Exhibit 4.9
FIRST SUPPLEMENTAL INDENTURE
To
INDENTURE
dated as of August 12, 1994
among
FEDERAL-MOGUL CORPORATION
as Issuer,
THE GUARANTORS PARTY HERETO FROM TIME TO TIME
as Guarantors
and
CONTINENTAL BANK
as Trustee
Dated as of July 8, 1998
FIRST SUPPLEMENTAL INDENTURE, dated as of July 8, 1998 among Federal-Mogul
Corporation, a Michigan corporation, as issuer (the "Company"), the companies
listed on the signature pages hereto that are subsidiaries of the Company (the
"Guarantors") and Continental Bank, an Illinois banking corporation, as trustee
(the "Trustee").
RECITALS
The Company has duly executed and delivered an Indenture (as such may be
amended, supplemented or modified from time to time, the "Indenture") dated as
of August 12, 1994, providing for the issuance from time to time of its
unsecured debentures, notes or other evidence of indebtedness ("Securities") to
be issued in one or more series.
The Company has authorized the issuance of nine separate series of
Securities designated as the Company's 8.80% Senior Notes due April 15, 2007
(the "8.80% Notes"), 8.06% Medium-Term Notes due October 12, 1999 (the "8.06%
Notes"), 8.53% Medium-Term Notes due November 16, 1999 (the "8.53% Notes"),
8.66% Medium-Term Notes due November 16, 2000 (the "8.66% Notes"), 8.33% Medium-
Term Notes due October 12, 2001 (the "8.33% Notes"), 8.37% Medium-Term Notes due
October 18, 2001(the "8.37% Notes"), 8.46% Medium-Term Notes due October 18,
2002 (the "8.46% Notes"), 8.12% Medium-Term Notes due March 6, 2003 (the "8.12%
Notes"), 8.16% Medium-Term Notes due March 6, 2003 (the "8.16% Notes"), and 8.24
Medium-Term Notes due March 6, 2005 (the "8.25% Notes," together with the 8.80%
Notes, the 8.06% Notes, the 8.53% Notes, the 8.66% Notes, the 8.33% notes, the
8.37% Notes , the 8.46% Notes, the 8.12% Notes, the 8.16% Notes and the 8.25%
Notes, the "Notes"), respectively, in the aggregate principal amount of
$125,000,000 in the case of 8.80% Notes, $5,000,000 in the case of the 8.06%
Notes, $16,000,000 in the case of 8.53% Notes, $20,000,000 in the case of 8.66%
Notes, $12,000,000 in the case of the 8.33% Notes, $32,000,000 in the case of
8.37% Notes, $5,000,000 in the case of 8.46% Notes, $10,000,000 in the case of
8.12% Notes, $10,000,000 in the case of 8.16% Notes and $15,000,000 in the case
of the 8.25% Notes.
The Guarantors each desire to guarantee each of the aforementioned series
of Securities and each additional series hereafter issued pursuant to the
Indenture, such guarantees to be on the terms set forth herein.
Section 901 of the Indenture provides that the Company and the Trustee may
at any time and from time to time enter into one or more indentures supplemental
to the Indenture to establish, among other things, to make provisions with
respect to matters arising under the Indenture provided that such action does
not adversely affect the rights of holders of any series of securities issued
pursuant to the Indenture in any material respect.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company, the Guarantors and the Trustee, in accordance with its
terms, have been done.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. (a) For all purposes of this First Supplemental
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Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
1. the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
2. all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
3. all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
and
4. the words "herein" , "hereof" and "hereunder" and other words of
similar import refer to this First Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Obligations" means any principal, premiums, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any indebtedness issued hereunder.
"Senior Credit Agreement" means the Second Amended and Restated Credit
Agreement among Federal-Mogul Corporation, The Chase Manhattan Bank as Agent and
the lenders thereunder, dated as of December 18, 1997, as amended.
Section 1.2. Headings. The Article and Section headings herein are for
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convenience only and shall not affect the constriction hereof.
Section 1.3. Successors and Assigns. This First Supplemental Indenture
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shall be binding upon the Company and the Guarantors and their respective
successors and assigns and shall inure to the benefit of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in the
Indenture and this First Supplemental Indenture and in the Securities shall
automatically extend to and be vested in such
transferee or assignee, all subject to the conditions of the Indenture. This
First Supplemental Indenture shall be binding upon the Trustee and its
successors and assigns.
Section 1.4. Ratification of Indenture: Supplemental Indentures Part of
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Indenture. Except as expressly amended hereby, the Indenture is in all respects
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ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This First Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 1.5. Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE AND THE
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GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Section 1.6. Counterparts. This First Supplemental Indenture may be
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executed in any number of counterparts and by telecopier, each of which shall be
an original, but such counterparts shall together constitute but one and the
same instrument.
