<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Data of earliest event reported): April 23, 1997
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TENNECO INC.
(Exact name of registrant specified in its charter)
DELAWARE 1-12387 76-0515284
(State or other juristiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
1275 KING STREET
GREENWICH, CONNECTICUT 06831
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (203) 863-1000
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ITEM 5. OTHER EVENTS.
On April 23, 1997, the Registrant sold $100,000,000 aggregate principal
amount of its 7-1/2% Notes due April 15, 2007 and $200,000,000 aggregate
principal amount of its 7-7/8% Debentures due April 15, 2027 to Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities
Inc., BancAmerica Securities, Inc., Chase Securities Inc. and NationsBanc
Capital Markets, Inc. under the Registrant's existing shelf Registration
Statement on Form S-3 (File No. 333-24291) dated March 31, 1997.
The Registrant filed the Prospectus, dated April 4, 1997, and the
Prospectus Supplement, dated April 23, 1997, for such Notes and Debentures
with the Securities and Exchange Commission pursuant to Rule 424(b)
promulgated under the Securities Act of 1933, as amended.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
1.1 Underwriting Agreement dated April 23, 1997 among Tenneco Inc. and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P.
Morgan Securities Inc., BancAmerica Securities, Inc., Chase Securities Inc.
and NationsBanc Capital Markets, Inc.
1.2 Tenneco Inc. Underwriting Agreement Standard Provisions (Debt Securities)
dated April 4, 1997.
4.1 Form of Eighth Supplemental Indenture between Tenneco Inc. and The Chase
Manhattan Bank, as Trustee, dated as of April 28, 1997 to Indenture dated
as of November 1, 1996, providing for the issuance of 7-1/2% Notes due
2007.
4.2 Form of Ninth Supplemental Indenture between Tenneco Inc. and The Chase
Manhattan Bank, as Trustee, dated as of April 28, 1997 to Indenture
dated as of November 1, 1996, providing for the issuance of 7-7/8%
Debentures due 2027.
4.3 Form of 7-1/2% Note due 2007 (contained in the Form of Eighth Supplemental
Indenture filed as Exhibit 4.1 to this Current Report).
4.4 Form of 7-7/8% Debenture due 2027 (contained in the Form of Ninth
Supplemental Indenture filed as Exhibit 4.2 to this Current Report).
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
1.1 Underwriting Agreement dated April 23, 1997 among Tenneco Inc. and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P.
Morgan Securities Inc., BancAmerica Securities, Inc., Chase Securities Inc.
and NationsBanc Capital Markets, Inc.
1.2 Tenneco Inc. Underwriting Agreement Standard Provisions (Debt Securities)
dated April 4, 1997.
4.1 Form of Eighth Supplemental Indenture between Tenneco Inc. and The Chase
Manhattan Bank, as Trustee, dated as of April 28, 1997 to Indenture dated
as of November 1, 1996, providing for the issuance of 7-1/2% Notes due
2007.
4.2 Form of Ninth Supplemental Indenture between Tenneco Inc. and The Chase
Manhattan Bank, as Trustee, dated as of April 28, 1997 to Indenture
dated as of November 1, 1996, providing for the issuance of 7-7/8%
Debentures due 2027.
4.3 Form of 7-1/2% Note due 2007 (contained in the Form of Eighth Supplemental
Indenture filed as Exhibit 4.1 to this Current Report).
4.4 Form of 7-7/8% Debenture due 2027 (contained in the Form of Ninth
Supplemental Indenture filed as Exhibit 4.2 to this Current Report).
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TENNECO INC.
DATE: April 25, 1997 By: /s/ Karl A. Stewart
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Karl A. Stewart
Vice President and Secretary
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UNDERWRITING AGREEMENT
April 23, 1997
TENNECO INC.
1275 King Street
Greenwich, Connecticut 06831
Dear Sirs:
The undersigned managers (being herein, collectively, called the "Manager")
understand that Tenneco Inc., a Delaware corporation (the "Company"), proposes
to issue and sell $100,000,000 aggregate principal amount of 7 1/2% Notes due
2007 (the "Notes") and $200,000,000 aggregate principal amount of 7 7/8%
Debentures due 2027 (the "Debentures" and, together with the Notes, the "Offered
Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell, and the
underwriters named below (such underwriters being herein called the
"Underwriters") agree to purchase, severally and not jointly, the principal
amounts of such Offered Securities set forth below opposite their names at
99.002% of the principal amount of Notes and 96.895% of the principal amount of
the Debentures (in each case together with accrued interest, if any, from April
28, 1997, to the date of payment and delivery):
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL
AMOUNT AMOUNT OF
NAME OF NOTES DEBENTURES
---- --------- ----------
<S> <C> <C>
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............................................. $ 20,000,000 $ 40,000,000
J.P. Morgan Securities Inc. ................................ 20,000,000 40,000,000
BancAmerica Securities, Inc. ............................... 20,000,000 40,000,000
Chase Securities Inc. ...................................... 20,000,000 40,000,000
NationsBank Capital Markets, Inc. .......................... 20,000,000 40,000,000
------------ ------------
Total.................................................. $100,000,000 $200,000,000
============ ============
</TABLE>
The Underwriters will pay for such Offered Securities upon delivery thereof
at the office of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, New York, N.Y. at 9:00 A.M., New York time, on April 28, 1997, or
at such other time, not later than May 5, 1997, as shall be designated by the
Manager. Payment will be made in immediately available funds to an account
designated by the Company.
The Notes will have the following terms:
Maturity: April 15, 2007
Interest Rate: 7 1/2%
Redemption provisions: As set forth in the Prospectus.
Sinking Fund: None
Interest Payment Dates: April 15 and October 15, beginning October 15, 1997
The Debentures will have the following terms:
Maturity: April 15, 2027
Interest Rate: 7 7/8%
Redemption provisions: As set forth in the Prospectus.
Sinking Fund: None
Interest Payment Dates: April 15 and October 15, beginning October 15, 1997
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We have advised you that we propose to make a public offering of the
Offered Securities as soon as in our judgment is advisable. We further advise
you that the Notes and the Debentures are to be offered to the public initially
at 99.652% and 97.77%, respectively, of the principal amount thereof (i.e., the
public offering price) (in each case together with accrued interest, if any,
from April 28, 1997, to the date of payment and delivery) and to certain dealers
selected by us at a price which represents a concession not in excess of .40%
and .50%, respectively, of the principal amount thereof under the public
offering price, and that we may allow, and such dealers may reallow, a
concession, not in excess of .25% and .25%, respectively, of the principal
amount thereof, to certain other dealers.
