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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: October 9, 1998
(Date of earliest event reported: October 6, 1998)
TENNESSEE GAS PIPELINE COMPANY
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 1-4101 74-1056569
(State or other jurisdiction (Commission File No.) (I.R.S. Employer
of incorporation) Identification No.)
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EL PASO ENERGY BUILDING
1001 LOUISIANA STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
(713) 420-2131
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS.
On October 6, 1998, Tennessee Gas Pipeline Company (the "Company")
entered into an Underwriting Agreement with Donaldson, Lufkin & Jenrette
Securities Corporation, Chase Securities Inc. and NationsBanc Montgomery
Securities LLC, pursuant to which the Company issued $400 million aggregate
principal amount of 7% Debentures due 2028, (the "Debentures"). The net
proceeds from the sale of the Debentures were approximately $391 million, and
will be used by the Company to repay outstanding short-term indebtedness of the
Company and for general corporate purposes.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
Exhibit
Number Description
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*1.1 Underwriting Agreement dated as of October 6, 1998.
4.1 Indenture dated as of March 4, 1997, as amended by the First
Supplemental Indenture, Second Supplemental Indenture and
Third Supplemental Indenture (incorporated by reference
to the Company's current report on Form 8-K dated as of March
4, 1997, file no. 1-4101).
*4.2 Fourth Supplemental Indenture dated as of October 9, 1998,
including the form of 7% Debenture due 2028.
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*Filed herewith.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TENNESSEE GAS PIPELINE COMPANY
By: /s/ JEFFERY I. BEASON
--------------------------------
Jeffrey I. Beason
Vice President and Controller
(Chief Accounting Officer)
Date: October 9, 1998
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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*1.1 Underwriting Agreement dated as of October 6, 1998.
4.1 Indenture dated as of March 4, 1997 (incorporated by reference
to the Company's current report on Form 8-K dated as of March
4, 1997, file no. 1-4101).
*4.2 Fourth Supplemental Indenture dated as of October 9, 1998,
including the form of 7% Debenture due 2028.
</TABLE>
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*Filed herewith.
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EXHIBIT 1.1
$400,000,000
Tennessee Gas Pipeline Company
7% Debentures Due 2028
UNDERWRITING AGREEMENT
October 6, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CHASE SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
As Underwriters
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
Tennessee Gas Pipeline Company, a Delaware corporation (the "Company"),
proposes to issue and sell $400,000,000 principal amount of its 7% Debentures
Due 2028 (the "Securities") to the several underwriters named in Schedule I
hereto (the "Underwriters"). The Securities are to be issued pursuant to the
provisions of an Indenture dated as of March 4, 1997 (as supplemented by a
Fourth Supplemental Indenture to be dated as of October 9, 1998, the
"Indenture") between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee").
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (Registration
No. 333- 63429) in respect of the Securities and the Company's debt securities,
which registration statement also constitutes a post-effective amendment to
Registration Statement No. 333-20199, and has filed such amendments thereto as
may have been required to the date of this Agreement. Such registration
statement and such post-effective amendment, as amended, have been declared
effective by the Commission. Such registration statement and such post-effective
amendment, as amended through the date of this Agreement, including all
documents incorporated or deemed to be incorporated therein by reference, as
from time to time amended or supplemented pursuant to the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
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thereunder (collectively, the "Exchange Act"), or otherwise, are herein
collectively referred to as the "Registration Statement." The prospectus in the
form first used to confirm sales of Securities (including the information
contained in any prospectus supplement relating to the Securities and any
documents or information incorporated or deemed to be incorporated by reference
into such prospectus) are hereinafter collectively referred to as the
"Prospectus". All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "described" or
"stated" in the Registration Statement or the Prospectus (and all references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
The terms "supplement," "supplemented," "amendment," "amend" and "amended" as
used in this Agreement with respect to the Registration Statement or the
Prospectus shall include all documents filed by the Company with the Commission
pursuant to the Exchange Act that are incorporated or deemed to be incorporated
therein by reference.
