FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The
Securities Exchange Act of 1934
Date of Report: April 13, 1994
TEXAS GAS TRANSMISSION CORPORATION
(Exact name of registrant as specified in charter)
Delaware 1-4169 61-0405152
(State or other (Commission (IRS Employer
jurisidiction of File Number) Identification No.)
incorporation)
3800 Frederica Street, Owensboro, Kentucky 42301
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (502) 926-8686
<PAGE>
Item 7. Financial Statements and Exhibits.
The following documents are included as exhibits hereto. These
documents are being filed in connection with the sale of $150,000,000 of
Texas Gas Transmission Corporation 8-5/8% Notes due April 1, 2004 pursuant
to its Registration Statement on Form S-2 under the Securities Act of 1933
(Registration No. 33-52707), which became effective March 28, 1994.
Sequentially
Numbered
Exhibit Number Page
4.1 Purchase Agreement dated March 29, 1994
by and between Texas Gas Transmission
Corporation and the Underwriters named in
Schedule A attached thereto.
4.2 Indenture dated April 11, 1994 by and
between Texas Gas Transmission
Corporation and The Chase Manhattan Bank
(National Association).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has caused this report to be signed on its behalf by the
undersigned hereto duly authorized.
TEXAS GAS TRANSMISSION
CORPORATION
(Registrant)
By: /s/ Larry J. Dagley
Larry J. Dagley
Senior Vice President and Chief
Financial Officer
Dated: April 13, 1994
CONFORMED COPY
TEXAS GAS TRANSMISSION CORPORATION
(a Delaware corporation)
$150,000,000
8 5/8% Notes Due 2004
PURCHASE AGREEMENT
Dated: March 29,1994
TEXAS GAS TRANSMISSION CORPORATION
(a Delaware corporation)
$150,000,000
8 5/8% Notes Due 2004
PURCHASE AGREEMENT
March 29, 1994
MERRILL LYNCH & CO.
CITICORP SECURITIES, INC.
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
As Representative of the Underwriters
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies & Gentlemen:
TEXAS GAS TRANSMISSION CORPORATION, a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters named in
Schedule A (the "Underwriters"), for whom you are acting as
representative (the "Representative"), $150,000,000 aggregate principal
amount of its 8 5/8% Notes due 2004 (the "Notes"). The Notes are to be
sold to each Underwriter, acting severally and not jointly, in the
respective principal amounts set forth in Schedule A opposite the name
of such Underwriter. The Notes are to be issued pursuant to an
indenture dated as of April 11, 1994 (the "Indenture") between the
Company and Chase Manhattan Bank, National Association (the "Trustee").
The Notes and the Indenture are more fully described in the Prospectus
referred to below.
You have advised us that you and the other Underwriters, acting
severally and not jointly, desire to purchase the Notes and that you
have been authorized by the other Underwriters to execute this Agreement
on their behalf.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form
S-2 (File No. 33-52707) covering the registration of the Notes under the
Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus, or prospectuses, and either (A) has
prepared and proposes to file, prior to the effective date of such
registration statement, an amendment to such registration statement,
including a final prospectus or (B) if the Company has elected to rely
upon Rule 430A of the rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations"), will prepare and file a
prospectus in accordance with the provisions of Rule 430A and Rule
424(b) of the 1933 Act Regulations. The information, if any, included
in such prospectus that was omitted from the prospectus included in such
registration statement at the time it becomes effective but that is
deemed, pursuant to Rule 430A(b), to be part of the registration
statement at the time it becomes effective is referred to herein as the
"Rule 430A Information". Each prospectus before the time such
registration statement becomes effective, and any prospectus that omits
the Rule 430A Information that is used after such effectiveness and
prior to the execution and delivery of this Agreement, is hereinafter
referred to as the "Preliminary Prospectus". Such registration
statement, including the exhibits thereto and the documents incorporated
by reference therein pursuant to Item 12 of Form S-2 under the 1933 Act,
as amended at the time it becomes effective and including, if
applicable, the Rule 430A Information, is herein called the
"Registration Statement", and the prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-2 under
the 1933 Act, included in the Registration Statement at the time it
becomes effective, is hereinafter referred to as the "Prospectus",
except that, if the final prospectus furnished to the Underwriters after
the execution of this Agreement for use in connection with the offering
of the Notes differs from the prospectus included in the Registration
Statement at the time it becomes effective (whether or not such
prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to the final prospectus furnished to the
Underwriters for such use.
The Company understands that the Underwriters propose to make a
public offering of the Notes as soon as you deem advisable after the
Registration Statement becomes effective, this Agreement has been
executed and delivered and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
SECTION 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with each of the Underwriters
that:
(i) The Company meets the requirements for use of Form
S-2 under the 1933 Act.
(ii) When the Registration Statement shall become
effective and at all times subsequent thereto up to the Closing
Time referred to below: (A) the Registration Statement and any
amendments and supplements thereto will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the Indenture will comply in all material
respects with the requirements of the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"); (B) neither the Registration Statement nor any
amendment nor supplement thereto will 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 not
misleading; and (C) neither the Prospectus nor any amendment or
supplement thereto will include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, except that this
representation and warranty does not apply to statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf
of any Underwriter through you expressly for use in the
Registration Statement or the Prospectus.
(iii) The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-2 under the 1933 Act, at
the time they were filed with the Commission, complied in all
material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together and with the other
information in the Prospectus, at the time the Registration
Statement becomes effective and at all times subsequent thereto
up to the Closing Time, will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein not misleading.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
(v) Arthur Andersen & Co., who are reporting upon
the audited financial statements and schedules included or
incorporated by reference in the Registration Statement, are
independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(vi) The consolidated financial statements included
or incorporated by reference in the Registration Statement
present fairly the consolidated financial position of the
Company and its subsidiary as of the dates indicated and the
consolidated results of operations and cash flows of the
Company and its subsidiary for the periods specified. Such
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The
financial statement schedules, if any, included in the
Registration Statement present fairly the information
required to be stated therein. The selected financial data
included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent
with that of the audited consolidated financial statements
included or incorporated by reference in the Registration
Statement. The pro forma financial statements, if any, and
other pro forma financial information included or
incorporated by reference in the Registration Statement, if
any, present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and
guidelines with respect to pro form financial statements,
have been properly compiled on the pro forma basis described
therein, and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein. Since
the respective dates of such financial statement, there has
been no material adverse change in the condition (financial
or otherwise), earnings, business affairs or business
prospects of the Company, other than as disclosed in the
Prospectus.
(vii) The Company is a corporation validly existing
and in good standing under the laws of the State of Delaware
with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as
described in the Prospectus; and the Company is duly
qualified to transact business as a foreign corporation and
is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of
a type, that would make such qualification necessary, except
to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the
Company.
(viii) The Company has no subsidiaries.
(ix) Transco Energy Company, a Delaware corporation
("Transco"), is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware with corporate power and authority under such laws
to own, lease and operate its properties and conduct its
business as described in the Prospectus; and Transco is duly
qualified to transact business as a foreign corporation and
is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of
a type, that would make such qualification necessary, except
to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on Transco
and its subsidiaries, considered as one enterprise.
(x) The Indenture has been duly authorized by the
Company. The Indenture as executed is or will be
substantially in the form filed as an exhibit to the
Registration Statement. The Indenture, when duly executed
and delivered (to the extent required by the Indenture) by
the Company and the Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Indenture conforms
to the description thereof contained in the Prospectus.
(xi) The Notes have been duly authorized by the
Company. When executed, authenticated, issued and delivered
in the manner provided for in the Indenture and sold and paid
for as provided herein, the Notes will constitute valid and
binding obligations of the Company entitled to the benefits
of the Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Notes conform to the
description thereof contained or incorporated by reference in
the Prospectus and such description conforms to the rights
set forth in the instruments defining the same.
(xii) The Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the
Prospectus under the caption "Capitalization".
(xiii) All of the outstanding shares of capital
stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable; no holder
thereof is or will be subject to personal liability by reason
of being such a holder; and none of the outstanding shares of
common stock of the Company ("Common Stock") was issued in
violation of the preemptive rights of any stockholder of the
Company.
(xiv) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein or
contemplated thereby, there has not been (A) any material
adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of
business, or (B) any transaction entered into by the Company,
other than in the ordinary course of business, that is
material to the Company.
(xv) Neither Transco or a subsidiary of Transco
which is a significant subsidiary (each a "Significant
Subsidiary") as defined in Rule 405 of Regulation C of the
1933 Act Regulations, nor the Company is in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound
or to which any of its properties may be subject, except for
such defaults that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business
affairs or business prospects of Transco and its
subsidiaries, considered as one enterprise, or the Company.
The execution and delivery by the Company of this Agreement
and the Indenture, the issuance and delivery of the Notes,
the consummation by the Company of the transactions
contemplated in this Agreement and in the Registration
Statement and compliance by the Company with the terms of
this Agreement and the Indenture have been duly authorized by
all necessary corporate action on the part of the Company and
do not and will not result in any violation of the charter or
by-laws of Transco, its Significant Subsidiaries or the
Company and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of
Transco, its Significant Subsidiaries or the Company under
(A) any indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which Transco, its
Significant Subsidiaries or the Company is a party or by
which they may be bound or to which any of their respective
properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of Transco and its subsidiaries,
considered as one enterprise, or the Company) or (B) any
existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over Transco,
its Significant Subsidiaries or the Company or any of their
respective properties.
(xvi) Except as disclosed in the Prospectus, there
is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of the Company, threatened
against or affecting the Company that is required to be
disclosed in the Prospectus or that reasonably could be
expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business
affairs or business prospects of the Company, or that
reasonably could be expected to materially adversely effect
the properties or assets of the Company, or that could
adversely affect the consummation of the transactions
contemplated in this Agreement; the aggregate of all pending
legal or governmental proceedings to which the Company is a
party or which affect any of its properties that are not
described in the Prospectus, including ordinary routine
litigation incidental to its business, would not have a
material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects
of the Company.
(xvii) There are no contracts or documents of a
character required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated as
exhibits to the Registration Statement that are not described
and filed or incorporated as required.
- - (xviii) The Company has good and marketable title to
all properties and assets described in the Prospectus as
owned by them, free and clear of all liens, charges,
encumbrances or restrictions, except such as (A) are
described in the Prospectus or (B) are neither material in
amount nor materially significant in relation to the business
of the Company; except as described in the Prospectus, all of
the leases and subleases material to the business of the
Company, and under which the Company holds properties
described in the Prospectus, are in full force and effect,
and the Company does not have any notice of any material
claim of any sort that has been asserted by anyone adverse to
the rights of the Company under any of the leases or
subleases mentioned above, or affecting or questioning the
rights of such corporation to the continued possession of the
leased or subleased premises under any such lease or
sublease.
