<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 2, 1996
REGISTRATION NO.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 74-1079400
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
2800 POST OAK BOULEVARD
HOUSTON, TEXAS 77056
(713) 439-2000
(Address, including zip code, and telephone number, including
area code of registrant's principal executive offices)
---------------------
<TABLE>
<S> <C>
J. FURMAN LEWIS, ESQ. Copy to:
SENIOR VICE PRESIDENT AND GENERAL COUNSEL KEITH L. KEARNEY, ESQ.
THE WILLIAMS COMPANIES, INC. DAVIS POLK & WARDWELL
ONE WILLIAMS CENTER 450 LEXINGTON AVE.
TULSA, OKLAHOMA 74172 NEW YORK, N.Y. 10017
(918) 588-2000 (212) 450-4000
(Name, address, including zip code, and (Name, address, including zip code, and
telephone number, including area code, telephone number, including area code,
of agent for service) of agent for service)
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
---------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT PRICE(1) FEE
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities................... (2) (2) $400,000,000 $137,932
================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee.
(2) Not applicable pursuant to Form S-3 General Instruction II(d) under the
Securities Act of 1933.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
PROSPECTUS
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
DEBT SECURITIES
---------------------
Transcontinental Gas Pipe Line Corporation (the "Company") may offer and
issue from time to time in one or more series unsecured debentures, notes or
other evidences of indebtedness (the "Debt Securities") with an initial offering
price not to exceed $400,000,000 (or the equivalent in foreign denominated
currency or units based on or relating to currencies, including European
Currency Units). The Company will offer the Debt Securities to the public on
terms determined by market conditions. Debt Securities of a series may be
issuable as individual securities in registered form without coupons or in
bearer form with or without coupons attached. Debt Securities may be sold for
U.S. dollars, foreign denominated currency or currency units; principal of and
any interest on Debt Securities may likewise be payable in U.S. dollars, foreign
denominated currency or currency units -- in each case, as the Company
specifically designates.
The Prospectus Supplement sets forth the specific designation, aggregate
principal amount, purchase price, maturity, interest rate (or manner of
calculation thereof), time of payment of interest (if any), listing (if any) on
a securities exchange and any other specific terms of the Debt Securities and
the name of and compensation to each dealer, underwriter, or agent (if any)
involved in the sale of the Debt Securities. The managing underwriters with
respect to each series sold to or through underwriters will be named in the
Prospectus Supplement.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
The Debt Securities may be offered through dealers, through underwriters,
or through agents designated from time to time, as set forth in the Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the case
of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an agent -- in
each case, less other expenses attributable to issuance and distribution. See
"Plan of Distribution" for possible indemnification arrangements for dealers,
underwriters and agents.
This Prospectus does not constitute an offer to sell or the solicitation of
an offer to buy any of the Debt Securities other than the Debt Securities
described in the accompanying Prospectus Supplement.
------------------------
The date of this Prospectus is , 1996.
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a Registration Statement on Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Debt Securities offered hereby. Certain portions of the Registration
Statement have not been included in this Prospectus as permitted by the
Commission's rules and regulations. For further information, reference is made
to the Registration Statement and the exhibits thereto. The Company is subject
to the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports and
other information with the Commission. The Registration Statement (with
exhibits), as well as such reports and other information filed by the Company
with the Commission, can be inspected and copied at the public reference
facilities maintained by the Commission at its principal offices at Judiciary
Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and its
regional offices at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511 and 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the Commission at its principal
office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
---------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY DEBT SECURITIES IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION.
---------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission under the
Exchange Act are incorporated herein by reference.
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus or in any other subsequently filed document which
also is or is deemed to be incorporated by reference modifies or replaces such
statement.
The Company undertakes to provide without charge to each person to whom a
copy of this Prospectus has been delivered, upon the written or oral request of
any such person, a copy of any or all of the documents incorporated by reference
herein, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates. Written or oral requests for such copies should be directed to:
Transcontinental Gas Pipe Line Corporation, P.O. Box 1396, Houston, Texas 77251,
Attention: General Counsel, (713) 439-2000.
---------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS, IF ANY, MAY OVERALLOT
OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE DEBT
SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON ANY EXCHANGES ON WHICH THE
DEBT SECURITIES ARE LISTED, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE> 4
[MAP IS OF THE STATES OF
TEXAS, LOUISIANA, MISSISSIPPI,
ALABAMA, GEORGIA,
SOUTH CAROLINA,
NORTH CAROLINA, VIRGINIA,
MARYLAND, NEW JERSEY, PENNSYLVANIA
AND NEW YORK SHOWING
THE PIPELINE AND OTHER
FACILITIES OWNED BY THE COMPANY]
3
<PAGE> 5
THE COMPANY
The Company is an interstate natural gas transmission company which owns
and operates a natural gas pipeline system extending from Texas, Louisiana,
Mississippi and the Gulf of Mexico through the states of Alabama, Georgia, South
Carolina, North Carolina, Virginia, Maryland, Pennsylvania and New Jersey to the
New York City metropolitan area. The Company's transmission activities are
subject to regulation by the Federal Energy Regulatory Commission ("FERC") under
the Natural Gas Act of 1938 and under the Natural Gas Policy Act of 1978.
The Company was formerly a wholly-owned subsidiary of Transco Energy
Company. On January 18, 1995, The Williams Companies, Inc. ("Williams") acquired
60 percent of Transco Energy Company's outstanding common stock in a tender
offer. Williams acquired the remaining 40 percent of Transco Energy Company's
outstanding common stock on May 1, 1995 pursuant to a merger of Transco Energy
Company with a subsidiary of Williams. Following the merger, direct ownership of
the Company was transferred to Williams.
The Company was incorporated in Delaware in 1948. Its principal place of
business is located at the Transco Tower, 2800 Post Oak Boulevard, Houston,
Texas, 77056 (telephone: (713) 439-2000).
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used for general corporate
purposes, including repayment of outstanding debt. The Company anticipates that
it will raise additional funds from time to time through debt financing,
including sale of additional Debt Securities and further borrowings under its
uncommitted short-term debt facilities and bank Credit Agreement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table represents the Company's ratio of earnings to fixed
charges for the periods shown.
<TABLE>
<CAPTION>
POST-ACQUISITION PRE-ACQUISITION
- ---------------- | --------------------------------------------------
FOR THE PERIOD | FOR THE PERIOD
JANUARY 18, | JANUARY 1, FOR THE YEARS ENDED
1995 TO | 1995 TO DECEMBER 31,
DECEMBER 31, | JANUARY 17, -------------------------------
1995 | 1995 1994 1993 1992 1991
- ---------------- | -------------- ---- ---- ---- ----
<S> | <C> <C> <C> <C> <C>
3.19 | (a) 3.26 2.89 2.24 (a)
</TABLE>
- ---------------
(a) Earnings were inadequate to cover fixed charges for the period January 1,
1995 to January 17, 1995 and for the year ended December 31, 1991 by
$7,434,000 and $101,182,000, respectively. Earnings for the period January
1, 1995 to January 17, 1995 were inadequate due to a provision for
executive severance and termination benefits related to the acquisition by
Williams. Earnings for the year ended December 31, 1991 were inadequate due
to provisions for various legal and regulatory issues, asset impairments
and restructuring under Transco Energy Company.
For the purpose of the ratio (i) earnings consist of income or loss before
fixed charges and income taxes for the Company, and (ii) fixed charges consist
of interest and debt expense on all indebtedness (without reduction for interest
capitalized) and that portion of rental payments on operating leases estimated
to represent an interest factor for the Company.
4
<PAGE> 6
SELECTED FINANCIAL DATA
The following income statement and cash flow data for the years 1993
through 1995 and the balance sheet data for 1994 and 1995 have been derived from
the Company's audited financial statements included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1995, incorporated herein by
reference. The income statement and cash flow data for 1992 and 1991 and the
balance sheet data for 1993, 1992 and 1991 set forth below have been derived
from audited financial statements of the Company previously filed with the
Commission but not incorporated by reference. The acquisition of Transco Energy
Company and subsidiaries, including the Company, by Williams was accounted for
using the purchase method of accounting. Accordingly, the purchase price was
"pushed down" and included, in the following selected data beginning January 18,
1995 which affects the comparability of the post-acquisition and pre-acquisition
financial data. The selected financial data should be read in conjunction with
such financial statements, the notes thereto and the related management's
discussion and analysis of financial condition and results of operations.
<TABLE>
<CAPTION>
POST-ACQUISITION PRE-ACQUISITION
---------------- | -------------------------------------------------------
FOR THE PERIOD | FOR THE PERIOD
JANUARY 18, 1995 | JANUARY 1, 1995 FOR THE YEARS ENDED DECEMBER 31,
TO DECEMBER 31, | TO JANUARY 17, ------------------------------------
1995 | 1995 1994 1993 1992 1991
---------------- | --------------- ------ ------ ------ ------
| (MILLIONS OF DOLLARS)
<S> <C> | <C> <C> <C> <C> <C>
Income Statement Data: |
Operating revenues........... $1,405 | $ 72 $1,591 $1,522 $1,257 $1,144
====== | ==== ====== ====== ====== ======
Operating income (loss)...... 188 | (5) 223 202 178 (8)
====== | ==== ====== ====== ====== ======
Common stock equity in net |
income (loss)............. 86 | (10) 105 86 65 (69)
====== | ==== ====== ====== ====== ======
Net cash provided by (used in) |
operating activities......... 303 | (32) 162 259 4 169
====== | ==== ====== ====== ====== ======
</TABLE>
<TABLE>
<CAPTION>
POST-ACQUISITION PRE-ACQUISITION
---------------- | ---------------------------------------
| DECEMBER 31,
DECEMBER 31, | ---------------------------------------
1995 | 1994 1993 1992 1991
---------------- | ------ ------ ------ ------
| (MILLIONS OF DOLLARS)
<S> <C> | <C> <C> <C> <C>
Balance Sheet Data: |
Property, plant and equipment -- net.. $3,285 | $1,763 $1,743 $1,764 $1,785
Total assets.......................... 3,922 | 2,271 2,304 2,302 2,359
Long-term debt, less current |
maturities......................... 382 | 644 644 519 686
Common stockholder's equity........... 1,737 | 815 707 619 426
</TABLE>
5
<PAGE> 7
BUSINESS
PIPELINE SYSTEM AND CUSTOMERS
The Company's natural gas pipeline system serves customers in Texas and
eleven southeast and Atlantic seaboard states including major metropolitan areas
in Georgia, North Carolina, New York, New Jersey and Pennsylvania.
The Company's major gas transportation customers are public utilities and
municipalities that provide residential service to approximately 35 million
people and serve numerous commercial and industrial users. Shippers on the
Company's pipeline system include public utilities, municipalities, intrastate
pipelines, direct industrial users, electrical generators, marketers and
producers. The Company's largest customer in 1995 accounted for approximately 11
percent of its total operating revenues. No other customer accounted for more
than 10 percent of total operating revenues. The Company's firm transportation
agreements are generally long-term agreements with various expiration dates and
account for the major portion of its business. Additionally, the Company offers
interruptible transportation services under agreements that are generally short
term.
OPERATING STATISTICS
The Company's total system deliveries for the years 1995, 1994 and 1993 are
shown below.
<TABLE>
<CAPTION>
SYSTEM DELIVERIES(TBTU) 1995 1994 1993
------ ------ ------
<S> <C> <C> <C>
Market-area deliveries:
Long-haul transportation.............................. 858.4 805.1 852.0
Market-area transportation............................ 467.3 453.6 387.4
------- ------- -------
Total market-area deliveries.................. 1,325.7 1,258.7 1,239.4
Production-area transportation.......................... 165.9 185.9 177.5
------- ------- -------
Total system deliveries................................. 1,491.6 1,444.6 1,416.9
======= ======= =======
Average Daily Transportation Volumes (TBtu)............. 4.1 4.0 3.9
Average Daily Firm Reserved Capacity (TBtu)............. 5.2 4.9 4.8
</TABLE>
The Company's facilities are divided into seven rate zones. Four are
located in the production area and three are located in the market area.
Long-haul transportation is gas that is received in one of the production-area
zones and delivered in a market-area zone. Market-area transportation is gas
that is both received and delivered within market-area zones. Production-area
transportation is gas that is both received and delivered within production-area
zones.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute senior debt of the Company and will be
issued under an indenture (the "Indenture"), between the Company and Citibank,
N.A., as Trustee (the "Trustee"). The form of the Indenture is filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
following summary of certain provisions of the Indenture and the Debt Securities
do not purport to be complete and such summary is subject to the detailed
provisions of the Indenture to which reference is hereby made for a full
description of such provisions, including the definition of certain terms used
herein, and for other information regarding the Debt Securities. Numerical
references in parentheses below are to sections in the Indenture. Wherever
particular sections or defined terms of the Indenture are referred to, such
sections or defined terms are incorporated herein by reference as part of the
statement made, and the statement is qualified in its entirety by such
reference. The Debt Securities offered by this Prospectus and the accompanying
Prospectus Supplement are referred to herein as the "Offered Debt Securities."
The Indenture does not contain any covenant or provision which affords debt
holders protection in the event of a highly leveraged transaction.
6
<PAGE> 8
CERTAIN DEFINITIONS
Certain terms defined in the Indenture (Article One and Section 3.7) are
summarized as follows:
"Attributable Debt" means, with respect to any sale and lease-back
transaction as of any particular time, the present value discounted at the
rate of interest implicit in the terms of the lease of the obligations of
the lessee under such lease for net rental payments during the remaining
term of the lease (including any period for which such lease has been
extended or may, at the option of the Company, be extended).
"Consolidated Funded Indebtedness" means the aggregate of all
outstanding Funded Indebtedness of the Company and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Consolidated Net Tangible Assets" means the total assets appearing on
a consolidated balance sheet of the Company and its consolidated
Subsidiaries less, in general: (1) intangible assets; (2) current and
accrued liabilities (other than Consolidated Funded Indebtedness and
capitalized rentals or leases), deferred credits, deferred gains and
deferred income; and (3) reserves.
"Funded Indebtedness" means any Indebtedness which matures more than
one year after the date as of which Funded Indebtedness is being determined
less any such Indebtedness as will be retired through or by means of any
deposit or payment required to be made within one year from such date under
any prepayment provision, sinking fund, purchase fund or otherwise.
"Holder" means a Person in whose name Debt Securities are registered,
or, if not registered, the bearer thereof.
"Indebtedness" means indebtedness which is for money borrowed from
others.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal Property" means any natural gas pipeline, gathering
property or natural gas processing plant located in the United States,
except any such property that in the opinion of the Board of Directors is
not of material importance to the total business conducted by the Company
and its consolidated Subsidiaries; provided that "Principal Property" shall
not include (i) production or proceeds from production from gas processing
plants or natural gas or petroleum products in any pipeline or storage
field, and (ii) any property acquired or constructed by any Subsidiary of
the Company after December 31, 1995.
"Subsidiary" means any corporation at least a majority of the
outstanding securities of which having ordinary voting power shall be owned
by the Company and/or another Subsidiary or Subsidiaries.
GENERAL
The Indenture does not limit the amount of Debt Securities that may be
issued by the Company or any of its Subsidiaries. The Debt Securities will be
unsecured senior obligations of the Company.
The Indenture provides that Debt Securities may be issued from time to time
in one or more series and may be denominated and payable in foreign currencies
or units based on or relating to foreign currencies, including European Currency
Units. Special United States federal income tax considerations applicable to any
Debt Securities so denominated are described in the relevant Prospectus
Supplement.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Debt Securities): (i) the specific designation,
aggregate principal amount, purchase price and denomination; (ii) currency or
units based on or relating to currencies in which such Debt Securities are
denominated and/or in which principal, premium, if any, and/or any interest will
or may be payable; (iii) any date of maturity; (iv) interest rate or rates (or
method by which such rate will be determined), if any; (v) the dates on which
any such interest will be
7
<PAGE> 9
payable; (vi) the place or places where the principal of and interest, if any,
on the Offered Debt Securities will be payable; (vii) any redemption or sinking
fund provisions; (viii) whether the Offered Debt Securities will be issuable in
registered or bearer form or both and, if Offered Debt Securities in bearer form
are issuable, restrictions applicable to the exchange of one form for another
and to the offer, sale and delivery of Offered Debt Securities in bearer form;
(ix) any applicable United States federal income tax consequences, including
whether and under what circumstances the Company will pay additional amounts on
Offered Debt Securities held by a Person who is not a U.S. Person (as defined in
the Prospectus Supplement) in respect of any tax, assessment or governmental
charge withheld or deducted, and if so, whether the Company will have the option
to redeem such Debt Securities rather than pay such additional amounts; and (x)
any other specific terms of the Offered Debt Securities, including any
additional events of default or covenants provided for with respect to such Debt
Securities, and any terms which may be required by or advisable under United
States laws or regulations.
Debt Securities may be presented for exchange, and registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the Prospectus
Supplement. Such services will be provided without charge, other than any tax or
other governmental charge payable in connection therewith, but subject to the
limitations provided in the applicable Indenture. Debt Securities in bearer form
and the coupons, if any, appertaining thereto will be transferable by delivery.
Debt Securities that bear interest will do so at a fixed rate or a floating
rate. Debt Securities bearing no interest or interest at a rate that at the time
of issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
relevant Prospectus Supplement.
REGISTERED GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more fully registered global Securities (a "Registered Global Security") that
will be deposited with a depositary (the "Depositary"), or with a nominee for a
Depositary identified in the Prospectus Supplement relating to such series. In
such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding registered Debt Securities of the series to be
represented by such Registered Global Security or Securities. Unless and until
it is exchanged in whole or in part for Debt Securities in definitive registered
form, a Registered Global Security may not be transferred except as a whole by
the Depositary for such Registered Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such series.
The Company anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Registered Global Security, the Depositary for such
Registered Global Security will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt Securities
represented by such Registered Global Security to the accounts of Persons that
have accounts with such Depositary ("participants"). The accounts to be credited
shall be designated by any underwriters or agents participating in the
distribution of such Debt Securities. Ownership of beneficial interests in a
Registered Global Security will be limited to participants or Persons that may
hold interests through participants. Ownership of beneficial interests in such
Registered Global Security will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the Depositary for such
Registered Global Security (with respect to interests of participants) or by
participants or Persons that hold through participants (with respect to
interests of Persons other than participants). So long as the Depositary for a
Registered Global Security, or its nominee, is the registered owner of such
Registered Global Security,
8
<PAGE> 10
such Depositary or such nominee, as the case may be, will be considered the sole
owner or Holder of the Debt Securities represented by such Registered Global
Security for all purposes under the Indenture. Except as set forth below, owners
of beneficial interests in a Registered Global Security will not be entitled to
have the Debt Securities represented by such Registered Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of such Debt Securities in definitive form and will not be considered
the owners or Holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Registered Global Security registered in the name of a
Depositary or its nominee will be made to such Depositary or its nominee, as the
case may be, as the registered owner of such Registered Global Security. None of
the Company, the Trustee or any paying agent for such Debt Securities will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in such Registered
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium or interest, will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Registered Global Security as shown on the records
of such Depositary. The Company also expects that payments by participants to
owners of beneficial interests in such Registered Global Security held through
such participants will be governed by standing instructions and customary
practices, as is now the case with the securities held for the accounts of
customers registered in "street names" and will be the responsibility of such
participants.
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary and
a successor Depositary is not appointed by the Company within ninety days, the
Company will issue such Debt Securities in definitive form in exchange for such
Registered Global Security. In addition, the Company may at any time and in its
sole discretion determine not to have any of the Debt Securities of a series
represented by one or more Registered Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for all of
the Registered Global Security or Securities representing such Debt Securities.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Liens. The Indenture provides that, subject to certain
exceptions, the Company will not, nor will it permit any Subsidiary to, issue,
assume or guarantee any Indebtedness secured by a mortgage, pledge, lien,
security interest or encumbrance ("mortgage"), upon any of its properties
without effectively providing that the Debt Securities issued thereunder shall
be equally and ratably secured with such Indebtedness. Among the exceptions are
purchase money mortgages; pre-existing mortgages on any property acquired or
constructed by the Company or a Subsidiary and mortgages created within one year
after completion of such acquisition or construction; mortgages created on any
contract for the sale of products or services related to the operation or use of
any property acquired or constructed within one year after completion of such
acquisition or construction; mortgages on property of a Subsidiary existing at
the time it became a Subsidiary of the Company or existing on property at the
time acquired by the Company; and other mortgages in an aggregate amount which,
at the time of incurrence does not exceed 5 percent of the Consolidated Net
Tangible Assets. (Section 3.6)
Limitation on Sale and Lease-Back Transactions. The Indenture provides that
the Company will not, nor will it permit any Subsidiary to, sell and lease back
for more than three years any Principal Property acquired or placed into service
more than 180 days before such lease arrangement, unless the Company retires
Funded Indebtedness or causes Funded Indebtedness to be retired within 90 days
of the effective date of such sale and lease-back transaction equal to the net
proceeds of such sale. This limitation does not apply to sale and lease-back
transactions (i) relating to industrial development or pollution control
financing or (ii) involving only the Company and any Subsidiary or Subsidiaries,
nor are such transactions included in any computation of Attributable Debt.
Notwithstanding the foregoing, the Company and Subsidiaries may enter into sale
and
9
<PAGE> 11
lease-back transactions so long as the total consolidated Attributable Debt in
respect of such transactions does not exceed 5% of Consolidated Net Tangible
Assets. (Section 3.7)
Consolidation, Merger, Conveyance of Assets. The Indenture provides that
the Company will not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires such assets shall expressly
assume the Company's obligations under the Indenture and the Debt Securities
issued thereunder and immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing.