Unless otherwise expressly provided herein, all the provisions contained in
the document entitled Tenneco Inc. Underwriting Agreement Standard Provisions
(Debt Securities) dated April 4, 1997 (the "Base Underwriting Agreement"), a
copy of which we have previously received, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein. The term
"Registration Statement" as used in the Underwriting Agreement shall be deemed
to include the registration statement covering the Offered Securities (including
the material, if any, incorporated by reference therein), and the terms "Basic
Prospectus" and "Prospectus" shall as so used be modified accordingly. All
capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Base Underwriting Agreement.
In addition to the representations and warranties contained in the Base
Underwriting Agreement, Tenneco represents and warrants to the Underwriters as
follows (and the certificate to be delivered to the Underwriters pursuant to
Section V of the Base Underwriting Agreement shall certify that the following
representations and warranties are true and correct as of the Closing Date):
(i) Since the respective dates as of which information is given or
incorporated in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Company or any of the
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and the Subsidiaries considered as
one enterprise, and (C) except for regular quarterly dividends on the
common stock of the Company in amounts per share that are consistent with
past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(ii) Neither the Company nor any of the Subsidiaries is in violation
of its charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any Subsidiary is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the supplemental
indentures governing the Notes and Debentures and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Offered Securities and compliance
by the Company with its obligations hereunder and under the Indenture (as
supplemented) and the Offered Securities) have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
Subsidiary or any applicable law, statute, rule regulation, judgment,
order, writ or decree of any government, instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any Subsidiary or any
of their assets, properties, or operations. As used herein, a "Repayment
Event" means any event or
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condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any Subsidiary, except for rights which
would not, individually or in the aggregate, have a Material Adverse
Effect.
(iii) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any Subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed therein),
or which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely
affect the properties or assets of the Company and the Subsidiaries taken
as a whole or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations hereunder;
the aggregate of all pending legal or governmental proceedings to which the
Company or any Subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business of the Company and the Subsidiaries, could not reasonably be
expected to result in a Material Adverse Effect.
(iv) Except as described in the Registration Statement and except as
would not, singly or in the aggregate, result in a Material Adverse Effect,
(A) neither the Company nor any of the Subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substance, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and the Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of the Subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of the Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(v) The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are independent
public accountants as required by the Securities Act.
(vi) The financial statements included in the Registration Statement
and the Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data included in the Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included in
the Registration Statement.
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In lieu of the last paragraph of Section V.(b) of the Base Underwriting
Agreement, the Company and the Underwriters agree that the obligations of the
several Underwriters hereunder and under the Base Underwriting Agreement are
subject to receipt of a letter from counsel to the Company, to the effect that:
Such counsel has participated in conferences with certain officers and
other representatives of the Company and representatives of the
Underwriters and representatives of the independent auditors for the
Company at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel
does not pass upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, such counsel advises you that, on
the basis of the foregoing (relying upon the opinions of officers and other
representatives of the Company), no facts have come to such counsel's
attention that lead such counsel to believe that the Registration
Statement, when such Registration Statement became effective, or the
Prospectus as of its date and as of the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they are being made) not misleading (it being
understood such counsel is not being requested to and need not make any
comment with respect to (i) the Trustee's Statement of Eligibility on Form
T-1, (ii) the exhibits to the Registration Statement, (iii) the financial
statements, and the notes thereto and related schedules, (iv) other
financial, accounting or statistical data found in or derivable from the
financial or internal records of the Company and the Subsidiaries and (v)
any forward-looking or projected financial or statistical data relating to
the Company and the Subsidiaries, included in the Registration Statement or
the Prospectus).
In lieu of the provisions of the second through seventh paragraphs of
Section VII of the Base Underwriting Agreement, the Company and the Underwriters
agree as follows:
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the extent and in the
manner set forth in clauses (i), (ii) and (iii) below.
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto) or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto if
used within the period set forth in paragraph (c) of Article VI of the Base
Underwriting Agreement), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such settlement is
effected with the written consent of the indemnifying party or parties; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch in accordance
with and subject to the other terms of this Section VII), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent based upon any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
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Underwriter through the Manager expressly for use in the Registration Statement
(or any amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in the preceding paragraph, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Manager expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of Underwriters and
their controlling persons, counsel to such indemnified parties shall be selected
by Merrill Lynch; and, in the case of the Company and its controlling persons,
directors and officers who signed the Registration Statement indemnified
pursuant to this Section VII, counsel to such indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to one local counsel, if necessary, in the applicable jurisdiction)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
unless the indemnified party reasonably concludes (on the basis of advice of
counsel) that there is a substantial likelihood of a material conflict of
interest between or among the indemnified parties and/or indemnifying parties on
the conduct of the defense of any such action. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought hereunder (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of such
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
If at any time an indemnified party shall have requested (in writing) an
indemnifying party to reimburse the indemnified party for fees and expenses of
its counsel and the indemnified party is entitled to such reimbursement in
accordance with the terms of this Section VII, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by the
preceding paragraph effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid written request, (ii) such indemnifying party shall have received
written notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
If the indemnification provided for herein is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to herein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities pursuant to this
Agreement or (ii) if the allocation provided by
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clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus bear to
the aggregate public offering price of the Offered Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant hereto were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Agreement shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Agreement, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Agreement, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Agreement
are several in proportion to the principal amount of Offered Securities set
forth opposite their respective names above (as adjusted pursuant to the
Defaulted Securities provision of this Agreement).
All representations, warranties and agreements of the Company and the
Underwriters contained in this Agreement or in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person of any Underwriter, or by or on behalf of the Company or
any director, officer or controlling person of the Company, as the case may be,
and shall survive delivery of the Offered Securities to the Underwriters.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Except as otherwise expressly provided herein, the Company will pay or
cause to be paid all expenses incident to the performance of the Company's
obligations under this Agreement, including (i) the
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preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Offered Securities, (iii) the preparation, issuance and delivery of the
certificates for the Offered Securities to the Underwriters, including any
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Offered Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Offered Securities under state securities or "blue sky"
laws, including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto and (viii) the fees and expenses of any trustee for the
Offered Securities.