(xix) The Company owns, possesses or has obtained
all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate
its properties and to carry on its business as presently
conducted, and, except as disclosed in the Prospectus, the
Company has not received any notice of proceedings relating
to revocation or modification of any such licenses, permits,
certificates, consents, orders, approvals or authorizations.
(xx) The Company owns or possesses, or can acquire
on reasonable terms, adequate patents, patent licenses,
trademarks, service marks and trade names necessary to carry
on its businesses as presently conducted, and the Company has
[not] received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names that in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, could materially adversely affect the
condition (financial or otherwise), earnings, business
affairs or business prospects of the Company.
(xxi) To the best knowledge of the Company, no labor
problem exists with its employees or is imminent that could
adversely affect the Company and the Company is not aware of
any existing or imminent labor disturbance by the employees
of any of its principal suppliers, contractors or customers,
in each case that could be expected to materially adversely
affect the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company.
(xxii) The Company has not taken and will not take,
directly or indirectly, any action designed to, or that might
be reasonably expected to, cause or result in stabilization
or manipulation of the price of the Notes.
(xxiii) The Company is not a "holding company" as
defined in Section 2(a)(7) of the Public Utility Holding
Company Act of 1935.
(xxiv) No authorization, approval, consent, permit
or license of any government, governmental instrumentality or
court, domestic or foreign (other than under the 1933 Act,
the 1939 Act or the securities or Blue Sky laws of the
various states) is required for the valid authorization,
issuance, sale and delivery of the Notes or for the
execution, delivery or performance of the Indenture by the
Company.
(b) Any certificate signed by any officer of the Company or
its subsidiary and delivered to you or to counsel for the
Underwriters in connection with the offering of the Notes shall be
deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
SECTION 2. Purchase, Sale and Delivery to the Underwriters;
Closing. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase
price of 98.125% of the principal amount thereof plus accrued interest,
if any, from
April 11, 1994 to the Closing Time (as defined below), the principal
amount of Notes set forth opposite the name of such Underwriter in
Schedule A hereto.
(b) Payment of the purchase price for, and delivery of, the
Notes shall be made at the offices of Shearman & Sterling, 599
Lexington Avenue, New York, New York 10022, or at such other place
as shall be agreed upon by the Company and you, at either (i)
10:00 A.M. on April 11, 1994 or (ii) if the Company has elected to
rely upon Rule 430A, the fifth full business day after execution
of this Agreement (unless, in either case, postponed pursuant to
Section l4), or at such other time as you and the Company shall
determine (such date and time of payment and delivery being herein
called the "Closing Time"). Payment shall be made to the Company
by certified or official bank check or checks in New York Clearing
House or similar next day funds payable to the order of the
Company, against delivery to you for the respective accounts of
the several Underwriters of the Notes to be purchased by them.
(c) The Notes to be purchased by the Underwriters shall be
in such denominations and registered in such names as you may
request in writing at least two full business days before the
Closing Time. The certificates for the Notes will be made
available in New York City for examination and packaging by you
not later than 10:00 A.M. on the business day prior to the Closing
Time.
(d) It is understood that each Underwriter has authorized
you, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Notes that it has agreed to
purchase. You, individually and not as Representative, may (but
shall not be obligated to) make payment of the purchase price for
the Notes to be purchased by any Underwriter whose check or checks
shall not have been received by the Closing Time.
SECTION 3. Certain Covenants of the Company. The Company
covenants with each Underwriter as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective (and, if the Company
elects to rely upon Rule 430A and subject to Section 3(b)hereof, will
comply with the requirements of Rule 430A) and will notify you
immediately, and confirm the notice in writing, (i) when the
Registration Statement, or any post-effective amendment to the
Registration Statement, shall have become effective, or any
supplement to the Prospectus, or any amended Prospectus, shall have
been filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional
information and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes. The Company
will use every reasonable effort to prevent the issuance of any such
stop order or of any order preventing or suspending such use and, if
any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment of or
supplement (i) if the Company has not elected to rely upon Rule 430A,
to the Prospectus or (ii) if the Company has elected to rely upon
Rule 430A, to the prospectus included in the Registration Statement
at the time it becomes effective (including, in each case, amendments
of the documents incorporated by reference therein), of which you
shall not have previously been advised and furnished a copy or to
which you or counsel for the Underwriters shall object.
(c) The Company has furnished or will furnish to you as many
signed copies of the Registration Statement as originally filed and
of all amendments thereto, whether filed before or after the
Registration Statement becomes effective, copies of all exhibits and
documents filed therewith (including documents incorporated by
reference into the Prospectus pursuant to Item 12 of Form S-2 under
the 1933 Act) and signed copies of all consents and certificates of
experts as you may reasonably request and has furnished or will
furnish to you, for each other Underwriter, one conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (including documents incorporated by reference into the
Prospectus but without exhibits).
(d) The Company will deliver to each Underwriter, without
charge, from time to time until the effective date of the
Registration Statement (or, if the Company has elected to rely upon
Rule 430A, until the time this Agreement is executed and delivered),
as many copies of each preliminary prospectus as such Underwriter may
reasonably request, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will
deliver to each Underwriter, without charge, as soon as the
Registration shall have become effective (or, if the Company has
elected to rely upon Rule 430A, as soon as practicable after this
Agreement has been executed and delivered) and thereafter from time
to time as requested during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of copies of
the Prospectus (as supplemented or amended) as such Underwriter may
reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act Regulations and the 1939 Act and the 1939 Act
Regulations so as to permit the completion of the distribution of the
Notes as contemplated herein and in the Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Notes any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of either such counsel, at
any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements. Neither the Underwriters'
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 5.
(f) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions
as you may reasonably request and to maintain such qualifications in
effect for a period of not less than one year from the effective date
of the Registration Statement; provided, however, that the Company
shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company
will file such statements and reports as may be required by the laws
of each jurisdiction in which the Notes have been qualified as above
provided. The Company will also supply you with such information as
is necessary for the determination of the legality of the Notes for
investment under the laws of such jurisdictions as you may request.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a period of 12 months beginning after
the effective date of the Registration Statement but not later than
the first day of the Company's fiscal quarter next following such
effective date.
(h) The Company will use the net proceeds received by it from
the sale of the Notes in the manner specified in the Prospectus under
the caption "Use of Proceeds".
(i) For a period of five years after the Closing Time, the
Company will furnish to each Underwriter, upon request, copies of all
annual reports, quarterly reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms
as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to its
stockholders generally.
(j) For a period of 90 days from the date of this Agreement,
the Company will not, without the prior written consent of Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith, offer or sell, or
enter into any agreement to sell, any debt securities issued or
guaranteed by the Company with a maturity of more than one year in
any public offering (other than the Notes).
(k) If the Company has elected to rely upon Rule 430A, it will
take such steps as it deems necessary to ascertain promptly whether
the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event it was not so
received, the Company will promptly file such prospectus with the
Commission.
(l) The Company has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida statutes, and all regulations promulgated thereunder relating
to issuers doing business in Cuba.
SECTION 4. Payment of Expenses. The Company will pay and bear
all costs and expenses incident to the performance of its obligations
under this Agreement, including (a) the preparation, printing and filing
of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, the preliminary
prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereof to the Underwriters,
(b) the preparation, printing and distribution of this Agreement, the
Indenture, the Notes and the Blue Sky Survey, (c) the issue and delivery
of the Notes to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) the qualification of the Notes
under the applicable securities laws in accordance with Section 3(f) and
any filing for review of the offering with the National Association of
Securities Dealers, Inc., including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the Blue Sky Survey, (f) any fees charged by
rating agencies for rating the Notes and (g) the fees and expenses of
the Trustee, including the fees and disbursements of counsel for the
Trustee, in connection with the Indenture and the Notes.
If this Agreement is terminated by you, in accordance with the
provisions of Section 5 or Section 9(a)(i), the Company shall reimburse
the Underwriters for all their out-of-pocket expenses, including the
fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters to purchase and pay for the
Notes that they have respectively agreed to purchase hereunder are
subject to the accuracy of the representations and warranties of the
Company contained herein, or in certificates of any officer of the
Company delivered pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder, and to the following
conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your
consent, at a later time and date not later, however, than 5:30 P.M.
on the first business day following the date hereof, or at such later
time or on such later date as you may agree to in writing with the
approval of a majority in interest of the several Underwriters; and,
at the Closing Time, no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act
and no proceedings for that purpose shall have been instituted or
shall be pending or, to your knowledge or the knowledge of the
Company, shall be contemplated by the Commission, and any request on
the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel for the Underwriters.
If the Company has elected to rely upon Rule 430A, a prospectus
containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, you shall have received a signed
opinion of: (I) David E. Varner, Esq., Senior Vice President,
Secretary and General Counsel of Transco and Secretary of the
Company, dated as of the Closing Time, together with signed or
reproduced copies of such opinion for each of the other Underwriters,
in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) The Company is a corporation validly existing and in
good standing under the laws of the State of Delaware with
corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in
the Prospectus.
(ii) The Company is duly qualified to transact business
as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or
be in good standing would not have a material adverse effect on
the Company.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(iv) All of the outstanding shares of Common Stock
have been duly authorized and validly issued and are fully
paid and nonassessable; no holder thereof is or will be
subject to personal liability by reason of being such a
holder; and none of the outstanding shares of Common Stock
were issued in violation of the preemptive rights of any
stockholder of the Company.
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
the heading "Capitalization".
(vi) The Notes have been duly authorized by the
Company and, assuming that the Notes have been duly
authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel
need not determine by an inspection of the Notes), the Notes
have been duly executed, issued and delivered by the Company
and constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or other similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(vii) No authorization, approval, consent or license
of any government, governmental instrumentality or court,
domestic or foreign body or authority (other than under the
1933 Act, 1939 Act and the securities or Blue Sky laws of the
various states) is required for the valid authorization,
issuance, sale and delivery of the Notes to be sold by the
Company.
(viii) The descriptions in the Registration Statement
and the Prospectus of the statutes, regulations, legal or
governmental proceedings, contracts and other documents
therein described are accurate and fairly present the
information required to be shown.
(ix) The Indenture has been duly qualified under
the 1939 Act.
(x) The Notes and the Indenture conform in all
material respects as to legal matters to the descriptions
thereof contained in the Prospectus.
(xi) Such counsel does not know of any statutes or
regulations or any pending or threatened legal or governmental
proceedings required to be described in the Prospectus which
are not described as required, or of any material contracts or
documents of a character required to be described or referred
to in the Registration Statement or the Prospectus or to be
filed or incorporated as exhibits to the Registration
Statement which are not described, referred to, filed or
incorporated as required.
(xii) This Agreement has been duly authorized,
executed and delivered by the Company.
(xiii) To the knowledge of such counsel, no default
exists in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred to in
the Registration Statement or the Prospectus or filed or
incorporated as an exhibit to the Registration Statement.