(Section 8.1)
EVENTS OF DEFAULT
An Event of Default is defined under the Indenture with respect to Debt
Securities of any series issued under the Indenture as being: (a) default in
payment of any principal of the Debt Securities of such series, either at
maturity, upon any redemption, by declaration or otherwise; (b) default for 30
days in payment of any interest on any Debt Securities of such series; (c)
default for 90 days after written notice in the observance or performance of any
covenant or warranty in the Debt Securities of such series or the Indenture
(other than a covenant a default in whose performance or whose breach is
specifically dealt with) or, if certain conditions are met, the Events of
Default described in this clause (c) are the result of changes in generally
accepted accounting principles; or (d) certain events of bankruptcy, insolvency
or reorganization of the Company. (Section 4.1)
The Indenture provides that, (a) if an Event of Default described in
clauses (a), (b) or (c) above (if the Event of Default under clause (c) is with
respect to less than all series of Debt Securities then outstanding) occurs,
either the Trustee or the Holders of not less than 25 percent in principal
amount of the Debt Securities of each affected series (treated as one class)
issued under the Indenture and then outstanding may then declare the entire
principal of all Debt Securities of each such affected series and interest
accrued thereon to be due and payable immediately and (b) if an Event of Default
due to a default described in clause (c) above which is applicable to all series
of Debt Securities then outstanding or due to certain events of bankruptcy,
insolvency and reorganization of the Company, shall have occurred and be
continuing, either the Trustee or the Holders of not less than 25 percent in
principal amount of all Debt Securities issued under the Indenture and then
outstanding (treated as one class) may declare the entire principal of all such
Debt Securities and interest accrued thereon to be due and payable immediately,
but upon certain conditions such declarations may be annulled and past defaults
may be waived (except a continuing default in payment of principal of, premium,
if any, or interest on such Debt Securities) by the Holders of a majority in
aggregate principal amount of the Debt Securities of all such affected series
then outstanding. (Sections 4.1 and 4.10)
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of care,
to be indemnified by the Holders of Debt Securities (treated as one class)
issued under the Indenture before proceeding to exercise any right or power
under the Indenture at the request of such Holders. (Section 5.2) Subject to
such provisions in the Indenture for the indemnification of the Trustee and
certain other limitations, the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities of each series affected (treated as
one class) issued under the Indenture may 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. (Section 4.9)
The Indenture provides that no Holder of Debt Securities issued under the
Indenture may institute any action against the Company under the Indenture
(except actions for payment of overdue principal or interest) unless such Holder
previously shall have given to the Trustee written notice of default and
continuance thereof and unless the Holders of not less than 25 percent in
principal amount of the Debt Securities of each affected series (treated as one
class) issued under the Indenture and then outstanding shall have requested the
Trustee to institute such action and shall have offered the Trustee reasonable
indemnity and the Trustee shall not have instituted such action within 60 days
of such request and the Trustee shall not have received direction inconsistent
with such written request by the Holders of a majority in principal amount of
the Debt Securities
10
<PAGE> 12
of each affected series (treated as one class) issued under the Indenture and
then outstanding. (Sections 4.6, 4.7 and 4.9)
The Indenture contains a covenant that the Company will file annually with
the Trustee a certificate of no default or a certificate specifying any default
that exists. (Section 3.5)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company can discharge or defease its obligations under the Indenture as
set forth below. (Section 9.1)
Under terms satisfactory to the Trustee, the Company may discharge certain
obligations to Holders of any series of Debt Securities issued under the
Indenture which have not already been delivered to the Trustee for cancellation
and which have either become due and payable or are by their terms due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee cash or, in the case of Debt Securities
payable only in U.S. dollars, U.S. Government Obligations (as defined in the
Indenture) as trust funds in an amount certified to be sufficient to pay at
maturity (or upon redemption) the principal of and interest on such Debt
Securities.
The Company may also, upon satisfaction of the condition listed below,
discharge certain obligations to Holders of any series of Debt Securities issued
under the Indenture at any time ("defeasance"). Under terms satisfactory to the
relevant Trustee, the Company may instead be released with respect to any
outstanding series of Debt Securities issued under the Indenture from the
obligations imposed by Sections 3.6, 3.7 and 8.1 (which contain the covenants
described above limiting liens, sale and lease-back transactions and
consolidations, mergers and conveyances of assets), and omit to comply with such
Sections without creating an Event of Default ("covenant defeasance").
Defeasance or covenant defeasance may be effected only if, among other things:
(i) the Company irrevocably deposits with the Trustee cash or, in the case of
Debt Securities payable only in U.S. dollars, U.S. Government Obligations, as
trust funds in an amount certified to be sufficient to pay at maturity (or upon
redemption) the principal of and interest on all outstanding Debt Securities of
such series issued under the Indenture; and (ii) the Company delivers to the
Trustee an opinion of counsel to the effect that the Holders of such series of
Debt Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
defeasance or covenant defeasance had not occurred (in the case of a defeasance,
such opinion must be based on a ruling of the Internal Revenue Service or a
change in United States federal income tax law occurring after the date of the
Indenture, since such a result would not occur under current tax law).
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures (which conform to the provisions of the Trust Indenture
Act of 1939) without the consent of the Holders to: (a) secure any Debt
Securities; (b) evidence the assumption by a successor Person of the obligations
of the Company; (c) add further covenants for the protection of the Holders; (d)
cure any ambiguity or correct any inconsistency in the Indenture, so long as
such action will not adversely affect the interests of the Holders; (e)
establish the form or terms of Debt Securities of any series; and (f) evidence
the acceptance of appointment by a successor trustee. (Section 7.1)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than the majority in
principal amount of Debt Securities of each series issued under the Indenture
then outstanding and affected (voting as one class) to add any provisions to, or
change in any manner or eliminate any of the provisions of, the Indenture or
modify in any manner the rights of the Holders of the Debt Securities of each
series so affected; provided that such changes conform to provisions of the
Trust Indenture Act of 1939 and provided that the Company and the Trustee may
not, without the consent of each Holder of outstanding Debt Securities affected
thereby, (a) extend the final maturity of the principal of any Debt Securities,
or reduce the principal amount thereof or reduce the rate or extend the time of
payment of
11
<PAGE> 13
interest thereon, or reduce any amount payable on redemption thereof or change
the currency in which the principal thereof (including any amount in respect of
original issue discount) or interest thereon is payable, or reduce the amount of
any original issue discount security payable upon acceleration or provable in
bankruptcy or alter certain provisions of the Indenture relating to Debt
Securities not denominated in U.S. dollars or for which conversion to another
currency is required to satisfy the judgment of any court, or impair the right
to institute suit for the enforcement of any payment on any Debt Securities when
due or (b) reduce the aforesaid percentage in principal amount of Debt
Securities of any series issued under the Indenture, the consent of the Holders
of which is required for any such modification. (Section 7.2)
CONCERNING THE TRUSTEE
The Trustee is one of a number of banks with which the Company and its
affiliates maintain ordinary banking relationships and with which the Company
and its affiliates maintain credit facilities. An affiliate of the Trustee has
also underwritten securities offerings for affiliates of the Company and may
underwrite future offerings for the Company and its affiliates.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
Except as may otherwise be provided in the Prospectus Supplement applicable
thereto, in compliance with United States federal income tax laws and
regulations, Bearer Debt Securities (including Bearer Debt Securities in global
form) will not be offered, sold, resold or delivered, directly or indirectly, in
the United States or its possessions or to United States persons (as defined
below), except as permitted by United States Treasury Regulations Section
1.163-5(c)(2)(i)(D). Any underwriters, agents and dealers participating in the
offerings of Bearer Debt Securities, directly or indirectly, must agree that (i)
they will not, in connection with the original issuance of any Bearer Debt
Securities or during the restricted period, as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7) (the "restricted period"), offer,
sell, resell or deliver, directly or indirectly, any Bearer Debt Securities in
the United States or its possessions or to United States persons (other than as
permitted by the applicable Treasury Regulations described above). In addition,
any such underwriters, agents and dealers must have procedures reasonably
designed to ensure that its employees or agents who are directly engaged in
selling Bearer Debt Securities are aware of the above restrictions on the
offering, sale, resale or delivery of Bearer Debt Securities. Moreover, Bearer
Debt Securities (other than temporary global Debt Securities and Bearer Debt
Securities that satisfy the requirements of United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(iii)) and any coupons appertaining thereto will
not be delivered in definitive form, nor will any interest be paid on any Bearer
Debt Securities, unless the Company has received a signed certificate in writing
(or an electronic certificate described in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(ii)) stating that on such date such Bearer Debt
Security (i) is owned by a person that is not a United States person, (ii) is
owned by a United States person that (a) is a foreign branch of a United States
financial institution (as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own account or
for resale, or (b) is acquiring such Bearer Debt Security through a foreign
branch of a United States financial institution and who holds the Bearer Debt
Security through such financial institution through such date (and in either
case (a) or (b), each such United States financial institution agrees, on its
own behalf or through its agent, that the Company may be advised that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code, and the regulations thereunder) or (iii) is owned
by a United States or foreign financial institution for the purposes of resale
during the restricted period and such financial institution certifies that it
has not acquired the Bearer Debt Security for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
Bearer Securities (other than temporary global Debt Securities) and any
coupons appertaining thereto will bear a legend substantially to the following
effect: "Any United States person who holds this obligation will be subject to
limitations under the United States federal income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the United States
Internal Revenue Code." The sections referred to in such legend provide that,
with certain exceptions, a United States person will not be permitted to deduct
12
<PAGE> 14
any loss, and will not be eligible for capital gain treatment with respect to
any gain, realized on the sale, exchange or redemption of such Bearer Security
or coupon.
As used herein, "United States person" means any person who is, for United
States federal income tax purposes, a citizen, national or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States or any political subdivision thereof,
or an estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
PLAN OF DISTRIBUTION
The Company may sell the Offered Debt Securities in the following ways: (i)
through agents, (ii) through underwriters, (iii) through dealers and (iv)
directly to purchasers.
Offers to purchase the Offered Debt Securities may be solicited by agents
designated by the Company from time to time. Any such agent, who may be deemed
to be an underwriter as that term is defined in the Securities Act, involved in
the offer or sale of the Offered Debt Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If any underwriters are utilized in the sale, the Company will enter into
an underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the Prospectus Supplement, which will be used by the underwriters to make
resales to the public of the Offered Debt Securities in respect of which this
Prospectus is delivered.
If a dealer is utilized in the sale of the Offered Debt Securities in
respect of which this Prospectus is delivered, the Company will sell such
Offered Debt Securities to the dealer, as principal. The dealer may then resell
such Offered Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, dealers or underwriters may be
required to make in respect thereof. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
The Offered Debt Securities may also be offered and sold, if so indicated
in the Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company. Any remarketing firm will
be identified and the terms of its agreement, if any, with the Company and its
compensation will be described in the Prospectus Supplement. Remarketing firms
may be deemed to be underwriters in connection with the Offered Debt Securities
remarketed thereby. Remarketing firms may be entitled under agreements which may
be entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, and
may be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase the Offered Debt Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject to only those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such offers.
13
<PAGE> 15
EXPERTS
The consolidated financial statements appearing in the Company's Annual
Report on Form 10-K at December 31, 1995 and for the year ended December 31,
1995, have been audited by Ernst & Young LLP, independent auditors, and, at
December 31, 1994 and for each of the two years in the period ended December 31,
1994, by Arthur Andersen LLP, independent public accountants, as set forth in
their respective reports included therein and incorporated herein by reference.
The financial statements referred to above are incorporated herein by reference
in reliance upon such reports given upon the authority of such firms as experts
in auditing and accounting.
The reports of independent auditors relating to the audited financial
statements of the Company in any documents filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering to the extent covered by consents
thereto filed with the Securities and Exchange Commission will be incorporated
by reference in reliance upon such reports given upon the authority of such
independent auditors as experts in auditing and accounting.
LEGAL MATTERS
Certain legal matters in connection with the Debt Securities will be passed
upon for the Company by J. Furman Lewis, Senior Vice President and General
Counsel of Williams, and for the Underwriters by Davis Polk & Wardwell, New
York, New York. Mr. Lewis beneficially owns approximately 33,718 shares of
Williams' Common Stock and also has exercisable options to purchase an
additional 77,890 shares of Williams' Common Stock. Pursuant to its By-laws and
an indemnity agreement, Williams is required to indemnify Mr. Lewis to the
fullest extent permitted by Delaware law against any expenses actually and
reasonably incurred by him in connection with any action, suit or proceeding in
which he is made party by reason of his being an officer of Williams. Williams
also maintains directors' and officers' liability insurance under which Mr.
Lewis is insured against certain expenses and liabilities.
14
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of the fees and
expenses payable by the Company in connection with the offering described in
this Registration Statement:
<TABLE>
<CAPTION>
APPROXIMATE
AMOUNT
-----------
<S> <C>
Securities and Exchange Commission registration fee.............. $ 138,000
Printing and engraving expenses.................................. 30,000
Accounting fees.................................................. 25,000
Blue Sky fees and expenses (including legal fees)................ 15,000
Legal fees and expenses.......................................... 20,000
Trustees' fees and expenses (including legal fees)............... 20,000
Fees of rating agencies.......................................... 240,000
Miscellaneous expenses........................................... 12,000
--------
TOTAL.................................................. $ 500,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company, a Delaware corporation, is empowered by Section 145 of the
General Corporation Law of the State of Delaware, subject to the procedures and
limitations stated therein, to indemnify any person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding in which such person is made party by
reason of his being or having been a director, officer, employee or agent of the
Company. The statute provides that indemnification pursuant to its provisions is
not exclusive of other rights of indemnification to which a person may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors, or otherwise. The By-laws of the Company provide for indemnification
by the Registrant of its directors and officers to the fullest extent permitted
by the General Corporation Law of the State of Delaware. In addition, Williams
has entered into indemnity agreements with certain directors and certain
officers of the Company providing for, among other things, the indemnification
of and the advancing of expenses to such individuals to the fullest extent
permitted by law, and to the extent insurance is maintained, for the continued
coverage of such individuals.
Policies of insurance are maintained by Williams under which the directors
and officers of the Company are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, and certain liabilities which might be
imposed as a result of such actions, suits or proceedings, to which they are
parties by reason of being or having been such directors or officers.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
1.1 -- Form of Underwriting Agreement.
1.2 -- Form of Distribution Agreement.
4.1 -- Form of Indenture.
4.2 -- Form of Floating Rate Note.
4.3 -- Form of Fixed Rate Note.
</TABLE>
II-1
<PAGE> 17
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
<S> <C>
4.4 -- Form of Debenture.
*4.5 -- Second Restated Certificate of Incorporation of the Company, as
amended (filed as Exhibit 3.1 to Form 8-K dated January 23, 1987, and
Exhibit (10)-17 to Transco Energy Company's 1993 Form 10-K).
*4.6 -- By-laws of the Company, as amended and restated May 2, 1995 (filed as
Exhibit (3)-2 to 1995 Form 10-K).
*4.7 -- Indenture dated June 1, 1983 between the Company and RepublicBank
Houston National Association, as Trustee and First through Sixth
Supplements (filed as Exhibit (4)-5 to 1989 Form 10-K).
*4.8 -- Indenture dated September 15, 1992 between the Company and the Bank
of New York, as Trustee (filed as Exhibit 4.2 to Form 8-K dated
September 17, 1992).
*4.9 -- U.S. $800,000,000 Credit Agreement, dated as of February 23, 1995,
among the Company and certain of its affiliates and the banks named
therein and Citibank, N.A., as agent (filed as Exhibit (4)-7 to
Transco Energy Company's 1994 Form 10-K).
5 -- Opinion and consent of J. Furman Lewis, Esq., Senior Vice President
and General Counsel of Williams, relating to the validity of the Debt
Securities.
12 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Arthur Andersen LLP.
23.3 -- Consent of J. Furman Lewis (contained in Exhibit 5).
24.1 -- Power of Attorney.
24.2 -- Certified copy of resolution authorizing signatures pursuant to power
of attorney.
25 -- Statement of Eligibility and Qualification on Form T-1 for Indenture.
</TABLE>
- ---------------
* Each such exhibit has heretofore been filed with the Securities and Exchange
Commission as part of the filing indicated and is incorporated herein by
reference.
ITEM 17. UNDERTAKINGS.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereto) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the
II-2
<PAGE> 18
form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such posteffective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in a successful
defense of any action, suit or proceeding) is asserted against the Company by
such director, officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Houston and State of Texas on the 2nd day of April,
1996.
TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
(Registrant)
By /s/ NICK A. BACILE
-----------------------------
Nick A. Bacile
Attorney-in-fact
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ KEITH E. BAILEY* Chairman of the Board
- -----------------------------------
Keith E. Bailey
/s/ BRIAN E. O'NEILL* President (Principal
- ----------------------------------- Executive Officer) and
Brian E. O'Neill Director
/s/ CUBA WADLINGTON, JR.* Director
- -----------------------------------
Cuba Wadlington, Jr.
/s/ NICK A. BACILE Vice President -- Treasurer,
- ----------------------------------- Controller (Principal
Nick A. Bacile Financial and Accounting
Officer) and Director
April 2, 1996
/s/ RONALD L. ADAMS* Director
- -----------------------------------
Ronald L. Adams
/s/ FRANK J. FERAZZI* Director
- -----------------------------------
Frank J. Ferazzi
/s/ LEWIS A. POSEKANY, JR.* Director
- -----------------------------------
Lewis A. Posekany, Jr.
/s/ THOMAS P. GRIFFIN* Director
- -----------------------------------
Thomas P. Griffin
*By: /s/ NICK A. BACILE
- -----------------------------------
Nick A. Bacile
Attorney-in-fact
</TABLE>
<PAGE> 20
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ---------- ------- ------------
<S> <C> <C>
1.1 -- Form of Underwriting Agreement.
1.2 -- Form of Distribution Agreement.
4.1 -- Form of Indenture.
4.2 -- Form of Floating Rate Note.
4.3 -- Form of Fixed Rate Note.
4.4 -- Form of Debenture.
*4.5 -- Second Restated Certificate of Incorporation of the Company, as
amended (filed as Exhibit 3.1 to Form 8-K dated January 23, 1987, and
Exhibit (10)-17 to Transco Energy Company's 1993 Form 10-K).
*4.6 -- By-laws of the Company, as amended and restated May 2, 1995 (filed as
Exhibit (3)-2 to 1995 Form 10-K.
*4.7 -- Indenture dated June 1, 1983 between the Company and RepublicBank
Houston National Association, as Trustee and First through Sixth
Supplements (filed as Exhibit (4)-5 to 1989 Form 10-K).
*4.8 -- Indenture dated September 15, 1992 between the Company and the Bank
of New York, as Trustee (filed as Exhibit 4.2 to Form 8-K dated
September 17, 1992).
*4.9 -- U.S. $800,000,000 Credit Agreement, dated as of February 23, 1995,
among the Company and certain of its affiliates and the banks named
therein and Citibank, N.A., as agent (filed as Exhibit (4)-7 to
Transco Energy Company's 1994 Form 10-K)
5 -- Opinion and consent of J. Furman Lewis, Esq., Senior Vice President
and General Counsel of Williams, relating to the validity of the Debt
Securities.
12 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Arthur Andersen LLP
23.3 -- Consent of J. Furman Lewis (contained in Exhibit 5).
24.1 -- Power of Attorney.
24.2 -- Certified copy of resolution authorizing signatures pursuant to power
of attorney.
25 -- Statement of Eligibility and Qualification on Form T-1 for Indenture.
</TABLE>
- ---------------
* Each such exhibit has heretofore been filed with the Securities and Exchange
Commission as part of the filing indicated and is incorporated herein by
reference.
<PAGE> 1
EXHIBIT 1.1
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
(a Delaware corporation)
UNDERWRITING AGREEMENT
_________________________
______________, 199__
<PAGE> 2
UNDERWRITING AGREEMENT
_____________, 199___
Transcontinental Gas Pipe Line Corporation
P.O. Box 1396
Houston, Texas 77251
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Transcontinental
Gas Pipe Line Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell [indicate currency and amount] aggregate principal amount of
[full title of debt securities] (the "Securities").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the respective
[principal amounts of Securities] set forth below opposite their names at a
purchase price of [_____%] of the principal amount of such Securities, plus
accrued interest from [Date of Securities] to the date of payment and delivery:
<TABLE>
<CAPTION>
Principal
Amount of
Name Securities
----------
<S> <C> <C>
[Insert syndicate list] $
Total . . . . . . . . . . . . . . $
=========
</TABLE>
<PAGE> 3
[The aggregate principal amount of Securities to be
purchased by the several Underwriters may be reduced by the aggregate principal
amount of Securities sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for such Securities (less any
Securities sold pursuant to delayed delivery contracts) upon delivery thereof
at the offices of _________________ at 10:00 a.m. (New York time) on
___________, 199__, or at such other time, not later than ____ (New York time)
on _________, 199__, as shall be jointly designated by the Manager and the
Company.
The Securities shall have the terms set forth in the
Prospectus dated ___________, 199__, and the Prospectus Supplement dated
____________, 199__, including the following:
[Terms of Securities
Maturity: __________ ___, 19__
Interest Rate: ___% per annum
Redemption Provisions:
Interest Payment Dates: _________ ___, and _______ ___
commencing ______ ___, 19__
(Interest accrues from
__________ ___, 19__)
Form and Denomination:
[Other terms:]]
[The fee to be paid to the Underwriters in respect of the
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be ___% of the purchase price of the Securities so
purchased] *
All provisions contained in the document entitled
Transcontinental Gas Pipe Line Corporation Underwriting Agreement Standard
Provisions (Debt) dated ________, 199__, a copy of which we have previously
received, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this agreement to the same extent as if such provisions
had been set forth in full herein.
__________
* To be added only if delayed delivery contracts are contemplated.
-2-
<PAGE> 4
Please confirm your agreement by having an authorized
officer sign a copy of this agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
[MANAGER]
By [MANAGER]
By __________________________
Acting severally on behalf of
itself and the other several
Underwriters named above
Accepted:
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
By _________________________
Title:
-3-
<PAGE> 5
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
From time to time, Transcontinental Gas Pipe Line
Corporation, a Delaware corporation (the "Company"), may enter into one or more
underwriting agreements that provide for the sale of designated securities to
the several Underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as this Agreement.
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company proposes to issue from time to time debt
securities to be issued pursuant to the provisions of a senior debt indenture
dated as of ___________, 199__ (as it may be supplemented or amended from time
to time, the "Indenture") between the Company and Citibank, N.A., as Trustee.
The debt securities will have varying designations,
maturities, rates and times of payment of interest, selling prices, redemption
terms and other terms. Any such debt securities are herein sometimes
collectively referred to as the "Securities".
The Company has filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(herein referred to collectively as the "Act"), a registration statement
including a prospectus relating to the Securities and has filed with, or mailed
for filing to, the Commission a prospectus supplement or supplements
specifically relating to the Securities pursuant to Rule 424 under the Act. The
term Registration Statement means the registration statement as amended to the
date of the Underwriting Agreement and shall include any registration statement
filed pursuant to Rule 462(b) of the Act. The term Basic Prospectus means the
prospectus included in the Registration Statement. The term Prospectus means
the Basic Prospectus together with the prospectus supplement or abbreviated term
sheet (other than a preliminary prospectus supplement or preliminary abbreviated
term sheet) specifically relating to the Securities. The term preliminary
prospectus means a preliminary prospectus supplement or preliminary abbreviated
term sheet specifically relating to the Securities, together with the Basic
Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include, in each
case, the material, if any, incorporated by reference therein.
The term Contract Securities means the Securities, if
<PAGE> 6
any, to be purchased pursuant to the delayed delivery contracts substantially
in the form of Schedule I hereto, with such changes therein as the Company may
authorize or approve (the "Delayed Delivery Contracts"). The term
"Underwriters' Securities" means the Securities other than Contract Securities.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. If the Prospectus provides for
sales of Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities
on the terms contained in the Delayed Delivery Contracts. Delayed Delivery
Contracts are to be with institutional investors approved by the Company and of
the types set forth in the Prospectus. On the Closing Date (as hereinafter
defined), the Company will pay the Manager, as compensation for the accounts of
the Underwriters, the commissions set forth in the Underwriting Agreement in
respect of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the Securities comprising the Contract
Securities shall be deducted from the Securities to be purchased by the several
Underwriters, and the aggregate principal amount of Securities to be purchased
by each Underwriter shall be reduced pro rata in proportion to the principal
amount of Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
2. Payment and Delivery. Payment for the Underwriters'
Securities shall be made by wire transfer to an account designated by the
Company at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several Underwriters
of the Underwriters' Securities registered in such names and in such
denominations as the Manager shall request in writing not less than one full
business day prior to the date of delivery. The time and date of such payment
and delivery with respect to the Underwriters' Securities are herein referred to
as the Closing Date.
3. Certain Covenants of the Company. In further
consideration of the agreements of the Underwriters herein contained, the
Company covenants as follows:
-2-
<PAGE> 7
(a) To furnish you, without charge, three signed copies
of the Registration Statement (including exhibits thereto and
documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated therein by reference, and any supplements
and amendments thereto as you may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are deemed to be incorporated by reference
in the Prospectus, including any abbreviated term sheets.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish you a copy of each such
proposed amendment or supplement and to file no such proposed
amendment or supplement to which you reasonably object in writing;
provided, that the foregoing shall not apply to amendments or
supplements that relate to securities registered under the
Registration Statement that are not Securities.