The Manager may terminate this Agreement, by notice to the Company, at any
time at or prior to the Closing Date (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
prospects of the Company and the Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment of the
Manager, impracticable to market the Offered Securities or to enforce contracts
for the sale of the Offered Securities, or (iii) if trading in any securities of
the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
If one or more of the Underwriters shall fail on the Closing Date to
purchase the Notes or Debentures which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Manager shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Manager shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Offered Securities to be purchased on
such date, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations of Notes or
Debentures, as the case may be, hereunder bear to such underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Offered Securities to be purchased on such date,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this paragraph shall relieve any defaulting
Underwriter from liability in respect of its default. In the event of any such
default which does not result in a termination of this Agreement, either the
Manager or the Company shall have the right to postpone the Closing Date for a
period not exceeding seven days in order to effect, at their expense, any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this paragraph.
7
<PAGE> 8
This Agreement may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument. All notices to any party hereto
given or required to be given pursuant to or in connection with this Agreement
shall be given in writing.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below and returning the signed copy to
us.
Very truly yours,
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES INC.
BANCAMERICA SECURITIES, INC.
CHASE SECURITIES INC.
NATIONSBANC CAPITAL MARKETS, INC.
By: MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED
By: /s/ Kevin J. Singer
------------------------------------
Name: Kevin J. Singer
Title: Vice President
Accepted: April 23, 1997
TENNECO INC.
By: /s/ Karen R. Osar
- ----------------------------------------------------
Name: Karen R. Osar
Title: Vice President and Treasurer
8
<PAGE> 1
TENNECO INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
APRIL 4, 1997
<PAGE> 2
From time to time, Tenneco Inc., a Delaware corporation, may enter into one
or more underwriting agreements that provide for the sale of designated
securities to the several underwriters named therein (the "Underwriters"). The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions hereof incorporated therein by reference, is
herein referred to as this Agreement.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") to be issued pursuant to the provisions of the Indenture dated as
of November 1, 1996 between the Company and The Chase Manhattan Bank, a New York
banking corporation, as Trustee (such Indenture as the same may be amended,
modified or supplemented at the Closing Date (as hereinafter defined) being
hereinafter called the "Indenture"). The Securities will have varying
designations, maturities, rates and times of payment of interest, selling prices
and redemption terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus relating to the
Securities, and has or will file with, or mail for filing to, the Commission a
prospectus supplement specifically relating to the Offered Securities (as
defined in the Underwriting Agreement) pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "Securities Act"). The term "Registration
Statement" means the registration statement as amended to the date of the
Underwriting Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus, together with the prospectus supplement specifically relating to the
Offered Securities, as filed with, or mailed for filing to, the Commission
pursuant to Rule 424 under the Securities Act. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include, in each case, the material, if any, incorporated by
reference therein.
The term "Underwriters' Securities" means the Offered Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts"), but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date, the Company will pay the managing Underwriter or Underwriters (the
"Manager") as compensation, for the accounts of the Underwriters, the fee set
forth in the Underwriting Agreement in respect of the principal amount of the
Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
1
<PAGE> 3
III.
The Company is advised by the Manager that the Underwriters propose to make
a public offering of their respective portions of the Underwriters' Securities
as soon after this Agreement is entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Underwriters' Securities are
set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made in the manner and at
the time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of delivery. The time and date of such payment and delivery with
respect to the Underwriters' Securities are herein referred to as the "Closing
Date."
V.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and there shall have been
no material adverse change (not in the ordinary course of business) in the
condition of the Company and its "significant subsidiaries" as defined in
Rule S-X under the Securities Act (the "Subsidiaries") taken as a whole,
from that set forth in or contemplated by the Registration Statement and
the Prospectus; and the Manager shall have received on and as of the
Closing Date a certificate, signed by an executive officer of the Company,
to the foregoing effect. Each officer making such certificate may rely upon
the best of his knowledge, based on reasonable investigation.
(b) The Manager shall have received on and as of the Closing Date an
opinion of Jenner & Block, counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing
under the laws of the State of Delaware;
(ii) the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership of property requires such
qualification and where the failure to be so qualified or in good
standing would have a material adverse effect upon the operations or
financial condition of the Company and the Subsidiaries, taken as a
whole ("Material Adverse Effect");
(iii) except as set forth in the Prospectus, there are no material
pending legal proceedings known to such counsel to which the Company or
any Subsidiary is a party or of which property of the Company or any
Subsidiary is the subject, which could reasonably be expected or have a
Material Adverse Effect;
(iv) the Indenture has been duly authorized, executed and delivered
and is a valid instrument legally enforceable against the Company in
accordance with its terms, except as such enforcement may be limited by
bankruptcy or insolvency laws, and has been duly qualified under the
Trust Indenture Act of 1939;
(v) the Offered Securities have been duly authorized, and when duly
executed, authenticated, delivered to and paid for by the Underwriters
pursuant to this Agreement or by institutional investors, if any,
pursuant to Delayed Delivery Contracts, will be valid and legally
binding obligations of the Company entitled to the benefits of the
Indenture;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
2
<PAGE> 4
(vii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming that
they have been duly authorized, executed and delivered by the purchasers
thereunder) are valid and binding agreements of the Company enforceable
in accordance with their respective terms, except as such enforcement
thereof may be limited by bankruptcy or insolvency laws;
(viii) neither the execution and delivery by the Company of this
Agreement or the Indenture nor the issuance and sale of the Offered
Securities by the Company as provided in the Indenture and in this
Agreement and any Delayed Delivery Contracts will result in any
violation of any of the terms or provisions of the Certificate of
Incorporation or By-Laws of the Company or of any indenture, mortgage or
similar agreement or instrument known to such counsel by which the
Company or any Subsidiary is bound;
(ix) no consent, approval, authorization or other order of or
filing with any regulatory authority is legally required for the
execution by the Company of the Indenture or the issuance and sale by
the Company of the Offered Securities to the Underwriters pursuant to
this Agreement or to institutional investors pursuant to any Delayed
Delivery Contracts (other than the order of the Commission making the
Registration Statement effective and qualifying the Indenture under the
Trust Indenture Act of 1939), except that the offer and sale of the
Offered Securities in certain jurisdictions may be subject to the
provisions of the securities or Blue Sky laws of such jurisdictions;
(x) the statements set forth in the Prospectus under the caption
"Description of Securities" fairly present the matters referred to
therein;
(xi) the Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and financial exhibits and other financial and statistical information
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the Securities Act and
the rules and regulations of the Commission thereunder; and
(xii) each document incorporated in the Prospectus as originally
filed pursuant to the Securities Exchange Act of 1934 as amended (the
"Exchange Act") (except for the financial statements and financial
exhibits and other financial and statistical information included
therein, as to which such counsel need express no opinion), complied as
to form when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder;
and such counsel shall also state that no facts have come to the attention
of such counsel to lead such counsel to believe that the Registration
Statement (except for the financial statements and financial exhibits and
other financial and statistical information included therein, as to which
such counsel need not comment) at the time it became effective contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as amended or supplemented (except
as aforesaid), contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) The Manager shall have received on and as of the Closing Date an
opinion of Cahill Gordon & Reindel, counsel for the Underwriters, covering
the matters in (i), (v), (vi), (vii), (xi), (xii) and the last clause of
paragraph (b) above.
