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Exhibit 4(A)-4
CALCULATION AGENT AGREEMENT
THIS AGREEMENT dated as of , between Texas Eastern Transmission
Corporation (hereinafter called the "Issuer"), having its principal office at
5400 Westheimer Court, Houston, Texas 77251, and The Chase Manhattan Bank, a
New York banking corporation (hereinafter sometimes called the "Calculation
Agent" which term shall, unless the context shall otherwise require, include
its successors and assigns), having its principal corporate trust office at 450
West 33rd Street, New York, New York 10001.
Recitals of the Issuer
The Issuer proposes to issue from time to time senior notes (the "Notes") under
an Indenture dated as of , 2000 (the "Indenture"), between the Issuer and
The Chase Manhattan Bank, as Trustee. Capitalized terms used in this Agreement
and not otherwise defined herein are used as defined in the Indenture. Certain
of the Notes may bear interest at one of several floating rates determined by
reference to an interest rate formula (the "Floating Rate Notes") and the
Issuer desires to engage the Calculation Agent to perform certain services in
connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Chase Manhattan Bank as Calculation Agent
for the Floating Rate Notes, upon the terms and subject to the conditions
herein mentioned, subject to the Issuer's right to designate a different
party as Calculation Agent in the Prospectus Supplement relating to the
Floating Rate Notes, and The Chase Manhattan Bank hereby accepts such
appointment. This appointment shall apply only to those series of Floating
Rate Notes for which no other Calculation Agent is designated in the
applicable Prospectus Supplement relating to the Floating Rate Notes and
the term "Floating Rate Notes" in this Agreement shall mean only Floating
Rate Notes as to which this appointment applies. Subject to the foregoing,
the Calculation Agent shall act as an agent of the Issuer for the purpose
of determining the interest rate or rates of the Floating Rate Notes.
2. The Issuer agrees to deliver to the Calculation Agent, prior to the
issuance of any Floating Rate Notes, copies of the proposed forms of such
Notes, including copies of the terms and conditions relating to the
determination of the interest rate thereunder. The Issuer shall not issue
any Floating Rate Note prior to the receipt of confirmation from the
Calculation Agent of its acceptance of the proposed form of such Note.
3. The Issuer shall notify the Calculation Agent of the issuance of any
Floating Rate Notes prior to the issuance thereof and at the time of such
issuance shall deliver to the Calculation Agent the information required to
be provided by the Issuer for the calculation of the applicable interest
rates thereunder. The Calculation Agent shall calculate the applicable
interest rates for Floating Rate Notes in accordance with the terms of such
Notes, the Indenture and the provisions of this Agreement.
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4. Upon the determination of an interest rate applicable to a Floating Rate
Note, the Calculation Agent shall promptly notify the Issuer, the Trustee
and any Paying Agent of such interest rate. Upon the request of the holder
of a Floating Rate Note, the Calculation Agent shall advise such holder of
the interest rate then in effect and, if different, the interest rate which
will become effective as a result of a determination already made with
respect to such Floating Rate Note.
5. The Issuer will pay such compensation as shall be agreed upon with the
Calculation Agent and the out-of-pocket expenses, including reasonable
counsel fees, incurred by the Calculation Agent in connection with its
duties hereunder, upon receipt of such invoices as the Issuer shall
reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes or the
Indenture, the Issuer will indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions or demands which it may incur
or sustain or which may be made against it in connection with its
appointment or the exercise of its powers and duties hereunder as well as
the reasonable costs, including the reasonable expenses and fees of counsel
in defending any claim, action or demand, except such as may result from
the gross negligence, wilful misconduct or bad faith of the Calculation
Agent or any of its employees or agents. The Calculation Agent shall give
the Issuer prompt notice of any such claim, action or demand known to it,
but failure to do so shall not affect the indemnity provided hereby. Except
as provided in the preceding sentence, the Calculation Agent shall incur no
liability and shall be indemnified and held harmless by the Issuer for, or
in respect of, any actions taken or suffered to be taken in good faith by
the Calculation Agent in reliance upon (i) the written opinion or advice of
counsel or (ii) written instructions from an officer of the Issuer.
7. The Calculation Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the
Issuer agrees:
(i) in acting under this Agreement and in connection with the Floating
Rate Notes, the Calculation Agent, acting as agent for the Issuer, does
not assume any obligation toward, or any relationship of agency or
trust for or with, any of the holders of such Floating Rate Notes;
(ii) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Issuer made or
given under any provisions of this Agreement shall be sufficient if
signed by any person whom the Calculation Agent reasonably believes to
be a duly authorized officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform only such
duties as are set forth specifically herein, in the Floating Rate Notes
or in the Indenture and any duties necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken
or anything suffered by it in reliance upon any provision contained in
a Floating Rate Note, the Indenture or any information supplied to it
by an officer of the Issuer pursuant to this Agreement, including the
information to be supplied pursuant to paragraph 3 above;
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(v) the Calculation Agent, whether acting for itself or in any other
capacity, may become the owner or pledgee of Notes with the same rights
as it would have had if it were not acting hereunder as Calculation
Agent;
(vi) the Calculation Agent shall incur no liability hereunder except
for loss sustained by reason of its or its employees' or agents' gross
negligence, wilful misconduct or bad faith; and
(vii) in no event shall the Calculation Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Calculation
Agent has been advised of the likelihood of such loss or damage and
regardless of the form of action.