SECTION 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company the principal
amount of Securities set forth opposite the name of such Underwriter in Schedule
I hereto at 97.766% of the principal amount thereof (the "Purchase Price").
SECTION 3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Securities as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Securities shall be represented by
one or more definitive global Securities in book-entry form which will be
deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian. The Company shall deliver the Securities,
with any transfer taxes thereon duly paid by the Company, to Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJ") through the facilities of DTC, for the
respective accounts of the several Underwriters, against payment to the Company
of the Purchase Price therefor by wire transfer of Federal or other funds
immediately available in New York City. The global certificates representing the
Securities shall be made available for inspection not later than 9:30 A.M., New
York City time, on the business day prior to the Closing Date (as defined
below), at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of delivery and payment for the Securities shall be
9:00 A.M., New York City time, on October 9, 1998 or such other time on the same
or such other date as DLJ and the Company shall agree in writing. The time and
date of such delivery and payment are hereinafter referred to as the "Closing
Date".
The documents to be delivered on the Closing Date on behalf of the
parties hereto pursuant to Section 8 of this Agreement shall be delivered at the
offices of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P., 3400 Chase Tower, 600
Travis, Houston, Texas 77002 and the Securities shall be delivered at the
Designated Office, all on the Closing Date.
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SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, (iii) when any amendment to
the Registration Statement becomes effective and (iv) of the happening of any
event during the period referred to in Section 5(d) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will use its best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish to you one signed copy of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its best efforts to cause any
such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
and any documents incorporated therein by reference as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes 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, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare and file with
the Commission an appropriate amendment
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or supplement to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply with
applicable law, and to furnish to each Underwriter and to any dealer as many
copies thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request, to continue such registration or qualification in effect so
long as required for distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Securities,
in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its security holders as
soon as practicable an earnings statement covering the twelve-month period
ending December 31, 1998 that shall satisfy the provisions of Section 11(a) of
the Act, and to advise you in writing when such statement has been so made
available.
(h) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Securities under the Act and all other fees and expenses in connection with
the preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Securities, (iv) all
expenses in connection with the registration or qualification of the Securities
for offer and sale under the securities or Blue Sky laws of the several states
and all costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the Securities by the National
Association of Securities Dealers, Inc., (vi) all fees and expenses in
connection with the preparation and filing of the registration statement on Form
8-A relating to the Securities and all costs and expenses incident to any
listing of the Securities on any national securities exchange, (vii) the cost of
printing certificates representing the Securities, (viii) the costs and charges
of any transfer agent, registrar and/or depositary (including the Depository
Trust Company), (ix) any fees charged
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by rating agencies for the rating of the Securities, (x) the fees and expenses
of the Trustee and the Trustee's counsel in connection with the Indenture and
the Securities and (xi) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise
made in this Section.
(i) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Securities.
(j) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date and to satisfy all conditions precedent to the delivery of the
Securities.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective under the Act, and
no stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) 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, (ii) the
Registration Statement, when it became effective, did not contain, and as
amended or supplemented, if applicable, will not contain at the time of such
amendment or supplement any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in
all material respects with the Act, and (iv) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain at the time of
such amendment or supplement any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus or preliminary prospectus supplement
filed as part of the registration statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Act, complied
when so filed in all material respects with the Act, and did not contain an
untrue statement of a material fact or omit 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, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in any preliminary prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
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(d) Each of the Company and its significant subsidiaries within the
meaning of Regulation S-X (each hereinafter referred to as a "Subsidiary") has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the Prospectus and to
own, lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole.
(e) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights.
(f) All of the outstanding shares of capital stock of each of the
Company's Subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature (each, a
"Lien").
