EXHIBIT 4.6(d)
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE, dated as of December 12, 2003 (the
"Supplemental Indenture"), among Tenneco Automotive Inc., a Delaware corporation
(the "Company"), the Guarantors and Wachovia Bank, National Association (the
"Trustee").
WHEREAS, the Company, the Guarantors and the Trustee have
heretofore executed and delivered an Indenture, dated as of June 19, 2003 (the
"Indenture"), in relation to the issuance of $350,000,000 aggregate principal
amount of the Company's 10 1/4% Senior Secured Notes due 2013 (the "Initial
Securities");
WHEREAS, pursuant to Article Two of the Indenture, the Company
may, from time to time, without notice to or the consent of any holder of the
Initial Securities, create and issue additional Securities that are subject to
the provisions of the Indenture only in compliance with Section 4.03 of the
Indenture and upon written order of the Company to the Trustee in the form of an
Officers' Certificate specifying the amount of Securities to be authenticated,
the series of Securities and the date on which the Securities are to be
authenticated by the Trustee and certifying that (i) such issuance is not
prohibited under Section 4.03 of the Indenture and (ii) the principal amount of
Securities secured by each Second Priority Mortgage then in effect will be equal
to or greater than the principal amount of Securities outstanding after giving
effect to such issuance;
WHEREAS, the Company proposes to issue an additional
$125,000,000 aggregate principal amount of its 10 1/4% Senior Secured Notes due
2013 (the "Additional Securities") with the same terms as the Initial
Securities, except as set forth in the Additional Securities.
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Company, the Guarantors and the Trustee desire to supplement and amend the
Indenture without the consent of the Holders in order to cure ambiguities,
defects and inconsistencies in the Indenture;
WHEREAS, the conditions set forth in the Indenture for the
execution and delivery of this Supplemental Indenture have been complied with;
WHEREAS, all other actions necessary to make this Supplemental
Indenture a legal, valid and binding agreement of the Company, the Guarantors
and the Trustee, in accordance with its terms, and a valid amendment of, and
supplement to, the Indenture, have been performed;
NOW THEREFORE, in consideration of the promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company, the Guarantors and the
Trustee hereby mutually covenant and agree for the equal and proportionate
benefit of all Holders of the Securities as follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. General. For all purposes of this Supplemental
Indenture, except as expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) the words "herein," "hereof," and "hereunder" and other
words of similar import refer to this Supplemental Indenture as a whole
and not to any particular Article, Section or other subdivision.
Section 1.2. Terms Defined in the Indenture. Terms and
expressions defined in the Indenture shall have the same meaning when used
in this Supplemental Indenture unless otherwise defined herein or unless
the context otherwise requires.
Section 1.3. Provisions of the Indenture. The provisions of
the Indenture shall apply to the Additional Securities and any certificated
Additional Securities in definitive form issued in exchange therefor in the
exact same manner as they apply to the Initial Securities and any
certificated Initial Securities in definitive form issued in exchange
therefor.
Section 1.4. Effect of Supplemental Indenture.
(a) This Supplemental Indenture is a supplemental indenture
within the meaning of Section 9.01 of the Indenture, and the Indenture shall be
read together with this Supplemental Indenture and shall have the same effect
over the Additional Securities, in the same manner as if the provisions of the
Indenture and this Supplemental Indenture were contained in the same instrument.
(b) In all other respects, the Indenture is ratified and
confirmed by the parties as supplemented by the terms of this Supplemental
Indenture.
Section 1.5. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
Section 1.6. Successors and Assigns. All agreements of the
Company and the Guarantors in this Supplemental Indenture shall bind their
successors. All agreements of the Trustee in this Supplemental Indenture
shall bind its successors.
Section 1.7. Severability Clause. In case any provision in
this Supplemental Indenture or in the Additional Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
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Section 1.8. Governing Law. This Supplemental Indenture and
the Additional Securities shall be governed by and construed in accordance
with the laws of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent that the
application of the law of another jurisdiction would be required thereby.
Section 1.9. Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, and all such counterparts taken
together shall be deemed to constitute one and the same instrument.
Signature pages may be detached from counterpart documents and reassembled
to form duplicate executed originals.
Section 1.10. Trustee. The Trustee makes no representation as
to the validity or adequacy of this Supplemental Indenture. The recitals
and statements herein are deemed to be those of the Company and the
Guarantors and not of the Trustee.
ARTICLE II
AMENDMENTS
Section 2.1. Amended Definitions. Section 1.01 of the
Indenture is hereby amended by deleting the definitions of "Initial
Purchasers," "Issue Date," "Purchase Agreement" and "Registration Rights
Agreement" and replacing them with the following:
"Initial Purchasers" means the Persons purchasing Securities from
the Company pursuant to the related Purchase Agreement.
"Issue Date" means June 19, 2003, the date of original issuance of
the Securities.
"Purchase Agreement" means (1) with respect to the Securities
issued on the Issue Date, the Purchase Agreement, dated as of June
10, 2003, by and among the Company, the Guarantors and the Initial
Purchasers, and (2) with respect to each issuance of Additional
Securities, if any, the purchase agreement or underwriting
agreement among the Company, the Guarantors and the Initial
Purchasers; provided, that for purposes of Section 12.12(d) of
this Indenture, "Purchase Agreement" shall mean the Purchase
Agreement specified in clause (1) above.