(xiv) The execution and delivery by the Company of
this Agreement, the Indenture, the issuance and delivery of
the Notes, the consummation by the Company of the transactions
contemplated herein and in the Registration Statement and
compliance by the Company with the terms of this Agreement and
the Indenture have been duly authorized by all necessary
corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of
Transco, its Significant Subsidiaries or the Company, and do
not and will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of Transco, its
Significant Subsidiaries or the Company under (A) any
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument known to such counsel, to which
Transco, its Significant Subsidiaries or the Company is a
party or by which they may be bound or to which any of their
respective properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business
affairs or business prospects of Transco and its subsidiaries,
considered as one enterprise, or the Company), (B) any
existing applicable law, rule or regulation (other than the
securities or Blue Sky laws of the various states, as to which
such counsel need express no opinion), or (C) any judgment,
order or decree of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over Transco, its Significant Subsidiaries or the
Company or any of their respective properties.
(xv) Except as disclosed in the Prospectus, there is
no action, suit or proceeding before or by any governmental
instrumentality or court, domestic or foreign, now pending or,
to the knowledge of such counsel, threatened against or
affecting the Company that is required to be disclosed in the
Prospectus or that reasonably could be expected to result in
any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects
of the Company, or that reasonably could be expected to
materially and adversely affect the properties or assets of
the Company, or that could adversely affect the consummation
of the transactions contemplated in this Agreement; the
aggregate of all pending legal or governmental proceedings to
which the Company is a party or which affect any of its
properties that are not described in the Prospectus, including
ordinary routine litigation incidental to its business, would
not have a material adverse effect on the condition (financial
or otherwise) earnings, business affairs or business prospects
of the Company.
(xvi) The Company is not a "holding company" as
defined in Section 2(a)(7) of the Public Utility Holding
Company Act of 1935.
(xvii) The Registration Statement is effective under
the 1933 Act; any required filing of the Prospectus or any
supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are contemplated under
the 1933 Act.
(xviii) The Registration Statement (including the
Rule 430A information, if applicable) and the Prospectus,
excluding the documents incorporated by reference therein, and
each amendment or supplement thereto (except for the financial
statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need
express no opinion), as of their respective effective or issue
dates, appear on their face to have been appropriately
responsive in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations, and the Indenture and
the Statement of Eligibility of the Trustee on Form T-1 filed
with the Commission as part of the Registration Statement
appear on their face to have been appropriately responsive in
all material respects to the requirements of the 1939 Act and
the 1939 Act Regulations.
(xix) The documents incorporated by reference in the
Prospectus (except for the financial statements and other
financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion,
and except to the extent that any statement therein is
modified or superseded in the Prospectus), as of the dates
they were filed with the Commission, appear on their face to
have been appropriately responsive in all material respects to
the requirements of the 1934 Act and the 1934 Act Regulations.
(xx) Such counsel has participated in the preparation
of the Registration Statement and the Prospectus and has
participated in the preparation of the documents incorporated
by reference therein and no facts have come to the attention
of such counsel to lead him to believe (A) that the
Registration Statement (including the Rule 430A information,
if applicable) or any amendment thereto (except for the
financial statements and other financial or statistical data
included therein or omitted therefrom and the Statement of
Eligibility of the Trustee on Form T-1, as to which such
counsel need express no opinion), on the effective date of the
Registration Statement, on the date of this Agreement, or on
the date any such amendment became effective after the date of
this Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (B) that the Prospectus or any amendment or
supplement thereto (except for the financial statements and
other financial or statistical data included therein or
omitted therefrom, as to which such counsel need express no
opinion), at the time the Prospectus was issued, at the time
any such amended or supplemented Prospectus was issued or at
the Closing Time, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or (C) that the documents incorporated by reference
in the Prospectus (except for the financial statements and
other financial or statistical data included therein or
omitted therefrom, as to which such counsel need express no
opinion), as of the dates they were filed with the Commission,
contained an untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(II) Skadden, Arps, Slate, Meagher, & Flom, dated as of the
Closing Time, together with signed or reproduced copies of such
opinion for each of the other Underwriters, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Registration Statement is effective under the
1933 Act, any required filing of the Prospectus or any
supplement thereto pursuant to Rule 424(b) has been made in
the manner and within the time period by Rule 424(b); and to
the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for the purpose have been
instituted or are pending or are contemplated under the 1933
Act.
(ii) The Registration Statement (including the Rule 430A
information, if applicable) and the Prospectus, excluding the
documents incorporated by reference therein (except for the
financial statements and other financial or statistical data
included therein or omitted therefrom, as to which such counsel
need express no opinion), as of their respective effective or
issue dates, appear on their face to have been appropriately
responsive in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations, and the Indenture and the
Statement of Eligibility of the Trustee on Form T-1 filed with
the Commission as part of the Registration Statement appear on
their face to have been appropriately responsive in all material
respects to the requirements of the 1939 Act and the 1939 Act
Regulations.
(iii) The documents incorporated by reference in the
Prospectus (except for the financial statements and other
financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion, and
except to the extent that any statement therein is modified or
suspended in the Prospectus), as of the dates they were filed
with the Commission, appear on their face to have been
appropriately responsive in all material respects to the
requirements of the 1934 Act and the 1934 Act Regulations.
(iv) Such counsel has participated in the preparation of
the Registration Statement and the Prospectus and no facts have
come to the attention of such counsel to lead them to believe (A)
that the Registration Statement (including the Rule 430A
Information, if applicable) or any amendment thereto (except for
the financial statements and other financial or statistical data
included therein or omitted therefrom and the Statement of
Eligibility of the Trustee on Form T-1, as to which such counsel
need express no opinion), on the effective date of the
Registration Statement, on the date of this Agreement or on the
date any such amendment became effective after the date of this
Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B)
that the Prospectus or any amendment or supplement thereto
(except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to
which such counsel need express no opinion), at the time the
Prospectus was issued, at the time any such amendment or
supplemented Prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Such opinions shall be to such further effect with respect to
other legal matters relating to this Agreement and the sale of the
Notes hereunder as counsel for the Underwriters may reasonably
request. In giving such opinions, each such counsel may state that,
insofar as such opinion involves factual matters, such counsel has
relied, to the extent such counsel deems proper, upon certificates of
officers of the Company and certificates of public officials;
provided that such certificates have been delivered to the
Underwriters.
(c) At the Closing Time, you shall have received the favorable
opinion of Shearman & Sterling, counsel for the Underwriters, dated
as of the Closing Time, together with signed or reproduced copies of
such opinion for each of the other Underwriters, to the effect that
the opinions delivered pursuant to Section 5(b) hereof appear on
their face to be appropriately responsive to the requirements of this
Agreement except, specifying the same, to the extent waived by you,
and with respect to the incorporation and legal existence of the
Company, the Notes, this Agreement, the Indenture, the Registration
Statement, the Prospectus, the documents incorporated by reference
and such other related matters as you may require. In giving such
opinion such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to
you. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and certificates
of public officials; provided that such certificates have been
delivered to the Underwriters.
(d) At the Closing Time, (i) the Registration Statement and
the Prospectus, as they may then be amended or supplemented, shall
contain all statements that are required to be stated therein under
the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the
1933 Act Regulations and the Indenture shall conform in all material
respects to the 1939 Act and the 1939 Act Regulations, the Company,
if it shall have elected to rely upon Rule 430A, shall have complied
in all material respects therewith and neither the Registration
Statement nor the Prospectus, as they may then be amended or
supplemented, shall 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 not misleading, (ii) there
shall not have been, since the respective dates as of which
information is given in the Registration Statement, any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of Transco, Transco and its
Significant Subsidiaries, considered as one enterprise, or the
Company, whether or not arising in the ordinary course of business,
(iii) no action, suit or proceeding at law or in equity shall be
pending or, to the knowledge of the Company, threatened against the
Company that would be required to be set forth in the Prospectus
other than as set forth therein and no proceedings shall be pending
or, to the knowledge of the Company, threatened against the Company
before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or
finding could materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company, other than as set forth in the Prospectus, (iv) the Company
shall have complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing
Time and (v) the other representations and warranties of the Company
set forth in Section 1(a) shall be accurate as though expressly made
at and as of the Closing Time. At the Closing Time, you shall have
received a certificate of the Senior Vice President and Chief
Financial Officer and the Vice President and Controller, of the
Company dated as of the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the
Company, you shall have received from Arthur Andersen & Co. a letter,
dated such date, in form and substance satisfactory to you, together
with signed or reproduced copies of such letter for each of the other
Underwriters, confirming that they are independent public accountants
with respect to the Company within the meaning of the 1933 Act and
applicable published 1933 Act Regulations, and stating in effect
that:
(i) in their opinion, the audited consolidated financial
statements and the related financial statement schedules included
or incorporated by reference in the Registration Statement and
the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the
1934 Act and the respective published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting
of a reading of the latest available unaudited interim financial
statements of the Company, a reading of the minutes of all
meetings of the stockholders and directors of the Company from
the date of the latest audited financial statements of the
Company, inquiries of certain officials of the Company
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) at a specified date not more than five
business days prior to the date of this Agreement, there was
any change in the capital stock or any increase in the long-
term debt of the Company or any decrease in the net assets or
shareholder's equity of the Company, in each case as compared
with amounts shown in the latest audited balance sheet included
or incorporated by reference in the Registration Statement,
except in each case for changes or decreases that the
Registration Statement discloses have occurred or may occur; or
(B) for the period from December 31, 1993 to a
specified date not more than five business days prior to the
date of this Agreement, there was any decrease in operating
revenues or in the total amount of net income (loss), in each
case as compared with the comparable period in the preceding
year, except in each case for any decreases that the
Registration Statement discloses have occurred or may occur;
(iii) in addition to the procedures referred to in
clause (ii) above, they have performed other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages, numerical data and financial information
appearing in the Registration Statement, which have previously
been specified by you and which shall be specified in such
letter, and have compared certain of such items with, and have
found such items to be in agreement with, the accounting and
financial records of the Company.
(f) At the Closing Time, you shall have received from Arthur
Andersen & Co. a letter, in form and substance satisfactory to you
and dated as of the Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to Section 5(e),
except that the specified date referred to shall be a date not more
than five business days prior to the Closing Time.
(g) At the Closing Time, counsel for the Underwriters shall
have been furnished with all such documents, certificates and
opinions as they may request for the purpose of enabling them to pass
upon the issuance and sale of the Notes as herein contemplated and
the matters referred to in Section 5(e) and in order to evidence the
accuracy and completeness of any of the representations, warranties
or statements of the Company, the performance of any of the covenants
of the Company, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company at or prior to
the Closing Time in connection with the authorization, issuance and
sale of the Notes as contemplated in this Agreement shall be
satisfactory in form and substance to you and to counsel for the
Underwriters.