(g) The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and has been duly authorized,
and when executed and delivered by the Company and the Trustee, will constitute
a valid and legally binding obligation of the Company, enforceable in accordance
with its terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(B) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) The Securities have been duly authorized and, on the Closing Date,
will have been validly executed and delivered by the Company. When the
Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, the Securities will be entitled to
the benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The Securities conform in all material respects as to legal matters
to the description thereof contained in the Prospectus.
(j) Neither the Company nor any Subsidiary is (i) in violation of its
respective charter or by-laws or (ii) in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or their
respective property is bound.
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(k) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company, the compliance by the Company with
all the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any Subsidiary or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or their respective
property is bound, (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, any Subsidiary or their
respective property, (iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under any agreement or instrument to
which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or their respective property is bound or (v) result in the
suspension, termination or revocation of any permit, license, covenant,
exemption, franchise, authorization or other approval (each an "Authorization")
of the Company or any Subsidiary or any other impairment of the rights of the
holder of any such Authorization.
(l) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject that
would restrict the issuance and sale of the Securities as contemplated by the
Prospectus or that are required to be described in the Registration Statement or
the Prospectus and are not so described; nor are there any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required.
(m) This Agreement has been duly authorized, executed and delivered by
the Company.
(n) PricewaterhouseCoopers LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(o) The consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present fairly
in accordance with generally accepted accounting principles consistently applied
the consolidated financial position, results of operations and cash flows of the
Company and its subsidiaries on the basis stated therein at the respective dates
or for the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; the supporting schedules, if any, included in the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and statistical information and data set forth or incorporated
by reference in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) are, in all material respects,
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accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(p) The pro forma financial data set forth in the Registration
Statement and the Prospectus (and any supplement or amendment thereto) are, in
all material respects, fairly presented and prepared on a basis consistent with
the historical financial statements of the Company and its subsidiaries, give
effect to assumptions used in the preparation thereof which have been made on a
reasonable basis and in good faith, and, as applicable, present fairly the
effects of the contribution of the common stock of El Paso Marketing Services
Company to the Company and the proposed Reorganization as defined and described
in the Registration Statement and the Prospectus.
(q) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be (i) an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended, or (ii) a "holding
company" within the meaning of, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended, and the rules and regulations
promulgated by the Commission thereunder.
(r) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act has indicated to
the Company that it is considering (i) the downgrading, suspension or withdrawal
of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating assigned to the Company or any securities of
the Company or (ii) any change in the outlook for any rating of the Company or
any securities of the Company.
(s) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent.
(t) Each certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
its directors, its officers and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in
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connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus or preliminary prospectus supplement, 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, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished in writing
to the Company by such Underwriter through you expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter who
failed to deliver a Prospectus (as then amended or supplemented, provided by the
Company to the several Underwriters in the requisite quantity and on a timely
basis to permit proper delivery on or prior to the Closing Date) to the person
asserting any losses, claims, damages and liabilities and judgments caused by
any untrue statement or alleged untrue statement of a material fact contained in
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, if such material misstatement or omission
or alleged material misstatement or omission was cured in such Prospectus and
such Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to such Underwriter but
only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus or preliminary
prospectus supplement.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the
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named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by DLJ, in the case of parties indemnified
pursuant to Section 7(a), and by the Company, in the case of parties indemnified
pursuant to Section 7(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (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 hand from the offering
of the Securities or (ii) if the allocation provided by clause 7(d)(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 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, 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 hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Securities, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things,
10
<PAGE> 11
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or 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 Section 7(d) 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, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the 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 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 Section 7(d) are several in proportion to the respective
principal amount of Securities purchased by each of the Underwriters hereunder
and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change,
nor shall any notice have been given of any potential or intended change, in the
outlook for any rating of the Company or any securities of the Company by any
such rating organization and (iii)
11
<PAGE> 12
no such rating organization shall have given notice that it has assigned (or is
considering assigning) a lower rating to the Securities than that on which the
Securities were marketed.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by an executive officer of the Company in such capacity
confirming the matters set forth in Sections 6(s), 8(a), and 8(b) and that the
Company has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by the
Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(d)(i),
8(d)(ii) or 8(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus.