(d) The Manager shall have received on the Closing Date a letter dated
the Closing Date in form and substance satisfactory to the Manager, from
Arthur Andersen LLP, independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus.
3
<PAGE> 5
(e) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date, there shall not have been any
downgrading in the rating accorded any of the Company's senior debt
securities by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act.
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement including all documents incorporated by reference
therein and exhibits filed with the Registration Statement and, during the
period mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated by reference therein at or after the date
thereof (including documents from which information has been incorporated)
and any supplements and amendments thereto as the Manager may reasonably
request. The terms "supplement" and "amendment" or "amend" and "supplement"
as used in this Agreement shall include all documents filed by the Company
with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Exchange Act, which are deemed to be incorporated by
reference in the Prospectus.
(b) Before amending or supplementing (i) the Registration Statement
during the period referred to in paragraph (c) below, or (ii) the
Prospectus with respect to the description of the Offered Securities, to
furnish the Manager or its counsel a copy of each such proposed amendment
or supplement.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered, any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters,
either amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdiction as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualifications and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdiction as the
Manager may designate.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
beginning after the date of this Agreement, which shall satisfy the
provisions of Section 11(a) of the Securities Act.
(f) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company
substantially similar to the Offered Securities, without the prior written
consent of the Manager.
VII.
The Company represents and warrants to each Underwriter that (i) each
preliminary prospectus, if any, filed pursuant to Rule 424 under the Securities
Act complied when so filed in all material respects with such Act and the
applicable rules and regulations thereunder, (ii) each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations thereunder, (iii) the
Registration Statement and Prospectus comply and, as amended or supplemented, if
applicable, will
4
<PAGE> 6
comply in all material respects with the Securities Act and the applicable rules
and regulations thereunder, (iv) each part of the Registration Statement
(including the documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act relating to the Offered Securities,
when such part became effective, did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (v) the
Registration Statement and Prospectus do not contain and, as amended or
supplemented, if applicable, will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in which
they are made not misleading; except that these representations and warranties
do not apply to statements or omissions in the Registration Statement or the
Prospectus or any preliminary prospectus based upon information furnished to the
Company in writing by any Underwriter expressly for use therein.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (if used within the period set forth in
paragraph (c) of Article VI hereof and as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by any Underwriter expressly for use therein; provided, however, that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities, purchased the Offered Securities if a copy of
the Prospectus (excluding documents incorporated therein by reference) had not
been sent or given to such person at or prior to the written confirmation of the
sale of such Offered Securities to such person and the untrue statement or
omission of a material fact contained in such preliminary prospectus was
corrected in the Prospectus.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, the Prospectus
or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Manager in the case of parties indemnified pursuant to the second
preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment
5
<PAGE> 7
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
If the indemnification provided for in the second or third paragraphs of
this Article VII is unavailable as a matter of law to an indemnified party in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under either such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other in connection
with the offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters in respect
thereof. The relative fault of the Company and of the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Article VII are several in proportion to the
respective principal amounts of Offered Securities purchased by each of such
Underwriters and not joint.
The indemnity and contribution agreements contained in this Article VII and
the representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of and payment for any of the Offered Securities.
VIII.
This Agreement shall be subject to termination in the absolute discretion
of the Manager, by notice given to the Company, if prior to the Closing Date (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the Manager's
judgment, impracticable to market the Offered Securities.
6
<PAGE> 8
IX.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
7
<PAGE> 9
SCHEDULE I
DELAYED DELIVERY CONTRACT
, 19
Dear Sirs:
The undersigned hereby agrees to purchase from Tenneco Inc., a Delaware
corporation (the "Company"), and the Company agrees to sell to the undersigned:
$
principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's Prospectus dated , 19 and Prospectus
Supplement dated , 19 , receipt of copies of which are hereby
acknowledged, at a purchase price of % of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amounts and on the delivery dates set forth below:
<TABLE>
<CAPTION>
PLUS ACCRUED
DELIVERY DATE PRINCIPAL AMOUNT INTEREST FROM:
------------- ---------------- --------------
<S> <C> <C> <C>
$
$
$
</TABLE>
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, New York, N.Y., at 10:00 A.M., New York time, on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject, (2) the Company shall have sold, and delivery shall have
taken place to the underwriters (the "Underwriters") named in the Prospectus
Supplement referred to above of, such part of the Securities as is to be sold to
them and (3) the issuance of the Securities covered by this contract shall not
at the Delivery Date result in the breach of any of the provisions of or
constitute a default under any other agreement or instrument of the Company as
in effect on the date hereof. Promptly after completion of sale and delivery to
the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth
8
<PAGE> 10
below. This will become a binding contract, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
......................................
(Purchaser)
By....................................
......................................
(Title)
......................................
......................................
(Address)
Accepted:
TENNECO INC.
By....................................
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
<TABLE>
<CAPTION>
TELEPHONE NO.
NAME (INCLUDING AREA CODE) DEPARTMENT
---- --------------------- ----------
<S> <C> <C>
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9
<PAGE> 1
Exhibit 4.1
================================================================================
TENNECO INC.