(c) If, at any time when a Prospectus relating to the
Securities is in the opinion of your counsel required by law to be
delivered under the Act, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make
the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not,
in light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with
law.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection therewith as well as all
fees, if any, payable in connection with the review of the offering of
the Securities by the National Association of Securities Dealers,
Inc. and the determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as the Manager may
designate.
(e) To make generally available to the Company's
security holders as soon as practicable an earnings statement or
statements of the Company which shall satisfy
-3-
<PAGE> 8
the provisions of Section 11(a) of the Act.
(f) During the period beginning on the date of this
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any securities
of the Company substantially similar to the Securities other than the
Securities, without the prior written consent of the Manager.
4. Reimbursement of Underwriters' Expenses. If this
Agreement shall be terminated by the Underwriters or any of them, because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement in any material respect, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement in any material respect, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement, with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Securities.
5. Certain Covenants of the Underwriters.
Each of the several Underwriters agrees with the Company
that:
(a) it will not offer, sell, resell, or deliver,
directly or indirectly, any Securities in bearer form (including any
Security in global form that is exchangeable for Securities in bearer
form) within the United States of America, its territories and
possessions and other areas subject to its jurisdiction and the
Commonwealth of Puerto Rico (the "United States") in connection with
their original issuance or during the period set forth in the
Prospectus;
(b) it will not offer, sell, resell or deliver, directly
or indirectly, Securities in bearer form, in connection with their
original issuance or during such period, to a United States Person
(which term, as used herein, means any citizen, national or resident
of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof or any estate or trust the income of
which is subject to United States federal income taxation regardless
of its source) other than to an office located outside the United
States of a financial institution as defined in Section
1.165-12(c)(1)(v) of the Treasury Department Regulations, purchasing
for its own account or for the account of a customer and that provides
a written statement that it will comply with Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder, which financial institution, as
a condition of the purchase, agrees to provide on delivery of such
Securities (or on issuance of such Securities if not in
-4-
<PAGE> 9
definitive form) the certificate required in paragraph (c) below;
(c) it will deliver to each purchaser from it of any
Securities in bearer form (including Securities initially represented
by a temporary global certificate) a written confirmation stating
substantially the following:
"By your purchase of Securities in bearer form you represent
that you are not a United States Person or, if you are a United States Person,
that you are a financial institution as defined in Section 1.165-12(c)(1)(v) of
the Treasury Department Regulations, purchasing for your own account or for the
account of a customer and that you will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder. Furthermore, if you are a
dealer, you agree that you will deliver a confirmation containing this entire
paragraph to purchasers of such Securities from you. For purposes of this
statement, 'United States Person' means any citizen, national or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source, and 'United
States' means the United States of America, its territories and possessions and
other areas subject to its jurisdiction and the Commonwealth of Puerto Rico."
(d) it will deliver Securities in definitive bearer form
to the person entitled to delivery thereof (or transfer of interests
therein) only outside the United States and upon receipt of a written
confirmation stating substantially the following:
"This confirms as of the date hereof that none of the Securities
issued in bearer form delivered or credited to you for our account are being
acquired by or on behalf of, or for offer to resell or for resale to, a United
States Person, or any person inside the United States, or, if a beneficial
interest in such Securities issued in bearer form is being acquired by a United
States Person, that such person is a financial institution as defined in
Section 1.165- 12(c)(1)(v) of the Treasury Department Regulations, or is
acquiring such Securities through such a financial institution and that such
Securities are held by a financial institution that has agreed to comply with
Section 165 (j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended from time to time, and the regulations thereunder, and is not
purchasing for offer to resell or for resale inside the United States. As used
herein, 'United States Person' means any citizen, national or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof or any estate or trust the income of which is subject to
United States federal income taxation regardless of
-5-
<PAGE> 10
its source, and 'United States' means the United States of America, its
territories and possessions and other areas subject to its jurisdiction and the
Commonwealth of Puerto Rico.";
provided, however, that (i) if it has actual knowledge that the information
contained in any confirmation delivered pursuant to (c) or (d) above is false,
it shall not deliver any Securities in bearer form to, or, if applicable, cause
a transfer of an interest in any Global Security to the account of, the person
who signed or delivered the confirmation referred to in (d) above
notwithstanding the delivery of such confirmation to it, and (ii) when a
certificate is provided by a clearing organization, it must be based on
statements provided to it by its member organizations. As used herein, a
"clearing organization" is an entity that is in the business of holding
obligations for member organizations and transferring obligations among such
members by credit or debit to the account of a member without the necessity of
physical delivery of the obligation; and
(e) it will comply with or observe any other
restrictions or limitations set forth in the Prospectus on persons to
whom, or the jurisdictions in which, or the manner in which, the
Securities may be offered, sold, resold or delivered.
If Underwriters' Securities are to be distributed through a selling
group consisting of banks, brokers or dealers, the Manager agrees that it shall
cause each member of such selling group to enter into an agreement that it will
comply with this Section 5.
6. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for any issue of
Underwriters' Securities hereunder are subject to the following conditions:
(a) That, at the Closing Date, the Company shall furnish
to the Manager an opinion of J. Furman Lewis, Esq., General Counsel of
The Williams Companies, Inc., dated the Closing Date, in substantially
the form set forth as Exhibit A.
(b) That, at the Closing Date, the Manager shall receive
an opinion of Davis Polk & Wardwell, counsel for the Underwriters,
dated the Closing Date, in substantially the form set forth as Exhibit
B.
(c) That, at the Closing Date, the Company shall furnish
to the Manager letters addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Manager, from
Ernst & Young LLP, and Arthur Andersen LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information relating to the Company contained in or incorporated by
reference into the Registration Statement and the
-6-
<PAGE> 11
Prospectus.
(d) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate dated the Closing Date and
signed by an officer of the Company, to the effect set forth below.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(i) the representations and warranties of the
Company contained herein are true and correct in all
material respects as of the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission;
(iii) subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall
not have occurred any downgrading, nor shall any notice have
been given of (A) any intended or potential downgrading or
(B) any review or possible change that does not indicate the
direction of a possible change, in the rating accorded any
of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Act; and
(iv) there has not occurred any material adverse
change, or any development which could reasonably be
expected to result in a prospective material adverse change,
in the financial condition, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement and
the Prospectus.
(e) That, the Company shall have performed in all
material respects such of its obligations under this Agreement as are
to be performed by the terms hereof at or before the time of purchase.
(f) That, the Company shall have accepted Delayed
Delivery Contracts, if any, in any case in which sales of Contract
Securities arranged by the Underwriters have been approved by the
Company.
-7-
<PAGE> 12
7. Defaulting Underwriters. If any Underwriter or
Underwriters shall default in its or their obligation to take up and pay for
the Securities to be purchased by it or them hereunder, the non-defaulting
Underwriters shall take up and pay for (in addition to the principal amount of
Securities they are obligated to purchase hereunder) the principal amount of
Securities agreed to be purchased by all such defaulting Underwriters as
hereinafter set forth; provided, however, that in the event that the principal
amount of Securities which all Underwriters so defaulting shall have agreed but
failed to take up and pay for shall exceed 10% of the total principal amount of
Securities, the non-defaulting Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any of the Securities,
and if such non-defaulting Underwriters do not purchase all the Securities,
this Agreement will terminate without liability to any non-defaulting
Underwriter or the Company. If non-defaulting Underwriters take up and pay for
all Securities agreed to be purchased by all such defaulting Underwriters, such
Securities shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as the Manager may designate with the
consent of each Underwriter so designated or, in the event no such designation
is made, such Securities shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of
Securities set opposite the names of such non-defaulting Underwriters herein.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Securities hereunder unless all of the Underwriters'
Securities are purchased by the Underwriters (or by substituted underwriters
selected by the Manager with the approval of the Company or selected by the
Company with the Manager's approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provisions, the Company or the Manager shall have
the right to postpone the Closing Date for a period not exceeding five business
days in order that necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer
to and include any underwriter substituted under this Section 7 with like
effect as if such substituted underwriter had
-8-
<PAGE> 13
originally been named herein.
8. Representations and Warranties. The Company
represents and warrants to each of the Underwriters that:
(a) each document filed or to be filed pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") and incorporated
by reference in the Registration Statement and the Prospectus,
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations thereunder;
(b) each part of the Registration Statement and the
Prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the Act, complied when so filed in all material respects
with the Act;
(c) the Registration Statement and the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) will comply in all material
respects with the Act and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
circumstances under which the statements are made, not misleading;
(d) the representations and warranties set forth in this
Section 8 do not apply (1) to statements or omissions in the
Registration Statement or the Prospectus based upon information
furnished to the Company in writing by any Underwriter expressly for
use therein or (2) to that part of the Registration Statement that
constitutes a Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939, as amended, of the Trustee
referred to in the Registration Statement;
(e) Ernst & Young LLP and Arthur Andersen LLP, who have
reported upon the audited financial statements and schedules included
or incorporated by reference in the Registration Statement, are
independent public accountants as required by the Act;
(f) this Agreement has been duly authorized, executed and
delivered by the Company;
(g) the Company is a corporation duly incorporated,
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 fully 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 could not reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(h) the Indenture, each supplement or amendment thereto,
if any, to the date hereof and any supplement thereto or board
resolution setting forth the terms of the Securities, have 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 by the
Company and, when duly authorized, executed and delivered (to the
extent required by the Indenture) by 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 (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium
or 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 in all material
respects to the description thereof in the Prospectus;
(i) the Securities have been duly authorized by the
Company. When duly executed, authenticated, issued and delivered in the
manner provided for in the Indenture and sold and paid for as provided
herein and in any Delayed Delivery Contracts, the Securities 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 (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
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 Securities conform in all material
respects to the description thereof in the Prospectus;
(j) since the respective dates as of which information is
given in the Registration Statement, the Prospectus (or any amendment
or supplement thereto), 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 and its subsidiaries,
taken as a whole, whether or not arising in the ordinary course of
business and (B) any transaction entered into by the Company or any of
its subsidiaries, other than in the ordinary course of business, that
is material to the Company and its subsidiaries, taken as a whole;
(k) the execution and delivery by the Company of this
Agreement, the Indenture and any Delayed Delivery Contracts, the
issuance and delivery of the Securities, the consummation by the
Company of the transactions contemplated herein and compliance by the
Company with the terms of this Agreement, the Indenture and any Delayed
Delivery Contracts, 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 the Company or any
of its subsidiaries, 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 the Company or any
of its subsidiaries under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it is bound
or to which any of its properties is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
could not reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), earnings, or business of the
Company and its subsidiaries, taken as a whole) or (B) any existing
applicable law, rule, regulation, judgment, order or decree or
determination of any government, governmental instrumentality
(including without limitation, any insurance regulatory agency or body)
or court, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties;
(l) no authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the Act, the Trust Indenture Act and the applicable
rules and regulations thereunder, and the securities or blue sky laws
of the various states and other jurisdictions outside the United States
in which the Securities will be offered or sold), is required for the
valid authorization, issuance, sale and delivery of the Securities or
for the execution, delivery or performance of the Indenture by the
Company;
(m) except as disclosed in the Prospectus (or any
amendment or supplement thereto), 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 or any of its
subsidiaries that is required to be disclosed in the Prospectus or
that could reasonably be expected to result in any material adverse
change in the condition (financial or otherwise), earnings or business
of the Company and its subsidiaries, taken as a whole, or that could
reasonably be expected to materially and adversely affect the
properties or assets of the Company and its subsidiaries, taken as a
whole, or that could reasonably be expected to adversely affect the
consummation of the transactions contemplated in this Agreement;
(n) there are no contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or to be filed as
exhibits to the Registration Statement that are not described and filed
(or incorporated by reference) as required;
(o) the Company and its subsidiaries each owns or
possesses all governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations (collectively, "Governmental
Licenses") necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently
conducted, except where the failure to possess such Governmental
Licenses could not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings or business
of the Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to revocation or modification of any such
Governmental Licenses; and
(p) the Company is not an investment company under the
Investment Company Act of 1940.
9. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either
Section 15 of the Act, or Section 20 of the Exchange Act as follows:
(i) against any and all losses, claims,
damages, liabilities and expenses whatsoever, as incurred arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the Act, if applicable, or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any 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 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 any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 9(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to the third sentence of Section 9(c)
hereof, the reasonable fees and disbursements of counsel chosen by the
Manager for the Underwriters), incurred in investigating, preparing or
defending against any litigation, or any 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 (i) and (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Manager for the Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto); and provided,
further, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities, or any person so
controlling such Underwriter, (i) if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished sufficient
copies of amendments or supplements thereto to such Underwriter) was
not sent or given by or on behalf of such Underwriter to such person,
where such delivery is required by the Act, at or prior to the written
confirmation of the sale of the Securities to such person, and (ii) if
the Prospectus (as so amended or supplemented) would have fully cured
the defect giving rise to such loss, claim, damage or liability.
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<PAGE> 14
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of
the Act, or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only
with respect to untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) 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 expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (hereinafter called the indemnified party)
shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties, and that all such fees and
expenses as shall be reasonable shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be
designated in writing by the Manager. In the case of any such
separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in
writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
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<PAGE> 15
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs
(a) or (b) of this Section 9 is unavailable to an indemnified party
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company and of the Underwriters in connection with the statements
or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same respective proportions
as the net proceeds from the offering pursuant to this Agreement
(before deducting expenses) received by the Company and the total
underwriting commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Securities. The relative fault
of the Company and the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to
-11-
<PAGE> 16
this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses incurred by an indemnified party and
referred to in paragraph (d) above shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if
any, who controls an Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director 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 Act or
Section 20 of the Exchange Act shall have the same right to
contribution as the Company. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to
their respective underwriting percentages determined by the ratio which
the original purchase obligation of any Underwriter appearing in the
Underwriting Agreement (or such amount increased as provided in Section
8 above) bears to the total purchase obligations of the Underwriters
set forth therein.
(f) The indemnity and contribution agreements contained in
this Section 9 and the representations and warranties of the Company
contained herein shall remain operative and in full force and effect
regardless of (1) any termination of this Agreement, (2) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(3) acceptance of and payment for any of the Securities.
10. Termination in Certain Events. This Agreement shall be
subject to termination in the Manager's absolute discretion, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of
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<PAGE> 17
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Manager, is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (iv), such event singly
or together with any other such event makes it, in the judgment of the Manager,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
11. Counterparts. This Agreement may be signed by the
parties in counterparts which together shall constitute one and the same
agreement between the parties and shall become effective at such time as each
of the parties shall have signed such counterparts and shall have notified the
other party thereof.
12. Construction. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
13. Parties at Interest. This Agreement has been and is
made solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Section 10 hereof,
and their respective successors, assigns, executors and administrators. No
other person shall acquire or have any right under or by virtue of this
Agreement.
14. Section Headings. The Section headings in this
Agreement have been inserted as a matter of convenience of reference and are
not a part of this Agreement.
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<PAGE> 18
SCHEDULE I
DELAYED DELIVERY CONTRACT
Transcontinental Gas Pipe Line Corporation
P.O. Box 1396
Houston, Texas 77251
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from
Transcontinental Gas Pipe Line Corporation, a Delaware corporation (the
"Company"), and the Company agrees to sell to the undersigned
$______________________________________________
principal amount of the Company's [title of issue] (the "Securities") offered
by the Company's Prospectus dated , 199__ and Prospectus Supplement or
abbreviated term sheet dated , 199__, receipt of copies of which are hereby
acknowledged, at a purchase price equal to ______% of the principal amount of
such Securities [plus accrued interest on the Securities from ,
199 , to the delivery date or dates thereof] [and accrued amortization of
original issue discount from _____________, 199__ to the date of payment and
delivery] and on the further terms and conditions set forth in this contract.
The undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company the principal
amounts of Securities on the delivery dates (the "Delivery Dates") set forth
below:
<TABLE>
<CAPTION>
[Plus Accrued
Interest From] [and]
[Amortization of
[Principal Amount] Original Issue
Discount From]
<S> <C> <C>
__________________ $___________________ ____________________
__________________ $___________________ ____________________
__________________ $___________________ ____________________
</TABLE>
Payment for the Securities which the undersigned has
<PAGE> 19
agreed to purchase on each Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House funds at
the office of __________________________, New York, New York (or at such other
place as the undersigned and the Company shall agree) at 10:00 A.M., New York
City time, on such Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned on such Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to such Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for the Securities on each Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall have
sold and had delivered to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above such part of the Securities as is to be
sold to them.
Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by copies of the
opinions of counsel for the Company delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Securities
by any purchaser under any other Delayed Delivery Contract shall not relieve
the undersigned of its obligations under this contract.
The undersigned represents and warrants that, (a) as of the
date of this contract, the undersigned is not prohibited under the laws of the
jurisdictions to which the undersigned is subject from purchasing the
Securities hereby agreed to be purchased and (b) the undersigned does not
contemplate selling the Securities which it has agreed to purchase hereunder
prior to the Delivery Date therefor.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
This contract shall be governed by and construed in accordance with the laws of
the State of New York. This contract may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
It is understood that the acceptance of any Delayed Delivery
Contract is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If the contract is
acceptable to the Company, it is requested that the Company sign the form of
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<PAGE> 20
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract, as of the date first above written, between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_______________________________________
Purchaser
By: ___________________________________
_______________________________________
(Title)
_______________________________________
(Address)
Accepted, as of the date
first above written:
Transcontinental Gas Pipe Line Corporation
By: _______________________
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<PAGE> 21
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the
representative of the Purchaser with whom details of delivery on the Delivery
Date may be discussed are as follows:
(Please print.)
Name (Including Area Code) Department
- ---- --------------------- ----------
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<PAGE> 22
EXHIBIT A
FORM OF
OPINION OF
J. FURMAN LEWIS, ESQ.
COUNSEL TO THE COMPANY
______________, 19______
[MANAGER]
as Manager for the several Underwriters
[ADDRESS] ________
__________________
__________________
Ladies and Gentlemen:
I have acted as counsel to Transcontinental Gas Pipe Line
Corporation, a Delaware corporation (the "Company"), in connection with the
Underwriting Agreement dated _____________, 199__ (the "Underwriting Agreement")
between you and the Company, pursuant to which the Underwriters severally agree
to purchase from the Company an aggregate of [$] [symbol for foreign currency or
currency unit] __________ principal amount of the debt securities of the Company
(the "Securities") issued or to be issued pursuant to a senior indenture dated
as of ____________ ___, 199__ (the Indenture") between the Company and Citibank,
N.A., as Trustee (the "Trustee") to be issued pursuant to the Indenture. I, or
persons responsible to me, have examined originals or copies, certified or
otherwise identified to my satisfaction, and such documents, corporate records,
certificates of public officials and other instruments as I have deemed
necessary or advisable for the purpose of rendering this opinion. Defined terms
herein unless otherwise specified shall have the meaning specified in the
Underwriting Agreement.
I have also examined copies of the Registration Statement on
Form S-3 (File No. 33- ) relating to up to $400,000,000 aggregate
principal amount of securities filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), exhibits thereto and documents incorporated by reference
therein. Such Registration Statement is now effective, and is herein called
the "Registration Statement". The prospectus constituting a part thereof, in
the form filed with the Commission pursuant to Rule 424 of the rules and
regulations under the Act, together with the prospectus supplement (other than
a preliminary prospectus supplement) specifically relating to the Securities,
as filed with,
<PAGE> 23
or mailed for filing to, the Commission pursuant to Rule 424, is herein called
the "Prospectus".
Based upon the foregoing, I am of the opinion that:
(1) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware and is duly qualified to do business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect upon the Company and its subsidiaries, taken as a whole.
(2) The Company and its subsidiaries hold all franchises,
certificates of public convenience and necessity, consents, authorizations,
approvals, orders, permits, licenses and easements necessary to own, operate and
maintain their properties as described in the Prospectus, subject only to such
defects, irregularities, restrictions, conditions and other matters as are
described in the Prospectus or which do not materially affect the right of the
Company or its subsidiaries to own, operate and maintain its properties and to
conduct its business as described therein, and has made all declarations and
filings with, all federal, state, local and other governmental authorities, and
all courts or other tribunals, necessary to conduct its business in the manner
described in the Prospectus, except to the extent that the lack of such
consents, authorizations, approvals, orders, certificates or permits would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(3) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
authentication by the Trustee is a valid and binding agreement of the Company
enforceable in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization, and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
(4) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture,
and delivered to and paid for by the Underwriters [or by institutional
investors pursuant to Delayed Delivery Contracts] will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms subject, as
-2-
<PAGE> 24
to enforcement, to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and will be entitled to the benefits of such Indenture.
(5) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as rights to indemnity and contribution
thereunder may be limited under applicable law.
(6) The execution, delivery and performance of the
Underwriting Agreement and the Indenture and any applicable terms agreement
will not contravene any provision of applicable law or the Certificate of
Incorporation or By-laws of the Company or any material agreement or other
material instrument binding upon the Company, and no consent, approval or
authorization of any governmental body or agency other than pursuant to any
state securities or Blue Sky law is required for the performance of the
Underwriting Agreement and the issuance and sale of the Securities pursuant to
the Underwriting Agreement;
(7) The statements (1) in the Prospectus [under the captions
"Description of Debt Securities" (in the Prospectus Supplement), "Description of
Debt Securities" (in the Basic Prospectus) and "Plan of Distribution" (in the
Prospectus Supplement and in the Basic Prospectus)], (2) in the Registration
Statement under Item 15 and (3) in the Company's Annual Report on Form 10-K for
the year ended December 31, 1995 under "Business" and "Legal Proceedings"
relating to legal matters in general or to the regulation of the Company by the
Federal Energy Regulatory Commission (the "FERC"), including without
limitation, actions taken by, and matters pending before, the FERC, in each case
insofar as such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings, and such
statements do not contain any untrue statement of material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(8) After due inquiry, I do not know of any legal or
governmental proceeding pending or threatened to which the Company is a party or
to which any of the properties of the Company is subject which is required to be
described or of any contract or other document which is required to be described
in the Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement which is not described or filed as required; and
(9) I (a) am of the opinion that (except as to financial
statements and other financial and statistical data included therein, as to
which I do not express any opinion) each document, if any, filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Registration Statement and the Prospectus
complied when so filed as to form in all material
-3-
<PAGE> 25
respects with the Exchange Act and the rules and regulations of the Commission
thereunder, (b) am of the opinion that the Registration Statement and
Prospectus, as amended or supplemented, if applicable (except as to financial
statements and other financial and statistical data included therein, as to
which I do not express any opinion), comply as to form in all material respects
with the Securities Act and the applicable rules and regulations thereunder, (c)
believe that (except as to financial statements and other financial and
statistical data, and except for that part of the Registration Statement that
constitutes a Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of 1939, as amended, as to which I do not express any
belief), each part of the Registration Statement when such part became effective
or was incorporated by reference into the Registration Statement did not
contain, and as of the date this opinion is delivered, does not contain, any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and (d) believe that (except as to financial statements and other financial and
statistical data, and except for that part of the Registration Statement that
constitutes a Form T-1 heretofore referred to as to which I do not express any
belief) the Registration Statement and the Prospectus, as amended or
supplemented, if applicable, do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
I am a member of the Bar of the States of Oklahoma and Texas.