(e) You shall have received on the Closing Date (i) an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Andrews & Kurth L.L.P., counsel for the Company, addressing the matters set
forth on Exhibit A attached hereto, and (ii) an opinion (satisfactory to you and
counsel for the Underwriters), dated the Closing Date, of the general counsel of
the Company, addressing the matters set forth on Exhibit B attached hereto.
(f) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P., counsel for the
Underwriters, with respect to all such matters as you may reasonably request.
(g) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from PricewaterhouseCoopers LLP,
independent public accountants, containing the information and statements 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 in the Registration Statement and the
Prospectus.
(h) The Underwriters shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company and
the Trustee.
(i) The Company shall not have failed on or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company on or prior to the Closing Date.
12
<PAGE> 13
SECTION 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto. This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus, (ii)
the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the principal
amount of Securities set forth opposite its name in Schedule I bears to the
aggregate principal amount of Securities which all the non-defaulting
Underwriters have agreed to purchase, or in such other proportion as you may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate principal amount of Securities which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased by all Underwriters and arrangements
satisfactory to you and the Company for purchase of such Securities are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
13
<PAGE> 14
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
Tennessee Gas Pipeline Company, 1001 Louisiana, Houston, Texas 77002, Attention:
Britton White, Jr., and (ii) if to any Underwriter or to you, to you c/o
Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York,
New York 10172, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9), the Company agrees to reimburse the
several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(h) hereof. The Company also agrees to reimburse the
several Underwriters, their directors and officers and any persons controlling
any of the Underwriters for any and all fees and expenses (including, without
limitation, the fees and disbursements of counsel) incurred by them in
connection with enforcing their rights hereunder (including, without limitation,
pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
14
<PAGE> 15
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
TENNESSEE GAS PIPELINE COMPANY
By: /s/ John W. Somerhalder II
--------------------------------------
Name: John W. Somerhalder II
------------------------------------
Title: President
-----------------------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
CHASE SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ D. Dwight Scott
----------------------------------
Name: D. Dwight Scott
--------------------------------
Title: Senior Vice President
-------------------------------
15
<PAGE> 16
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
<S> <C>
Donaldson, Lufkin & Jenrette
Securities Corporation $240,000,000
Chase Securities Inc. 80,000,000
NationsBanc Montgomery Securities LLC 80,000,000
------------
Total $400,000,000
</TABLE>
16
<PAGE> 17
EXHIBIT A
OPINION OF ANDREWS & KURTH L.L.P.
Counsel for the Company
The opinion of counsel for the Company pursuant to Section 8(e) of the
Underwriting Agreement shall be to the effect that:
1. The Registration Statement has become effective under the Act and no
stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending before
or, to such counsel's knowledge, threatened by the Commission.
2. (A) Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein or omitted therefrom as
to which such counsel need not express any opinion) appeared on its
face to be appropriately responsive in all material respects with the
Exchange Act and (B) the Registration Statement and Prospectus (except
for financial statements and schedules and other financial or
statistical data included or incorporated by reference therein or
omitted therefrom as to which such counsel need not express any
opinion) appeared on their face to be appropriately responsive in all
material respects with the requirements of the Act.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be, (i) an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended or
(ii) a "holding company" within the meaning of, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as
amended, and the rules and regulations promulgated by the commission
thereunder.
5. The Indenture has been duly qualified under the Trust Indenture Act and
has been authorized, executed and delivered by the Company and
constitutes the valid and legally binding obligation of the Company,
enforceable in accordance with its terms, except as (a) the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws
relating to or affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
6. The Debentures have been duly authorized, and when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, will be entitled to the benefits
of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as (a) the
enforcement thereof may be
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<PAGE> 18
limited by bankruptcy, insolvency, or similar laws affecting creditors'
rights generally and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
7. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement will
not violate any provision of applicable United States federal law, New
York law, or the Delaware General Corporation Law, or the Certificate
of Incorporation, as amended, or By-Laws, as amended, of the Company or
any Subsidiary.