ARTICLE 2
SCOPE OF THIS FIRST SUPPLEMENTAL INDENTURE
Section 2.1. Scope. The changes, modifications and supplements to the
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Indenture effected by this First Supplemental Indenture shall be applicable with
respect to, and govern the terms of, the Securities heretofore and hereafter
issued pursuant to the Indenture.
ARTICLE 3
NOTICES
Section 3.1. Notices, etc., to the Trustee, the Company and the
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Guarantors. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by the
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any Guarantor shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Trustee
at 231 LaSalle street, 16/th/ Floor, Chicago, Illinois 60697, Attention:
Corporate Trust Department, or
(b) the Company, or any Guarantor, by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company,
or any Guarantor, addressed to it at Federal-Mogul Corporation, 26555
Northwestern Highway, Southfield,
Michigan 48034, Attention: General Counsel or at any other address previously
furnished in writing to the Trustee by the Company.
This Section 3.1 is intended to supersede Section 1.05 of the Indenture.
ARTICLE 4
GUARANTEES
Section 1.4. Guarantees. (a) Subject to the provisions of this Article 4,
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each Guarantor, jointly and severally, hereby irrevocably and unconditionally
guarantees to each Holder of Securities and to the Trustee on behalf of the
Holders (i) the due and punctual payment of principal of, premium, if any, and
interest in full on each Security when and as the same shall become due and
payable whether at Stated Maturity, by declaration of acceleration or otherwise,
(ii) the due and punctual payment of interest on the overdue principal of,
premium, if any, and interest in full on the Securities, to the extent permitted
by law, and (iii) the due and punctual performance of all other Obligations of
the Company and the other Guarantors to the Holders or the Trustee, including
without limitation the payment of fees, expenses, indemnification or other
amounts, all in accordance with the terms of the Securities and the Indenture.
In case of the failure of the Company punctually to make any such principal or
interest payment or the failure of the Company or any other Guarantor to perform
any such other Obligation, each Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether at Stated Maturity, by declaration of acceleration or otherwise, and as
if such payment were made by the Company and to perform any such other
Obligation of the Company immediately. Each Guarantor hereby further agrees to
pay any and all expenses (including reasonable counsel fees and expenses)
incurred by the Trustee or the Holders in enforcing any rights under these
Guarantees. The Guarantees under this Article 4 are guarantees of payment and
not of collection.
(b) To the extent permitted by law, each of the Company and the Guarantors
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of merger, insolvency or bankruptcy of the Company or any
other Guarantor, any right to require a proceeding first against the Company or
any other Guarantor, protest or notice with respect to the Securities or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
these Guarantees will not be discharged except by complete performance of the
Obligations contained in the Securities and in the Indenture, or as otherwise
specifically provided therein and herein.
(c) To the extent permitted by law, each Guarantor hereby waives and
relinquishes:
(i) any right to require the Trustee, the Holders or the Company (each, a
"Benefited Party") to proceed against the Company, the Subsidiaries of
the Company or any other Person or to proceed against or exhaust any
security held by a Benefited Party at any time or to pursue any other
remedy in any secured party's power before proceeding against the
Guarantors;
(ii) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other Person or Persons or the
failure of a Benefited Party to file or enforce a claim against the
estate (in administration, bankruptcy or any other proceeding) of any
other Person or Persons;
(iii) demand, protest and notice of any kind (except as expressly required
by the Indenture), including but not limited to notice of the
existence, creation or incurring of any new or additional
indebtedness or obligation or of any action or non-action on the part
of the Guarantors, the Company, the Subsidiaries of the Company, any
Benefited Party, any creditor of the Guarantors, the Company or the
Subsidiaries of the Company or on the part of any other Person
whomsoever in connection with any obligations the performance of
which are hereby guaranteed;
(iv) any defense based upon an election of remedies by a Benefited Party,
including but not limited to an election to proceed against the
Guarantors for reimbursement;
(v) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(vi) any defense arising because of a Benefited Party's election, in any
proceeding instituted under the Bankruptcy Law, of the application of
Section 1111(b) (2) of the Bankruptcy Law; and
(vii) any defense based on any borrowing or grant of a security interest
under Section 364 of the Bankruptcy Law.
(d) Each Guarantor further agrees that, as between such Guarantor, on the
one hand, and Holders and the Trustee, on the other hand, (i) for
purposes of the relevant Guarantee, the maturity of the Obligations
Guaranteed by such Guarantee may be accelerated as provided in
Article 5 of the Indenture, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the
Obligations guaranteed thereby, and (ii) in the event of any
acceleration of such Obligations (whether or not due and payable)
such Obligations shall forthwith become due and payable by such
Guarantor for purposes of such Guarantee.
(e) The Guarantee shall continue to be effective or shall be reinstated,
as the case may be, if at any time any payment, or any part thereof,
of principal
of, premium, if any, or interest on any of the Securities is rescinded
or must otherwise be returned by the Holders or the Trustee upon the
insolvency, bankruptcy or reorganization of the Company or any of the
Guarantors, all as though such payment had not been made.
