Three of the Indenture, shall be fully
applicable to the [Senior Debt Securities].
SECTION 15. Certain Defined Terms.
All terms used in this Series _____ Supplement which are defined in
the Indenture, either directly or by reference therein, have the respective
meanings assigned to them therein, except to the extent such terms are defined
in this Series _____ Supplement or the context clearly requires otherwise.
SECTION 16. Counterparts.
This Series _____ Supplement 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.
SECTION 17. Governing Law.
This Series _____ Supplement and each [Senior Debt Security] issued
hereunder shall be deemed to be a contract made under the laws of the State of
Texas, and for all purposes shall be construed in accordance with the laws of
said State, provided that the rights, duties, immunities and standard of care
of the Trustee shall be governed by and construed in accordance with the laws
of the United States of America.
SECTION 18. Acceptance of Trusts.
Texas Commerce Bank National Association hereby accepts the trusts in
this Series _____ Supplement declared and provided, upon the terms and
conditions herein and in the Indenture set forth.
SECTION 19. Ratification of Indenture.
As supplemented by this Series _____ Supplement, the Indenture is in
all respects ratified and confirmed and the Indenture as so supplemented by
this Series _____ Supplement shall be read, taken and construed as one and the
same instrument.
[Insert additional provisions as necessary]
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IN WITNESS WHEREOF, the Company, the Guarantor and the Trustee have
caused this Series _____ Supplement to be duly executed by their respective
officers thereunto duly authorized and their respective seals duly attested to
be hereunto affixed all as of the day and year first above written.
FINA OIL AND CHEMICAL COMPANY
[SEAL]
By:_____________________________________
Yves Bercy,
Vice President, Chief Financial
Officer and Treasurer
ATTEST:
___________________________________
Linda Middleton,
Secretary
FINA, INC.
[SEAL]
By:_____________________________________
Yves Bercy,
Vice President, Chief Financial
Officer and Treasurer
ATTEST:
___________________________________
Linda Middleton,
Assistant Secretary
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
[SEAL]
By:_____________________________________
Name:___________________________________
Title:__________________________________
ATTEST:
___________________________________
[Name & Title]
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STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Yves Bercy and Linda Middleton, known to
me to be the persons and officers whose names are subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said FINA
OIL AND CHEMICAL COMPANY, a Delaware corporation, and that they executed the
same as the act of said corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________________, 19_____.
____________________________________
Notary Public in and for the
State of Texas
My commission expires:
_____________________________________
[Type or print name]
___________________________
STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Yves Bercy and Linda Middleton, known to
me to be the persons and officers whose names are subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said FINA,
INC., a Delaware corporation, and that they executed the same as the act of
said corporation for the purposes and consideration therein expressed, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________________, 19_____.
____________________________________
Notary Public in and for the
State of Texas
My commission expires:
____________________________________
[Type or print name]
___________________________
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STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared __________________, known to me to be
the person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association, and that he executed the
same as the act of said banking association for the purposes and consideration
therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________________, 19___.
____________________________________
Notary Public in and for the State of
Texas
My commission expires:
____________________________________
[Type or print name]
___________________________
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