8. No consent, approval, authorization or order of or qualification with
any United States federal, New York or (with respect to matters arising
under the Delaware General Corporation Law) Delaware body or agency is
required for the performance by the Company of its obligations under
the Underwriting Agreement, except such as may be required under the
Act, which have been obtained, or as may be required under the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Debentures, as to which such counsel need not
express any opinion, or except where failure to obtain such consent,
approval, authorization, order or qualification would not have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as
a whole.
9. The statements (A) in the Prospectus under the captions "Description of
the Debentures" and "Description of Debt Securities" and (B) in the
Registration Statement under Item 15, insofar as such statements
constitute a summary of the legal matters referred to therein, fairly
present the information disclosed therein in all material respects.
In addition, such counsel shall state that, in the course of the
preparation by the Company of the Registration Statement, the Prospectus and the
Prospectus Supplement (including the documents incorporated by reference
therein), such counsel participated in conferences with certain of the officers
and representatives of the Company, the Company's independent accountants, the
Underwriters and counsel for the Underwriters at which the Registration
Statement, the Prospectus and the Prospectus Supplement were discussed. Such
counsel shall state that, between the date of effectiveness of the Registration
Statement and the time of delivery of such counsel's opinion letter, such
counsel participated in additional conferences with certain officers and
representatives of the Company and the Company's independent accountants at
which portions of the Registration Statement, the Prospectus and the Prospectus
Supplement were discussed. Given the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process, such counsel does not pass upon and need not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Prospectus or the Prospectus
Supplement, except as specifically described in the opinion in paragraph 2
above. Subject to the foregoing and on the basis of the information such counsel
gained in the performance of the services referred to above, including
information obtained from officers and other representatives of the Company and
the Company's independent accountants, such counsel shall state that no facts
have come to such counsel's attention that have caused it to believe that the
Registration Statement, at the time it became effective, contained any untrue
statement of a material fact or omitted to state a material fact required to be
ii
<PAGE> 19
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus and the Prospectus Supplement, as of their
respective dates, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Also, subject to the foregoing, such counsel shall state
that no facts have come to its attention in the course of the proceedings
described in the second sentence of this paragraph that caused such counsel to
believe that the Prospectus or the Prospectus Supplement as of the date and time
of delivery of such counsel's opinion letter contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
With respect to the preceding paragraph, counsel may state that (A)
their opinion and belief is based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or certification, except as specified and (B) for purposes of
paragraphs 7 and 8, such counsel may state (i) that it has reviewed only those
statutes, rules and regulations that in its experience are applicable to
transactions of the type contemplated by the Underwriting Agreement and (ii)
that it does not hold itself out as experts in the regulation of the generation,
transportation, distribution or delivery of electricity or electrical services,
or the import or export of electricity or electrical services.
Such counsel need express no view, opinion or belief, however, with
respect to financial statements, schedules or notes thereto or other financial
or statistical data included or incorporated by reference in or omitted from the
Registration Statement or Prospectus.
Such counsel may state that the opinions expressed above are limited to
the federal laws of the United States, the laws of the State of New York, and
the General Corporation Law of the State of Delaware.
iii
<PAGE> 20
EXHIBIT B
OPINION OF BRITTON WHITE, JR.
General Counsel for the Company
The opinion of the General Counsel for the Company pursuant to Section
8(e) of the Underwriting Agreement shall be to the effect that:
1. Each of the Company and its Subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus, and each 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
or leasing of property requires such qualification, except where the
failure to be so qualified or to be in good standing would not have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as
a whole.