AND
THE CHASE MANHATTAN BANK,
as Trustee
_____________
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of April 28, 1997
TO
INDENTURE
Dated as of November 1, 1996
_____________
Providing for the issuance of
7-1/2% Notes due 2007
================================================================================
<PAGE> 2
EIGHTH SUPPLEMENTAL INDENTURE dated as of April 28, 1997 between TENNECO
INC., a corporation duly organized and existing under the laws of the State of
Delaware and formerly known as New Tenneco Inc. (hereinafter called the
"Company"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as
trustee (hereinafter called the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture dated as of November 1, 1996 (as amended, hereinafter called the
"Original Indenture"), to provide for the issue of an unlimited amount of
debentures, notes and/or other debt obligations of the Company (hereinafter
referred to as the "Securities"), the terms of which are to be determined as
set forth in Section 2.3 of the Original Indenture; and
WHEREAS, Section 8.1 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among other things, the purpose of setting forth
the terms of Securities of any series; and
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of $100,000,000 to be designated the "7-1/2% Notes
due 2007" (the "Notes"), and all action on the part of the Company necessary to
authorize the issuance of the Notes under the Original Indenture and this
Eighth Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee as in the Original
Indenture provided, the valid and binding obligations of the Company, and to
constitute these presents a valid and binding supplemental indenture and
agreement according to its terms, have been done and performed;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and of the acceptance of this trust by the Trustee,
and of the sum of one dollar to the Company duly paid by the Trustee at the
execution and delivery of these presents, and of other valuable consideration
the receipt whereof is hereby acknowledged and in order to authorize the
authentication and delivery of and to set forth the terms of the Notes,
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the parties
hereto, for the benefit of holders of the Notes issued under the Original
Indenture, as follows:
ARTICLE 1.
TERMS AND ISSUANCE OF 7-1/2% NOTES DUE 2007
Section 1.1. Issue of Notes. A series of Securities which shall be
designated the "7-1/2% Notes due 2007" shall be executed, authenticated and
delivered in accordance with the provisions of, and shall in all respects be
subject to, the terms, conditions and covenants of the Original Indenture,
including without limitation the terms set forth in this Eighth Supplemental
Indenture (including the form of Notes set forth in Section 1.2 hereof). The
aggregate principal amount of Notes which may be authenticated and delivered
under the Original Indenture shall not, except as permitted by the provisions
of Sections 2.8, 2.9, 2.11, 8.5 and 12.3 of the Original Indenture, exceed
$100,000,000. The entire amount of Notes may forthwith be executed by the
Company and delivered to the Trustee and shall be authenticated by the Trustee
and delivered to or upon the order of the Company pursuant to Section 2.4 of the
Original Indenture. The Notes shall be issued as Registered Global Securities
(as defined in the Original Indenture), the depositary for which shall be The
Depositary Trust Company.
<PAGE> 3
2
Section 1.2. Forms of Notes and Authentication Certificate. The forms of
the Notes and the Trustee's certificate of authentication shall be
substantially as follows:
[FORM OF FACE OF NOTE]
TENNECO INC.
7-1/2% NOTE DUE 2007
No.
CUSIP
Tenneco Inc., a corporation organized and existing under the laws of the
State of Delaware (hereinafter called the "Company," which term shall include
any successor corporation as defined in the Indenture hereinafter referred to),
for value received, hereby promises to pay to ____________ or registered
assigns, the sum of Dollars on April 15, 2007, in any coin or
currency of the United States of America which at the time of payment is legal
tender for the payment of public and private debts, and to pay to the
registered holder hereof as hereinafter provided interest thereon at the rate
per annum specified in the title hereof in like coin or currency, from the
April 15 or October 15 next preceding the date hereof to which interest has
been paid, unless the date hereof is an April 15 or October 15 to which
interest on the Notes has been paid, in which case from the date hereof, or
unless no interest has been paid on the Notes since the original issue date
(hereinafter referred to) of this Note, in which case from the original issue
date, semi-annually on April 15 and October 15 in each year commencing October
15, 1997, until payment of said principal sum has been made or duly provided
for, and to pay interest on any overdue principal and (to the extent permitted
by law) on any overdue installment of interest at the rate of 7-1/2% per annum.
Notwithstanding the foregoing, when there is no existing default in the
payment of interest on the Notes, if the date hereof is after April 1 or
October 1 and prior to the following April 15 or October 15, as the case may
be, this Note shall bear interest from such April 15 or October 15, or, if no
interest has been paid on the Notes since the original issue date of this Note,
from the original issue date; provided, however, that if the Company shall
default in the payment of interest due on such April 15 or October 15, then
this Note shall bear interest from the April 15 or October 15 to which interest
has been paid or, if no interest has been paid on the Notes since the original
issue date of this Note, from the original issue date. The interest so payable
on any April 15 or October 15 will, subject to certain exceptions provided in
the Indenture hereinafter referred to, be paid to the person in whose name this
Note is registered at the close of business on the April 1 or October 1, as
the case may be, next preceding such April 15 or October 15, or if such April 1
or October 1 is not a business day, the business day next preceding such April
1 or October 1. Interest on this Note shall be computed on the basis of a
360-day year consisting of twelve 30-day months. Both principal of and
interest on this Note are payable at the principal office of the Trustee in the
Borough of Manhattan, The City of New York, New York; provided, however, that
payment of interest may be made, at the option of the Company, by check mailed
to the address of the person entitled thereto as such address shall appear on
the Note register. The original issue date in respect of the Notes is April
28, 1997.
ADDITIONAL PROVISIONS OF THIS NOTE ARE CONTAINED ON THE REVERSE HEREOF AND
SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET
FORTH AT THIS PLACE.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, or become valid or obligatory for any purpose, until
the Trustee under the Indenture shall have signed the form of certificate of
authentication endorsed hereon.
<PAGE> 4
3
In Witness Whereof, Tenneco Inc. has caused this Instrument to be signed
in its name by its Chairman of the Board or its President or a Vice President,
and its corporate seal (or a facsimile thereof) to be hereto affixed and
attested by its Secretary or an Assistant Secretary.
Dated................................
Tenneco Inc.
By...................................................
Chairman of the Board
Attest:
.....................................
Secretary
[FORM OF REVERSE OF NOTE]
TENNECO INC.