(h) Between the date of this Agreement and the Closing Time,
there shall not have occurred any downgrading in the rating of any of
Transco's, its Significant Subsidiaries' or the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of Transco,
its Significant Subsidiaries or the Company (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating).
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement or the
Indenture to be fulfilled, this Agreement may be terminated by you, on
notice to the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other
party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in
effect.
SECTION 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred; arising out of an untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, if applicable, and
all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of an untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including fees and disbursements of counsel chosen
by you), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is
not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to
any loss, liability, claim, damage or expense to the extent arising
out of an untrue statement or omissionor alleged untrue statement
or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you
expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933
Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the
Rule 430A Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through
you expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, if
applicable, or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect
of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its
own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. Contribution. In order to provide for just and
equitable contributions in circumstances under which the indemnity
provided for in Section 6 is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its
terms, the Company and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by such indemnity agreement incurred by the Company
and one or more of the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by
the percentage that the underwriting discount bears to the initial
public offering price of the Notes and the Company is responsible for
the balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. 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
Notes 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. For purposes of this
Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made
pursuant to this Agreement will remain operative and in full force and
effect regardless of any investigation made by or on behalf of the
Company or any Underwriter or controlling person and will survive
delivery of and payment for the Notes.
SECTION 9. Termination of Agreement. (a) You may also
terminate this Agreement, by notice to the Company, at any time at or
prior to the Closing Time (i) if there has been, since the respective
dates as of which information is given in the Registration Statement,
any material adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company, whether
or not arising in the ordinary course of business or (ii) if there has
occurred any new outbreak of hostilities or the escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your
judgment, impracticable to market the Notes or enforce contracts for the
sale of the Notes or (iii) if trading in any securities of the Company
has been suspended by the Commission or the National Association of
Securities Dealers, Inc., or if trading generally on the New York Stock
Exchange or in the over-the-counter market has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges
for prices for securities have been required, by such exchange or by
order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority or (iv) if a banking moratorium
has been declared by either federal, New York or Texas authorities.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party
to any other party, except to the extent provided in Section 4.
Notwithstanding any such termination, the provisions of Sections
6, 7 and 8 shall remain in effect.
(c) This Agreement may also terminate pursuant to the
provisions of Section 2 or Section 10 hereof, with the effect
stated in each such Section.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time to purchase
the Notes that it or they are obligated to purchase hereunder (the
"Defaulted Notes"), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Notes in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, you have not completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Notes does not exceed 10% of
the aggregate principal of Notes, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the
proportions that their respective Notes underwriting obligation
proportions bear to the underwriting obligations of all non-
defaulting Underwriters; or
(b) if the number of Defaulted Notes exceeds 10% of the
aggregate principal of Notes, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein,
the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
you, c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated, at Merrill
Lynch World Headquarters, North Tower, World Financial Center, New York,
New York 10281-1201, Attention: Equity Markets Group, and notices to
the Company shall be directed to it c/o Transco Energy Company, 2800
Post Oak Boulevard, P.O. Box 1396, Houston, Texas 77251, Attention:
Corporate Secretary.
SECTION 12. Parties. The agreement herein set forth is made
solely for the benefit of the several Underwriters, the Company and, to
the extent expressed, any person controlling the Company or any of the
Underwriters, and the directors of the Company, its officers who have
signed the Registration Statement, and their respective executors,
administrators, successors and assigns and, subject to the provisions of
Section 10, no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from any of the several
Underwriters of the Securities. All of the obligations of the
Underwriters hereunder are several and not joint.
SECTION 13. Representative of Underwriters. You will act for
the several Underwriters in connection with this financing, and any
action under or in respect of this Agreement taken by you as
Representative will be binding upon all Underwriters.
SECTION 14. Governing Law and Time. This Agreement shall be
governed by the laws of the State of New York. Specified times of the
day refer to New York City time.
SECTION 15. Counterparts. This Agreement may be executed in one
or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the
same agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement between the Company and
the several Underwriters in accordance with its terms.
Very truly yours,
TEXAS GAS TRANSMISSION CORPORATION
By: /s/ Larry J. Dagley
Name: Larry J. Dagley
Title: Senior Vice President and
Chief Financial Officer
Confirmed and accepted as of the date
first above written:
MERRILL LYNCH & CO.
CITICORP SECURITIES, INC.
By: MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Rob L. Jones
Name: Rob L. Jones
<PAGE>
SCHEDULE A
Underwriters Principal Amount
of Notes
to be Purchased
Merrill Lynch & Co. 105,000,000
Citicorp Securities, Inc. 45,000,000
-------------
Total $150,000,000
-------------
-------------
CONFORMED COPY
TEXAS GAS TRANSMISSION CORPORATION,
Issuer
TO
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
Trustee
INDENTURE
Dated as of April 11, 1994
$150,000,000
of
8 5/8% Notes
Due 2004
<PAGE>
TEXAS GAS TRANSMISSION CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
311(a) 613
(b) 613
312(a) 701
702(a)
(b) 702(b)
(c) 702(c)
313(a) 703(a)
(b) 703(a)
(c) 703(a)
(d) 703(b)
314(a) 704
(a)(4) 101
102
1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
(continued on following page)
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
(continued from previous page)
TEXAS GAS TRANSMISSION CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
316(a) 101
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104(c)
317(a)(1) 503
(a)(2) 504
(b) 1003
318(a) 107
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS OF THE COMPANY 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101.Definitions . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . 2
Attributable Value. . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . 3
Capital Lease Obligation. . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets. . . . . . . 3
Consolidated Net Worth. . . . . . . . . . . 3
Consolidated Subsidiaries . . . . . . . . . 4
Corporate Trust Office. . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . 4
Debt. . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . 4
GAAP. . . . . . . . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . 5
Incur . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . 5
Lien. . . . . . . . . . . . . . . . . . . . . 5
Maturity. . . . . . . . . . . . . . . . . . 5
Net Available Proceeds. . . . . . . . . . . . 5
Notes . . . . . . . . . . . . . . . . . . . . 6
Note Register . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . 6
Opinion of Counsel. . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . 6
pari passu. . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . 7
Person. . . . . . . . . . . . . . . . . . . . 7
Pipeline Assets . . . . . . . . . . . . . . . 7
Transco . . . . . . . . . . . . . . . . . . . 7
Place of Payment. . . . . . . . . . . . . . . 7
Predecessor Note. . . . . . . . . . . . . . . 7
Redeemable Stock. . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . 8
Related Person. . . . . . . . . . . . . . . . 8
Sale and Leaseback Transaction. . . . . . . . 8
Special Record Date . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . 8
Subsidiary. . . . . . . . . . . . . . . . . . 8
Tangible Assets . . . . . . . . . . . . . . . 9
Texas Gas Guarantees. . . . . . . . . . . . . 9
Transco . . . . . . . . . . . . . . . . . . . 9
Transco Amended Bank Credit Facility. . . . . 9
Transco Reimbursement Facility. . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . 9
Vice President. . . . . . . . . . . . . . . . 10
Voting Stock. . . . . . . . . . . . . . . . 10
Wholly owned Subsidiary . . . . . . . . . . . 10
Section 102.Compliance Certificates and
Opinions. . . . . . . . . . . . . . . . . . 10
Section 103.Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . . 11
Section 104.Acts of Holders; Record Dates . . 11
Section 105.
Notices, Etc., to Trustee and Company . . . 13
Section 106.
Notice to Holders; Waiver . . . . . . . . . 13
Section 107.
Conflict with Trust Indenture Act . . . . . 13
Section 108.
Effect of Headings and Table of Contents. . 14
Section 109.
Successors and Assigns. . . . . . . . . . . 14
Section 110.
Separability Clause . . . . . . . . . . . . 14
Section 111.
Benefits of Indenture . . . . . . . . . . . 14
Section 112.
Governing Law . . . . . . . . . . . . . . . 14
Section 113.
Legal Holidays. . . . . . . . . . . . . . . 14
ARTICLE TWO
NOTES FORMS
Section 201.
Forms Generally . . . . . . . . . . . . . . 15
Section 202.
Form of Face of Note. . . . . . . . . . . . 15
Section 203.
Form of Reverse of Note . . . . . . . . . . 17
Section 204.
Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE NOTES
Section 301.
Title and Terms . . . . . . . . . . . . . . 19
Section 302.
Denominations . . . . . . . . . . . . . . . 20
Section 303.
Execution, Authentication, Delivery and
Dating. . . . . . . . . . . . . . . . . . . . 20
Section 304.
Temporary Notes . . . . . . . . . . . . . . 21
Section 305.
Registration, Registration of Transfer and Exchange 21
Section 306.
Mutilated, Destroyed, Lost and Stolen
Notes . . . . . . . . . . . . . . . . . . . . 22
Section 307.
Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . 23
Section 308.
Persons Deemed Owners . . . . . . . . . . . 24
Section 309.
Cancellation. . . . . . . . . . . . . . . . 24
Section 310.
Computation of Interest . . . . . . . . . . 25
Section 311.
CUSIP Numbers . . . . . . . . . . . . . . . 25
ARTICLE FOUR
DISCHARGE OF INDENTURE
Section 401.
Termination of Company's Obligations. . . . 25
Section 402.
Defeasance and Discharge of Indenture . . . 26
Section 403.
Defeasance of Certain Obligations . . . . . 29
Section 404.
Application of Trust Money. . . . . . . . . 31
Section 405.
Reinstatement . . . . . . . . . . . . . . . 31
ARTICLE FIVE
REMEDIES
Section 501.
Events of Default . . . . . . . . . . . . . 31
Section 502.
Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . 33
Section 503.
Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . 34
Section 504.
Trustee May File Proofs of Claim. . . . . . 35
Section 505.
Trustee May Enforce Claims Without
Possession of Notes . . . . . . . . . . . . . 35
Section 506.
Application of Money Collected. . . . . . . 36
Section 507.
Limitation on Suits . . . . . . . . . . . . 36
Section 508.
Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . 37
Section 509.
Restoration of Rights and Remedies. . . . . 37
Section 510.
Rights and Remedies Cumulative. . . . . . . 37
Section 511.
Delay or Omission Not Waiver. . . . . . . . 38
Section 512.
Control by Holders. . . . . . . . . . . . . 38
Section 513.
Waiver of Past Defaults.. . . . . . . . . . 38
Section 514.
Undertaking for Costs . . . . . . . . . . . 39
Section 515.
Waiver of Stay or Extension Laws. . . . . . 39
ARTICLE SIX
THE TRUSTEE
Section 601.
Certain Duties and Responsibilities . . . . 39
Section 602.
Notice of Defaults. . . . . . . . . . . . . 40
Section 603.
Certain Rights of Trustee . . . . . . . . . 40
Section 604.
Not Responsible for Recitals or Issuance
of Notes. . . . . . . . . . . . . . . . . . . 41
Section 605.