2. The execution, delivery and performance of the Underwriting Agreement,
the Indenture and the Securities by the Company, the compliance by the
Company with all the provisions hereof and thereof and the consummation
of the transactions contemplated hereby and thereby will not, to such
counsel's knowledge, (i) violate any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the Company
or any Subsidiary is a party or by which the Company or any Subsidiary
or their respective property is bound or (ii) violate or conflict with
any judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any Subsidiary or their
respective property, except in each case, for such violations as would
not have a material adverse effect on the business, prospects,
financial condition or results of operation of the Company and its
subsidiaries, taken as a whole.
3. To such counsel's knowledge after due inquiry, there are no legal or
governmental proceedings pending or threatened to which the Company or
any Subsidiary is or could be a party or to which any of their
respective property is or could be subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described; nor does such counsel know of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not so described or filed as
required.
4. (A) Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein or omitted therefrom as
to which such counsel need not express any opinion) appeared on its
face to be appropriately responsive in all material respects with the
Exchange Act and (B) the Registration Statement and Prospectus (except
for financial statements and schedules and other financial or
statistical data included or incorporated by reference therein or
omitted therefrom as to which
i
<PAGE> 21
such counsel need not express any opinion) appeared on their face to be
appropriately responsive in all material respects with the requirements
of the Act.
5. The statements under (A) the caption "Item 3 - Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by
reference into the Prospectus and (B) the caption "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on Form 10-Q
filed since such annual report, in each case insofar as such statements
constitutes summaries of the legal matters, documents or proceedings
referred to therein, fairly present as of the date of the applicable
report the information disclosed therein in all material respects.
6. (A) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement
will not violate any provisions of any applicable laws and regulations
specifically governing the generation, transportation, distribution or
delivery of natural gas, oil, electricity or other related commodities
or services, including pipelines, transmission lines, storage
facilities and related facilities and equipment, or the import or
export of such commodities or services (collectively, the "Energy
Industry") and (B) no consent, approval, authorization or order of or
qualification with any United States federal body or agency
specifically regulating the Energy Industry is required for the
performance by the Company of its obligations under the Underwriting
Agreement, except in each of the foregoing cases for such violations or
failures to obtain such consent, approval, authorization, order or
qualification as would not have a material adverse effect on the
business, prospects, financial condition or results of operation of the
Company and its subsidiaries, taken as a whole.
In addition, such counsel shall state that in the course of the
preparation by the Company of the Registration Statement, the Prospectus and the
Prospectus Supplement, such counsel participated in conferences with certain of
the officers and representatives of the Company, counsel to the Company, the
Company's independent accountants, the Underwriters and counsel for the
Underwriters at which the Registration Statement, the Prospectus and the
Prospectus Supplement were discussed. Such counsel shall state that, between the
date of effectiveness of the Registration Statement and the time of delivery of
such counsel's letter, such counsel participated in additional conferences with
certain officers and representatives of the Company, counsel to the Company and
the Company's independent accountants at which portions of the Registration
Statement, the Prospectus and the Prospectus Supplement were discussed. Given
the limitations inherent in the independent verification of factual matters and
the character of determinations involved in the registration process, such
counsel does not pass upon and need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement, except as
specifically described in paragraph 4 above. Subject to the foregoing and on the
basis of the information such counsel gained in the performance of the services
referred to above and in the performance of his duties as General Counsel of the
Company, as well as information obtained from officers and other representatives
of the Company and the Company's independent accountants, such counsel shall
state that no facts have come to such counsel's attention that have caused him
to believe that the Registration Statement, 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 in order to make the statements
therein not misleading, or
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<PAGE> 22
that the Prospectus and the Prospectus Supplement, as of their respective dates,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Also, subject to the foregoing, no facts have come to such counsel's
attention in the course of the proceedings described in the second sentence of
this paragraph that caused him to believe that the Prospectus or the Prospectus
Supplement as of the date and time of delivery of such counsel's letter contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Such counsel need express no view, opinion or belief, however, with
respect to financial statements, schedules or notes thereto or other financial
or statistical data included or incorporated by reference in or omitted from the
Registration Statement or Prospectus.