8. (a) The Issuer agrees to notify the Calculation Agent at least three
Business Days prior to the issuance of any Floating Rate Note with an
interest rate to be determined by any formula that would require the
Calculation Agent to select banks or other financial institutions (the
"Reference Banks") for purposes of quoting rates. Immediately prior to
seeking such quotes from such Reference Banks, the Calculation Agent will
notify the Issuer and the Trustee of the names and addresses of such
Reference Banks. The Calculation Agent shall not be responsible to the
Issuer or any third party for any failure of the Reference Banks to fulfill
their duties or meet their obligations as Reference Banks or as a result of
the Calculation Agent having acted (except in the event of gross
negligence, wilful misconduct or bad faith) on any quotation or other
information given by any Reference Bank which subsequently may be found to
be incorrect.
(b) Except as provided below, the Calculation Agent may at any time resign
as Calculation Agent by giving written notice to the Issuer and the Trustee
of such intention on its part, specifying the date on which its desired
resignation shall become effective, provided that such notice shall be
given not less than 60 days prior to the said effective date unless the
Issuer agrees in writing. The Calculation Agent may be removed by the
filing with it and the Trustee of an instrument in writing signed by the
Issuer specifying such removal and the date when it shall become effective.
Any resignation or removal of the Calculation Agent shall take effect only
upon:
(i) the appointment by the Issuer as hereinafter provided of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor Calculation
Agent; provided, however, that in the event the Calculation Agent has
given not less than 60 days' prior notice of its desired resignation,
and during such 60 days there has not been acceptance by a successor
Calculation Agent of its appointment as successor Calculation Agent,
the Calculation Agent so resigning may petition any court of competent
jurisdiction for the appointment of a successor Calculation Agent. The
Issuer covenants that it shall appoint a successor Calculation Agent as
soon as practicable after receipt of any notice of resignation
hereunder. Upon its resignation or removal becoming effective, the
retiring Calculation Agent shall be entitled to the payment of all
compensation and the reimbursement of its expenses (including
reasonable counsel fees) incurred by such retiring Calculation Agent,
in accordance with paragraph 5 hereof, to the date such resignation or
removal becomes effective.
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(c) If at any time the Calculation Agent shall resign or be removed, or
shall become incapable of acting or shall be adjudged bankrupt or
insolvent, or liquidated or dissolved, or an order is made or an effective
resolution is passed to wind up the Calculation Agent, or if the
Calculation Agent shall file a voluntary petition in bankruptcy or make an
assignment for the benefit of its creditors, or shall consent to the
appointment of a receiver, administrator or other similar official of all
or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a receiver,
administrator or other similar official of the Calculation Agent or of all
or any substantial part of its property shall be appointed, or if any order
of any court shall be entered approving any petition filed by or against
the Calculation Agent under the provisions of any applicable bankruptcy or
insolvency law, or if any public officer shall take charge or control of
the Calculation Agent or its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then a successor Calculation
Agent shall be appointed by the Issuer by an instrument in writing filed
with the predecessor Calculation Agent, the successor Calculation Agent and
the Trustee. Upon the appointment as aforesaid of a successor Calculation
Agent and acceptance by the latter of such appointment the former
Calculation Agent shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall execute and
deliver to its predecessor, the Issuer and the Trustee an instrument
accepting such appointment hereunder, and thereupon such successor
Calculation Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, immunities, duties
and obligations of such predecessor with like effect as if originally named
as the Calculation Agent hereunder, and such predecessor shall thereupon
become obliged to transfer and deliver, and such successor Calculation
Agent shall be entitled to receive, copies of any relevant records
maintained by such predecessor Calculation Agent.
(e) Any corporation into which the Calculation Agent may be merged or
converted or any corporation with which the Calculation Agent may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Calculation Agent
under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto. Notice of any such
merger, conversion or consolidation shall forthwith be given to the Issuer
and the Trustee.
(f) The provisions of paragraph 6 hereof shall survive any resignation or
removal hereunder.
9. Any notice required to be given hereunder shall be delivered in person
against written receipt, sent by letter or telecopy or communicated by
telephone (subject, in the case of communication by telephone, to
confirmation dispatched within two Business Days by letter or telecopy), in
the case of the Issuer, to it at the address set forth in the heading of
this Agreement, Attention: Treasurer; in the case of the Calculation Agent,
to it at the address set forth in the heading of this Agreement, Attention:
Capital Markets Fiduciary Services; in the case of the Trustee, to it at
450 West 33rd Street, New York, New York 10001, Attention: Capital Markets
Fiduciary Services; or, in any case, to any other address of which the
party receiving notice shall have notified the party giving such notice in
writing.
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10. This Agreement may be amended only by a writing duly executed and
delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
12. This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the
day and year first above written.
Texas Eastern Transmission
Corporation
By: _________________________________
Title:
The Chase Manhattan Bank
By: _________________________________
Title:
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