May Hold Notes. . . . . . . . . . . . . . . 41
Section 606.
Money Held in Trust . . . . . . . . . . . . 41
Section 607.
Compensation and Reimbursement. . . . . . . 42
Section 608.
Disqualification; Conflicting Interests . . 42
Section 609.
Corporate Trustee Required; Eligibility . . 42
Section 610.
Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 43
Section 611.
Acceptance of Appointment by Successor. . . 44
Section 612.
Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . 45
Section 613.
Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . 45
Section 614.
Appointment of Authenticating Agent . . . . 45
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701.
Company to Furnish to Trustee Names and
Addresses of Holders. . . . . . . . . . . . . 48
Section 702.
Preservation of Information;
Communications to Holders . . . . . . . . . . 48
Section 703.
Reports by Trustee. . . . . . . . . . . . . 49
Section 704.
Reports by Company. . . . . . . . . . . . . 49
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801.
Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . 49
Section 802.
Successor Substituted . . . . . . . . . . . 50
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901.
Supplemental Indentures Without Consent of Holders 51
Section 902.
Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . 52
Section 903.
Execution of Supplemental Indentures. . . . 53
Section 904.
Effect of Supplemental Indentures . . . . . 53
Section 905.
Conformity with Trust Indenture Act . . . . 53
Section 906.
Reference in Notes to Supplemental
Indentures. . . . . . . . . . . . . . . . . . 53
ARTICLE TEN
COVENANTS
Section 1001.
Payment of Principal, Premium and Interest. 54
Section 1002.
Maintenance of Office or Agency . . . . . . 54
Section 1003.
Money for Notes Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . . . 54
Section 1004.
Statement by Officers as to Default . . . . 56
Section 1005.
Existence . . . . . . . . . . . . . . . . . 56
Section 1006.
Maintenance of Properties . . . . . . . . . 56
Section 1007.
Payment of Taxes and Other Claims . . . . . 56
Section 1008.
Limitations Concerning Distributions by
and Transfers to Subsidiaries . . . . . . . . 57
Section 1009.
Limitation on Liens . . . . . . . . . . . . 57
Section 1010.
Limitation on Sale and Leaseback
Transactions. . . . . . . . . . . . . . . . . 59
Section 1011.
Limitation on Transactions with Affiliates and Related
Persons . . . . . . . . . . . . . . . . . . . 59
Section 1012.
Provision of Financial Information. . . . . 59
Section 1013.
Waiver of Certain Covenants . . . . . . . . 60
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
<PAGE>
INDENTURE, dated as of April 11, 1994, between TEXAS GAS
TRANSMISSION CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"),
having its principal office in Houston, Texas, and THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), a national banking association duly
organized and existing under the laws of the United States of America,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its 8 5/8% Notes due 2004
(herein called the "Notes"), to be issued in one series as provided in
this Indenture.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually agreed, for the equal
and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Value" means, as to any particular lease under
which any Person is at the time liable other than a Capital Lease
Obligation, and at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by such
Person under such lease during the initial term thereof as determined in
accordance with GAAP, discounted from the last date of such initial term
to the date of determination at a rate per annum equal to the discount
rate which would be applicable to a Capital Lease Obligation with like
term in accordance with GAAP. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate
amount of rent payable by the lessee with respect to such period after
excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges. In
the case of any lease which is terminable by the lessee upon the payment
of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so
terminated. "Attributable Value" means, as to a Capital Lease
Obligation under which any person is at the time liable and at any date
as of which the amount thereof is to be determined, the capitalized
amount thereof that would appear on the face of a balance sheet of such
person in accordance with GAAP.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to
authenticate Notes.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City
of New York, New York, are authorized or obligated by law or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other Debt
arrangements conveying the right to use) real or personal property of
such Person which is required to be classified and accounted for as a
capital lease or a liability on the face of a balance sheet of such
Person in accordance with GAAP. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock of such Person.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board,
its Vice Chairman of the Board, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" of any Person means the sum
of the Tangible Assets of such Person and its Consolidated Subsidiaries
after eliminating intercompany items, all determined in accordance with
GAAP, including appropriate deductions for any minority interest in
Tangible Assets of such Consolidated Subsidiaries.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person and its Consolidated Subsidiaries,
as determined on a consolidated basis in accordance with GAAP, less
amounts attributable to Redeemable Stock of such person.
"Consolidated Subsidiaries" of any person means all other
Persons that would be accounted for as consolidated Persons in such
Person's financial statements in accordance with GAAP.
"Corporate Trust Office" means the corporate trust office of
the Trustee at Four Chase MetroTech Center, Brooklyn, New York, or at
any other location in The City of New York at which at any particular
time its corporate trust business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person,
and whether or not contingent, (i) every obligation of such Person for
money borrowed, (ii) every obligation of such Person evidenced by bonds,
debentures, notes, guarantees or other similar instruments, including
obligations incurred in connection with acquisition of property, assets
or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person, (iv) every obligation of such
person issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business (x) which are not overdue by
more than 90 days or (y) which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted
and for which a proper reserve or other appropriate provision, if any,
as shall be required in accordance with GAAP, shall have been made), (v)
every Capital Lease Obligation of such Person, (vi) the maximum fixed
redemption or repurchase price of Redeemable Stock of such Person at the
time of determination, (vii) every payment obligation of such Person
under interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements at the time of determination,
(viii) every obligation to pay rent or other payment amounts of such
Person with respect to any Sale and Leaseback Transaction to which such
Person is a party and (ix) every obligation of the type referred to in
clauses (i) through (viii) of another person and all dividends of
another person the payment of which, in either case, such Person has
guaranteed or is responsible or liable, directly or indirectly, as
obligor, guarantor or otherwise.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, including the rules and regulations promulgated thereunder.
"GAAP" means generally accepted accounting principles in the
United States, consistently applied, that are in effect from time to
time.
"Holder" means a Person in whose name a Note is registered in
the Note Register.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of
such Debt or other obligation or the recording, as required pursuant to
GAAP or otherwise, of any such Debt or the obligation on the balance
sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in GAAP that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and
any such supplemental indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively.
"Interest Payment Date", when used with respect to any Note,
means the Stated Maturity of an installment of interest on such Note.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
agreement, security interest, lien, charge, easement (other than any
easement not materially and adversely affecting the Company's financial
position, results of operations, business or prospects), encumbrance,
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to such
property or assets (including, without limitation, any conditional sale
or other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Maturity", when used with respect to any Note, means the date
on which the principal of such Note or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
"Net Available Proceeds" from any Sale and Leaseback
Transaction by any Person means cash or readily marketable cash
equivalents received (including by way of sale or discounting of a note,
installment receivable or other receivable, but excluding any other
consideration received in the form of assumption by the acquisition of
Debt or other obligations relating to such properties or assets or
received in any other non-cash form) therefrom by such Person, net of
(i) all legal, title and recording tax expenses, commissions and other
fees and expenses incurred and all federal, state, provincial, foreign
and local taxes required to be accrued as a liability as a consequence
of such Sale and Leaseback Transaction, (ii) all payments made by such
Person or its Subsidiaries on any Debt which is secured by such assets
in accordance with the terms of any Lien upon or with respect to such
assets or which must by the terms of such Lien, or in order to obtain a
necessary consent to such Sale and Leaseback Transaction or by
applicable law be repaid out of the proceeds from such Sale and
Leaseback Transaction and (iii) all distributions and other payments
made to minority interest holders in Subsidiaries of such Person or
joint ventures as a result of such Sale and Leaseback Transaction.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and
delivered under this Indenture.
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 305.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President, and by the Chief Financial Officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company.
"Outstanding", when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and
delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Notes; provided that, if
such Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii)Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes
in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands such Notes are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Notes have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Notes and that the pledgee is not the Company or any other
obligor upon the Notes or any Affiliate of the Company or of such other
obligor.
"pari passu", when used with respect to the ranking of any Debt
of any Person in relation to other Debt of such Person, means that each
such Debt (a) either (i) is not subordinated in right of payment to any
other Debt of such Person or (ii) is subordinate in right of payment to
the same Debt of such Person as is the other and is so subordinate to
the same extent and (b) is not subordinate in right of payment to the
other or to any Debt of such Person as to which the other is not so
subordinate.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Notes on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Pipeline Assets" means all assets used or useful in the gas
pipeline business of the Company or its Subsidiaries.
"Place of Payment" means the place or places where the
principal of and any premium and interest on the Notes are payable as
contemplated by Section 301.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Note.
"Redeemable Stock" of any Person means any equity security of
such Person that by its terms or otherwise is required to be redeemed
prior to the Stated Maturity of the Notes or is redeemable at the option
of the holder thereof at any time prior to the Stated Maturity of the
Notes.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Notes means the date specified for that purpose as
contemplated by Section 202.
"Related Person" of any Person means, without limitation, any
other Person owning 5% or more of the outstanding Common Stock of such
Person or 5% or more of the Voting Stock of such Person.
"Sale and Leaseback Transaction" of any Person means an
arrangement with any lender or investor or to which such lender or
investor is a party providing for the leasing by such Person of any
property or asset of such Person which has been or is being sold or
transferred by such Person after the acquisition or the completion of
construction or commencement of operation thereof to such lender or
investor or to any person to whom funds have been or are to be advanced
by such lender or investor on the security of such property or asset.
The stated maturity of such arrangement shall be the date of the last
payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee
without payment of a penalty.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Note or any
installment of principal thereof or interest thereon, means the date
specified in such Note as the fixed date on which the principal of such
Note or such installment of principal or interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such
Person, or by such Person and one or more other Subsidiaries thereof or
(ii) any other Person (other than a corporation) in which such Person,
or one or more other Subsidiaries of such Person, or such Person and one
or more other Subsidiaries thereof, directly or indirectly, has at least
a majority ownership and power to direct the policies, management and
affairs thereof.
"Tangible Assets" of any Person means, at any date, the gross
book value as shown by the accounting books and records of such Person
of all its property both real and personal, less (i) the net book value
of all its licenses, patents, patent applications, copyrights,
trademarks, trade names, goodwill, noncompete agreements or
organizational expenses and other like intangibles, (ii) unamortized
Debt discount and expense, (iii) all reserves for depreciation,
obsolescence, depletion and amortization of its properties and (iv) all
other proper reserves which in accordance with GAAP should be provided
in connection with the business conducted by such Person.
"Texas Gas Guarantees" means, collectively, the guarantees by
the Company of the repayment of up to (i) $180,000,000 under the Transco
Amended Bank Credit Facility and (ii) $20,000,000 under the Transco
Reimbursement Facility.
"Transco" means Transco Energy Company, a Delaware company.
"Transco Amended Bank Credit Facility" means the $450,000,000
Amended Credit Agreement dated as of December 31, 1993 among Transco, as
borrower, the banks named therein and Citibank, N.A., as agent and Bank
of Montreal, as co-agent.
