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EXHIBIT 4.3(f)
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TENNECO PACKAGING INC.
AND
THE CHASE MANHATTAN BANK,
as Trustee
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Fifth Supplemental Indenture
Dated as of November 4, 1999
TO
Indenture
Dated as of September 29, 1999
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Providing for the issuance of
8-3/8% Debentures due 2027
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FIFTH SUPPLEMENTAL INDENTURE dated as of November 4, 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 September 29, 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 $200,000,000 to be designated the "8-3/8%
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 Fifth Supplemental Indenture (the "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 8-3/8% DEBENTURES DUE 2027
Section 1.1. Issue of Debentures. A series of Securities which shall be
designated the "8-3/8% 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 Supplemental Indenture
(including the form of Debentures set forth in Section 1.3 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
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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.
Section 1.2. Registered Global Securities. Except as otherwise
expressly provided in the Original Indenture, 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; provided, however, that notwithstanding the foregoing, all
Securities issued under this Supplemental Indenture on or before November 4,
1999 may be issued originally as a single Registered Security, registered in the
name of Tenneco Inc. 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 Debentures, 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
Debentures 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 Debentures.
Section 1.3. 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 PACKAGING INC.
8-3/8% DEBENTURE DUE 2027
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
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______________ 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
April 15, 2000, 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 8-3/8%
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 ________,
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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.
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________________________________________
President
Attest:
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Secretary
[FORM OF REVERSE OF DEBENTURE]
TENNECO PACKAGING INC.
8-3/8% DEBENTURE DUE 2027
This Debenture is one of a duly authorized issue of Debentures of the
Company known as its 8-3/8% 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 September 29, 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 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
and unpaid 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.
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"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 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 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.; 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.
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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 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 8-3/8% Debentures due 2027 described in the
within-mentioned Indenture.
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THE CHASE MANHATTAN BANK,
Trustee
By_________________________
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 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 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. Additional Amounts. The Company will not pay any
additional amounts on the Debentures 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
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 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.
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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 November 4, 1999.
TENNECO PACKAGING INC.
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK
By /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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