7-1/2% NOTE DUE 2007
This Note is one of a duly authorized issue of Notes of the Company known
as its 7-1/2% Notes due 2007 (herein called the "Notes"), limited to the
aggregate principal amount of $100,000,000, all issued under and equally
entitled to the benefits of an Indenture (herein, together with any amendments
and supplements thereto, including without limitation the form and terms of
Securities issued pursuant thereto, called the "Indenture"), dated as of
November 1, 1996, executed by the Company to The Chase Manhattan Bank (herein,
together with any successor thereto, called the "Trustee"), as Trustee, to
which Indenture reference is hereby made for a statement of the rights
thereunder of the Trustee and of the registered holders of the Notes and of the
duties thereunder of the Trustee and the Company.
The Notes will be redeemable as a whole or in part, at the option of the
Company at any time, at a redemption price equal to the greater of (i) 100% of
their principal amount and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the date of
redemption on a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Yield plus 10 basis points, plus accrued
interest to the date of redemption.
"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of the Notes. "Independent Investment Banker" means Merrill Lynch & Co.
or, if such firm is unwilling or unable to select the Comparable Treasury
Issue, an independent investment banking institution of national standing
appointed by the Trustee.
"Comparable Treasury Price " means, with respect to any redemption date,
(i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (ii) if the Trustee obtains fewer than four such
Reference Treasury
<PAGE> 5
4
Dealer Quotations, the average of all such Quotations. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business day preceding such
redemption date.
"Reference Treasury Dealer" means each of Merrill Lynch & Co., J.P. Morgan
Securities Inc., BancAmerica Securities, Inc., Chase Securities Inc. and
NationsBanc Capital Markets, Inc.; provided however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer "), the Company shall substitute therefor
another Primary Treasury dealer.
Holders of Notes to be redeemed will receive notice thereof by first-class
mail at least 30 and not more than 60 days prior to the date fixed for
redemption.
The Indenture permits the Company to issue unsecured debentures, notes
and/or other evidences of indebtedness in one or more series ("Securities") up
to such principal amount or amounts as may be authorized in accordance with the
terms of the Indenture.
To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture and of the rights and obligations
of the Company and of the holders of the Notes may be made with the consent of
the Company and with the consent of the holders of not less than a majority in
principal amount of the Securities of all series then outstanding under the
Indenture (treated as a single class) which are affected by the modification or
amendment thereto; provided, however, that without the consent of the holder
hereof no such modification or alteration shall be made which will affect the
terms of payment of the principal of or interest on this Note.
In case a default, as defined in the Indenture, shall occur, the principal
of all the Notes at any such time outstanding under the Indenture may be
declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Indenture. The Indenture provides that
such declaration may in certain events be waived by the holders of a majority
in principal amount of the Notes outstanding in the case of payment defaults on
the Notes and in certain other events by the holders of a majority in principal
amount of the Securities of all series then outstanding under the Indenture
(treated as a single class) which are affected thereby.
The Indenture provides that no holder of any Note may enforce any remedy
under the Indenture except in the case of refusal or neglect of the Trustee to
act after notice of default and after request by the holders of a majority in
principal amount of the outstanding Notes in certain events (and in certain
other events by the holders of a majority in principal amount of the Securities
of all series then outstanding under the Indenture, treated as a single class,
which are affected thereby) and the offer to the Trustee of security and
indemnity satisfactory to it; provided, however, that such provision shall not
prevent the holder hereof from enforcing payment of the principal of or
interest on this Note.
Unless this certificate is presented by an authorized representative of a
Depositary to the Issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of the nominee of
such Depositary or such other name as requested by an authorized representative
of such Depositary and any payment is made to the nominee of such Depositary,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, the nominee, has an
interest herein.
The Company, the Trustee, any paying agent and any Registrar of the Notes
may deem and treat the person in whose name this Note is registered as the
absolute owner hereof for all purposes whatsoever, and neither the Company nor
the Trustee nor any paying agent nor any Registrar of the Notes shall be
affected by any notice to the contrary.
<PAGE> 6
5
No recourse shall be had for the payment of the principal of or the
interest on, this Note, or for any claim based hereon or on the Indenture,
against any incorporator or against any stockholder, director or officer, as
such, past, present or future, of the Company, or of any predecessor or
successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability, whether at common law, in equity, by any
constitution, statute or otherwise, of incorporators, stockholders, directors
or officers being released by every owner hereof by the acceptance of this Note
and as part of the consideration for the issue hereof, and being likewise
released by the terms of the Indenture; provided, however, that nothing herein
or in the Indenture contained shall be taken to prevent recourse to and the
enforcement of the liability, if any, of any stockholder or subscriber to
capital stock of the Company upon or in respect of shares of capital stock not
fully paid up.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Note is one of 7-1/2% Notes due 2007 described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
Trustee,
By......................................
Authorized Officer.
ARTICLE 2.
MISCELLANEOUS
Section 2.1. Execution as Supplemental Indenture. This Eighth
Supplemental Indenture is executed and shall be construed as an Indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Eighth Supplemental Indenture forms a part thereof. Except as
herein expressly otherwise defined, the use of the terms and expressions herein
is in accordance with the definitions, uses and constructions contained in the
Original Indenture.
Section 2.2. Responsibility for Recitals, Etc. The recitals herein and
in the Notes (except in the Trustee's certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no
representations as to the validity or sufficiency of this Eighth Supplemental
Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of the Notes or of the proceeds thereof.
Section 2.3. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Eighth Supplemental
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 2.4. NEW YORK CONTRACT. THIS EIGHTH SUPPLEMENTAL INDENTURE AND
EACH NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF SAID STATE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
<PAGE> 7
6
Section 2.5. Execution and Counterparts. This Eighth Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
an original but such counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, said TENNECO INC. has caused this Eighth Supplemental
Indenture to be executed in its corporate name by its Chairman of the Board or
its President or one of its Vice Presidents, and said THE CHASE MANHATTAN BANK
has caused this Eighth Supplemental Indenture to be executed in its corporate
name by one of its Vice Presidents as of April 28, 1997.
TENNECO INC.
By___________________________________
KAREN A. OSAR
Vice President and Treasurer
THE CHASE MANHATTAN BANK
By___________________________________
RONALD J. HALLERAN
Second Vice President
<PAGE> 1
Exhibit 4.2
================================================================================
TENNECO INC.