"Transco Reimbursement Facility" means the $50,000,000 letter
of credit facility dated as of December 31, 1993 among Transco and the
banks named therein and Bank of Montreal, as agent.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian
if such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all
times or only as long as no senior class of securities has such voting
power by reason of any contingency.
"Wholly owned Subsidiary" of any Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly owned
Subsidiaries of such Person or by such Person and one or more Wholly
owned Subsidiaries of such Person.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be
given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need
not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Notes entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or
taken by Holders of Notes. If not set by the Company prior to the first
solicitation of a Holder of Notes made by any Person in respect of any
such action, or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for action to
be taken by the Holders of Notes, only the Holders of Notes on such date
(or their duly designated proxies) shall be entitled to give or take, or
vote on, the relevant action.
(d) The ownership of Notes shall be proved by the Note
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation
of such action is made upon such Note.
<PAGE>
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it c/o Transco Energy Company,
2800 Post Oak Boulevard, P.O. Box 1396, Houston, Texas 77251,
Attention: Secretary, or at any other address previously furnished
in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it
appears in the Note Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the
giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Notes shall be governed by and construed
in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date or Stated Maturity
of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Notes)
payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or at the Stated
Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date or Stated Maturity, as the case may be,
to the date of such payment.
ARTICLE TWO
NOTES FORMS
Section 201. Forms Generally.
The Notes shall be in substantially the form set forth in this
Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by
their execution of the Notes.
The definitive Notes shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Notes, as evidenced by their
execution of such Notes.
Section 202. Form of Face of Note.
TEXAS GAS TRANSMISSION CORPORATION
____% Notes due 2004
No. $
CUSIP No.
TEXAS GAS TRANSMISSION CORPORATION, a corporation duly
organized and existing under the laws of the State 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 , or registered
assigns, the principal sum of Dollars on __________,
and to pay interest thereon from ________, 1994 or from the most recent
Interest Payment Date to which interest has been paid or duly provided
for, semiannually on _______ and _______ in each year, commencing
_____________, at the rate of ____% per annum, until the principal
hereof is paid or made available for payment, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate
of ____% per annum on any overdue principal and premium and on any
overdue instalment of interest. 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
Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be
the________ or _________ (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 will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Note (or one or more Predecessor Notes)
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
whereof shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest
on this Note will be made at the office or agency of the Company
maintained for that purpose in The City of New York, 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; provided, however,
that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such
address shall appear in the Note Register.
Interest on this Note shall be computed on the basis of a
360-day year of twelve 30-day months.
Reference is hereby made to the further provisions of this Note
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 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
TEXAS GAS TRANSMISSION
CORPORATION
By:
Name:
Title:
ATTEST:
Section 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of unsecured
securities of the Company (herein called the "Notes"), issued and to be
issued in one series under an Indenture, dated as of April __, 1994
(herein called the "Indenture"), between the Company and The Chase
Manhattan Bank (National Association), as Trustee (herein called 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, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered. This Note is one
of a single series, limited in aggregate principal amount to
$150,000,000.
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Note or (ii) certain restrictive
covenants and Events of Default with respect to this Note, in each case
upon compliance with certain conditions set forth therein.
If an Event of Default with respect to Notes shall occur and be
continuing, the principal of the Notes 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 Notes to
be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal
amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Notes at the time Outstanding, on behalf of the
Holders of all Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
and any premium and interest on this Note at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registerable in the Note
Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in any place where the principal of
and any premium and interest on this Note are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of
Notes 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 tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note 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 Note is registered as
the owner hereof for all purposes, whether or not this
Note be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Trustee's Certificate of
Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
"This is one of the Notes referred to in the within-mentioned
Indenture.
Dated:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
As Trustee
By
Authorized Officer"
ARTICLE THREE
THE NOTES
Section 301. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to
$150,000,000, except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Notes.
The Notes shall be known as the "8 5/8% Notes due 2004" of the
Company. The Stated Maturity of the principal thereof shall be April 1,
1994 and they shall bear interest at the rate of 8 5/8% per annum from
April 1, 1994, or the most recent Interest Payment Date to which
interest has been paid or duly provided for, payable on October 1, 1994
and semiannually thereafter on April 1 and October 1 in each year and at
the Stated Maturity, until the principal thereof is paid or duly
provided for.
The principal of (and premium, if any) and interest on the
Notes shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or
agency of the Company as may be maintained for such purpose; provided,
however, that at the option of the Company, interest may be paid by
check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register.
Section 302. Denominations.
The Notes shall be issuable in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and
Dating.
The Notes shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
The Trustee shall, upon Company Order, authenticate and deliver
Notes for original issue in an aggregate principal amount of up to
$150,000,000.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such
certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Note to the Trustee for
cancellation as provided in Section 309, for all purposes of this
Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they
are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes
may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes
at the office or agency of the Company in a Place of Payment, without
charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive
Notes of any authorized denominations and of a like aggregate principal
amount and tenor. Until so exchanged the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as
definitive Notes.
Section 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office
and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Note Register")
in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Notes and of transfers
of Notes. The Trustee is hereby appointed "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at the
office or agency in a Place of Payment, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount and
tenor.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to
receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Note Registrar duly
executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 304 or 906.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Note of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of
any Note and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Note has
been acquired by a bona fide purchaser, the Company shall execute and
the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 307. Payment of Interest; Interest Rights
Preserved.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable
to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or
clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Notes at his address as it appears in the Note Register,
not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant
to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Notes in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Note.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Note is registered as
the owner of such Note for the purpose of receiving payment of principal
of and any premium and (subject to Section 307) any interest on such
Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Notes
previously authenticated hereunder which the Company has not issued and
sold, and all Notes so delivered shall be promptly cancelled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Notes held by the Trustee
shall be disposed of as directed by a Company Order.
Section 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use).
ARTICLE FOUR
DISCHARGE OF INDENTURE
Section 401. Termination of Company's Obligations.
Except as otherwise provided in this Section 401, the Company
may terminate its obligations under the Notes and this Indenture if:
(a) all Notes previously authenticated and delivered (other
than mutilated, destroyed, lost or stolen Notes that have been
replaced or Notes that are paid pursuant to Section 1001 of this
Indenture or Notes for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Company,
as provided in Section 405 of this Indenture) have been delivered to
the Trustee for cancellation and the Company has paid all sums
payable by it hereunder; or
(b) (i) all Outstanding Notes mature within one year or all
of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (ii) the Company irrevocably deposits in trust with the
Trustee during such one-year period, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds solely for the benefit of the Holders for
that purpose, money or U.S. Government Obligations sufficient (in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee), without consideration of any reinvestment of such
interest, to pay principal, premium, if any, and interest on the
Notes to maturity or redemption, as the case may be, and to pay all
other sums payable by it hereunder, (iii) no Event of Default shall
have occurred and be continuing (A) on the date of such deposit or
(B) insofar as certain events of bankruptcy, insolvency or
reorganization are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period), (iv) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by
which it is bound and (v) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture have been complied with.
With respect to the foregoing subsection (a), the Company's
obligations under Section 607 shall survive. With respect to the
foregoing subsection (b), the Company's obligations contained in
Sections 303, 304, 305, 306, 607, 610 and 1002 of this Indenture shall
survive until the Notes are no longer Outstanding. Thereafter, only the
Company's obligations contained in Section 607 of this Indenture shall
survive. After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations
under the Notes and this Indenture except for those surviving
obligations specified above.
Section 402. Defeasance and Discharge of Indenture.
The Company will be deemed to have paid and will be discharged
from any and all obligations in respect of the Notes on the 123rd day
after the date of the deposit referred to in subsection (d) hereof, and
the provisions of this Indenture will no longer be in effect with
respect to the Notes, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same, except as to
(i) rights of registration of transfer and exchange, (ii) substitution
of apparently mutilated, defaced, destroyed, lost or stolen Notes,
(iii) rights of Holders to receive payments of principal thereof and
interest thereon, (iv) the Company's obligations under Section 1002,
(v) the rights, obligations and immunities of the Trustee hereunder and
(vi) the rights of the Holders as beneficiaries of this Indenture with
respect to the property so deposited with the Trustee payable to all or
any of them; provided that the following conditions shall have been
satisfied:
(a) with reference to this Section 402, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
609 of this Indenture) and conveyed all right, title and interest to
the Trustee for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds in trust, specifically pledged to the Trustee
for the benefit of the Holders as security for payment of the
principal of, premium, if any, and interest on the Notes, and
dedicated solely to, the benefit of the Holders in and to (1) money
in an amount, (2) U.S. Government Obligations that, through the
payment of interest, principal and premium, if any, in respect
thereof in accordance with their terms, will provide, not later than
one day before the due date of any payment referred to in this clause
(a), money in an amount or (3) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment
of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal
of, premium, if any, and interest on the Outstanding Notes at the
Stated Maturity of such principal or interest; provided that the
Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to the payment of
such principal, premium, if any, and interest with respect to the
Notes;
(b) such deposit will not, if the Notes are then listed on
any securities exchange, cause the Notes to be de-listed or result in
a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(c) no Event of Default shall have occurred and be continuing
(1) on the date of such deposit or (2) insofar as certain events of
bankruptcy, insolvency or reorganization are concerned, at any time
during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(d) the Company shall have delivered to the Trustee (1)
either (i) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders will not
recognize income, gains or loss for federal income tax purposes as a
result of the Company's exercise of its option under this Section 402
and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if
such option had not been exercised or (ii) an Opinion of Counsel to
the same effect as the ruling described in clause (i) above
accompanied by a ruling to that effect published by the Internal
Revenue Service, unless there has been a change in the applicable
federal income tax law since the date of this Indenture such that a
ruling from the Internal Revenue Service is no longer required, and
(2) an Opinion of Counsel, subject to such qualifications,
exceptions, assumptions and limitations as are reasonably deemed
necessary by such counsel and are reasonably satisfactory to counsel
for the Trustee, to the effect that (i) the creation of the
defeasance trust will not result in the trust arising from such
deposit constituting an investment company as defined in the
Investment Company Act of 1940, as amended and (ii) after the passage
of 123 days following the deposit (except, with respect to any trust
funds for the benefit of any Person who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after
one year following the deposit), the trust funds will not be subject
to the effect of Section 547 of the United States Bankruptcy Code or
Section 15.6-A of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute, and
either (I) the trust funds will no longer remain the property of the
Company (and therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (II) if a court were to
rule under any such law in any case or proceeding that the trust
funds remained property of the Company, (a) assuming such trust funds
remained in the possession of the Trustee prior to such court ruling
to the extent not paid to the Holders, the Trustee will hold, for the
benefit of the Holders, a valid and perfected security interest in
such trust funds that is not avoidable in bankruptcy or otherwise
except for the effect of Section 552(b) of the United States
Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute and (b) the Holders will be
entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding;
and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 402 have been complied with.