iii
<PAGE> 1
EXHIBIT 4.2
================================================================================
TENNESSEE GAS PIPELINE COMPANY
ISSUER
AND
THE CHASE MANHATTAN BANK
TRUSTEE
---------
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 9, 1998
TO
INDENTURE
DATED AS OF MARCH 4, 1997
---------
7% DEBENTURES DUE 2028
---------
================================================================================
<PAGE> 2
FOURTH SUPPLEMENTAL INDENTURE, dated as of October 9, 1998 (herein
called the "Fourth Supplemental Indenture"), between TENNESSEE GAS PIPELINE
COMPANY, a Delaware corporation (herein called the "Company"), having its
principal office at 1001 Louisiana Street, Houston, Texas 77002 and THE CHASE
MANHATTAN BANK, a banking corporation duly organized and existing under the
laws of the State of New York, as trustee under the Indenture referred to below
(herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Indenture, dated as of March 4, 1997 (herein called the "Original
Indenture"), providing for the issuance from time to time of one or more series
of the Company's unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), the terms of which are to be determined as
set forth in Section 301 of the Original Indenture; and WHEREAS, Section 901 of
the 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 $400,000,000, which series shall be designated
the 7% Debentures Due 2028 (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 Fourth Supplemental Indenture has been duly taken;
and
WHEREAS, all acts and things necessary to make the Debentures, when
executed by the Company and completed, authenticated and delivered by the
Trustee as provided in the Original Indenture and this Fourth Supplemental
Indenture, 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, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and the issuance of the
Debentures, the Company covenants and agrees with the Trustee, for the equal
and proportionate benefit of all holders of the Debentures, as follows:
ARTICLE I
TERMS AND ISSUANCE OF 7% DEBENTURES DUE 2028
Section 1.01 Issue of Debentures. A series of Securities which
shall be designated the "7% Debentures Due 2028" 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 Fourth
Supplemental Indenture (including the form of Debentures referred to in Section
1.02 hereof). The aggregate
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<PAGE> 3
principal amount of Debentures which may be authenticated and delivered under
the Original Indenture shall not, except as permitted by the provisions of the
Original Indenture, exceed $400,000,000. 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 303 of the Indenture.
Section 1.02 Forms of Debentures and Authentication Certificate.
The Debentures initially shall be issuable in the form of one or more Global
Securities. The forms of the Debentures and the Trustee's certificate of
authentication shall be substantially as set forth on Exhibit A hereto.
ARTICLE II
MISCELLANEOUS
Section 2.01 Execution as Supplemental Indenture. This Fourth
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Fourth 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 2.02 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 Fourth
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 2.03 Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Fourth Supplemental
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
Section 2.04 New York Contract. THIS FOURTH SUPPLEMENTAL
INDENTURE AND EACH DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 2.05 Execution and Counterparts. This Fourth Supplemental
Indenture may be executed with counterpart signature pages or in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument.
Section 2.06 Capitalized Terms. Capitalized terms not otherwise
defined in this Fourth Supplemental Indenture shall have the respective
meanings assigned to them in the Original Indenture.
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<PAGE> 4
IN WITNESS WHEREOF, said TENNESSEE GAS PIPELINE COMPANY has caused
this Fourth 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 Fourth Supplemental Indenture to be
executed in its corporate name by one of its Second Vice Presidents as of
October 9, 1998.