AND
THE CHASE MANHATTAN BANK,
as Trustee
_____________
NINTH SUPPLEMENTAL INDENTURE
Dated as of April 28, 1997
TO
INDENTURE
Dated as of November 1, 1996
_____________
Providing for the issuance of
7-7/8% Debentures due 2027
================================================================================
<PAGE> 2
NINTH SUPPLEMENTAL INDENTURE dated as of April 28, 1997 between TENNECO
INC., a corporation duly organized and existing under the laws of the State of
Delaware and formerly known as New Tenneco Inc. (hereinafter called the
"Company"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as
trustee (hereinafter called the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture dated as of November 1, 1996 (as amended, hereinafter called the
"Original Indenture"), to provide for the issue of an unlimited amount of
debentures, notes and/or other debt obligations of the Company (hereinafter
referred to as the "Securities"), the terms of which are to be determined as
set forth in Section 2.3 of the Original Indenture; and
WHEREAS, Section 8.1 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among other things, the purpose of setting forth
the terms of Securities of any series; and
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of $200,000,000 to be designated the "7-7/8%
Debentures due 2027" (the "Debentures"), and all action on the part of the
Company necessary to authorize the issuance of the Debentures under the
Original Indenture and this Ninth Supplemental Indenture has been duly taken;
and
WHEREAS, all acts and things necessary to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee as in
the Original Indenture provided, the valid and binding obligations of the
Company, and to constitute these presents a valid and binding supplemental
indenture and agreement according to its terms, have been done and performed;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and of the acceptance of this trust by the Trustee,
and of the sum of one dollar to the Company duly paid by the Trustee at the
execution and delivery of these presents, and of other valuable consideration
the receipt whereof is hereby acknowledged and in order to authorize the
authentication and delivery of and to set forth the terms of the Debentures,
IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the parties
hereto, for the benefit of holders of the Debentures issued under the Original
Indenture, as follows:
ARTICLE 1.
TERMS AND ISSUANCE OF 7-7/8% DEBENTURES DUE 2027
Section 1.1. Issue of Debentures. A series of Securities which shall be
designated the "7-7/8% Debentures due 2027" shall be executed, authenticated
and delivered in accordance with the provisions of, and shall in all respects
be subject to, the terms, conditions and covenants of the Original Indenture,
including without limitation the terms set forth in this Ninth Supplemental
Indenture (including the form of Debentures set forth in Section 1.2 hereof).
The aggregate principal amount of Debentures which may be authenticated and
delivered under the Original Indenture shall not, except as permitted by the
provisions of Sections 2.8, 2.9, 2.11, 8.5 and 12.3 of the Original Indenture,
exceed $200,000,000. The entire amount of Debentures may forthwith be executed
by the Company and delivered to the Trustee and shall be authenticated by the
Trustee and delivered to or upon the order of the Company pursuant to Section
2.4 of the Original Indenture. The Debentures shall be issued as Registered
Global Securities (as defined in the Original Indenture), the depositary for
which shall be The Depositary Trust Company.
<PAGE> 3
2
Section 1.2. Forms of Debentures and Authentication Certificate. The
forms of the Debentures and the Trustee's certificate of authentication shall
be substantially as follows:
[FORM OF FACE OF DEBENTURE]
TENNECO INC.
7-7/8% DEBENTURE DUE 2027
No.
CUSIP
Tenneco Inc., a corporation organized and existing under the laws of the
State of Delaware (hereinafter called the "Company," which term shall include
any successor corporation as defined in the Indenture hereinafter referred to),
for value received, hereby promises to pay to ____________ or registered
assigns, the sum of Dollars on April 15, 2027, in any coin or
currency of the United States of America which at the time of payment is legal
tender for the payment of public and private debts, and to pay to the
registered holder hereof as hereinafter provided interest thereon at the rate
per annum specified in the title hereof in like coin or currency, from the
April 15 or October 15 next preceding the date hereof to which interest has
been paid, unless the date hereof is an April 15 or October 15 to which
interest on the Debentures has been paid, in which case from the date hereof,
or unless no interest has been paid on the Debentures since the original issue
date (hereinafter referred to) of this Debenture, in which case from the
original issue date, semi-annually on April 15 and October 15 in each year
commencing October 15, 1997, until payment of said principal sum has been made
or duly provided for, and to pay interest on any overdue principal and (to the
extent permitted by law) on any overdue installment of interest at the rate of
7-7/8% per annum. Notwithstanding the foregoing, when there is no existing
default in the payment of interest on the Debentures, if the date hereof is
after April 1 or October 1 and prior to the following April 15 or October 15,
as the case may be, this Debenture shall bear interest from such April 15 or
October 15, or, if no interest has been paid on the Debentures since the
original issue date of this Debenture, from the original issue date; provided,
however, that if the Company shall default in the payment of interest due on
such April 15 or October 15, then this Debenture shall bear interest from the
April 15 or October 15 to which interest has been paid or, if no interest has
been paid on the Debentures since the original issue date of this Debenture,
from the original issue date. The interest so payable on any April 15 or
October 15 will, subject to certain exceptions provided in the Indenture
hereinafter referred to, be paid to the person in whose name this Debenture is
registered at the close of business on the April 1 or October 1, as the case
may be, next preceding such April 15 or October 15, or if such April 1 or
October 1 is not a business day, the business day next preceding such April 1
or October 1. Interest on this Debenture shall be computed on the basis of a
360-day year consisting of twelve 30-day months. Both principal of and
interest on this Debenture are payable at the principal office of the Trustee
in the Borough of Manhattan, The City of New York, New York; provided, however,
that payment of interest may be made, at the option of the Company, by check
mailed to the address of the person entitled thereto as such address shall
appear on the Debenture register. The original issue date in respect of the
Debentures is April 28, 1997.
ADDITIONAL PROVISIONS OF THIS DEBENTURE ARE CONTAINED ON THE REVERSE
HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, or become valid or obligatory for any purpose, until
the Trustee under the Indenture shall have signed the form of certificate of
authentication endorsed hereon.
<PAGE> 4
3
In Witness Whereof, Tenneco Inc. has caused this Instrument to be signed
in its name by its Chairman of the Board or its President or a Vice President,
and its corporate seal (or a facsimile thereof) to be hereto affixed and
attested by its Secretary or an Assistant Secretary.
Dated................................
Tenneco Inc.
By.......................................
Chairman of the Board
Attest:
.....................................
Secretary
[FORM OF REVERSE OF DEBENTURE]
TENNECO INC.
7-7/8% DEBENTURE DUE 2027
This Debenture is one of a duly authorized issue of Debentures of the
Company known as its 7-7/8% Debentures due 2027 (herein called the
"Debentures"), limited to the aggregate principal amount of $200,000,000, all
issued under and equally entitled to the benefits of an Indenture (herein,
together with any amendments and supplements thereto, including without
limitation the form and terms of Securities issued pursuant thereto, called the
"Indenture"), dated as of November 1, 1996, executed by the Company to The
Chase Manhattan Bank (herein, together with any successor thereto, called the
"Trustee"), as Trustee, to which Indenture reference is hereby made for a
statement of the rights thereunder of the Trustee and of the registered holders
of the Debentures and of the duties thereunder of the Trustee and the Company.
The Debentures will be redeemable as a whole or in part, at the option of
the Company at any time, at a redemption price equal to the greater of (i) 100%
of their principal amount and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to
the date of redemption on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield plus 25 basis points,
plus accrued interest to the date of redemption.
"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Debentures that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining
term of the Debentures. "Independent Investment Banker" means Merrill Lynch &
Co. or, if such firm is unwilling or unable to select the Comparable Treasury
Issue, an independent investment banking institution of national standing
appointed by the Trustee.
"Comparable Treasury Price " means, with respect to any redemption date,
(i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such
<PAGE> 5
4
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
Quotations. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Merrill Lynch & Co., J.P. Morgan
Securities Inc., BancAmerica Securities, Inc., Chase Securities Inc. and
NationsBanc Capital Markets, Inc.; provided however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer "), the Company shall substitute therefor
another Primary Treasury dealer.
Holders of Debentures to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days prior to the date fixed
for redemption.
The Indenture permits the Company to issue unsecured debentures, notes,
and/or other evidences of indebtedness in one or more series ("Securities") up
to such principal amount or amounts as may be authorized in accordance with the
terms of the Indenture.
To the extent permitted by, and as provided in, the Indenture,
modifications or alterations of the Indenture and of the rights and obligations
of the Company and of the holders of the Debentures may be made with the
consent of the Company and with the consent of the holders of not less than a
majority in principal amount of the Securities of all series then outstanding
under the Indenture (treated as a single class) which are affected by the
modification or amendment thereto; provided, however, that without the consent
of the holder hereof no such modification or alteration shall be made which
will affect the terms of payment of the principal of or interest on this
Debenture.
In case a default, as defined in the Indenture, shall occur, the principal
of all the Debentures at any such time outstanding under the Indenture may be
declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in the Indenture. The Indenture provides that
such declaration may in certain events be waived by the holders of a majority
in principal amount of the Debentures outstanding in the case of payment
defaults on the Debentures and in certain other events by the holders of a
majority in principal amount of the Securities of all series then outstanding
under the Indenture (treated as a single class) which are affected thereby.
The Indenture provides that no holder of any Debenture may enforce any
remedy under the Indenture except in the case of refusal or neglect of the
Trustee to act after notice of default and after request by the holders of a
majority in principal amount of the outstanding Debentures in certain events
(and in certain other events by the holders of a majority in principal amount
of the Securities of all series then outstanding under the Indenture, treated
as a single class, which are affected thereby) and the offer to the Trustee of
security and indemnity satisfactory to it; provided, however, that such
provision shall not prevent the holder hereof from enforcing payment of the
principal of or interest on this Debenture.
Unless this certificate is presented by an authorized representative of a
Depositary to the Issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of the nominee of
such Depositary or such other name as requested by an authorized representative
of such Depositary and any payment is made to the nominee of such Depositary,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, the nominee, has an
interest herein.
The Company, the Trustee, any paying agent and any Registrar of the
Debentures may deem and treat the person in whose name this Debenture is
registered as the absolute owner hereof for all purposes
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whatsoever, and neither the Company nor the Trustee nor any paying agent nor
any Registrar of the Debentures shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on, this Debenture, or for any claim based hereon or on the Indenture,
against any incorporator or against any stockholder, director or officer, as
such, past, present or future, of the Company, or of any predecessor or
successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability, whether at common law, in equity, by any
constitution, statute or otherwise, of incorporators, stockholders, directors
or officers being released by every owner hereof by the acceptance of this
Debenture and as part of the consideration for the issue hereof, and being
likewise released by the terms of the Indenture; provided, however, that
nothing herein or in the Indenture contained shall be taken to prevent recourse
to and the enforcement of the liability, if any, of any stockholder or
subscriber to capital stock of the Company upon or in respect of shares of
capital stock not fully paid up.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Debenture is one of 7-7/8% Debentures due 2027 described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
Trustee,
By............................
Authorized Officer.
ARTICLE 2.
MISCELLANEOUS
Section 2.1. Execution as Supplemental Indenture. This Ninth
Supplemental Indenture is executed and shall be construed as an Indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Ninth Supplemental Indenture forms a part thereof. Except as
herein expressly otherwise defined, the use of the terms and expressions herein
is in accordance with the definitions, uses and constructions contained in the
Original Indenture.
Section 2.2. Responsibility for Recitals, Etc. The recitals herein and
in the Debentures (except in the Trustee's certificate of authentication) shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no
representations as to the validity or sufficiency of this Ninth Supplemental
Indenture or of the Debentures. The Trustee shall not be accountable for the
use or application by the Company of the Debentures or of the proceeds thereof.
Section 2.3. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Ninth Supplemental
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 2.4. NEW YORK CONTRACT. THIS NINTH SUPPLEMENTAL INDENTURE AND
EACH DEBENTURE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
Section 2.5. Execution and Counterparts. This Ninth Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
an original but such counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, said TENNECO INC. has caused this Ninth Supplemental
Indenture to be executed in its corporate name by its Chairman of the Board or
its President or one of its Vice Presidents, and said THE CHASE MANHATTAN BANK
has caused this Ninth Supplemental Indenture to be executed in its corporate
name by one of its Vice Presidents as of April 28, 1997.
TENNECO INC.
By________________________________
KAREN A. OSAR
Vice President and Treasurer
THE CHASE MANHATTAN BANK
By________________________________
RONALD J. HALLERAN
Second Vice President
