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TENNECO INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
APRIL 4, 1997
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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.
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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;
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(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.
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(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
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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
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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.
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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.
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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:
PLUS ACCRUED
DELIVERY DATE PRINCIPAL AMOUNT INTEREST FROM:
------------- ---------------- --------------
$
$
$
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
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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.)
TELEPHONE NO.
NAME (INCLUDING AREA CODE) DEPARTMENT
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