Notwithstanding the foregoing subsection (a), prior to the end
of the 123-day (or one-year) period referred to in subsection (d)(2)(ii)
above, none of the Company's obligations under this Indenture shall be
discharged. Subsequent to the end of such 123-day (or one-year) period
with respect to this Section 402, the Company's obligations in Sections
303, 304, 305, 306, 607, 610, 1001 and 1002 of this Indenture shall
survive until there are no Notes Outstanding. Thereafter, only the
Company's obligations in Section 607 of this Indenture shall survive.
If and when a ruling from the Internal Revenue Service or an Opinion of
Counsel referred to in subsection (d)(1) above is able to be provided
specifically without regard to, and not in reliance upon, the
continuance of the Company's obligations under Section 1001 of this
Indenture, then the Company's obligations under such Section 1001 of
this Indenture shall cease upon delivery to the Trustee of such ruling
or Opinion of Counsel and compliance with the other conditions precedent
provided for herein relating to the defeasance contemplated by this
Section 402.
After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations
under the Notes and this Indenture except for those surviving
obligations in the immediately preceding paragraph.
Section 403. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or
condition set forth in clauses (2), (3) and (4) of Section 801 and
Sections 1008 through 1012 of this Indenture, and clauses (3), (4), (5),
(6), (7) and (8) of Section 501 of this Indenture shall be deemed not to
be Events of Default, in each case with respect to the Outstanding Notes
if:
(a) with reference to this Section 403, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
609 of this Indenture) and conveyed all right, title and interest to
the Trustee for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds in trust, specifically pledged to the Trustee
for the benefit of the Holders as security for payment of the
principal of, premium, if any, and interest on the Notes, and
dedicated solely to, the benefit of the Holders in and to (1) money
in an amount, (2) U.S. Government Obligations that, through the
payment of interest, principal and premium, if any, in respect
thereof in accordance with their terms, will provide, not later than
one day before the due date of any payment referred to in this
subsection (a), money in an amount or (3) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment
of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal
of, premium, if any, and interest on the outstanding Notes on the
Stated Maturity of such principal or interest; provided that the
Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to the payment of
such principal, premium, if any, and interest with respect to the
Notes;
(b) such deposit will not, if the Notes are then listed on
any securities exchange, cause the Notes to be de-listed or result in
a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(c) no Default or Event of Default shall have occurred and be
continuing (1) on the date of such deposit or (2) insofar as certain
events of bankruptcy, insolvency or reorganization are concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(d) the Company has delivered to the Trustee an Opinion of
Counsel, subject to such qualifications, exceptions, assumptions and
limitations as are reasonably deemed necessary by such counsel and
are reasonably satisfactory to counsel for the Trustee, to the effect
that (1) the creation of the defeasance trust will not result in the
trust arising constituting an investment company as defined in the
Investment Company Act of 1940, as amended, (2) the Holders have a
valid first-priority security interest in the trust funds, (3) the
Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred and
(4) after the passage of 123 days following the deposit (except, with
respect to any trust funds for the benefit of any Person who may be
deemed to be an "insider" for purposes of the United States
Bankruptcy Code, after one year following the deposit), the trust
funds will not be subject to the effect of Section 547 of the United
States Bankruptcy Code or Section 15.6-A of the New York Debtor and
Creditor Law in a case commenced by or against the Company under
either such statute, and either (i) the trust funds will no longer
remain the property of the Company (and therefore will not be subject
to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally)
or (ii) if a court were to rule under any such law in any case or
proceeding that the trust funds remained property of the Company, (x)
assuming such trust funds remained in the possession of the Trustee
prior to such court ruling to the extent not paid to the Holders, the
Trustee will hold, for the benefit of the Holders, a valid and
perfected security interest in such trust funds that is not avoidable
in bankruptcy or otherwise except for the effect of Section 552(b) of
the United States Bankruptcy Code on interest on the trust funds
accruing after the commencement of a case under such statute and (y)
the Holders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in such
case or proceeding; and
(e) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 403 have been complied with.
<PAGE>
Section 404. Application of Trust Money.
Subject to the last paragraph of Section 1003 of this
Indenture, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 401, 402 or
403 of this Indenture, as the case may be, and shall apply the deposited
money and the money from U.S. Government Obligations in accordance with
the Notes and this Indenture to the payment of principal of and interest
on the Notes; but such money need not be segregated from other funds
except to the extent required by law.
Section 405. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 401, 402 or 403
of this Indenture, as the case may be, by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 401, 402 or 403 of this Indenture, as the case may
be, until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section
401, 402 or 403 of this Indenture, as the case may be; provided that, if
the Company has made any payment of principal of or interest on any
Notes because of the reinstatement of its obligations, then the Company
shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held
by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Notes,
means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Note when
it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Note at its Maturity; or
(3) default in the performance, or breach, of Section 801; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Notes a written notice specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) default in the payment of any Debt (including this
Indenture) of the Company or any of its Subsidiaries in an aggregate
principal amount in excess of $5 million, whether such Debt now
exists or shall hereafter be created, which default shall constitute
a failure to pay any portion of the principal of such Debt when due
and payable after the expiration of any applicable grace period with
respect thereto or shall have resulted in such Debt becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or
annulled, within a period of 30 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Notes a written notice
specifying such default and requiring the Company to cause such Debt
to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entering of a final judgment or final judgments for
the payment of money against the Company or any Subsidiary of the
Company in an aggregate amount in excess of $5 million by a court or
courts of competent jurisdiction, which judgments remain undischarged
or unbonded for a period (during which execution shall not be
effectively stayed) of 60 consecutive days after the right to appeal
all such judgments has expired; or
(7) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(8) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
described in clause (7) or clause (8) of Section 501) occurs and is
continuing, then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Notes may declare
the principal amount of all of the Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
If an Event of Default of the type set forth in clause (7) or clause (8)
of Section 501 occurs and is continuing, the principal of and any
interest on the Notes then Outstanding shall become immediately due and
payable.
At any time after a declaration of acceleration with respect to
Notes has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Notes, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences, other than an
Event of Default in respect of the nonpayment of accelerated principal,
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of (and premium, if any, on) any
Notes which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Notes, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Notes, other than
the non-payment of the principal of Notes which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Note when such interest becomes due and payable and such default
continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal and any premium and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on
any overdue principal and premium and on any overdue interest, at the
rate or rates prescribed therefor in such Notes, and, in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default with respect to Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Notes by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Notes), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same
after reduction of the Trustee's reasonable fees and expenses (including
counsel fees and expenses) and any other amounts due under Section 607;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or
to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession
of Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Notes in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money or other property collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon
presentation of the Notes and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Notes in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal and any premium
and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Notes;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Notes shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium
and (subject to Section 307) any interest on such Note on the Stated
Maturity or Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Notes to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Notes, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes may on behalf of the Holders of all the
Notes waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of, or any premium, if
any, or interest on, any Note, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Notes, the
Trustee shall give the Holders of Notes notice of such default as and to
the extent provided by the Trust Indenture Act; provided, however, that
in the case of any default of the character specified in Section 501(4),
no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Notes or the
proceeds thereof.
Section 605. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any
Note Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 608 and 613, may otherwise deal with the Company
with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Note Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
<PAGE>
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as may be agreed to in writing from time to time by the Company and
the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $50,000,000 and
its Corporate Trust Office in The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee
in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Notes by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to
the Notes by Act of the Holders of a majority in principal amount of the
Outstanding Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Note for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Notes, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Notes and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Notes delivered to the
Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor
Trustee and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by
the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Note for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee
to all Holders of Notes in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee and the address
of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
<PAGE>
Section 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any
of the parties hereto. In case any Notes shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Notes so authenticated with
the same effect as if such successor Trustee had itself authenticated
such Notes.
Section 613. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to the Notes which shall be authorized to act on behalf of the
Trustee to authenticate Notes issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Notes so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery
of Notes by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a corporation organized and doing business under
the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or
state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of
Notes with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Note Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section.
If an appointment of an Authenticating Agent is made pursuant
to this Section, the Notes may have endorsed thereon an alternative
certificate of authentication in the following form:
<PAGE>
"This is one of the Notes referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
As Trustee
By
As Authenticating Agent
By
Authorized Officer"<PAGE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish to Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not later than January 5 and July 5 in each
year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of the preceding January 1
or July 1, as the case may be; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee
in its capacity as Note Registrar.
Section 702. Preservation of Information; Communications
to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 701
and the names and addresses of Holders received by the Trustee in its
capacity as Note Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Notes, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act.
<PAGE>
Section 703. Reports by Trustee.
(a) The term "reporting date" as used in this Section means
May 15. Within 60 days after the reporting date in each year, beginning
in 1995, the Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Notes are listed, with the Commission and with
the Company. The Company will promptly notify the Trustee when any
Notes are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on
Certain Terms.
The Company may not and may not permit any Subsidiary of the
Company created after the date hereof to: (i) consolidate with or merge
into any other Person (other than the Company or a Wholly owned
Subsidiary of the Company) or permit any other Person to consolidate
with or merge into the Company or any Subsidiary of the Company; (ii)
directly or indirectly, transfer, convey, sell, lease or otherwise
dispose of all or substantially all of its properties and assets as an
entirety; (iii) directly or indirectly, acquire Capital Stock or other
ownership interests of any other Person such that such Person becomes a
Subsidiary of the Company; or (iv) directly or indirectly, purchase,
lease or otherwise acquire (x) all or substantially all of the
properties and assets or (y) any existing business (whether as a
separate entity, subsidiary, division, unit or otherwise) of any Person
as an entity unless, in the case of any of the events described in
clause (i), (ii), (iii) or (iv) above: (1) immediately before and after
giving effect to such transaction and treating any Debt Incurred by the
Company or a Subsidiary of the Company as a result of such transaction
as having been Incurred by the Company or such Subsidiary at the time of
the transaction, no Event of Default or event that with the passing of
time or the giving of notice, or both, shall constitute an Event of
Default shall have occurred and be continuing; (2) in a transaction in
which the Company does not survive or in which the Company transfers,
conveys, sells, leases or otherwise disposes of all or substantially all
of its properties and assets as an entirety, the successor entity to the
Company is a corporation, partnership or trust and organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia which expressly assumes, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Company's obligations under the
Indenture; (3) immediately after giving effect to any such transaction
of the type described in clause (i) and clause (ii) above, the
Consolidated Net Worth of the Company or the successor entity to the
Company is equal to or greater than that of the Company immediately
prior to the transaction; (4) if, as a result of any such transaction,
property or assets of the Company or any Subsidiary of the Company would
become subject to a lien prohibited by Section 1009, the Company or the
successor entity to the Company will have secured the Notes as required
by such Section; and (5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel as specified herein.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders of Notes or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Notes in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Notes in uncertificated form;
or
(5) to add to, change or eliminate any of the provisions of
this Indenture, provided that any such addition, change or
elimination (i) shall not modify the rights of the Holder of any such
Note with respect to such provision or (ii) shall become effective
only when there is no such Note Outstanding; or
(6) to secure the Notes; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (8) shall not adversely affect the interests
of the Holders of Notes in any material respect.