TENNESSEE GAS PIPELINE COMPANY
By: /s/ H. BRENT AUSTIN
---------------------------------
Name: H. Brent Austin
Title: Executive Vice President
THE CHASE MANHATTAN BANK
By: /s/ R. J. HALLERAN
---------------------------------
Name: R. J. Halleran
Title: Second Vice President
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<PAGE> 5
EXHIBIT A
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE
FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TENNESSEE GAS PIPELINE COMPANY
7% DEBENTURE DUE 2028
NO. U.S.$
CUSIP No. 880451AV1
TENNESSEE GAS PIPELINE COMPANY, a corporation duly incorporated and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of __________________________________ United States Dollars
on October 15, 2028, and to pay interest thereon from October 9, 1998, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on April 15 and October 15 in each year, commencing
April 15, 1999, at the rate of 7% per annum, until the principal hereof is paid
or made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the April 1 or October 1 (whether
or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date
and shall either be paid to the Person
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<PAGE> 6
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice of which shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at such time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of and premium, if any, and interest on this
Security will be made by transfer of immediately available funds to a bank
account in New York, New York designated by the Holder in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
TENNESSEE GAS PIPELINE COMPANY
By:
---------------------------
Name:
Title:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
AS TRUSTEE
By:
---------------------------
Name:
Title:
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<PAGE> 7
TENNESSEE GAS PIPELINE COMPANY
7% DEBENTURE DUE 2028
This Security is one of a duly authorized issue of Securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture dated as of March 4, 1997 (the "Indenture"), between the Company
and The Chase Manhattan Bank, as Trustee (the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, may be
subject to different covenants and Events of Default and may otherwise vary as
in the Indenture provided or permitted. This Security is one of a series of
Securities designated on the face hereof limited in aggregate principal amount
to U.S. $400,000,000.
The Securities of this series are redeemable, upon not less than 30
nor more than 60 days' notice by mail, 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 the principal amount thereof and (ii) as determined by an Independent
Investment Banker, the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate, plus, in each case, accrued and unpaid
interest thereon to the date of redemption, but interest installments whose
Stated Maturity is on or prior to such date of redemption will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual 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 date of redemption, plus 0.40%.
"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 to be redeemed 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 such Debentures.
"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 date of redemption, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 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
A-3
<PAGE> 8
prices on such business day, (A) the average of the Reference Treasury Dealer
Quotations for such date of redemption, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or (B) if the Trustee obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of Donaldson, Lufkin & Jenrette
Securities Corporation, Chase Securities Inc. and NationsBanc Montgomery
Securities LLC, and their respective successors; provided, however, that if any
of the foregoing shall not 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.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any date of redemption, 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 date of redemption.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of not less than the Holders of a majority in aggregate principal
amount of the Outstanding Securities of all series to be affected (voting as
one class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
affected series (voting as one class), on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture. The Indenture permits, with certain exceptions as
therein provided, the Holders of a majority in aggregate principal amount of
Securities of all affected series then Outstanding (voting as a single class)
to waive past defaults under the Indenture with respect to such Securities and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of
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<PAGE> 9
a receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of all affected securities at
the time Outstanding (treated as a single class) shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
the Securities of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or interest hereon on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security at the times, place(s) and rate, and in the coin or
currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for
Definitive Securities except in the limited circumstances provided in the
Indenture.
The holders of beneficial interests in this Global Security will not
be entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders hereof for
any purpose under the Indenture.
The Securities of this series are issuable only in registered form,
without coupons, in denominations of U.S. $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, the Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement of or
contained in the Indenture or of or contained in any Security, or for any claim
based thereon or otherwise in respect thereof, or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor Person, either directly or through
the Company or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment, penalty or
otherwise; it being expressly understood that all such liability is hereby
A-5
<PAGE> 10
expressly waived and released by the acceptance hereof and as a condition of,
and as part of the consideration for, the Securities and the execution of the
Indenture.
The Indenture provides that the Company (a) will be discharged from
any and all obligations in respect of the Securities (except for certain
obligations described in the Indenture), or (b) need not comply with certain
restrictive covenants of the Indenture, in each case if the Company deposits,
in trust, with the Trustee money or U.S. Government Obligations (or a
combination thereof) which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay all the principal of and interest of the Securities,
but such money need not be segregated from other funds except to the extent
required by law.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-6