"Registration Rights Agreement" means (1) with respect to the
Securities issued on the Issue Date, the Registration Rights
Agreement, dated June 19, 2003, among the Company, the Guarantors
and the Initial Purchasers, and (2) with respect to each issuance
of Additional Securities issued in a transaction exempt from the
registration requirements of the Securities Act, the registration
rights agreement, if any, among the Company, the Guarantors and
the Initial Purchasers under the related Purchase Agreement.
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Section 2.2 Additional Definitions. Section 1.01 of the
Indenture is hereby amended by adding the following definitions:
"Additional Securities" means Series A Securities issued from time
to time after the Issue Date under the terms of this Indenture
(other than pursuant to Sections 2.06, 2.07, 2.10 or 3.06 of this
Indenture).
Section 2.3. Amendment of Section 2.02. Section 2.02 of the
Indenture is hereby amended by replacing it with the following:
(a) Two Officers, or an Officer and a secretary, treasurer,
controller or an assistant secretary of the Company, shall sign, or one
Officer shall sign and one Officer or a Secretary or an Assistant
Secretary of the Company (each of whom shall, in each case, have been
duly authorized by all requisite corporate actions) shall attest to,
the Securities for the Company by manual or facsimile signature.
If an Officer or a secretary, treasurer, controller or an
assistant secretary of the Company whose signature is on a Security was
an Officer or a Secretary or an Assistant Secretary of the Company at
the time of such execution but no longer holds that office at the time
the Trustee authenticates the Security, the Security shall be valid
nevertheless. Each Guarantor shall execute its Subsidiary Guarantee in
the manner set forth in Section 10.07.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
(b) The Trustee shall authenticate (i) Securities for original
issue on the Issue Date in the aggregate principal amount of
$350,000,000, (ii) subject to compliance by the Company with clause (c)
below, Additional Securities for original issue in an aggregate
principal amount specified in a written order of the Company and (iii)
Series B Securities for issue only in exchange, pursuant to the terms
of a Registration Rights Agreement, for a like principal amount of
Series A Securities, in each case upon a written order of the Company
in the form of an Officers' Certificate. Each such Officers'
Certificate shall specify the amount of Securities to be authenticated,
the series of Securities and the date on which the Securities are to be
authenticated.
(c) Except as provided in Section 2.07, Additional Securities may
be issued only in compliance with Section 4.03 and, in the case of any
such Additional Securities, the Officers' Certificate specified in
clause (b) above shall certify that (i) such issuance is not prohibited
under Section 4.03 of this Indenture, and (ii) the principal amount of
Securities secured by each Second Priority Mortgage then in effect will
be equal to or greater than the principal amount of Securities
outstanding after giving effect to such issuance. Any Additional
Securities shall be part of the same issue as the Securities being
issued on the Issue Date and will vote on all matters as one class with
the Securities being issued on the
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Issue Date, including, without limitation, waivers, amendments,
redemptions, Change of Control Offers and Net Proceeds Offers.
(d) Upon receipt of a written order of the Company in the form of
an Officers' Certificate, the Trustee shall authenticate Securities in
substitution for Securities originally issued to reflect any name
change of the Company.
(e) The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise
provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to
deal with the Company and Affiliates of the Company.
(f) The Securities shall be issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof.
ARTICLE III
NOTE FORMS
Section 3.1. Series A Securities. The Series A Securities
issued by the Company after the Issue Date and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of
Exhibit A to the Indenture, except that, for purposes of such Series A
Securities issued by the Company after the Issue Date, the first sentence
of Section 4 of said Exhibit A thereof shall be replaced with the
following:
"The Company issued the Securities under an Indenture, dated as of
June 19, 2003 (as it may be amended, amended and restated,
modified or supplemented from time to time, the "Indenture"),
among the Company, the Guarantors and the Trustee."
The Series A Securities may have notations, legends or endorsements (including
notations relating to any Subsidiary Guarantees, stock exchange rule or usage).
Section 3.2. Series B Securities. The Series B Securities to
be issued to Holders of Additional Securities in exchange for their Series
A Securities pursuant to the Exchange Offer specified in the Registration
Rights Agreement shall be substantially in the form of Exhibit B to the
Indenture, except that, for purposes of such Series B Securities, the first
sentence of Section 4 of said Exhibit B shall be replaced with the
following:
"The Company issued the Securities under an Indenture, dated as of
June 19, 2003 (as it may be amended, amended and restated,
modified or supplemented from time to time, the "Indenture"),
among the Company, the Guarantors and the Trustee."
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The Series B Securities may have notations, legends or endorsements (including
notations relating to any Subsidiary Guarantees, stock exchange rule or usage).
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and delivered as of the date first
written above.
TENNECO AUTOMOTIVE INC.
By: ______________________________________________
Name:
Title:
TENNECO AUTOMOTIVE OPERATING COMPANY INC.,
as Guarantor
By: ______________________________________________
Name:
Title:
THE PULLMAN COMPANY, as Guarantor
By: ______________________________________________
Name:
Title:
CLEVITE INDUSTRIES INC., as Guarantor
By: ______________________________________________
Name:
Title:
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TENNECO GLOBAL HOLDINGS INC.,
as Guarantor
By: ______________________________________________
Name:
Title:
TMC TEXAS INC., as Guarantor
By: ______________________________________________
Name:
Title:
TENNECO INTERNATIONAL HOLDING CORP., as Guarantor
By: ______________________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
By: ______________________________________________
Name:
Title:
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