This opinion is solely for the benefit of the Underwriters, and, other than the
Trustee who may rely upon this opinion to the same extent as if addressed to
it, may be relied upon only by the Underwriters. This opinion speaks as of its
date, and I undertake no, and hereby expressly disclaim any, duty to advise
you as to changes of fact or law coming to my attention after the date hereof.
Yours very truly,
-4-
<PAGE> 26
[DPW Letterhead]
EXHIBIT B
_______, 199__
[Manager]
as Manager for the
Several Underwriters
[ADDRESS]_____________
______________________
______________________
Ladies and Gentlemen:
We have acted as counsel for you, as Manager for the several
underwriters (the "Underwriters") named in the Underwriting Agreement dated
_____________, 1996 (the "Underwriting Agreement") with Transcontinental Gas
Pipe Line Corporation (the "Company") in connection with the purchase by the
several Underwriters of $________ principal amount of __________________ (the
"Debt Securities") to be issued pursuant to the indenture dated as of
_____________, 1996 (as amended by the Trust Indenture Reform Act of 1990, the
"Indenture") between the Company and __________________, as Trustee.
We have examined an executed copy of the Underwriting Agreement
and the Indenture. We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents, corporate
records, certificates of public officials and other instruments as we have
deemed necessary or advisable for the purpose of rendering this opinion,
including those relating to the authorization, execution and delivery by the
Company of the Indenture and the Underwriting Agreement and the authorization,
issuance and sale of the Debt Securities by the Company.
We have participated in the preparation of the Company's
registration statement on Form S-3 (File No. _________) (other than the
documents incorporated by reference in the prospectus included therein (the
"Incorporated Documents")) relating to up to $400,000,000 aggregate principal
amount of debt securities filed with the Securities and Exchange Commission
(the "Commission") pursuant to the provisions of the Securities Act of 1933,
as amended (the "Act"). Although we did not participate in the preparation of
the Incorporated Documents, we have reviewed such documents. In addition, we
have reviewed evidence the registration statement was declared effective
under the Act and that the Indenture was qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). The registration
statement (including the Incorporated Documents) as amended to the date of the
Underwriting Agreement is hereinafter referred to as the "Registration
Statement", and the prospectus included in the Registration Statement (the
"Basic Prospectus"), as supplemented by the prospectus supplement specifically
relating to the Debt Securities (the "Prospectus
<PAGE> 27
Supplement") in the form first filed with the Commission pursuant to Rule 424
under the Act, is hereinafter referred to in its entirety as the "Prospectus".
Based upon the foregoing, we are of the opinion that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, and the Indenture has been duly qualified under the Trust
Indenture Act;
(ii) the Debt Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters, will be
valid and binding obligations of the Company and will be entitled to
the benefits of the Indenture;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity and
contribution thereunder may be limited under applicable law;
(iv) the statements in the Prospectus under "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus), "Plan of Distribution" (in the
Basic Prospectus) and "Underwriting" (in the Prospectus Supplement),
insofar as such statements constitute a summary of the documents
referred to therein, fairly present the information called for with
respect to such documents.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to other matters in
the Registration Statement or the Prospectus. We have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company the information
furnished, whether or not subject to our check and verification. On the basis of
such consideration, review and discussion, but without independent check or
verification, except as stated, (i) nothing has come to our attention to cause
us to believe that the Registration Statement (except for the financial
statements and other
<PAGE> 28
financial and statistical data included therein, as to which we are not called
upon to express a belief, and except for that part of the Registration Statement
that constitutes a Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act) on the date of the Underwriting Agreement did not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading or that the Prospectus
(except as aforesaid) contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and (ii)
we are of the opinion that the Registration Statement and the Prospectus (except
for the financial statements and other financial and statistical data included
therein, as to which we are not called upon to express an opinion) comply as to
form in all material respects with the Act and the rules and regulations of the
Commission thereunder.
We have examined the opinion dated the date hereof of J. Furman Lewis,
Esq., General Counsel of The Williams Companies, Inc., parent of the Company,
delivered in accordance with the provisions of Section 6(a) of the Underwriting
Agreement, and we believe that such opinion is appropriately responsive to the
requirements of the Underwriting Agreement. We have also examined the letter of
Ernst & Young LLP relating to the financial statements and schedules included in
or incorporated by reference in the Registration Statement and other matters
referred to in such letter. We participated in discussions with representatives
of Ernst & Young LLP and with your representatives relating to the form of such
letter, and we believe that it is substantially in the form agreed to.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the General Corporation
Law of the State of Delaware and the federal laws of the United States of
America.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
<PAGE> 1
EXHIBIT 1.2
Transcontinental Gas Pipe Line Corporation
$________________
Medium-Term Notes
Due More Than 9 Months from Date of Issue
U.S. DISTRIBUTION AGREEMENT
______________ 199__
[Underwriter ____________
_________________________
_________________________]
Dear Sirs:
Transcontinental Gas Pipe Line Corporation, a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
by the Company of up to $______________ (or the equivalent thereof in a foreign
currency or composite currency) aggregate initial public offering price of its
Medium-Term Notes due more than 9 months from date of issue (the "Notes"). The
Notes will be issued as senior indebtedness (the "Notes") of the Company. The
Notes will be issued pursuant to the provisions of a senior debt indenture dated
as of ___________ 199__ (as it may be supplemented or amended from time to time,
the "Indenture"), between the Company and , as trustee (the
""Trustee''). The Notes will be issued in denominations of $100,000 (or, in the
case of Notes not denominated in U.S. dollars, the equivalent thereof in such
foreign currency or composite currency, rounded down to the nearest 1,000 units
of such foreign currency or composite currency) or any amount in excess thereof
which is an integral multiple of $1,000 (or, in the case of Notes not
denominated in U.S. dollars, 1,000 units of such foreign currency or composite
currency). The Notes will bear interest at rates to be provided in a supplement
to the Basic Prospectus referred to below.
The Company hereby appoints you as its exclusive agent for the purpose
of soliciting offers to purchase Notes from the Company by
<PAGE> 2
others and, on the basis of the representations and warranties herein
contained, but subject to terms and conditions herein set forth, you agree to
use your best efforts to solicit offers to purchase Notes upon terms acceptable
to the Company at such times and in such amounts as the Company shall from time
to time specify. In addition, you may also purchase Notes as principal for
resale to others, and, if requested by you, the Company will enter into a Terms
Agreement relating to such sale (a "Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter referred to as the "Registration
Statement". The Company proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Notes. The prospectus in the
form in which it appears in the Registration Statement is hereinafter referred
to as the "Basic Prospectus". The term "Prospectus" means the Basic Prospectus
together with the prospectus supplement or supplements (each a "Prospectus
Supplement") specifically relating to Notes, as filed with, or transmitted for
filing to, the Commission pursuant to Rule 424. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "Prospectus
Supplement" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement" and "amendment" or "amend" as used
herein shall include all documents filed by the Company pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to
the date of the Basic Prospectus that are deemed to be incorporated by
reference in the Prospectus.
1. Representations and Warranties. The Company
represents and warrants to you as of the Commencement Date (as hereinafter
defined), as of each date on which the Company accepts an offer to purchase
Notes, as of each date the Company issues and sells Notes and as of each date
the Registration Statement or the Basic Prospectus is amended or supplemented,
as follows (it being understood that such representations and warranties shall
be deemed to relate to the Registration Statement, the Basic Prospectus and the
Prospectus, each as amended and supplemented to each such date):
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the Registration
Statement and the Prospectus complied or will comply when
2
<PAGE> 3
so filed in all material respects with the Exchange Act and the applicable
rules and regulations thereunder, (ii) each part of the Registration Statement,
when such part became effective or was incorporated by reference into the
Registration Statement, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of circumstances under which
they were made, not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations thereunder and (iv) the Registration Statement and the Prospectus
do not contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply (i) to statements or
omissions in the Registration Statement or the Prospectus based upon
information concerning the Agent furnished to the Company in writing by you
expressly for use therein or (ii) to that part of the Registration Statement
that constitutes the Statements of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustees.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company.
(d) Each of this Agreement and any applicable Terms
Agreement has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, except
3
<PAGE> 4
as rights to indemnity and contribution hereunder or thereunder may be limited
under applicable law.
(e) The Indenture pursuant to which the Notes will be
issued has been duly authorized, executed and delivered by the Company, is a
valid and binding agreement of the Company and has been duly qualified under
the Trust Indenture Act.
(f) The forms of Notes have been duly authorized, and,
when the Notes have been executed and authenticated in accordance with the
provisions of the relevant Indenture and delivered to and duly paid for by the
purchasers thereof, they will be valid and legally binding obligations of the
Company and will be entitled to the benefits of such Indenture.
(g) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indentures, the Notes and any applicable Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or any agreement or other instrument binding upon the Company that
is material to the Company , or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company, and no
consent, approval or authorization of any governmental body or agency is
required for the performance by the Company of its obligations under this
Agreement, the Indentures, the Notes or any applicable Terms Agreement, except
such as may be required by the securities or blue sky laws of the various states
in connection with the offer and sale of the Notes.
(h) There has not been any material adverse change, or any
development which could reasonably be expected to result in a prospective
material adverse change, in the financial condition, or in the earnings,
business or operations of the Company, from that set forth in the Registration
Statement.
(i) There are no legal or governmental proceeding pending
or, to the knowledge of the Company, threatened to which the Company is a party
or to which any of the properties of the Company is subject that are required to
be described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that are not described or
filed as required.
(j) The Company has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings
4
<PAGE> 5
with, all federal, state, local and other governmental authorities and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
as then amended or supplemented, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with your
actions as Agent hereunder, you will use your best efforts to solicit offers to
purchase Notes upon the terms and conditions set forth in the Prospectus as
then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct you to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one
business day's prior notice from the Company, you will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised you that such solicitation may be resumed. During the
period of time that such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 5(a), 5(b) and 5(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes or for a
change deemed immaterial in your reasonable opinion) during the period of
suspension, you shall not be required to resume soliciting offers to purchase
Notes until the Company has delivered such certificates, opinions and letters
as you may request.
The Company agrees to pay to you, as consideration for the
sale of each Note resulting from a solicitation made by you, a commission in
the form of a discount from the purchase price of such Note equal to between
.___% and .___% of such purchase price, depending upon such Note's maturity.
You are authorized to solicit offers to purchase Notes only in
the principal amount of $100,000 (or, in the case of Notes not denominated in
U.S. dollars, the equivalent thereof in such foreign currency or composite
currency, rounded down to the nearest 1,000 units of such foreign currency or
composite currency)' or any amount in excess thereof which is an integral
multiple of $1,000 (or, in the case of Notes not denominated in U.S. dollars,
1,000 units of such foreign currency or composite currency). You shall
communicate to the Company, orally or in writing, each offer to purchase Notes
received by you as agent that in your judgment should be considered by the
Company. The Company shall have the sole right to accept offers to purchase
Notes and may reject any offer in whole or in part. You
5
<PAGE> 6
shall have the right to reject any offer to purchase Notes that you consider to
be unacceptable, and any such rejection shall not be deemed a breach of your
agreements contained herein.
(b) Purchases as Principal. If requested by you in connection
with a sale of Notes directly to you as principal for resale to others, the
Company will enter into a separate Terms Agreement (with terms acceptable to it
and to you) that will provide for the sale of such Notes to and the purchase
and re-offering thereof by you in accordance with the terms of this Agreement
and the Terms Agreement. Each Terms Agreement shall be substantially in the
form of Exhibit A hereto but may take the form of an exchange of any form of
written telecommunication between you and the Company.
Your commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions
herein set forth. Each agreement by you to purchase Notes as principal
(whether or not set forth in a Terms Agreement) shall specify the principal
amount of Notes to be purchased by you pursuant thereto, the maturity date
thereof, the price to be paid to the Company for such Notes and the time and
place of delivery of and payment for such Notes (each such date, a "Settlement
Date"). Each such agreement shall also specify any requirements for officers'
certificates, opinions of counsel and letters from the independent public
accountants of the Company pursuant to Section 4 hereof.
(c) Procedures. You and the Company agree to perform the
respective duties and obligations specifically provided to be performed in the
Medium Term Notes Administrative Procedures (attached hereto as Exhibit B) (the
"Procedures"), as amended from time to time. The Procedures may be amended
only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement shall be delivered at the office of Skadden, Arps,
Slate, Meagher & Flom, your counsel, not later than 4 p.m., New York time, on
the date hereof, or at such other time and/or place as you and the Company may
agree upon in writing (the "Commencement Date").
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file
any Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to you a
copy thereof for your review and will not file any such proposed supplement or
amendment to which you reasonably object; provided, however, that the foregoing
requirement shall not apply to any of the Company's periodic filings with the
Commission which may be required to be filed pursuant to Section
6
<PAGE> 7
13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies of which filings,
if any, the Company will cause to be delivered to you promptly after being
transmitted for filing with the Commission. Subject to the foregoing sentence,
the Company will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b). The
Company will promptly advise you (i) of the filing of any amendment or
supplement to the Basic Prospectus, (ii) of the filing and effectiveness of any
amendment to the Registration Statement, (iii) of any request by the Commission
for any amendment of the Registration Statement or any amendment of or
supplement to the Basic Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or notice of suspension of qualification and,
if issued, to obtain as soon as possible the withdrawal thereof. If the Basic
Prospectus is amended or supplemented as a result of the filing under the
Exchange Act of any document incorporated by reference in the Prospectus, you
shall not be obligated to solicit offers to purchase Notes so long as you are
not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Registration Statement or the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact, or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances when the Prospectus, as
then amended or supplemented, is delivered to a purchaser, not misleading, or
if, in the opinion of the Company, it is necessary at any time to amend or
supplement the Registration Statement or the Prospectus, as then amended or
supplemented, to comply with law, the Company will immediately notify you by
telephone (with confirmation in writing) to suspend solicitation of offers to
purchase Notes and, if so notified by the Company, you shall forthwith suspend
such solicitation and cease using the Prospectus as then amended or
supplemented. If in your opinion it is necessary at any time to amend or
supplement the Registration Statement or the Prospectus, as then amended or
supplemented, to comply with law, you shall so notify the Company by telephone
(with confirmation in writing) and may suspend solicitation of offers to
purchase Notes. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus as then amended or supplemented, it shall
so advise you promptly by telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus as then
amended or supplemented that will correct such statement or omission or effect
7
<PAGE> 8
such compliance and will supply such amended or supplemented Prospectus to you
in such quantities as you may reasonably request. If such amendment or
supplement and any documents, certificates, opinions and letters furnished to
you pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement are
satisfactory in all respects to you, upon the filing of such amendment or
supplement with the Commission or effectiveness of an amendment to the
Registration Statement, you will resume the solicitation of offers to purchase
Notes hereunder. Notwithstanding any other provision of this Section 3(b),
until the distribution of any Notes you may have purchased as principal for
resale pursuant to Section 2(b) has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus as then
amended or supplemented, satisfactory in all respects to you, and will supply
such amended or supplemented Prospectus to you in such quantities as you may
reasonably request. If such amendment or supplement and any documents,
certificates, opinions and letters furnished to you pursuant to paragraph (f)
below and Sections 5(a), 5(b) and 5(c) in connection with the preparation and
filing of such amendment or supplement are satisfactory in all respects to you,
upon the filing of such amendment or supplement with the Commission or
effectiveness of an amendment to the Registration Statement, you may resume
your resale of Notes as principal.
(c) The Company will make generally available to its
security holders and to you as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act covering twelve
month periods beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in
Rule 158 under the Securities Act) of the Registration Statement with respect
to each sale of Notes. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statements shall be made available not
later than 90 days after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days after the close of
the period covered thereby.
(d) The Company will furnish to you without charge two
signed copies of the Registration Statement and all amendments thereto,
including exhibits and any documents incorporated by reference therein, and
during the period mentioned in Section 3(b) above, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as you may reasonably request.
(e) The Company will qualify the Notes for offer and sale
under the securities or blue sky laws of such jurisdictions as you shall
reasonably request, will maintain such qualifications for as long as you shall
reasonably request and will pay all expenses
8
<PAGE> 9
(including fees and disbursements of counsel) in connection with such
qualification and in connection with the determination of the eligibility of
the Notes for investment under the laws of such jurisdictions as you may
designate.
(f) During the term of this Agreement, the Company shall
furnish to you such relevant documents and certificates of officers of the
Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder or
thereunder as you may from time to time reasonably request and shall notify you
promptly in writing of any downgrading or of its receipt of any notice of (A)
any intended or potential downgrading or (B) any review or possible change that
does not indicate the direction of a possible change in the rating accorded any
of the Company's securities by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all reasonable expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including: (i) the
preparation and filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation, issuance and delivery
of the Notes, (iii) the reasonable fees and disbursements of the Company's
counsel and accountants and of the Trustees and their counsel, (iv) the
qualification of the Notes under securities or blue sky laws in accordance with
the provisions of Section 3(e), including filing fees and the reasonable fees
and disbursements of your counsel in connection therewith and in connection
with the preparation of any Blue Sky Memoranda, (v) the printing and delivery
to you in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Basic Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to you of
copies of the Indentures and any Blue Sky Memoranda, (vii) any fees charged by
rating agencies for the rating of the Notes, (viii) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc., (ix) the reasonable fees and disbursements of your
counsel incurred in connection with the offering and sale of the Notes and (x)
any reasonable out-of-pocket expenses incurred by you, including any
advertising expenses incurred by you with the approval of the Company.
(h) Between the date of any agreement pursuant to Section
2(b) by you to purchase Notes as principal and the Settlement Date with respect
to such agreement, the Company will not, without your prior consent, offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Notes (other than (i) the Notes that are
to be sold pursuant to such
9
<PAGE> 10
agreement and (ii) commercial paper issued in the ordinary course of business),
except as may otherwise be provided in such agreement.
4. Conditions of the Obligations of the Agent. Your
obligations to solicit offers to purchase Notes as agent of the Company, your
obligations to purchase Notes pursuant to any Terms Agreement or otherwise and
the obligations of any other purchaser to purchase Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in
each certificate furnished pursuant to the provisions hereof prior to or
concurrently with any such solicitation or purchase, to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed, in each case, at the time of such
solicitation or purchase and to the following additional conditions precedent:
(a) (i) There shall not have occurred any material
adverse change, or any development which could reasonably be expected to result
in a prospective material adverse change, in the financial condition, or in the
earnings, business or operations, of the Company and its subsidiaries, taken as
a whole, from that set forth in the Registration Statement and the Prospectus.
(ii) Since the date of this Agreement, there shall not
have occurred any (A) suspension or material limitation of trading generally on
or by, as the case may be, the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (B) suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (C) declaration of a general
moratorium on commercial banking activities in New York by either Federal or
New York State authorities or (D) any outbreak or escalation of any hostilities
or any change in financial markets or any calamity or crisis that, in your
judgment, is material and adverse and, in the case of any of the events
described in clauses (ii) (A) through (D), such event, singly or together with
any other such event, makes it, in your judgment, impracticable to market the
Notes on the terms and in the manner contemplated by the Prospectus, as amended
or supplemented.
(iii) As of each Settlement Date, there shall not have been,
since the date of this Agreement, any downgrading, nor any notice given of (A)
any intended or potential downgrading or (B) any review or possible change that
does not indicate the direction of a possible change, in the rating accorded
any of the Company's securities by any "nationally recognized statistical
rating organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act, except as disclosed to you in writing by the Company
prior to the date the Company accepted the offer to purchase the Notes to be
issued on such Settlement Date.
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<PAGE> 11
(b) On the Commencement Date and, if called for by any
agreement by you to purchase Notes as principal, on the corresponding
Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of J. Furman
Lewis, Esq., General Counsel of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company;
(B) the Company has all consents, authorizations,
approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all federal, state, local and other
governmental authorities, and all courts and other tribunals, necessary
to conduct its business in the manner described in the Prospectus,
except to the extent that the lack of such consents, authorizations,
approvals, orders, certificates or permits would not have a material
adverse effect on the Company;
(C) each Indenture pursuant to which the Notes will be
issued (i) has been duly authorized, executed and delivered by the
Company, (ii) assuming due authorization, execution and authentication
by the Trustee, is a valid and binding agreement of the Company,
enforceable in accordance with its terms and (iii) has been duly
qualified under the Trust Indenture Act of 1939, as amended;
(D) the forms of Notes have been duly authorized and,
when executed and authenticated in accordance with the provisions of
11
<PAGE> 12
the relevant Indenture and delivered to and paid for by the purchasers
thereof, will be valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, and will be
entitled to the benefits of such Indenture;
(E) each of this Agreement and any applicable Terms
Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as rights to
indemnity and contribution hereunder or thereunder may be limited
under applicable law;
(F) the execution, delivery and performance of this
Agreement, the Indentures, the Notes and any applicable Terms
Agreement will not contravene any provision of applicable law or the
Certificate of Incorporation or By-laws of the Company or any material
agreement or other material instrument binding upon the Company, and
no consent, approval or authorization of any governmental body or
agency other than pursuant to any state securities or Blue Sky law is
required for the performance of this Agreement and the issuance and
sale of the Notes pursuant to this Agreement;
(G) the statements (l) in the Prospectus under the
captions "Description of Notes" (in the Prospectus Supplement),
"Description of Debt Securities" (in the Basic Prospectus) and "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), (2) in the Registration Statement under Item 15 and (3) in
the Company's [most recent Annual Report on Form 10-K] under "Business"
and "Legal Proceedings" [and in "Note 8 - Contingent Liabilities in the
Company's most recent quarterly report on Form 10- Q, in each case]
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to therein;
(H) after due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the
Company is a party or to which any of the properties of the Company is
subject which is required to be described in the Registration Statement
or the Prospectus and is not so described or of any contract or other
document which is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required; and
(I) such counsel (l) is of the opinion that each
document, if any, filed pursuant to the Securities Exchange Act of
1934,
12
<PAGE> 13
as amended (the "Exchange Act") (except as to financial statements
included therein, as to which such counsel need not express any
opinion), and incorporated by reference in the Registration Statement
and the Prospectus, as amended or supplemented, complied when so filed
as to form in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder, (2) believes that
(except as to financial statements and except for that part of the
Registration Statement that constitutes the Statements of Eligibility
and Qualification ("Form T-1") under the Trust Indenture Act of 1939,
as amended, as to all of which such counsel need not express any
belief) each part of the Registration Statement, as amended, if
applicable, when such part became effective or was incorporated by
reference into the Registration Statement did not, and as of the date
such opinion is delivered, does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary-to make the statements therein, in light of the
circumstances under which they were made, not misleading, (3) is of
the opinion that the Registration Statement and Prospectus, as amended
or supplemented, if applicable (except as to financial statements
included therein and except for that part of the Registration
Statement that constitutes the Form T- 1, as to all of which such
counsel need not express any opinion), comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations thereunder and (4) believes that (except as to financial
statements, and except for that part of the Registration Statement
that constitutes the Form T-1 heretofore referred to as to all of
which such counsel need not express any belief) the Registration
Statement and the Prospectus, as amended or supplemented, if
applicable, as of the Commencement Date or the date of your agreement
to purchase Notes as principal pursuant to Section 2(b), as the case
may be, did not, and as of the date such opinion is delivered, do not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such counsel
may rely, as to all matters governed by the laws of jurisdictions other than
the State of Oklahoma, the Delaware General Corporation Law, and the federal
law of the United States, upon the opinions of your and other counsel (copies
of which shall be delivered to you), who shall be counsel satisfactory to your
counsel, in which case the opinion shall state
13
<PAGE> 14
that such counsel believes he and you are entitled so to rely. Such counsel
may also state that, insofar as such opinion involves factual matters, he has
relied, to the extent he deems proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(ii) The opinion, dated as of such date, of Davis, Polk &
Wardwell, counsel to you, in substantially the form as set forth as Exhibit C
hereto.