(f) Each Guarantor shall be subrogated to all rights of the Holders
against the Company in respect of any amounts paid by such Guarantor
pursuant to the provisions of the Guarantees or the Indenture;
provided, however, that a Guarantor shall not be entitled to enforce
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or to receive any payments until the principal of, premium, if any,
and interest on all Securities issued hereunder shall have been paid
in full.
Section 4.2. Obligations of Guarantors Unconditional. Each Guarantor
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hereby agrees that its Obligations hereunder shall be Guarantees of payment and
shall be unconditional, irrespective of and unaffected by the validity,
regularity or enforceability of the Securities of the Indenture, or of any
amendment thereto or hereto, the absence of any action to enforce the same, the
waiver or consent by any Holder or by the Trustee with respect to any provisions
thereof or of the Indenture, the entry of any judgment against the Company or
any other Guarantor or any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
Section 4.3. Limitation on Guarantors' Liability. Each Guarantor, and by
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its acceptance hereof each holder, hereby confirms that it is the intention of
all such parties that the Guarantee by such Guarantor pursuant to its Guarantee
not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
Obligations of such Guarantor under this Article 4 shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under this Article 4, result in the
Obligation of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance under applicable federal or state law.
Section 4.4. Releases of Guarantees. (a) If the Securities are defeased
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in accordance with the terms of Article 13 of the Indenture, then each Guarantor
shall be deemed to have been released from and discharged of its obligations
under its Guarantee as provided in Article 13 of the Indenture, applied mutaris
mutandis, subject to the conditions state therein.
(b) In the event an entity that is a Guarantor ceases to be a guarantor
under the Senior Credit Agreement (or any other credit agreement renewing,
refunding, replacing, restating, refinancing or extending the Senior Credit
Agreement), such entity shall also cease to be a Guarantor, whether or not
a Default or an Event of Default is then outstanding.
(c) Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of, premium, if any,
and interest on the Securities and for the other obligations of the
Company, such Guarantor and any other Guarantor under the Indenture as
provided in this Article 4.
Section 4.5. Application of Certain Terms and Provisions to Guarantors.
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(a) Any notice or demand which by any provision of the Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Securities
to or on any Guarantor may be given or served as described in Section 105 of the
Indenture.
(b) Upon any demand, request or application by any Guarantor to the
Trustee to take any action under the Indenture, such Guarantor shall furnish to
the Trustee such certificates and opinions as are required in Section 603 of the
Indenture as if all references therein to the Company were references to such
Guarantor.
Section 4.6. Additional Guarantors. The Company shall cause each
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subsidiary of the Company that becomes a guarantor under the Senior Credit
Agreement, as amended (or any other credit agreement renewing, refunding,
replacing, restating, refinancing or extending the Senior Credit Agreement),
after the date of this First Supplemental Indenture, to execute and deliver to
the Trustee, promptly upon any such formation or acquisition (a) a supplemental
indenture in form and substance satisfactory to the Trustee which subjects such
subsidiary to the provisions of the Indenture as a Guarantor, and (b) an Opinion
of Counsel to the effect that such supplemental indenture has been duly
authorized and executed by such subsidiary and constitutes the legal, valid,
binding and enforceable obligation of such subsidiary (subject to such customary
exceptions concerning fraudulent conveyance laws, creditors' rights and
equitable principles as may be acceptable to the Trustee in its discretion).
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
FEDERAL-MOGUL CORPORATION
by: _________________________________
Name:
Title:
FEDERAL-MOGUL DUTCH HOLDINGS, INC.,
as Guarantor
by: _________________________________
Name:
Title:
FEDERAL-MOGUL GLOBAL INC.,
as Guarantor
by: _________________________________
Name:
Title:
FEDERAL-MOGUL U.K. HOLDINGS, INC.,
as Guarantor
by: _________________________________
Name:
Title:
CARTER AUTOMOTIVE COMPANY, INC.,
as Guarantor
by: _________________________________
Name:
Title:
FEDERAL-MOGUL VENTURE CORPORATION,
as Guarantor
by: ____________________________________
Name:
Title:
FEDERAL-MOGUL WORLD WIDE, INC.,
as Guarantor
by: ____________________________________
Name:
Title:
FEDERAL-MOGUL GLOBAL PROPERTIES, INC.,
as Guarantor
by: ____________________________________
Name:
Title:
FELT PRODUCTS MFG. CO., as Guarantor
by: ____________________________________
Name:
Title:
FEL-PRO MANAGEMENT CO., as Guarantor
by: ____________________________________
Name:
Title:
FEL-PRO CHEMICAL PRODUCTS L.P.,
as Guarantor
by: ____________________________________
Name:
Title:
F-M UK HOLDINGS LIMITED, as Guarantor
by: ____________________________________
Name:
Title:
CONTINENTAL BANK, as Trustee
by: ____________________________________
Name:
Title: