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EXHIBIT 4.5
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TENNECO PACKAGING INC.
AND
THE CHASE MANHATTAN BANK,
as Trustee
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First Supplemental Indenture
Dated as of [ ], 1999
TO
Indenture
Dated as of [ ], 1999
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Providing for the issuance of
7.20% Notes due 2005
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FIRST SUPPLEMENTAL INDENTURE dated as of [ ], 1999 between
TENNECO PACKAGING INC., a corporation duly organized and existing under the laws
of the State of Delaware (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 [ ], 1999 (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 $299,690,000 to be designated the 7.20% Notes due
2005" (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 First
Supplemental Indenture (the "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 7.20% NOTES DUE 2005
Section 1.1. Issue of Notes. A series of Securities which shall be
designated the "7.20% Notes due 2005" 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 Supplemental Indenture
(including the form of Notes set forth in Section 1.3 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
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$299,690,000. 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.
Section 1.2. Registered Global Securities. All the Securities issued
pursuant to this Supplemental Indenture shall be issued as a single Registered
Global Security and no Securities issued pursuant to this Supplemental Indenture
will be unregistered. The Registered Global Security shall bear the following
Legend (the "Legend": "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 initial Depositary (as defined in the
Original Indenture for such Registered Global Security shall be The Depository
Trust Company. Each Depositary must, at the time of its designation and at all
times it serves as a depositary, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other applicable statute or
regulation. The Company shall execute and the Trustee shall, in accordance with
Section 2.4 of the Original Indenture and the Issuer Order (as defined in the
Original Indenture with respect to the Notes, authenticate and deliver the
single Registered Global Security that (i shall represent and shall be
denominated in the amount equal to the aggregate principal amount of all the
Notes to be represented by the Registered Global Security, (ii shall be
registered in the name of the Depositary for the Registered Global Security or
the nominee of the Depositary, (iii shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instructions and (iv shall bear the
Legend on the reverse of each of the Notes.
Section 1.3. 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 PACKAGING INC.
7.20% NOTE DUE 2005
No. $
CUSIP
Tenneco Packaging 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 December 15, 2005, 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 June 15 or December 15 next preceding the date
hereof to
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which interest has been paid, unless the date hereof is a June 15 or December 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 June 15 and December 15 in each year
commencing December 15, 1999, 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
7.20% 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 May
31 or November 30 and prior to the following June 15 or December 15, as the case
may be, this Note shall bear interest from such June 15 or December 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 June 15 or December 15, then this
Note shall bear interest from the June 15 or December 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
June 15 or December 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 May 31 or November 30, as the case
may be, next preceding such June 15 or December 15, or if such May 31 or
November 30 is not a business day, the business day next preceding such May 31
or November 30. 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 [ ],
1999.
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
hereafter referred to, or become valid or obligatory for any purpose, until the
Trustee under the Indenture shall have signed the form of certificate or
authentication endorsed hereon.
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In Witness Whereof, Tenneco Packaging 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
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Tenneco Packaging Inc.
By
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President
Attest:
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Secretary
[FORM OF REVERSE OF NOTE]
TENNECO PACKAGING INC.
7.20% NOTE DUE 2005
This Note is one of a duly authorized issue of Notes of the Company
known as its 7.20% Notes due 2005 (herein called the "Notes", limited to the
aggregate principal amount of $299,690,000, 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
[ ], 1999, 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 and 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 in each
case accrued interest to the date of redemption.
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"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 Xxxxxx Xxxxxxx & Co. Incorporated
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 bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:00 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) 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 Xxxxxx Xxxxxxx & Co.
Incorporated, Credit Suisse First Boston Corporation, Xxxxxx Brothers Inc. and
Xxxxxxx Xxxxx Xxxxxx Inc.; and their respective successors; provided however,
that if any of the foregoing 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,
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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 or 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.
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
contained in the Indenture 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.
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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 the 7.20% Notes due 2005 described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
Trustee,
By
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Authorized Officer.
ARTICLE 2.
MISCELLANEOUS
Section 2.1. Execution as Supplemental Indenture. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture and, as provided in the Original Indenture, this 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 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. Additional Amounts. The Company will not pay any
additional amounts on the Notes held by a person who is not a U.S. Person (as
defined in the Original Indenture in respect of any tax, assessment or
governmental charge withheld or deducted.
Section 2.4. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Supplemental Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
Section 2.5. NEW YORK CONTRACT. THIS SUPPLEMENTAL INDENTURE AND EACH
NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
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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.
Section 2.6. Execution and Counterparts. This Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an
original but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, said TENNECO PACKAGING INC. has caused this
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 Supplemental Indenture to be executed in its
corporate name by one of its Vice Presidents as of [ ], 1999.
TENNECO PACKAGING INC.
By
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THE CHASE MANHATTAN BANK
By
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