[(iv) The opinion, dated as of such date, of
_____________________, special tax counsel to the Company, confirming the
accuracy of the opinion of such counsel set forth under the caption "United
States Federal Taxation" in the Prospectus Supplement.]
(c) On the Commencement Date and, if called for by any
agreement by you to purchase Notes as principal pursuant to Section 2(b), on
the corresponding Settlement Date, you shall have received a certificate, dated
such Commencement Date or Settlement Date, as the case may be, signed by an
officer of the Company to the effect that the representations and warranties of
the Company contained herein are true and correct as of such date and the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best knowledge of the Company as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
agreement by you to purchase Notes as principal pursuant to Section 2(b), on
the corresponding Settlement Date, the Company's independent public accountants
shall have furnished to you a letter or letters, dated as of the Commencement
Date or such Settlement Date, as the case may be, in form and substance
satisfactory to you containing statements and information of the type
ordinarily included in accountant's "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus, as amended or supplemented.
(e) On the Commencement Date and on each Settlement Date
of a purchase pursuant to Section 2(b), the Company shall have furnished to you
such appropriate further information, certificates and documents as you may
reasonably request.
5. Additional Agreements of the Company. (a) Each time
the Registration Statement or Prospectus is amended or supplemented (other than
by an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered on
the Notes or for a change deemed immaterial in your reasonable opinion), the
Company will deliver or
14
<PAGE> 15
cause to be delivered forthwith to you a certificate signed by an officer of
the Company, dated the date of such amendment or supplement, as the case may
be, in form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 4(c) relating to the Registration Statement
or the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate
pursuant to Section 5(a), the Company shall furnish or cause to be furnished
forthwith to you a written opinion of counsel for the Company. Any such
opinion shall be dated the date of such amendment or supplement, as the case
may be, shall be in a form satisfactory to you and shall be of the same tenor
as the opinion referred to in Section 4(b)(i), but modified to relate to the
Registration Statement or the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to you may furnish to you a letter to the effect
that you may rely on such last opinion to the same extent as though it were
dated the date of such letter (except that statements in such last opinion will
be deemed to relate to the Registration Statement or the Prospectus as amended
and supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the
Prospectus is amended or supplemented to set forth amended or supplemental
financial information or such amended or supplemental information is
incorporated by reference in the Registration Statement or the Prospectus, the
Company shall cause its independent public accountants forthwith to furnish you
with a letter, dated the date of such amendment or supplement, as the case may
be, in form satisfactory to you, of the same tenor as the letter referred to in
Section 4(d), with regard to the amended or supplemental financial information
included or incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented to the date of such letter.
6. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless you and each person, if any, who controls
you within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages or
liabilities caused by any untrue statement or allegedly untrue statement of a
material fact contained in the Registration Statement or in any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or allegedly untrue statement or omission based upon
information relating to you furnished to the Company in writing by you
expressly for use therein.
15
<PAGE> 16
(b) You agree to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you
expressly for use in the Registration Statement or the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by you in the case of parties indemnified pursuant to the second
preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the
16
<PAGE> 17
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and you
from the offering of such Notes or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and you in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and you in connection with the offering of such Notes shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Notes before deducting expenses received by the Company and
the total discounts and commissions received by you in respect thereof, in each
case as set forth in the Prospectus Supplement relating to such Notes, bear to
the aggregate public offering price of such Notes. The relative fault of the
Company and of you shall be determined by reference to, among other things,
whether the untrue or allegedly untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by you and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, you shall not be required to contribute any
amount in excess of the amount by which the total price at which the Notes
referred to in paragraph (d) above that were offered and sold to the public
through you exceeds the amount of any damages that you have otherwise been
required to pay by reason of such
17
<PAGE> 18
untrue or allegedly untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
7. Position of the Agent. In soliciting offers to
purchase the Notes, you are acting solely as agent for the Company, and not as
principal, and do not assume any obligation towards or relationship of agency
or trust with any purchaser of Notes. You shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by you and accepted by the Company, but you
shall not have any liability to the Company in the event any such purchase is
not consummated for any reason. If the Company shall default in its
obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall hold you harmless against any loss, claim, damage or liability
arising from or as a result of such default and shall, in particular, pay to
you the commission you would have received had such sale been consummated.
8. Termination. This Agreement may be terminated at any
time either by the Company or by you upon the giving of written notice of such
termination to the other party hereto. Any Terms Agreement shall be subject to
termination on the terms set forth therein. The termination of this Agreement
shall not require termination of any agreement by you to purchase Notes as
principal, and the termination of any such agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last two sentences of Section 3(b)
and Sections 3(c), 3(g), 6, 7 and 9 shall survive; provided that if at the time
of termination an offer to purchase Notes has been accepted by the Company but
the time of delivery to the purchaser or its agent of such Notes has not
occurred, the provisions of Sections 2(c), 3(a) and 3(f) shall also survive.
If any Terms Agreement is terminated, the provisions of Sections 3(c), 3(g), 6
and 9 and the last two sentences of Section 3(b) (which shall have been
incorporated by reference in such Terms Agreement) shall survive.
9. Representations and Indemnities to Survive. The
respective indemnity and contribution agreements, representations, warranties
and other statements of the Company, its officers and you set forth in or made
pursuant to this Agreement or any agreement by you to purchase Notes as
principal will remain in full force and effect, regardless of any termination
of this Agreement, any investigation made by or on behalf of you or the Company
or any of the officers, directors or controlling persons referred to in Section
6 and delivery of and payment for the Notes.
18
<PAGE> 19
10. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to you, will be mailed,
delivered or telegraphed and confirmed to you at _____________________, with a
copy to Davis, Polk & Wardwell, Attention: Keith Kearney or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at P.O.
Box 1396, Houston, Texas 77251 Attention: Chief Financial Officer, with a copy
to its General Counsel at the same address.
11. Successors. This Agreement and any Terms Agreement
will inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
12. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
19
<PAGE> 20
Very truly yours,
TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By________________________________
Title:
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
[UNDERWRITER]
By_________________________
Title:
20
<PAGE> 21
Exhibit A
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
___________________, 19___
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
P.O. Box 1396
Houston, Texas 77251
Attention:
Re: Distribution Agreement dated ________, 199__
(the Distribution Agreement")
The undersigned agrees to purchase the following principal
amount of your Medium-Term Notes: $
<TABLE>
<CAPTION>
Floating
Fixed Rate Rate
All Notes: Notes: Notes:
- ---------- ------ --------
<S> <C> <C>
Purchase Interest Base rate:
price: Rate:
Settlement Applicability Applicability
date and time: of modified of modified
payment upon following
Place of acceleration banking
delivery: day convention:
Amortization
Specified schedule: Index
currency: maturity:
Maturity Spread:
date:
Spread
Interest multiplier:
payment dates:
Alternate rate
Original issue event spread:
discount
provisions: Initial interest
rates:
Redemption
provisions: Initial interest
reset date:
</TABLE>
<PAGE> 22
<TABLE>
<S> <C>
Ranking:
Interest reset
Other terms: dates:
Maximum rate:
Minimum rate:
Interest reset
period:
Calculation agent:
</TABLE>
The provisions of Sections l, 2(b), 2(c), 2(d), 3, 4, 5, 6 and
8 through 14 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required: _______________
[UNDERWRITER]
By _____________________________
Title:
Accepted:
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
By ______________________
Title:
2
<PAGE> 23
EXHIBIT B
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
MEDIUM-TERM NOTES, ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and specific
terms of the offering of Medium-Term Notes (the "Notes") on a continuous basis
by Transcontinental Gas Pipe Line Corporation, (the "Company") pursuant to the
Distribution Agreement, dated as of _____________, 199__ (the "Distribution
Agreement") between the Company and __________________ (the "Agent"). The Notes
will be issued as senior indebtedness (the "Notes") of the Company. In
the Distribution Agreement, the Agent has agreed to use its best efforts to
solicit purchases of the Notes. [The Agent, as principal, may purchase Notes
for its own account and if requested by the Agent, the Company and the Agent
will enter into a terms agreement, as contemplated by the Distribution
Agreement.]
The Notes will be issued pursuant to the provisions of a
senior debt indenture dated as of ___________ 1996 (as it may be supplemented or
amended from time to time, the "Indenture"), between the Company and ,
as trustee (the ""Trustee''). , will be the Registrar, the Calculation
Agent, Authenticating Agent, and Paying Agent for the Note and will perform the
duties specified herein. Notes will bear interest at a fixed rate (the "Fixed
Rate Notes"), which may be zero in the case of certain original issue discount
notes (the "OID Notes"), or at floating rates (the "Floating Rate Notes").
Fixed Rate Notes may pay a level amount in respect of both interest and
principal amortized over the life of the Notes (the "Amortizing Notes"). The
Notes will be issued in U.S. dollars or other currencies, including composite
currencies such as the European Currency Unit (the "Specified Currency"). Each
Note will be represented by either a Global Security (as defined below)
delivered to , as agent for the Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the holder thereof or
a person designated
<PAGE> 24
by such holder (a "Certificated Note"). Except in limited circumstances, an
owner of a Book-Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may only be denominated and payable in
U.S. dollars, will be issued in accordance with the administrative procedures
set forth in Part I hereof as they may subsequently be amended as the result of
changes in DTC'S operating procedures, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures or the Notes
shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to DTC, dated as of the date
hereof (the "Letter of Representation"), and a Medium Term Note Certificate
Agreement between the Trustee and DTC, dated as of _______________, and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") representing up to $100,000,000 principal
amount of all such Notes that have the same Maturity
Date, redemption provisions, ranking, Interest
Payment Dates, Original Issue Date, original issue
discount provisions (if any) and, in the case of
Fixed Rate Notes, Interest Rate and amortization
schedule (if any) or, in the case of Floating Rate
Notes, Initial Interest Rate, Base Rate, Index
Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate (if
any) and, in each case, any other relevant terms
(collectively "Terms"). Each Global Security will be
dated and issued as of the date of its authentication
by the Trustee. Each Global Security will bear an
"Interest Accrual Date," which will be
2
<PAGE> 25
(i) with respect to an original Global Security (or
any portion thereof), its original issuance date and
(ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange of
a Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security or
Securities (or if no such payment or provision has
been made, the original issuance date of the
predecessor Global Security), regardless of the date
of authentication of such subsequently issued Global
Security. Book-Entry Notes may only be denominated
and payable in U.S. dollars. No Global Security will
represent any Certificated Note.
Identification The Company has arranged with the CUSIP
Numbers: Service Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of a
series of CUSIP numbers (including tranche numbers)
for each of the Notes, each of which series consists
of approximately 900 CUSIP numbers and relates to
Global Securities representing the Book-Entry Notes.
The Company has obtained from the CUSIP Service
Bureau a written list of each series of reserved
CUSIP numbers and has delivered to the Trustee and
DTC the written list of 900 CUSIP numbers of each
such series. The Trustee will assign CUSIP numbers to
Global Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Trustee has assigned to Global Securities. At any
time when fewer than 100 of the reserved CUSIP
numbers of either series remain unassigned to Global
Securities, the Trustee shall so advise the Company
and, if it deems necessary, the Company will reserve
additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the Company
shall deliver a list
3
<PAGE> 26
of such additional CUSIP numbers to the Trustee
and DTC.
Registration: Each Global Security will be registered in the name
of Cede & Co., as nominee for DTC, on the Security
register maintained under the relevant Indenture.
The beneficial owner of a Book- Entry Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to
act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner in such
Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by
book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written
notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security
and (iii) a new CUSIP number to be assigned to such
replacement Global Security. Upon receipt of such a
notice,
4
<PAGE> 27
DTC will send to its Participants (including
the Trustee) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date,
the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global
Securities for a single Global Security bearing the
new CUSIP number and a new Interest Accrual -Date,
and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately
reassigned. Not withstanding the foregoing, if the
Global Securities to be exchanged exceed $100,000,000
in aggregate principal amount, one Global Security
will be authenticated and issued to represent each
$100,000,000 principal amount of the exchanged Global
Security and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date more than
nine months after the settlement date for such Note.
Notice of The Trustee will give notice to DTC
Redemption Dates: prior to each Redemption Date (as specified in the
Note), if any, at the time and in the manner set
forth in the Letter of Representation.
Denominations: Book-Entry Notes will be issued in principal amounts
of $100,000 or any amount in excess thereof that is
an integral multiple of $1,000. Global Securities
will be denominated in principal amounts not in
excess of $100,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess
of $100,000,000 would, but for the preceding
sentence, be
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<PAGE> 28
represented by a single Global Security, then one
Global Security will be issued to represent each
$100,000,000 principal amount of such Book-Entry Note
or Notes and an additional Global Security will be
issued to represent any remaining principal amount of
such Book-Entry Note or Notes. In such a case, each
of the Global Securities representing such Book-Entry
Note or Notes shall be assigned the same CUSIP
number.
Interest: General. Interest on each Book-Entry Note will
accrue from the Interest Accrual Date of the Global
Security representing such Note. Each payment of
interest on a Book-Entry Note will include interest
accrued to but excluding the Interest Payment Date;
provided that in the case of Floating Rate Notes that
reset daily or weekly, interest payments will include
interest accrued to and including the Record Date
immediately preceding the Interest Payment Date,
except that at maturity or earlier redemption, the
interest payable will include interest accrued to,
but excluding, the maturity date or the date of
redemption, as the case may be. Interest payable at
the maturity or upon redemption of a Book-Entry Note
will be payable to the person to whom the principal
of such Note is payable. Standard & Poor's
Corporation will use the information received in the
pending deposit message described under Settlement
Procedure "C" below in order to include the amount of
any interest payable and certain other.information
regarding the related Global Security in the
appropriate weekly bond report published by Standard
& Poor's Corporation.
Record Date. The Record Date with respect to any
Interest Payment Date shall be the date fifteen
calendar days immediately preceding such Interest
Payment Date.
Fixed Rate Book-Entry Notes. Interest payments on
Fixed Rate Book-Entry Notes
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<PAGE> 29
other than Amortizing Notes will be made semiannually
on March l and September 1 of each year and at
maturity and Book-Entry Amortizing Notes will pay
principal and interest semiannually each March 1 and
September l, or quarterly each March l, June 1,
September 1, and December l, and at maturity;
provided, however, that in the case of a Fixed Rate
Book-Entry Note issued between a Record Date and an
Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
Floating Rate Book-Entry Notes. Interest payments
will be made on Floating Rate Book-Entry Notes
monthly, quarterly, semi-annually or annually. Unless
otherwise agreed upon, interest will be payable, in
the case of Floating Rate Book-Entry Notes with a
daily, weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third
Wednesday of March, June, September and December, as
specified pursuant to Settlement Procedure "A" below;
in the case of Notes with a quarterly Interest Reset
Date, on the third Wednesday of March, June,
September and December of each year; in the case of
Notes with a semi annual Interest Reset Date, on the
third Wednesday of the two months specified pursuant
to Settlement Procedure "A" below; and in the case of
Notes with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided however,
that if an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that is not
a Business Day with respect to such Floating Rate
Book-Entry Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Book-Entry Notes, except in the case of
a LIBOR Note if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding Business Day;
andprovided, further, that in the case of a
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<PAGE> 30
Floating Rate Book-Entry Note issued between a Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Notice of Interest Payment and Record Dates. On the
first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with respect
to Book-Entry Notes during the six-month period
beginning on such first Business Day.
Calculation of Fixed Rate Book-Entry Notes.
Interest: Interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated on
the basis of a year of twelve thirty-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. Interest on Floating
Rate Book-Entry Notes will be calculated on the basis
of actual days elapsed and a year of 360 days except
that in the case of Treasury Rate Notes, interest
will be calculated on the basis of the actual number
of days in the year.
Payments of Payments of Interest. Promptly after each
Principal and after each Record Date, the Trustee
Interest: will deliver to the Company and DTC a written notice
specifying by CUSIP number the amount of interest to
be paid on each Global Security (other than an
Amortizing Note) on the following Interest Payment
Date (other than an Interest Payment Date coinciding
with maturity) and the total of such amounts. DTC
will confirm the amount payable on each such Global
Security on such Interest Payment Date by reference
to the daily bond reports published by Standard &
Poor's Corporation. In the case of Amortizing Notes,
the Trustee will provide separate written notice to
DTC prior to each
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<PAGE> 31
Interest Payment Date at the times and in the manner
set forth in the better of Representation. The
Company will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment
Date (and, in the case of an Amortizing Note,
principal and interest) (other than at maturity), and
the Trustee will pay such amount to DTC at the times
and in the manner set forth below under "Manner of
Payment." If any Interest Payment Date for a Fixed
Rate Book- Entry Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue
on such payment for the period from and after such
Interest Payment Date.
Payments at Maturity or Upon Redemption. On or about
the first Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of
principal and interest to be paid on each Global
Security (other than an Amortizing Note) maturing
either at maturity or on a redemption date in the
following month. The Company and DTC will confirm the
amounts of such principal and interest payments with
respect to each such Global Security on or about the
fifth Business Day preceding the Maturity Date or
redemption date of such Global Security. In the case
of Amortizing Notes, the Trustee will provide separate
written notice to DTC prior to each Interest Payment
Date at the times and in the manner set forth in the
Letter of Representation. The Company will pay to the
Trustee, as the paying agent, the principal amount of
such Global Security, together with interest due at
such Maturity Date or redemption date. The Trustee
will pay such amounts to DTC at the times and in the
manner set forth below under "Manner of Payment." If
any Maturity Date or redemption date of a Global
Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and, in the
case of Fixed Rate Notes, no interest shall accrue on
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<PAGE> 32
such payment for the period from and after such
Maturity Date or redemption date. Promptly after
payment to DTC of the principal and interest due on
the Maturity Date or redemption date of such Global
Security, the Trustee will cancel such Global Security
in accordance with the terms of the relevant Indenture
and deliver it to the Company with a certificate of
cancellation.
Manner of Payment. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at maturity or upon redemption shall
be paid by the Company to the Trustee in funds
available for immediate use by the Trustee as of 9:30
A.M. (New York City time) on such date. The Company
will make such payment on such Global Securities by
instructing the Trustee to withdraw funds from an
account maintained by the Company at the Trustee. The
Company will confirm such instructions in writing to
the Trustee. Prior to 10 A.M. (New York City time) on
each Maturity Date or redemption date or as soon as
possible thereafter, the Trustee will pay by separate
wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC) to
an account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available for
immediate use by DTC, each payment of interest or
principal (together with interest thereon) due on
Global Securities on any Maturity Date or redemption
date. On each Interest Payment Date, interest
payments (and, in the case of Amortizing Notes,
interest and principal payments) shall be made to DTC
in same day funds in accordance with existing
arrangements between the Trustee and DTC. Thereafter
on each such date, DTC will pay, in accordance with
its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants in whose names the Book-Entry
Notes represented by such Global Securities are
recorded in the book-entry system maintained by DTC.
Neither the Company
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<PAGE> 33
nor the Trustee shall have any responsibility or
liability for the payment by DTC to such Participants
of the principal of and interest on the Book-Entry
Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other person responsible for forwarding
payments directly to the beneficial owner of such
Note.
Preparation of If any order to purchase a Book-Entry
Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the
terms of such Note and will arrange to file 10 copies
of such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act, will deliver the number of
copies of such Pricing Supplement to the Agent as the
Agent shall request by the close of business on the
following Business Day and will, on the Agent's
behalf, file five copies of such Pricing Supplement
with the National Association of Securities Dealers,
Inc. (the "NASD"). The Agent will cause such Pricing
Supplement to be delivered to the purchaser of the
Note.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note.
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<PAGE> 34
All orders accepted by the Company will be settled on
the third Business Day pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day which
shall be no earlier than the next Business Day.
Settlement Settlement Procedures with regard to
Procedures: each Book-Entry Note sold by the Company to or
through the Agent, (except pursuant to a Terms
Agreement, as defined in the Distribution Agreement),
shall be as follows:
A. The Agent will advise the Company by
telephone that such Note is a Book-Entry Note
and of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate
Book-Entry Note, the interest rate
and whether such Note is an
Amortizing Note, or in the case of a
Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at
such time), Base Rate, Index
Maturity, Interest Reset Period,
Initial Interest Reset Date,
Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any), the
Alternate Rate Event Spread (if any)
and the applicability of the
Modified Following Banking Day
Convention.
4. Interest Payment Dates.
5. Redemption provisions, if any.
6. Ranking.
7. Settlement date.
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<PAGE> 35
8. Price.
9. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
10. Whether the Note is an OID Note, and
if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual period
OID and the applicability of
Modified Payment upon Acceleration.
11. Any other applicable Terms.
B. The Company will advise the Trustee by
telephone or electronic transmission
(confirmed in writing at any time on the
same date) of the information set forth in
Settlement Procedure "A" above. The Trustee
will then assign a CUSIP number to the Global
Security representing such Note and will
notify the Company and the Agent of such CUSIP
number by telephone as soon as practicable.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, the Agent and Standard &
Poor's Corporation:
1. The information set forth in
Settlement Procedure "A".
2. The Initial Interest Payment Date
for such Note, the number of days by
which such date succeeds the related
DTC Record Date (which in the case
of Floating Rate Notes which reset
daily or weekly, shall be the date
five calendar days immediately
preceding the applicable Interest
Payment Date and, in the case of all
other Notes, shall be the Record
Date as defined in the Note) and
amount of interest
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<PAGE> 36
payable on such Initial Interest
Payment Date.
3. The CUSIP number of the Global
Security representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
5. Whether such Note is an Amortizing
Note (by appropriate notation in the
comments field of DTC's Participant
Terminal System).
D. The Trustee will complete and authenticate
the Global Security representing such Note.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. Citibank will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Trustee's participant account and credit
such Note to the Agent's participant account
and (ii) debit the Agent's settlement account
and credit the Trustee's settlement account
for an amount equal to the price of such Note
less the Agent's commission, if any. The
entry of such a deliver order shall constitute
a representation and warranty by the Trustee
to DTC that (a) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (b) the Trustee
is holding such Global Security pursuant to
the Medium Term Note Certificate Agreement
between the Trustee and DTC.
G. Unless the Agent purchased such Note as
principal, the Agent will enter an SDFS
deliver order through DTC's
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<PAGE> 37
Participant Terminal System instructing DTC
(i) to debit such Note to the Agent's
participant account and credit such Note to
the participant accounts of the Participants
with respect to such Note and (ii) to debit
the settlement accounts of such Participants
and credit the settlement account of the
Agent for an amount equal to the price of
such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
I. The Trustee will credit to the account of the
Company maintained at , New
York, New York, in funds available for
immediate use in the amount transferred to
the Trustee in accordance with Settlement
Procedure "F".
J. Unless the Agent purchased such Note as
principal, the Agent will confirm the
purchase of such Note to the purchaser either
by transmitting to the Participants with
respect to such Note a confirmation order or
orders through DTC's institutional delivery
system or by mailing a written confirmation
to such purchaser.
K. Monthly, the Trustee will send to the Company
a statement setting forth the principal amount
of Notes Outstanding as of that date under the
Indentures and setting forth a brief
description of any sales of which the Company
has advised the Trustee but which have not yet
been settled.
Settlement For sales by the Company of Book-
Procedures Entry Notes to or through the Agent
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<PAGE> 38
Timetable: (except pursuant to a Terms Agreement) for settlement
on the first Business Day after the sale date,
Settlement Procedures 'A" through "J" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B"
and "C" shall be completed as soon as practicable but
no later than 11:00 A.M., 12 Noon and 2:00 P.M.,
respectively, on the first Business Day after the
sale date. If the Initial Interest Rate for a
Floating Rate Book-Entry Note has not been determined
at the time that Settlement Procedure "A" is
completed, Settlement Procedure "B" and "C" shall be
completed as soon as such rate has been determined
but no later than 12 Noon and 2:00 P.M.,
respectively, on the second Business Day before the
settlement date. Settlement Procedure "H" is subject
to extension in accordance with any extension of
Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect
on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
cancel led, the Trustee, after receiving notice from
the Company or the Agent, will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M. on
the
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<PAGE> 39
Business Day immediately preceding the scheduled
settlement date.
Failure to If the Trustee fails to enter an SDFS deliver order
Settle: with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as
soon as practicable withdrawal message instructing DTC
to debit such Note to the Trustee's participant
account, provided that the Trustee's participant
account contains a principal amount of the Global
Security representing such Note that is at least equal
to the principal amount to be debited. If a withdrawal
message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the
Trustee will mark such Global Security "cancelled,"
make appropriate entries in the Trustee's records and
send such cancel led Global Security to the Company.
The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, the Trustee
will exchange such Global Security for two Global
Securities, one of which shall represent such
Book-Entry Note or Notes and shall be cancel led
immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global
Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Agent may enter SDFS
deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to
Settlement Procedures "F" and
17
<PAGE> 40
"G", respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related
actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes to
have been represented by a Global Security, the
Trustee will provide, in accordance with Settlement
Procedures "D" and "F", for the authentication and
issuance of a Global Security representing the
Book-Entry Notes to be represented by such Global
Security and will make appropriate entries in its
records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date,
which will be (i)with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or in
lieu of a destroyed, lost or stolen Certificated
Note, the original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and A Certificated Note may be presented
18
<PAGE> 41
Exchanges: for transfer or exchange at the corporate trust
office of Citibank. Certificated Notes will be
exchangeable for other Certificated Notes having
identical terms but different denominations without
service charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date more
than nine months from the settlement date for such
Note.
Currency: The currency denomination with respect to any
Certificated Note and the payment of interest and the
repayment of principal with respect to any such
Certificated Note shall be as set forth therein and
in the applicable Pricing Supplement.
Denominations: The denomination of any Certificated Note will be a
minimum of U.S. $100,000 or any amount in excess
thereof that is an integral multiple of U.S. $1,000
or the equivalent, as determined pursuant to the
provisions of the applicable Prospectus Supplement,
of U.S. $100,000 (rounded down to an integral
multiple of 1,000 units of such Specified Currency)
and any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency.
Interest: General. Interest on each Certificated Note will
accrue from the Original Issue Date of such Note for
the first interest period and from the most recent
date to which interest has been paid for all
subsequent interest periods. Each payment of
interest on a Certificated Note will include interest
accrued to but excluding the Interest Payment Date;
provided that in the case of Floating Rate Notes
which reset daily or weekly, interest payments will
include the Record Date immediately preceding the
Interest Payment Date, except that at maturity or
earlier redemption, the interest payable will include
interest accrued to, but excluding the Maturity Date
or the date of redemption, as the case may be.
19
<PAGE> 42
Fixed Rate Certificated Notes. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Certificated Notes
other than Amortizing Notes will be made
semi-annually on March 1 and September 1 of each year
and at maturity and Certificated Amortizing Notes
will pay principal and interest semi-annually each
March l and September l, or quarterly each March l,
June l, September 1, and December l, and at maturity;
provided, however, that in the case of Certificated
Fixed Rate Notes issued between a Record Date and an
Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
Floating Rate Certificated Notes. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or annually.
Interest will be payable, in the case of Floating
Rate Certificated Notes with a daily, weekly or
monthly Interest Reset Date, on the third Wednesday
of each month or on the third Wednesday of March,
June, September and December, as specified pursuant
to settlement procedure "A" below; in the case of
Notes with a quarterly interest Payment Reset Date,
on the third Wednesday of March, June, September and
December of each year; in the case of Notes with a
semi-annual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to
Settlement Procedure All below; and in the case of
Notes with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided, however,
that if an Interest Payment Date for Floating Rate
Certificated Notes would otherwise be a day that is
not a Business Day with respect to such Floating Rate
Certificated Notes, such Interest Payment Date will
be the next succeeding Business Day with respect to
such Floating Rate Certificated Notes, except in the
case of a LIBOR Note if such Business Day is in
20
<PAGE> 43
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day; and provided, further, that in the case
of a Floating Rate Certificated Note issued between a
Record Date wand an Interest Payment Date, the first
interest payment will be made on the Interest Payment
Date following the next succeeding Record Date.
Calculation of Fixed Rate Certificated Notes.
Interest: Interest on Fixed Rate Certificated Notes (including
interest for partial periods) will be calculated on
the basis of a year of twelve thirty-day months.
Floating Rate Certificated Notes.
Interest rates on Floating Rate Certificated Notes
will be determined as set forth in the form of Notes.
Interest on Floating Rate Certificated Notes will be
calculated on the basis of actual days elapsed and a
year of 360 days except that in the case of Treasury
Rate Notes, interest will be calculated on the basis
of the actual number of days in the year.
Payments of The Trustee will pay the principal amount of each
Principal and Certificated Note at maturity or upon redemption upon
Interest: presentation and surrender of such Note to the
Trustee. Such payment, together with payment of
interest due at maturity or upon redemption of such
Note, will be made in funds available for immediate
use by the Trustee and in turn by the holder of such
Note. Certificated Notes presented to the Trustee at
maturity or upon redemption for payment will be cancel
led by the Trustee and delivered to the Company with a
certificate of cancellation. All interest payments on
a Certificated Note (other than interest due at
maturity or upon redemption) will be made by check
drawn on the Trustee (or another person appointed by
the Trustee) and mailed by the Trustee to the person
entitled thereto as provided in such Note and the
relevant Indenture; provided, however, that the holder
of $10,000,000 or more of Notes having the same
Interest Payment Date
21
<PAGE> 44
will be entitled to receive payment by wire transfer
of immediately available funds. Following each Record
Date, the Trustee will furnish the Company with a list
of interest payments to be made on the following
Interest Payment Date for each Certificated Note and
in total for all Certificated Notes. Interest at
maturity or upon redemption will be payable to the
person to whom the payment of principal is payable.
The Trustee will provide monthly to the Company lists
of principal and interest, to the extent
ascertainable, to be paid on Certificated Notes
maturing or to be redeemed in the next month. The
Trustee will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If any Interest Payment Date or the Maturity Date or
redemption date of a Fixed-Rate Certificated Note is
not a Business Day, the payment due on such day shall
be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date, Maturity
Date or redemption date, as the case may be. If any
Interest Payment Date or the Maturity Date or
redemption date for any Certificated Floating Rate
Note would fall on a day that is not a Business Day
with respect to such Note, such Interest Payment
Date, Maturity Date or redemption date will be the
following day that is a Business Day with respect to
such Note, except that, in the case of a Certificated
LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
shall be the immediately preceding day that is a
Business Day with respect to such Certificated LIBOR
Note.
Preparation of If any order to purchase a Certificated
Pricing Note is accepted by or on behalf of the
Supplement: Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the
terms of such Note and will arrange to file 10 copies
of such Pricing Supplement with the
22
<PAGE> 45
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, will deliver
the number of copies of such Pricing Supplement to
the Agent as the Agent shall request by the close of
business on the following Business Day and will, on
the Agent's behalf, file five copies of such Pricing
Supplement with the NASD. The Agent will cause such
Pricing Supplement to be delivered to the purchaser
of the Note.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the Agent and the Agent's delivery
of such Note against receipt of immediately available
funds shall constitute "settlement" with respect to
such Note. All orders accepted by the Company will
be settled on or before the third Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on
another date.
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note sold by the Company to or through
the Agent (except pursuant to a Terms Agreement)
shall be as follows:
A. The Agent will advise the Company by
telephone that such Note is a Certificated
Note and of the following settlement
information:
l. Name in which such Note is to be
registered ("Registered Owner").
23
<PAGE> 46
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of
the Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the interest rate
and whether such Note is an
Amortizing Note or, in the case of a
Floating Rate Certificated Note, the
Initial Interest Rate (if known at
such time), Base Rate, Index
Maturity, Interest Reset Period,
Initial Interest Reset Date,
Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any), the
Alternate Rate Event Spread (if any)
and the applicability of the
Modified Following Banking Day
Convention.
7. Interest Payment Dates.
8. Redemption provisions, if any.
9. Ranking.
10. Settlement date.
11. Price.
12. Agent's commission if any,
determined as provided in the
Distribution Agreement between the
Company and the Agent.
13. Whether the Note is an OID Note, and
if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual period
OID and the
24
<PAGE> 47
applicability of Modified Payment
upon Acceleration.
14. Any other applicable Terms.
B. The Company will advise the Trustee by
telephone or electronic transmission
(confirmed in writing at any time on the sale
date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the
Trustee a pre-printed four-ply packet for such
Note, which packet will contain the following
documents in forms that have been approved by
the Company, the Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and
authenticate such Note and deliver it (with
the confirmation) and Stubs One and Two to
the Agent, and the Agent will acknowledge
receipt of the Note by stamping or otherwise
marking Stub One and returning it to
the Trustee. Such delivery will be made only
against such acknowledgment of receipt and
evidence that instruct ions have been given
by the Agent for payment to the account of
the Company at , New York, New
York, in funds available for immediate use,
of an amount equal to the price of such Note
less the Agent's commission, if any. In the
event that the instructions given by the
Agent for payment to the account of the
Company are revoked, the Company will as
promptly as possible wire
25
<PAGE> 48
transfer to the account of the Agent an
amount of immediately available funds equal
to the amount of such payment made.
E. Unless the Agent purchased such Note as
principal, the Agent will deliver such Note
(with confirmation) to the customer against
payment in immediately payable funds. The
Agent will obtain the acknowledgment of
receipt of such Note by retaining Stub Two.
F. The Trustee will send Stub Three to the
Company by first-class mail. Periodically,
the Trustee will also send to the Company a
statement setting forth the principal amount
of the Notes Outstanding as of that date under
each Indenture and setting forth a brief
description of any sales of which the Company
has advised the Trustee but which have not yet
been settled.
Settlement For sales by the Company of Certificated
Procedures Notes to or through the Agent (except
Timetable: Agent (except pursuant to a Terms Agreement),
Settlement Procedures "A" through "F" set forth above
shall be completed on or before the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 2:00 P.M. on day before
settlement date
B 3:00 P.M. on day before
settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to If a purchaser fails to accept delivery
Settle: of and make payment for any Certificated Note, the
Agent will notify the Company and the Trustee by
telephone and return such Note to the Trustee. Upon
receipt of such
26
<PAGE> 49
notice, the Company will immediately wire transfer to
the account of the Agent an amount equal to the amount
previously credited thereto in respect of such Note.
Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than
a default by the Agent in the performance of its
obligations hereunder and under the Distribution
Agreement with the Company, then the Company will
reimburse the Agent or the Trustee, as appropriate, on
an equitable basis for its loss of the use of the
funds during the Period when they were credited to the
account of the Company. Immediately upon receipt of
the Certificated Note in respect of which such failure
occurred, the Trustee will mark such Note "cancelled,"
make appropriate entries in the Trustee's records and
send such Note to the Company.
27
<PAGE> 1
EXHIBIT 4.1
========================================================
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
AND
CITIBANK, N.A., Trustee
Senior Indenture
Dated as of __________, 1996
__________
========================================================
<PAGE> 2
TABLE OF CONTENTS
__________
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
covenant defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder", "Holder of Securities", "Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
record date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
i
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<TABLE>
<S> <C> <C>
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sale and Lease-Back Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security" or "Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Unregistered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.7 Denomination and Date of Securities; Payments of Interest . . . . . . . . . . . . . . . . . 17
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . 21
SECTION 2.10 Cancellation of Securities; Disposition Thereof . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.4 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.5 Written Statement to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.6 Limitations upon Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.7 Limitation on Sale and Lease-Back . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.8 Luxembourg Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.9 Securityholders Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.10 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.11. Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
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ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
<TABLE>
<S> <C>
SECTION 4.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default . . . . . . . . . . . 35
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt . . . . . . . . . . . . . . . 38
SECTION 4.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.4 Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.6 Limitations on Suits by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.7 Unconditional Right of Securityholders to Institute Certain Suits . . . . . . . . . . . . . 43
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default . . . . . . . . . . 44
SECTION 4.9 Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.10 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances . . . . . . . 45
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay Costs . . . . . . . . . . . . . . . 46
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default . . . . . . . 46
SECTION 5.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application of
Proceeds Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.4 Trustee and Agents May Hold Securities or Coupons; Collections, etc. . . . . . . . . . . . 49
SECTION 5.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . 50
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . . . . . . . . . . . . . 50
SECTION 5.8 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.9 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . 51
SECTION 5.10 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 5.11 Merger, Conversion, Consolidation or
</TABLE>
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<TABLE>
<S> <C> <C>
Succession to Business of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.12 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . 57
SECTION 6.3 Holders to be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . 60
SECTION 7.2 Supplemental Indentures With Consent of Securityholders . . . . . . . . . . . . . . . . . . 61
SECTION 7.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 7.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . 63
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.2 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 9.2 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . 71
SECTION 9.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years . . . . . . . . . 71
SECTION 9.5 Indemnity for U.S. Government
</TABLE>
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<TABLE>
<S> <C> <C>
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.6 Excess Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities and
Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . 73
SECTION 10.4 Notices and Demands on Issuer, Trustee and Holders of Securities and Coupons . . . . . . . 73
SECTION 10.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein . . . . 74
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . 75
SECTION 10.8 New York Law to Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.11 Securities in a Foreign Currency or in ECU . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.12 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 11.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption . . . . . . . 81
SECTION 11.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
</TABLE>
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THIS INDENTURE, dated as of __________, 1996 between
TRANSCONTINENTAL GAS PIPE LINE CORPORATION, a Delaware corporation (the
"Issuer"), and CITIBANK, N.A., as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders
from time to time of the Securities and of the Coupons, if any, appertaining
thereto as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Article. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to
in the Trust Indenture Act of 1939, including terms defined therein by
reference to the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the
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date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. 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. The
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
"Attributable Debt" shall have the meaning set forth in
Section 3.7.
"Authenticating Agent" shall have the meaning set forth in
Section 5.12.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom, will, if practicable, be
the Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that
in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to close.
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"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Consolidated Funded Indebtedness" means the aggregate of all
outstanding Funded Indebtedness of the Issuer and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Consolidated Net Tangible Assets" means the total assets
appearing on a consolidated balance sheet of the Issuer and its consolidated
Subsidiaries, less:
(1) intangible assets, unamortized debt discount and expense
and stock expense and other deferred debits;
(2) all current and accrued liabilities (other than
Consolidated Funded Indebtedness and capitalized rentals or leases);
deferred credits (other than deferred investment tax credits),
deferred gains and deferred income and billings recorded as revenues
deferred pending the outcome of a rate proceeding (less applicable
income taxes) to the extent refunds thereof shall not have been
finally determined; and
(3) all reserves (other than for deferred Federal income
taxes arising from timing differences) not already deducted from
assets.
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"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which
this Indenture is dated, located in the City of New York, New York.
"Coupon" means any interest coupon appertaining to a Security.
"covenant defeasance" shall have the meaning set forth in
Section 9.1(C).
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Issuer pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 4.1.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Funded Indebtedness" means any Indebtedness which matures
more than one year after the date as of which Funded Indebtedness is being
determined less any such Indebtedness as will be retired through or by means of
any deposit or payment required to be made within one year from such date under
any prepayment provision, sinking fund, purchase fund or otherwise.
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"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security, the Person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" means indebtedness which is for money borrowed
from others.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means Transcontinental Gas Pipe Line Corporation, a
Delaware corporation and, subject to Article Eight, its successors and assigns.
"Issuer Order" means a written statement, request or order of
the Issuer signed in its name by the Chairman of the Board, the President, a
Vice President, a Secretary or a Treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in
Section 10.12.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Controller, Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Issuer and delivered to the Trustee. Each such certificate
shall comply with Section 314 of the Trust Indenture Act of 1939 and include
the statements provided for in Section 10.5, if applicable.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer and who shall
be satisfactory to the Trustee. Each such opinion shall comply with Section
314 of the Trust Indenture Act of 1939 and include the statements provided for
in Section 10.5, if applicable.
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"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 4.1.
"Outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as provided
for in Section 9.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the
Issuer) or shall have been set aside, segregated and held in trust by
the Issuer for the Holders of such Securities (if the Issuer shall act
as its own paying agent), provided that if such Securities, or
portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1.
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"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any".
"Principal Property" shall have the meaning set forth in
Section 3.7.
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security", means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.4, and bearing the legend prescribed
in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 10.12.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, (whether or not designated by numbers or words added before or
after the title "vice president") the cashier, the secretary, the treasurer,
any trust officer, any senior trust officer, any assistant trust officer, any
assistant vice president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
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"Sale and Lease-Back Transaction" shall have the meaning set
forth in Section 3.7.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" means any corporation at least a majority of the
outstanding securities of which having ordinary voting power shall be owned by
the Issuer and/or another Subsidiary or Subsidiaries.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, as in force at the date as of which this
Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Five, shall
also include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set
forth in Section 9.1(A).
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent
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established pursuant to rather than set forth in a Board Resolution, an
Officers' Certificate detailing such establishment) or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the officers executing
such Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, 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
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Senior Indenture.
_______________________,
as Trustee
By _____________________
Authorized Signatory"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Securities of such
series may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication to be borne by the Securities of each such
series, an alternative Certificate of Authentication substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Senior Indenture.
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_______________________,
as Trustee
By ____________________,
as Authenticating Agent
By _____________________
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each
such series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Issuer. There shall be established in or pursuant
to one or more Board Resolutions (and, to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officers' Certificate
detailing such establishment) or established in one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 7.5 or
11.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, on which such interest shall be payable and (in
the case of Registered Securities) on which a record shall be taken
for the determination of Holders to whom interest is payable and/or
the method by which such rate or rates or date or dates shall be
determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if
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other than as provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon
which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem,
repurchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the period or
periods within which and any terms and conditions upon which
Securities of the series shall be redeemed, repurchased or repaid, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in
which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in
which payment of the principal of or interest on the Securities of
such series shall be payable;
(12) if the principal of or interest on the Securities of
such series are to be payable, at the election of the Issuer or a
Holder thereof, in a coin or currency other than that in which the
Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(13) if the amount of payments of principal of and interest
on the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities)
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or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to the
offer, sale or delivery of Unregistered Securities or the payment of
interest thereon and, if other than as provided in Section 2.8, the
terms upon which Unregistered Securities of any series may be
exchanged for Registered Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a Person
who is not a U.S. Person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Issuer will have the option to redeem such Securities rather than pay
such additional amounts;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(18) any other Events of Default or covenants with respect to
the Securities of such series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such Officers' Certificate or
in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in
this
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Section) or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be
specified in or pursuant to such Issuer Order and procedures. If provided for
in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral instructions from the Issuer or its duly authorized agent,
which instructions shall be promptly confirmed in writing. In authenticating
such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs 2, 3 and 4 below only at or before the
time of the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 5.1) shall be fully
protected in relying upon, unless and until such documents have been superceded
or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and Coupons, if
any, are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering, (a)
such Issuer Order may be delivered by the Issuer to the Trustee prior
to the delivery to the Trustee of such Securities for authentication
and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an
aggregate principal amount not exceeding the aggregate principal
amount established for such series, pursuant to an Issuer Order or
pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other
terms of Securities of such series shall be determined by an Issuer
Order or pursuant to such procedures and (d) if provided for in such
procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Issuer
or its duly authorized agent or agents, which oral instructions shall
be promptly confirmed in writing;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by
or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the form
or forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections
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2.1 and 2.3 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting to it to rely
on an Opinion of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with
the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and
established in conformity with the provisions of this
Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer
Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
(c) when the Securities and Coupons, if any, have
been executed by the Issuer and authenticated by the Trustee
in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, they
will have been duly issued under this Indenture and will be
valid and legally binding obligations of the Issuer,
enforceable in accordance with their respective terms, and
will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its
Subsidiaries that is material to the Issuer and its
Subsidiaries, considered as one enterprise, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Issuer or any Subsidiary, and no consent, approval or
authorization of any governmental body or agency is required
for the performance by the Issuer of its obligations under the
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Securities and Coupons, if any, except such as are specified
and have been obtained and such as may be required by the
securities or blue sky laws of the various states in
connection with the offer and sale of the Securities.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the State of New York and the federal law of the United States, upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
in which case the opinion shall state that such counsel believes he and the
Trustee are entitled so to rely. Such counsel may also state that, insofar as
such opinion involves factual matters, he has relied, to the extent he deems
proper, upon certificates of officers of the Issuer and its subsidiaries and
certificates of public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i)
shall represent and shall be denominated in an amount equal to all or part of
the aggregate principal amount of the Securities of such series issued and not
yet cancelled, (ii) shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of
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the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal (except in the case of Coupons) which may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. No Coupon shall
be entitled to the benefits of this Indenture or shall be valid and obligatory
for any purpose until the certificate of authentication on the Security to
which such Coupon appertains shall have been duly executed by the Trustee. The
execution of such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and
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delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series
are not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered
or otherwise distinguished in such manner or in accordance with such plan as
the officers of the Issuer executing the same may determine with the approval
of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in or
pursuant to the resolution or resolutions of the Board of Directors of the
Issuer referred to in Section 2.3. The Securities of each series shall bear
interest, if any, from the date, and such interest shall be payable on the
dates, established as contemplated by Section 2.3.
Unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.3, the Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the Persons in whose names Outstanding
Registered Securities for such series are registered at the close of business
on a subsequent record date (which shall be not less than five Business Days
prior to the date of payment of such defaulted interest) established by notice
given by mail by or on behalf of the Issuer to the Holders of Registered
Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the Registered Securities of
such series established as contemplated by Section 2.3, or, if no such date is
so established, if such interest payment date is the first day of a calendar
month, the
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fifteenth day of the next preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will keep or cause to be kept at each office or agency to be maintained for the
purpose as provided in Section 3.2 for each series of Securities a register in
which, subject to such reasonable regulations as it may prescribe, it will
provide for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified pursuant to
Section 2.3, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section
3.2, with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto appertaining,
and upon
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payment, if the Issuer shall so require, of the charges hereinafter provided.
At the option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise specified pursuant to Section
2.3, such Unregistered Securities may be exchanged for Unregistered Securities
of such series, maturity date, interest rate and original issue date having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2
or as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. Unless otherwise specified
pursuant to Section 2.3, Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. All Securities and Coupons surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly
cancelled and disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security
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representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to such Registered Securities. If
a successor Depositary for such Registered Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
Coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities in exchange for such Registered Global
Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of
one or more Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global
Security or Securities representing such Registered Securities, in exchange for
such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global Security, the
Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute, and the
Trustee shall
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authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in authorized
denominations, such Registered Global Security shall be cancelled by the
Trustee or its agent. Securities in definitive registered form without Coupons
issued in exchange for a Registered Global Security pursuant to this Section
2.8 shall be registered in such names and in such authorized denominations as
the Depositary for such Registered Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series
of Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on
an Officers' Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such as,
for example, the inability of the Issuer to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer
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of the Issuer, the Trustee shall authenticate and deliver a new Security of the
same series, maturity date, interest rate and original issue date, bearing a
number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for
a substitute Security or Coupon shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the
Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer 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 or its agent)
connected therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of
issuing a substitute Security, pay or authorize the payment of the same or the
relevant Coupon (without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately
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with any and all other Securities or Coupons of such series duly authenticated
and delivered hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and Coupons and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof.
All Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee or its agent shall dispose of cancelled Securities and Coupons held by
it and deliver a certificate of disposition to the Issuer. If the Issuer or
its agent shall acquire any of the Securities or Coupons, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities or Coupons unless and until the same are
delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be
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surrendered in exchange therefor without charge at each office or agency to be
maintained by the Issuer for that purpose pursuant to Section 3.2 and, in the
case of Unregistered Securities, at any agency maintained by the Issuer for
such purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series, unless
otherwise established pursuant to Section 2.3. The provisions of this Section
are subject to any restrictions or limitations on the issue and delivery of
temporary Unregistered Securities of any series that may be established
pursuant to Section 2.3 (including any provision that Unregistered Securities
of such series initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary or agency located outside the United
States and the procedures pursuant to which definitive or global Unregistered
Securities of such series would be issued in exchange for such temporary global
Unregistered Security).
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ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of
such interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities (together with
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only to or upon the written order of the Holders thereof entitled
thereto and, at the option of the Issuer, may be paid by wire transfer or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to this Indenture or
are outstanding hereunder, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities of
each series may be presented for exchange as is provided in this Indenture and,
if applicable, pursuant to Section 2.3 and where the Registered Securities of
each series may be presented for registration of transfer as in this Indenture
provided.
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The Issuer will maintain one or more offices or agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States unless pursuant to applicable United States
laws and regulations then in effect such payment can be made without adverse
tax consequences to the Issuer. Notwithstanding the foregoing, payments in
Dollars of Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Issuer
maintained in the Borough of Manhattan, The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the United States for
payment on such Unregistered Securities is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City
of New York, an office or agency where notices and demands to or upon the
Issuer in respect of the Securities of any series, the Coupons appertaining
thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any agency required by this Section
to be located in the Borough of Manhattan, The City of New York, or shall fail
to give such notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall
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in any manner relieve the Issuer of its obligation to maintain the agencies
provided for in this Section. The Issuer will give to the Trustee prompt
written notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 5.9, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities of
such series (whether such sums have been paid to it by the Issuer or
by any other obligor on the Securities of such series) in trust for
the benefit of the Holders of the Securities of such series, or
Coupons appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any failure by
the Issuer (or by any other obligor on the Securities of such series)
to make any payment of the principal of or interest on the Securities
of such series when the same shall be due and payable, and
(c) that it will at any time during the continuance of any
such failure, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal
of or interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series or the
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Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, but
subject to Section 9.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for any such series by the Issuer or
any paying agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
furnish to the Trustee on or before May 31 in each year (beginning with May 31,
1997) a brief certificate (which need not comply with Section 10.5) from the
principal executive, financial or accounting officer of the Issuer as to his or
her knowledge of the Issuer's compliance with all conditions and covenants
under the Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under the Indenture).
SECTION 3.6 Limitations upon Liens. After the date hereof
and so long as any Securities are Outstanding, the Issuer will not, and will
not permit any Subsidiary to, issue, assume or guarantee any Indebtedness
secured by a mortgage, pledge, lien, security interest or encumbrance (any
mortgage, pledge, lien, security interest or encumbrance being hereinafter in
this Article referred to as a "mortgage" or "mortgages" or as a "lien" or
"liens") of, or upon any property of the Issuer or of any Subsidiary, without
effectively providing that the Securities (together with, if the Issuer shall
so determine, any other Indebtedness of the Issuer ranking equally with the
Securities) shall be equally and ratably secured with such Indebtedness;
provided, however, that the foregoing restriction shall not apply to
(a) Any purchase money mortgage created by the Issuer or a
Subsidiary to secure all or part of the purchase price of any property
(or to secure a loan made to enable the Issuer or a Subsidiary to
acquire the property described in such mortgage), provided that the
principal amount of the Indebtedness secured by any such mortgage,
together with all
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other Indebtedness secured by a mortgage on such property, shall not
exceed the purchase price of the property acquired;
(b) Any mortgage existing on any property at the time of the
acquisition thereof by the Issuer or a Subsidiary whether or not
assumed by the Issuer or a Subsidiary, and any mortgage on any
property acquired or constructed by the Issuer or a Subsidiary and
created not later than 12 months after (i) such acquisition or
completion of such construction or (ii) commencement of full operation
of such property, whichever is later; provided, however, that, if
assumed or created by the Issuer or a Subsidiary, the principal amount
of the Indebtedness secured by such mortgage, together with all other
Indebtedness secured by a mortgage on such property, shall not exceed
the purchase price of the property, acquired and/or the cost of the
property constructed;
(c) Any mortgage created or assumed by the Issuer or a
Subsidiary on any contract for the sale of any product or service or
any rights thereunder or any proceeds therefrom, including accounts
and other receivables, related to the operation or use of any property
acquired or constructed by the Issuer or a Subsidiary and created not
later than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later;
(d) Any mortgage existing on any property of a Subsidiary at
the time it becomes a Subsidiary and any mortgage on property existing
at the time of acquisition thereof;
(e) Any refunding or extension of maturity, in whole or in
part, of any mortgage created or assumed in accordance with the
provisions of subdivision (a), (b), (c) or (d) above or (j), (p), or
(y) below, provided that the principal amount of the Indebtedness
secured by such refunding mortgage or extended mortgage shall not
exceed the principal amount of the Indebtedness secured by the mortgage
to be refunded or extended outstanding at the time of such refunding or
extension and that such refunding mortgage or extended mortgage shall
be limited in lien to the same property that secured the mortgage so
refunded or extended;
(f) Any mortgage created or assumed by the Issuer or a
Subsidiary to secure loans to the Issuer or a Subsidiary maturing
within 12 months of the date of creation thereof and not renewable or
extendible by the terms thereof at the option of the obligor beyond
such 12 months, and made in the ordinary course of business;
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(g) Mechanics' or materialmen's liens or any lien or charge
arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
connection with tenders or leases of real estate, bids or contracts
(other than contracts for the payment of money), deposits to secure
public or statutory obligations, deposits to secure or in lieu of
surety, stay or appeal bonds and deposits as security for the payment
of taxes or assessments or other similar charges;
(h) Any mortgage arising by reason of deposits with or the
giving of any form of security to any governmental agency or any body
created or approved by law or governmental regulation for any purpose
at any time as required by law or governmental regulation as a
condition to the transaction of any business or the exercise of any
privilege or license, or to enable the Issuer or a Subsidiary to
maintain self-insurance or to participate in any fund for liability on
any insurance risks or in connection with workmen's compensation,
unemployment insurance, old age pensions or other social security or
to share in the privileges or benefits required for companies
participating in such arrangements;
(i) Mortgages upon rights-of-way;
(j) Undetermined mortgages and charges incidental to
construction or maintenance;
(k) The right reserved to, or vested in, any municipality or
governmental or other public authority or railroad by the terms of any
right, power, franchise, grant, license, permit or by any provision of
law, to terminate or
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to require annual or other periodic payments as a condition to the
continuance of such right, power, franchise, grant, license or permit;
(l) The lien of taxes and assessments which are not at the
time delinquent;
(m) The lien of specified taxes and assessments which are
delinquent but the validity of which is being contested in good faith
at the time by the Issuer or a Subsidiary;
(n) The lien reserved in leases for rent and for compliance
with the terms of the lease in the case of leasehold estates;
(o) Defects and irregularities in the titles to any property
(including rights-of-way and easements) which are not material to the
business of the Issuer and its Subsidiaries considered as a whole;
(p) Any mortgages securing Indebtedness neither assumed nor
guaranteed by the Issuer or a Subsidiary nor on which it customarily
pays interest, existing upon real estate or rights in or relating to
real estate (including rights-of-way and easements) acquired by the
Issuer or a Subsidiary, which mortgages do not materially impair the
use of such property for the purposes for which it is held by the
Issuer or such Subsidiary;
(q) Easements, exceptions or reservations in any property of
the Issuer or a Subsidiary granted or reserved for the purpose of
pipelines, roads, telecommunication equipment and cable, streets,
alleys, highways, railroad purposes, the removal of oil, gas, coal or
other minerals or timber, and other like purposes, or for the joint or
common use of real property, facilities and equipment, which do not
materially impair the use of such property for the purposes for which
it is held by the Issuer or such Subsidiary;
(r) Rights reserved to or vested in any municipality or
public authority to control or regulate any property of the Issuer or
a Subsidiary, or to use such property in any manner which does not
materially impair the use of such property for the purposes for which
it is held by the Issuer or such Subsidiary;
(s) Any obligations or duties, affecting the property of the
Issuer or a Subsidiary, to any municipality or public authority with
respect to any franchise, grant, license or permit;
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(t) The liens of any judgments in an aggregate amount not in
excess of $2,000,000 or the lien of any judgment the execution of
which has been stayed or which has been appealed and secured, if
necessary, by the filing of an appeal bond;
(u) Zoning laws and ordinances;
(v) Any mortgage existing on any office equipment, data
processing equipment (including computer and computer peripheral
equipment) or transportation equipment (including motor vehicles,
aircraft and marine vessels);
(w) Leases now or hereafter existing and any renewals or
extensions thereof;
(x) Any lien on inventory and receivables incurred in the
ordinary course of business to secure Indebtedness incurred for working
capital purposes including liens incurred in connection with a sale of
receivables; and
(y) Any mortgage not permitted by clauses (a) through (x)
above if at the time of, and after giving effect to, the creation or
assumption of any such mortgage, the aggregate of all Indebtedness of
the Issuer and its Subsidiaries secured by all such mortgages not so
permitted by clauses (a) through (x) above do not exceed 5% of
Consolidated Net Tangible Assets.
In the event that the Issuer or a Subsidiary shall hereafter
secure the Securities equally and ratably with any other obligation or
Indebtedness pursuant to the provisions of this Section 3.6, the Trustee is
hereby authorized to enter into an indenture supplemental hereto and to take
such action, if any, as it may deem advisable to enable it to enforce
effectively the rights of the Holders of the Securities so secured, equally and
ratably with such other obligation or Indebtedness.
Subject to the provisions of Section 5.1, the Trustee, at its
request, may receive an Opinion of Counsel as conclusive evidence that any such
supplemental indenture or steps taken to
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secure the Securities equally and ratably comply with the provisions of this
Section 3.6.
SECTION 3.7 Limitation on Sale and Lease-Back. The Issuer
agrees that it will not, and will not permit any Subsidiary to, enter into any
arrangement with any Person providing for the leasing by the Issuer or a
Subsidiary of any Principal Property, acquired or placed into service more than
180 days prior to such arrangement (except for leases of three years or less),
whereby such property has been or is to be sold or transferred by the Issuer or
any Subsidiary to such Person (herein referred to as a "Sale and Lease-Back
Transaction"), unless the Issuer shall covenant that it will apply an amount
equal to the net proceeds from the sale of the Principal Property so leased to
the retirement (other than any mandatory retirement) of its Funded Indebtedness
within 90 days of the effective date of any such Sale and Lease-Back
Transaction, provided that the amount to be applied to the retirement of Funded
Indebtedness of the Issuer shall be reduced by (i) the principal amount of any
Securities delivered by the Issuer to the Trustee within 90 days after such Sale
and Lease-Back Transaction for retirement and cancellation, and (ii) the
principal amount of Funded Indebtedness, other than Securities, voluntarily
retired by the Issuer within 90 days following such Sale and Lease-Back
Transaction, provided, further, the covenant contained in this Section 3.7 shall
not apply to, and there shall be excluded from Attributable Debt in any
computation under this Section 3.7, Attributable Debt with respect to any Sale
and Lease-Back Transaction if:
(1) such Sale and Lease-Back Transaction is entered into in
connection with transactions which are part of an industrial
development or pollution control financing or,
(2) the only parties involved in such Sale and Lease-Back
Transaction are the Issuer and any Subsidiary or any Subsidiaries.
For purposes of this Section 3.7,
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"Attributable Debt" means, with respect to any Sale and Lease-Back Transaction
as of any particular time, the present value discounted at the rate of interest
implicit in the terms of the lease of the obligations of the lessee under such
lease for net rental payments during the remaining term of the lease (including
any period for which such lease has been extended or may, at the option of the
Issuer, be extended).
For purposes of this Section 3.7, "Principal Property" means
any natural gas pipeline, gathering property or natural gas processing plant
located in the United States, except any such property that in the opinion of
the Board of Directors is not of material importance to the total business
conducted by the Issuer and its consolidated Subsidiaries. "Principal
Property" shall not include (i) the production or proceeds from production of
gas processing plants or natural gas or petroleum products in any
pipeline or storage field and (ii) any property acquired or constructed by any
Subsidiary of the Issuer after December 31, 1995.
Notwithstanding these restrictions on Sale and Lease-Back
Transaction, the Issuer and its Subsidiaries may enter into, create, assume and
suffer to exist Sale and Lease-Back Transactions, not otherwise permitted
hereby, if at the time of, and after giving effect to, such Sale and Lease-Back
Transaction, the total Consolidated Attributable Debt of the Issuer and its
Subsidiaries does not exceed 5% of Consolidated Net Tangible Assets.
SECTION 3.8 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 4.11, 5.9(a), 5.10, 7.2, 9.4,
11.2 or 11.5, the party making such publication in the Borough of Manhattan,
The City of New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series by applicable
Luxembourg law or stock exchange regulation, as evidenced by an Officers'
Certificate delivered to such party, make a similar publication in Luxembourg.
SECTION 3.9 Securityholders Lists. If and so long as the
Trustee shall not be the Security registrar for the Securities of any series,
the Issuer will furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and addresses of the
holders of the Securities of such series pursuant to Section 312 of the Trust
Indenture Act of 1939 (a) semi-annually not more than 15 days after each record
date for the payment of interest on such Securities, as hereinabove specified,
as of such record date and on dates to be determined pursuant to Section 2.3
for non-interest bearing securities in each year, and (b) at such other times
as the Trustee may request in writing, within thirty days after receipt by the
Issuer of any such request as of a date not more than 15 days prior to the time
such information is furnished.
SECTION 3.10 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the
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Issuer is required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports which the Issuer
may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934.
SECTION 3.11. Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before April 15 in each year following the date hereof, so
long as any Securities are outstanding hereunder, and shall be dated as of a
date convenient to the Trustee no more than 60 nor less than 45 days prior
thereto.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (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):
(a) default in the payment of any instalment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the same
shall become due and payable either at maturity, upon any redemption,
by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or
warranty of the Issuer in the Securities of such series (other than a
covenant or warranty in respect of the Securities of such series 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 90 days after there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the
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Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of all series affected
thereby, 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
(d) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Issuer a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization arrangement, adjustment or composition of or in respect
of the Issuer under the Federal bankruptcy law or any other applicable
Federal or state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer 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 unstayed and in effect for a period of 60 consecutive days; or
(e) the institution by the Issuer of proceedings to be
adjudicated a bankrupt or insolvent or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal bankruptcy law or any other applicable
Federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer or of
any substantial part of its property, or the making by it of a general
assignment for the benefit of creditors;
(f) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series;
provided, however, that the occurrence of any of the events described in the
foregoing clause (c) or (f) shall not constitute an Event of Default if such
occurrence is the result of changes in generally accepted accounting principles
as recognized by the American Institute of Certified Public Accountants at the
date as of which this Indenture is executed and a certificate to such effect is
delivered to the Trustee by the Issuer's independent public accountants.
If an Event of Default described in clauses (a), (b), (c) or
(f) (if the Event of Default under clause (c) or (f), as the case may be, is
with respect to less than all series of Securities then Outstanding) occurs and
is continuing, then, and
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in each and every such case, except for any series of Securities the principal
of which shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
each such affected series then Outstanding hereunder (voting as a single class)
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
any such affected series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of all
Securities of all such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration, the same
shall become immediately due and payable. If an Event of Default described in
clause (c) or (f) (if the Event of Default under clause (c) or (f), as the case
may be, is with respect to all series of Securities then Outstanding), (d) or
(e) occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding, and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of each such
series (or of all the Securities, as the case may be) which shall have become
due otherwise than by acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest, at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of each such series (or at the respective rates of
interest or Yields to Maturity of all the Securities, as the case may be) to
the date of such payment or
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deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein--then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as
shall be due and payable as a result of such acceleration, and payment of such
portion of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any instalment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise -- then upon demand of the Trustee, the Issuer
will pay to the Trustee for the benefit of the Holders of the Securities of
such series the whole amount that then shall have become due and payable on all
Securities of such series, and such Coupons, for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal
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and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the
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terms of such series) owing and unpaid in respect of the Securities of
any series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or Person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized
by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or
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Coupons appertaining to such Securities, may be enforced by the Trustee without
the possession of any of the Securities of such series or Coupons appertaining
to such Securities or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities or Coupons appertaining to such Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the
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case of Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such series for principal and interest, with
interest upon the overdue principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference or priority of
principal over interest or Yield to Maturity, or of interest or Yield to
Maturity over principal, or of any instalment of interest over any other
instalment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other Person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
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SECTION 4.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25% in aggregate principal amount of the Securities of each affected series
then Outstanding (treated as a single class) shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 4.9; it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security or Coupon with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series or Coupons appertaining
to such Securities shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other such Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 4.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security or
Coupon on or after the respective due dates expressed or provided for in such
Security or Coupon, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or
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Omission Not Waiver of Default. Except as provided in Section 4.6 and the last
paragraph of Section 2.9, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or Coupons 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.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 4.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 4.9 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding 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
Securities of such series by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 5.1)
the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forebearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 5.1) the Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
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Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in Section 4.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing (voting as a single class) may on behalf of the
Holders of all such Securities waive any past default or Event of Default
described in Section 4.1 and its consequences, except a default in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of all such Securities shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.8, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of such series
in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act of 1939, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund instalment on such series, the Trustee shall be
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protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 4.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, 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, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10%
in aggregate principal amount of the Securities of such series, or, in the case
of any suit relating to or arising under clause (c) or (f) of Section 4.1 (if
the suit relates to Securities of more than one but less than all series), l0%
in aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (c) or
(f) (if the suit under clause (c) or (f) relates to all the Securities then
Outstanding), (d) or (e) of Section 4.1, 10% in aggregate principal amount of
all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this
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Indenture. In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to such series of Securities such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders pursuant to Section 4.9 relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the
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Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In furtherance of
and subject to the Trust Indenture Act of 1939, subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, Coupon, Security 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, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
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(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond,
debenture, note, Coupon, Security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Issuer or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand; 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 not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes
no representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such
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agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it
were not the Trustee or such agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the
provisions of Section 9.4 hereof, all moneys received by the Trustee shall,
until used or applied as herein provided, be held in trust for the purposes for
which they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee nor
any agent of the Issuer or the Trustee shall be under any liability for
interest on any moneys received by it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may result
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor 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
this Indenture or the trusts hereunder and its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities or Coupons,
and the Securities are hereby subordinated to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 5.1 and 5.2, whenever in the
administration of the trusts of this Indenture the Trustee
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shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or the District of Columbia having a combined capital
and surplus of at least $5,000,000, and which is eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
SECTION 5.9 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.8, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act of 1939 at such addresses as were so furnished to the Trustee and
(iii) by mailing notice of such resignation to the Holders of then Outstanding
Registered Securities of each series affected at their addresses as they shall
appear on the registry books. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee or trustees with respect to
the applicable series by written instrument in duplicate, executed by authority
of the Board of Directors, one copy of which instrument shall be
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delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 4.12, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 310(a) of the Trust Indenture Act of
1939 and shall fail to resign after written request therefor by the
Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for
such series by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to Section 315(e) of the Trust Indenture Act of
1939, any Securityholder who has been a bona fide Holder of a Security
or Securities of such series 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 and the
appointment of a
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successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time Outstanding may at any
time remove the Trustee with respect to Securities of such series and
appoint a successor trustee with respect to the Securities of such
series by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Issuer the evidence provided for in
Section 6.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to
such series pursuant to any of the provisions of this Section 5.9
shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 5.9 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
9.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 5.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
trustee and each successor trustee with respect to
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the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor trustee with respect to the Securities of any series
as to which the predecessor trustee is not retiring shall continue to be vested
in the predecessor trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as
provided in this Section 5.10, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once
in an Authorized Newspaper in London (and, if required by Section 3.8, at least
once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act of 1939, by mailing such notice to such
Holders at such addresses as were so furnished to the Trustee (and the Trustee
shall make such information available to the Issuer for such purpose) and (c)
to the Holders of Registered Securities of each series affected, by mailing
such notice to such Holders at their addresses as they shall appear on the
registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 5.9.
If the Issuer fails to give such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee. 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 that such corporation shall be eligible under the provisions of
Section 5.8, without the execution or filing of any paper or any further
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act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor trustee or to authenticate
Securities of any series in the name of any predecessor trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 5.12 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of the Trustee to authenticate Securities, including Securities
issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the authentication
and delivery of Securities of any series by the Trustee or to 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
for such series and a certificate of authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $5,000,000 (determined as provided in Section 5.8 with respect to the
Trustee) and subject to supervision or examination by Federal or State
authority.
Any corporation into which any Authenticating Agent may be
merged or converted, or with which it may be consolidated, or any corporation
resulting from any merger, conversion or
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consolidation to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent with respect to all series
of Securities for which it served as Authenticating Agent without the execution
or filing of any paper or any further act on the part of the Trustee or such
Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall
cease to be eligible shall, resign by giving written notice of resignation to
the Trustee and to the Issuer. The Trustee may at any time terminate the
Agency of any Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 5.12 with respect to one or more series of
Securities, the Trustee may upon receipt of an Issuer Order appoint a successor
Authenticating Agent and the Issuer shall provide notice of such appointment to
all Holders of Securities of such series in the manner and to the extent
provided in Section 5.10. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all rights, powers,
duties and responsibilities of its predecessor hereunder, with like effect as
if originally named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation.
The Authenticating Agent for the Securities of any series shall have no
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Sections 5.2, 5.3, 5.4, 5.6, 5.8 and 6.3 shall be applicable
to any Authenticating Agent.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders 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
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are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 5.1 and 5.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 5.1 and 5.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments
of deeds or administer oaths that the Person executing such
instruments acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on behalf
of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of
the Person executing the same. The fact of the holding by any Holder
of an Unregistered Security of any series, and the identifying number
of such Security and the date of his holding the same, may be proved
by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall
be dated and shall state that on the date thereof a Security of such
series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities
dealer by the Person named in such certificate. Any such certificate
may be issued in respect of one or more Unregistered Securities of one
or more series specified therein. The holding by the Person named in
any such certificate of any Unregistered Securities of any series
specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later
date issued in respect of the same Securities shall be produced, or
(2) the Security of such series specified in such certificate shall be
produced by some other Person, or (3) the Security of such series
specified in such certificate shall have ceased to be Outstanding.