Section 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Notes affected by such
supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or
modifying in any manner the rights of the Holders of Notes under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note affected
thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Note, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or
(2) change any Place of Payment where, or the coin or
currency in which, any Note or any premium or interest thereon is
payable, or
(3) impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(4) reduce the percentage of aggregate principal amount of
the Outstanding Notes, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(5) modify any of the provisions of this Section or
Section 513, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Note
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Section 901(7).
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
<PAGE>
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall
be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Notes to Supplemental
Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Notes so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and
punctually pay the principal of and any premium and interest on the
Notes in accordance with the terms of the Notes and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for Notes an
office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation
to maintain an office or agency in each Place of Payment for Notes for
such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. Money for Notes Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to the Notes, it will, on or before each due date of the
principal of or any premium or interest on any of the Notes, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and any premium and interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action
or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to the Notes, it will, prior to each due date of the principal
of or any premium or interest on any Notes, deposit with a Paying Agent
a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so
to act.
The Company will cause each Paying Agent for the Notes other
than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying
Agent and (ii) during the continuance of any default by the Company (or
any other obligor upon the Notes) in the making of any payment in
respect of the Notes, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent
for payment in respect of the Notes.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of
or any premium or interest on any Note and remaining unclaimed for two
years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder
of such Note shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in The Borough of Manhattan, City of New York, notice that
such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
<PAGE>
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof,
a certificate of the chief executive officer, chief financial officer or
chief accounting officer, stating whether or not to the best knowledge
of the signer thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which
the signer may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect
its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing
in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company
or any Subsidiary or upon the income, profits or property of the Company
or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property
of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
Section 1008. Limitations Concerning Distributions by and
Transfers to Subsidiaries.
(a) The Company will not, and will not permit any Subsidiary
of the Company to, suffer to exist any encumbrance or restriction (other
than pursuant to law or regulation) on the ability of any Subsidiary of
the Company (i) to pay, directly or indirectly, dividends or make any
other distributions in respect of its Capital Stock or pay any Debt or
other obligation owed to the Company or any other Subsidiary of the
Company; (ii) to make loans or advances to the Company or any Subsidiary
of the Company; or (iii) to transfer any of its property or assets to
the Company or any other Subsidiary, except, in the case of any event
described in clause (i), (ii) or (iii) above, any encumbrance or
restriction (A) pursuant to any agreement in effect on the date of this
Indenture (including the Texas Gas Guarantees), or (B) pursuant to an
agreement relating to any Debt outstanding on the date such subsidiary
becomes a Subsidiary of the Company and not Incurred in anticipation of
becoming a Subsidiary, or (C) pursuant to an agreement effecting a
renewal, extension, refinancing or refunding (or successive renewals,
extensions, refinancings or refundings) of Debt Incurred pursuant to an
agreement referred to in clause (A) or clause (B) above; provided,
however, that the provisions contained in any such agreements be no less
favorable to the holders of the Notes than those under such agreements
existing, in the case of clause (A) above, on the date of the Indenture
or, in the case of clause (B) above, on the date such subsidiary becomes
a Subsidiary of the Company, in each case as determined in good faith by
the Board of Directors and evidenced by a Board Resolution filed with
the Trustee.
(b) The Company may not make any loan, advance, capital
contribution to or investment in, or transfer any of its property or
assets to, any Wholly owned Subsidiary except (i) in the ordinary course
of business and consistent with the past practices of the Company and
its Subsidiaries or (ii) for fair value if the Company delivers an
Officers' Certificate to the Trustee stating that such transfer will not
be adverse to the Holders of the Notes, and in case of this clause (ii)
as determined by the Board of Directors and evidenced by a Resolution
filed with the Trustee.
Section 1009. Limitation on Liens.
(a) The Company may not, and may not permit any Subsidiary of
the Company to, Incur any Lien on property or assets of the Company or
such Subsidiary to secure Debt without making, or causing such
Subsidiary to make, effective provision for securing the Notes (and, if
the Company may so determine, any other Debt of the Company or of such
Subsidiary which is not subordinate to the Notes) equally and ratably
with such Debt as to such property for so long as such Debt will be so
secured or in the event such Debt is Debt of the Company which is
subordinate in right of payment to the Notes, prior to such Debt as to
such property for so long as such Debt will be so secured.
(b) The restrictions set forth in subsection (a) of this
Section will not apply to Liens existing on the date of the Indenture or
to: (i) any Liens (A) which secure all or part of the purchase,
acquisition or construction price or cost of any property or
improvements to property (or secure a loan made to enable the Company or
any Subsidiary to acquire or construct the property described in
creating such Lien) or (B) upon any property acquired or constructed by
the Company or a Subsidiary and created not later than 180 days after
the later of (1) such acquisition or completion of such construction and
(2) commencement of full operation of such property, or (C) existing on
any property at the time of the acquisition thereof whether or not
assumed by the Company or any Subsidiary; provided that in all such
cases such Lien will extend to the property so acquired or constructed,
fixed improvements thereon, replacements, products and proceeds thereof,
the income and profits therefrom and, in the case of construction, the
real property on which such property is located; (ii) Liens securing
only the Notes; (iii) Liens in favor of the Company or a Wholly owned
Subsidiary of the Company; (iv) Liens on property of a Person existing
at the time such Person is merged into or consolidated with the Company
or any Subsidiary of the Company and not created in anticipation of
becoming a Subsidiary; (v) Liens on property existing at the time of
acquisition thereof; (vi) Liens on property of the Company or any of its
Subsidiaries in favor of the United States of America or any state
thereof, or any instrumentality of either, to secure certain payments
pursuant to any contract or statute; (vii) Liens for taxes or
assessments or other governmental charges or levies; (viii) Liens to
secure obligations under workmen's compensation laws or similar
legislation, including Liens with respect to judgments which are not
currently dischargeable; (ix) Liens Incurred to secure the performance
of statutory obligations, surety or appeal bonds, performance or
return-of-money bonds or other obligations of a like nature Incurred in
the ordinary course of business; (x) Liens to secure industrial revenue
or development or pollution control bonds; (xi) any Liens securing Debt
owing by a Subsidiary of the Company to one or more Wholly owned
Subsidiaries of the Company (but only if such Debt is held by such
Wholly owned Subsidiaries); (xii) Liens on inventory and receivables
Incurred in the ordinary course of business to secure Debt Incurred for
working capital purposes, including the sale of receivables on a limited
or non-recourse basis; and (xiii) Liens to secure any extension,
renewal, refinancing or refunding (or successive extensions, renewals,
refinancings or refundings), in whole or in part of any Debt secured by
Liens referred to in the foregoing clauses (i) to (xii) so long as such
Lien does not extend to any other property and the Debt so secured is
not increased.
(c) In addition to the foregoing, the Company and its
Subsidiaries may Incur a Lien to secure Debt or enter into a Sale and
Leaseback Transaction, without equally and ratably securing the Notes,
if the sum of (i) the amount of Debt secured by a Lien entered into
after the date of the Indenture and otherwise prohibited by the
Indenture and (ii) the Attributable Value of all Sale and Leaseback
Transactions or Capitalized Lease Obligations in respect thereof entered
into after the date of the Indenture and otherwise prohibited by the
Indenture does not exceed 10% of Consolidated Net Tangible Assets.
Section 1010. Limitation on Sale and Leaseback
Transactions.
The Company will not, and will not permit any Subsidiary of the
Company to, enter into any Sale and Leaseback Transaction (except for a
period not exceeding 12 months) unless: (a) the Company or such
Subsidiary would be entitled to Incur a Lien to secure Debt or enter
into a Sale and Leaseback Transaction by reason of the provisions
described in subsection (c) of Section 1009 without equally and ratably
securing the Notes; or (b) the Company or such Subsidiary applies or
commits to apply within 60 days an amount equal to the Net Available
Proceeds of the sale pursuant to the Sale and Leaseback Transaction to
(1) the repayment of Company Debt which is pari passu with the Notes or,
if no such Debt is outstanding or repayable, in lieu thereof, other
Company or Subsidiary Debt or (2) the investment by the Company in
Pipeline Assets.
Section 1011. Limitation on Transactions with Affiliates
and Related Persons.
The Company will not, and will not permit any Subsidiary of the
Company to, directly or indirectly, enter into any transaction after the
date of the Indenture with any Affiliate or Related Person (other than
the Company or a Wholly owned Subsidiary of the Company) except for
transactions in the ordinary course of business of the Company which
involve a dollar amount which is less than 5% of the consolidated
revenues of the Company and its Subsidiaries for the prior fiscal year,
unless the Board of Directors determines in its good faith judgment and
evidenced by a Board Resolution describing such transaction and filed
with the Trustee that: (a) such transaction is in the best interest of
the Company or such Subsidiary and (b) such transaction is on terms no
less favorable to the Company or such Subsidiary than those that could
be obtained in an arm's-length transaction; provided, however, that the
foregoing limitation shall not apply to the cash management program, tax
sharing agreements, management service agreements, gas marketing
agreements, agency agreements or other arrangements or agreements among
Transco and its Subsidiaries in effect on the date hereof or any
successor arrangements on comparable terms.
Section 1012. Provision of Financial Information.
So long as the Notes are Outstanding, whether or not the
Company is subject to the reporting requirements of Section 13(a) or
15(d) of the Exchange Act, the Company will file with the Commission the
annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to Section
13(a) or 15(d) if the Company were so required. The Company will also
provide to all Holders and file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act if the Company were subject to the
reporting requirements of such Sections and if filing such documents by
the Company with the Commission is not permitted under the Exchange Act,
and promptly upon written request supply copies of such documents to any
prospective Holder.
Section 1013. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1008 to 1012,
inclusive, if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Notes shall, by
Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but
no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
* * * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
instrument.<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the day and year first above
written.
TEXAS GAS TRANSMISSION
CORPORATION
By: /s/ Larry J.Dagley
Name: Larry J. Dagley
Title: Senior Vice President and
Chief Financial Officer
ATTEST:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Trustee
By: /s/ Thomas J. Provenzano
Name: Thomas J. Provenzano
Title: Second Vice President
ATTEST:
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On the day of ,
before me personally came , to
me known, who, being by me duly sworn, did depose and say that he is
of the TEXAS GAS TRANSMISSION
CORPORATION, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation,
and that he signed his name thereto by like authority.
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of ,
before me personally came , to
me known, who, being by me duly sworn, did depose and say that he is
of THE CHASE MANHATTAN BANK,
(NATIONAL ASSOCIATION), one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
Notary Public