The fact and date of the execution of any such instrument and the
amount and numbers of Securities of any series held by the Person so
executing such instrument and
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the amount and numbers of any Security or Securities for such series
may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in
any other manner which the Trustee for such series may deem
sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
SECTION 6.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and the Holder of
any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such Person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which the Trustee knows are
so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be
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regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon the Securities or any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 5.1 and
5.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
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ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Officers' Certificate), and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and
the Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit
the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental
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indenture, or to make any other provisions as the Issuer may deem
necessary or desirable, provided that no such action shall materially
adversely affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted
by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 5.10.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee 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.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Six) of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized by a resolution of
its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may, from time to time and at any time, 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 of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such series or of the Coupons
appertaining to such Securities; provided, that no such supplemental indenture
shall (a) extend the final maturity of any Security, or reduce the principal
amount thereof, or reduce the
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rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or make the principal thereof (including any
amount in respect of original issue discount) or interest thereon payable in
any coin or currency other than that provided in the Securities and Coupons or
in accordance with the terms thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 or the amount
thereof provable in bankruptcy pursuant to Section 4.2, or alter the provisions
of Section 10.11 or 10.12 or impair or affect the right of any Securityholder
to institute suit for the payment thereof or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, in each
case without the consent of the Holder of each Security so affected, or (b)
reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 6.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
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Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act of 1939, by mailing a notice thereof by first-class
mail to such Holders at such addresses as were so furnished to the Trustee and
(iii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.8, at least once in an Authorized Newspaper in
Luxembourg), and in each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 5.1 and 5.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Seven complies with
the applicable provisions of this Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
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taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc., Only on Certain
Terms. The Issuer shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into
which the Issuer is merged or the Person which acquires by conveyance,
transfer or lease the properties and assets of the Issuer
substantially as an entirety shall expressly assume, by a supplemental
indenture hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all the Securities and Coupons, if any,
according to their tenor, and the performance of every covenant of
this Indenture on the part of the Issuer to be performed or observed;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time,
or both, would become an Event of Default, shall have happened and be
continuing;
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with; and
(d) the Issuer has delivered to the Trustee such other
documents as the Trustee may, in its discretion, reasonably require.
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SECTION 8.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale, lease or conveyance, and following such
an assumption by the successor Person, such successor Person shall succeed to
and be substituted for the Issuer, with the same effect as if it had been named
herein. Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Issuer prior to such succession any or all
of the Securities issuable hereunder which together with any Coupons
appertaining thereto theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor Person, instead
of the Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities together with any Coupons appertaining thereto which previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued together with any Coupons
appertaining thereto shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phrasing and form (but not in substance) may be made
in the Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor Person which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. (A) If
at any time (a) the Issuer shall have paid or caused to be paid the principal
of and interest on all the Securities of any series Outstanding hereunder and
all unmatured Coupons
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appertaining thereto (other than Securities of such series and Coupons
appertaining thereto which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9) as and when the same shall
have become due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of any series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any Securities of
such series and Coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) in the case of any series of Securities where the exact or
maximum amount (including the currency of payment) of principal of and interest
due on which can be determined at the time of making the deposit referred to in
clause (ii) below, (i) all the Securities of such series and all unmatured
Coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 9.4) or, in the case of any series of Securities the
payments on which may only be made in Dollars, direct obligations of the United
States of America, backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash, or a combination thereof,
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 (A) the principal and interest on all Securities of such series
and Coupons appertaining thereto on each date that such principal or interest
is due and payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series; and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer with respect to the Securities of such series, then this Indenture
with respect to the Securities of such series shall cease to be of further
effect (except as to (i) rights of registration of transfer and exchange of
Securities of such series and of Coupons appertaining thereto and the Issuer's
right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the
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Holders to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vi) the obligations of the Issuer under
Section 3.2) and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture with respect to the Securities of such series;
provided, that the rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities and Coupons
held by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the
Securities are listed. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and to compensate
the Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact or
maximum amounts (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit
referred to in clause (a) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series and
the Coupons appertaining thereto on the 91st day after the date of the deposit
referred to in subparagraph (a) below, and the provisions of this Indenture
with respect to the Securities of such series and Coupons appertaining thereto
shall no longer be in effect (except as to (i) rights of registration of
transfer and exchange of Securities of such series and of Coupons appertaining
thereto and the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so
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deposited with the Trustee payable to all or any of them and (vi) the
obligations of the Issuer under Section 3.2) and the Trustee, at the expense of
the Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts as will
insure the availability of cash or (iii) a combination thereof,
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 (A) the principal and
interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and
payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms
of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, any agreement or instrument to which
the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such
series and Coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred;
(d) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
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(e) no Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 4.1(d) and (e) 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); and
(f) Such covenant defeasance contemplated by this provision
shall not cause any Securities then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(C) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant to
Section 2.3. In the case of any series of Securities the exact or maximum
amounts (including the currency of payment) of principal of and interest due on
which can be determined at the time of making the deposit referred to in clause
(a) below, the Issuer shall be released from its obligations under Sections
3.6, 3.7 and 8.1 with respect to the Securities of any such series, and any
Coupons appertaining thereto, Outstanding on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of any series, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in such
Sections, whether directly or indirectly by reason of any reference elsewhere
herein to such Sections or by reason of any reference in such Sections to any
other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 4.1, but the remainder
of this Indenture and such Securities and Coupons shall be unaffected thereby.
The following shall be the conditions to application of this subsection C of
this Section 9.1:
(a) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the payments
on which may only be made in Dollars, U.S. Government Obligations
maturing as to principal and interest at such times and in such
amounts as will insure the availability of
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cash or (iii) a combination thereof, 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
(A) the principal and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal and
interest is due and payable and (B) any mandatory sinking fund
payments on the day on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such
series.
(b) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 4.1(d) and (e) 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).
(c) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest as described in Section 310 of the Trust
Indenture Act of 1939 with respect to any securities of the Issuer.
(d) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by
which it is bound.
(e) Such covenant defeasance shall not cause any Securities
then listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted.
(f) The Issuer shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel to the effect that the
Holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance
had not occurred.
(g) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant defeasance
contemplated by this provision have been complied with.
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SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 9.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 9.1 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Securities
of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being required
to make any such repayment with respect to moneys deposited with it for any
payment (a) in respect of Registered Securities of any series, shall at the
expense of the Issuer, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series, shall at the expense of the
Issuer cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in London
(and if required by Section 3.8, once in an Authorized Newspaper in
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Luxembourg), notice, that such moneys remain and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 9.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 9.1 or the principal or interest received in respect of
such obligations.
SECTION 9.6 Excess Funds. The Trustee shall deliver to the
Issuer from time to time upon Issuer Order any U.S. Government Obligations or
money held by it as provided in Section 9.1 which, as expressed in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee (which may include the
applicable such opinion delivered to the Trustee pursuant to Section 9.1), are
then in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such obligations or money were deposited or
received.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any Person, other than the parties hereto
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and their successors and the Holders of the Securities or Coupons, if any, any
legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons, if any.
SECTION 10.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities or Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Transcontinental Gas Pipe Line
Corporation, 2800 Post Oak Boulevard, Houston, Texas 77056, Attention:
Treasurer. Any notice, direction, request or demand by the Issuer or any Holder
of Securities or Coupons to or upon the Trustee shall be deemed to have been
sufficiently given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of the Trustee is filed by the Trustee with the Issuer) to Citibank,
N.A., 120 Wall Street, 13th Floor, New York, New York 10043, Attention:
Corporate Trust Department.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register. In any case where notice to such 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 or
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irregularities in regular mail service, it shall be impracticable to mail
notice to the Issuer when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably satisfactory to the Trustee shall be deemed to be a sufficient
giving of such notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) 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, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his
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certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption or repayment, and no
interest shall accrue for the period after such date.
SECTION 10.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 317, inclusive, of the Trust
Indenture Act of 1939 (an "incorporated provision"), such incorporated
provision shall control.
SECTION 10.8 New York Law to Govern. This Indenture and each
Security and Coupon shall be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
SECTION 10.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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SECTION 10.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 10.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate as of
the date of initial issuance of such Securities. For purposes of this Section
10.11, Market Exchange Rate as of any date shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency on such date as
published by the Federal Reserve Bank of New York; provided, however, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such publication
or any successor publication, the "Journal"). If such Market Exchange Rate is
not available for any reason with respect to such currency, the Trustee shall
use, in its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York or, in the case of ECUs, the rate of
exchange as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more major
banks in The City of New York or in the country of issue of the currency in
question, which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the Trustee shall
deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a series denominated
in a currency other than Dollars in connection with any action taken by Holders
of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
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SECTION 10.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which a final unappealable judgment is entered, unless
such day is not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which a final unappealable judgment is
entered, and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained for any other sum
due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
2.3 for Securities of such series.
SECTION 11.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act of 1939, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more
than 60 prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available
to the Issuer for such purpose). Notice of redemption to all other Holders of
Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.8, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the
date fixed for redemption. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect
in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the
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redemption price, the numbers of the certificate for such Security being
redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining thereto maturing
after the date fixed for redemption, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that interest
accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security of a series
is to be redeemed in part only the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and
after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 70 days prior to
the date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption or subject to compliance with a condition precedent, the Issuer
shall deliver to the Trustee, prior to the giving of any notice of redemption
to Holders pursuant to this Section, an Officers' Certificate stating that such
restriction or condition precedent has been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer in writing of the Securities of such
series selected for redemption and, in the case of any
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Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 5.5 and
9.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3
and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption,
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the surrender of such missing Coupon or Coupons may be waived by the Issuer and
the Trustee, if there be furnished to each of them such security or indemnity
as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Issuer or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such
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Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 10.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect
to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
Issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU)
or a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency
or ECU) if the Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund
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<PAGE> 89
redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such request then it
shall be carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) is available. The Trustee shall
select, in the manner provided in Section 11.2, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Issuer) inform the Issuer of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to
the Trustee at least 60 days prior to the sinking fund payment date as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer. The Trustee, in the name
and at the expense of the Issuer (or the Issuer, if it shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 11.2 (and
with the effect provided in Section 11.3) for the redemption of Securities of
such series in part at the option of the Issuer. The amount of any sinking
fund payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such
series and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default
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<PAGE> 90
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default
shall occur, and any moneys thereafter paid into the sinking fund, shall,
during the continuance of such default or Event of Default, be deemed to have
been collected under Article Four and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided
in Section 4.10 or the default cured on or before the sixtieth day preceding
the sinking fund payment date in any year, such moneys shall thereafter be
applied on the next succeeding sinking fund payment date in accordance with
this Section to the redemption of such Securities.
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<PAGE> 91
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 __________, 1996.
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
By _______________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By _________________________
Assistant Secretary
TRUSTEE
By _______________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By _________________________
85
<PAGE> 92
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ of _________, 1996 before me personally came ___________, to me
personally known, who, being by me duly sworn, did depose and say that he is
__________ of Transcontinental Gas Pipe Line Corporation, one of the
corporations described in and which executed the above instrument; that he knows
the corporate 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.
[NOTARIAL SEAL]
_______________________
Notary Public
1
<PAGE> 93
STATE OF __________ )
) ss.:
COUNTY OF _________ )
On this ____ of ______, 1996 before me personally came ___________, to me
personally known, who, being by me duly sworn, did depose and say that he is a
__________ of _____________, one of the corporations described in and which
executed the above instrument; that he knows the corporate 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.
[NOTARIAL SEAL]
_____________________
Notary Public
2
<PAGE> 1
EXHIBIT 4.2
Floating Rate Note
REGISTERED REGISTERED
No. FLR Cusip *
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID",
"ORIGINAL YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAS
BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
MEDIUM-TERM NOTE
(Floating Rate)
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
APPLICABILITY OF INTEREST ACCRUAL DATE: INTEREST PAYMENT DATES:
MODIFIED FOLLOWING
BANKING DAY INTEREST INTEREST DATE: INTEREST RESET PERIOD:
CONVENTION:
INITIAL INTEREST RESET INTEREST RESET DATES:
__________________________________
*Applies only if this Note is a Registered Global Security.
<PAGE> 2
INDEX MATURITY: DATE:
SPREAD (PLUS OR MAXIMUM INTEREST RATE:
MINUS):
MINIMUM INTEREST RATE:
ALTERNATE RATE INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EVENT SPREAD: TOTAL AMOUNT OF OID:
SPREAD MULTIPLIER: INITIAL REDEMPTION ORIGINAL YIELD TO
PERCENTAGE: MATURITY:
INITIAL REPAYMENT ANNUAL REDEMPTION INITIAL ACCRUAL
DATE: PERCENTAGE REDUCTION: PERIOD OID:
INITIAL REPAYMENT
PERCENTAGE:
ANNUAL REPAYMENT
PERCENTAGE REDUCTION:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Senior Indenture.
_____________, as Trustee
By:__________________________
Authorized Officer
2
<PAGE> 3
Transcontinental Gas Pipe Line Corporation, a Delaware
corporation (the "Issuer"), for value received, hereby promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above, (except to the extent redeemed or repaid
prior to the Maturity Date) and to pay interest thereon, from the Original
Issue Date specified above at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date specified above, and
thereafter at a rate per annum determined in accordance with the provisions
specified on the reverse hereof until the principal hereof is paid or duly made
available for payment. The Issuer will pay interest in arrears monthly,
quarterly, semiannually or annually as specified above as the Interest Payment
Period on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date (or any redemption or repayment date);
provided, however, that if the Original Issue Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Original Issue Date to the registered holder of this Note on the Record Date
with respect to such second Interest Payment Date; and provided, further, that
if an Interest Payment Date or the Maturity Date or redemption or repayment
date would fall on a day that is not a Business Day, as defined on the reverse
hereof, such Interest Payment Date, Maturity Date or redemption or repayment
date shall be the following day that is a Business Day, except that if the
Modified Following Banking Day Convention is specified above as applicable and
such next Business Day falls in the next calendar month, the Interest Payment
Date, Maturity Date or redemption or repayment date shall be the immediately
preceding day that is a Business Day.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from the Original Issue Date
or, if the
3
<PAGE> 4
Interest Reset Period specified above is daily or weekly, from, and including,
the date hereof (if no interest has been paid on this Note) or from, and
excluding, the last date in respect of which interest has been paid or duly
provided for, as the case may be. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, 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
date 15 calendar days prior to an Interest Payment Date (whether or not a
Business Day) (the "Record Date"); provided, however, that interest payable on
the Maturity Date (or any redemption or repayment date) will be payable to the
person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date) will be
made in immediately available funds upon surrender of this Note at the office
or agency of the Trustee, as defined on the reverse hereof, maintained for that
purpose in the Borough of Manhattan, The City of New York, or at such other
paying agency as the Issuer may determine. Payment of the principal of and
premium, if any, and interest on this Note will be made in such coin or
currency of the United States of America or in a Specified Currency other than
U.S. dollars as indicated herein as at the time of payment is legal tender for
payment of public and private debts; provided, however, that U.S. dollar
payments of interest, other than interest due at maturity or any date of
redemption or repayment, will be made by United States dollar check mailed to
the address of the person entitled thereto as such address shall appear in the
Note register. A holder of U.S. $10,000,000 or more in aggregate principal
amount of Notes having the same Interest Payment Date will be entitled to
receive payments of interest, other than interest due at maturity or any date
of redemption or repayment, by wire transfer of immediately available funds if
appropriate wire transfer instructions in writing have been received by the
Trustee not less than 15 calendar days prior to the applicable Interest Payment
Date. Payments of interest on Notes in a Specified Currency other than U.S.
dollars will be made by wire transfer of immediately available funds to an
account maintained by the holder with a bank located outside the United States,
and the holder of such Notes shall provide the Trustee with the appropriate
wire transfer instructions.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further
4
<PAGE> 5
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 by manual signature, this Note shall not be entitled to
any benefit under the Senior Indenture, as defined on the reverse hereof, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By: _________________________
Title:
5
<PAGE> 6
This Note is one of the duly authorized issue of Senior
Medium-Term Notes having maturities more than nine months from the date of
issue (the "Notes") of the Issuer. The Notes are issuable under a Senior
Indenture, dated as of ________________, 199_ (herein called the "Senior
Indenture") between the Issuer and ____________, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The terms of individual Notes may vary with respect to interest
rates, interest rate formulas, issue dates, maturity dates, or otherwise, all
as provided in the Senior Indenture. To the extent not inconsistent herewith,
the terms of the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Maturity Date. If so indicated on the face of
this Note, this Note may be redeemed at the option of the Issuer, on or after a
specified date or dates prior to the Maturity Date on the terms set forth on
the face hereof, together with interest accrued and unpaid thereon to the date
of redemption. Notice of redemption shall be mailed to the registered holders
of the Notes designated for redemption at their addresses as the same shall
appear on the Note register not less than 30 nor more than 60 days prior to the
date fixed for redemption, subject to all the conditions and provisions of the
Senior Indenture. In the event of redemption of this Note in part only, a new
Note or Notes for the amount of the unredeemed portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this Note
may not be repaid prior to the Maturity Date. If so indicated on the face of
this Note, this Note may be subject to repayment at the option of the holder,
on or after a specified date or dates prior to the Maturity Date on the terms
set forth on the face hereof, together with interest accrued and unpaid thereon
to the date of repayment. For this Note to be repaid in whole or in part at
the option of the holder hereof, the Trustee must receive not less than 30 or
more than 45 days prior to the Repayment Date (i) the Note with the form
entitled "Option to Elect Repayment" below duly completed or (ii) a telegram,
telex,
6
<PAGE> 7
facsimile transmission or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth the name of the holder of this Note, the principal amount hereof, the
certificate number of this Note or a description of the Note's tenor or terms,
the principal amount hereof to be prepaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this Note with the
form entitled "Option to Elect Repayment: below duly completed will be received
by the Trustee no later than Five Business Days after the date of such
telegram, telex, facsimile transmission or letter and this Note and form duly
completed are Received by the Trustee by such fifth business Day. Exercise of
such repayment option shall be irrevocable. Such option may be exercised by
the holder for less than the entire principal amount hereof provided that the
principal amount remaining outstanding after repayment is at least $100,000 or
any larger amount that is an integral multiple of $1,000. In the event of
repayment of this Note in part only, a new Note or Notes for the amount of the
portion hereof that is not repaid shall be issued in the name of the holder
hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base Rate
shown on the face hereof based on the Index Maturity, if any, shown on the face
hereof (i) plus or minus the Spread, if any, or (ii) multiplied by the Spread
Multiplier, if any, specified on the face hereof. Commencing with the Initial
Interest Reset Date specified on the face hereof, the rate at which interest on
this Note is payable shall be reset as of each Interest Reset Date (as used
herein, the term "Interest Reset Date" shall include the Initial Interest Reset
Date). The Interest Reset Dates will be the Interest Reset Dates specified on
the face hereof; provided, however, that (i) the Interest rate in effect for
the period from the Original Issue Date to the Initial Interest Reset Date
specified on the face hereof will be the Initial Interest Rate, (ii) the
interest rate in effect hereon for the 15 days immediately prior to the
Maturity Date hereof (or, with respect to any principal amount to be redeemed
or repaid, any redemption or repayment date) shall be that in effect on the
15th day preceding the Maturity Date hereof or such date of redemption or
repayment, as the case may be, and (iii) if any Note is issued between a Record
Date and the related Interest Payment Dates, and such Note has daily or weekly
Interest Reset Dates, then notwithstanding the fact that an Interest Reset Date
may occur prior to such Interest Payment
7
<PAGE> 8
Date, the Initial Interest Rate set forth on the face hereof shall remain in
effect through the first Interest Reset Date occurring on or subsequent to such
Interest Payment Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding day that is a Business Day, except that in the event the
Modified Following Banking Date Convention is specified on the face hereof as
applicable and such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the next preceding Business Day. As used herein,
"Business Day" means any day, other than a Saturday or Sunday, and that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York and (i) with
respect to Notes denominated in a Specified Currency other than U.S. dollars or
European Currency Units ("ECUs"), in the capital city of the country of the
Specified Currency, (ii) with respect to Notes denominated in ECUs, in
Brussels, Belgium and (iii) with respect to LIBOR Notes bearing interest
calculated by reference to LIBOR, in the City of London.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate, Federal Funds Rate and Prime Rate will be the second
Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second London Banking
Day preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated by
reference to the Treasury Rate shall be the day of the week in which such
Interest Reset Date falls on which Treasury bills normally would be auctioned;
provided, however, that if as a result of a legal holiday an auction is held on
the Friday of the week preceding such Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided, further, that
if an auction shall fall on any Interest Reset Date, then the Interest Reset
Date shall instead be the first Business Day following the date of such
auction.
The "Calculation Date" pertaining to any Interest
Determination Date will be the earlier of the tenth calendar day after such
Interest Determination Date or the next succeeding Record Date after such
Interest Determination Date or, if either such day is not a Business Day, the
next succeeding Business Day.
8
<PAGE> 9
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity specified
on the face hereof as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates," or
any successor publication of the Board of Governors of the Federal Reserve
System (H.15(519)"), under the heading "CDs (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Cd Rate will be the rate on such
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity specified on the face hereof as published by the Federal Reserve Bank
of New York in its daily statistical release "Composite 3:30 P.M. Quotations
for U.S. Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If neither of such rates is published by 3:00 P.M.,
New York City time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to on
the face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such Interest Determination
Date, for certificates of deposit in the denomination of $5,000,000 with a
remaining maturity closest to the Index Maturity specified on the face hereof
of three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money center banks of
the highest credit standing in the market for negotiable certificates of
deposit; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the rate of
interest in effect for the applicable period will be the same as the CD Rate
for the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the Initial
Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial Paper
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein) of
the rate on such date for commercial paper having the Index Maturity specified
on the face hereof, as such rate shall be published in H.15(519) under the
heading "Commercial Paper," or if not so published prior to 9:00 A.M., New York
City
9
<PAGE> 10
time, on the Calculation Date pertaining to such Interest Determination Date,
the Commercial Paper Rate shall be the Money Market Yield of the rate on such
Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time, on such Interest Determination
Date of three leading dealers in commercial paper in The City of New York
selected by the Calculation Agent for commercial paper of the Index Maturity
specified on the face hereof, placed for an industrial issuer whose bond rating
is "AA," or the equivalent, from a nationally recognized rating agency;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the same as the Commercial Paper Rate
for the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the Initial
Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with following formula:
Money Market Yield = D x 360
------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds Rate
with respect to this Note shall be determined on each Interest Determination
Date and shall be the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Federal Funds Rate will be the rate on
such Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If neither of such rates is published
by 3:00 P.M., New York City time, on such Calculation Date, the Federal Funds
Rate
10
<PAGE> 11
for such Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the same as the Federal Funds Rate for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the Initial
Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent shall determine the arithmetic mean of the offered rates for
deposits in United States dollars for the period of the Index Maturity
specified on the face hereof which appear on the Reuters Screen LIBO
Page at approximately 11:00 A.M., London time, on such Interest
Determination Date. "Reuters Screen LIBO Page," as used herein, means
the display designated as Page "LIBO" on the Reuters Monitor Money
Rate Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London interbank offered rates
of major banks).
(ii) If fewer than two offered rates appear on the Reuters
Screen LIBO Page, the Calculation Agent will request the principal
London offices of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in United
States dollars for the period of the Index Maturity, specified on the
face hereof, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such Interest Determination
Date and in a principal amount of not less than U.S. $1,000,000 that
is representative for a single transaction in such market at such
time. If at least two such quotations are provided, LIBOR will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of such Interest Determination Date will be
the arithmetic mean
11
<PAGE> 12
of the rates quoted by three major banks in The City of New York
selected by the Calculation Agent (after consultation with the Issuer)
at approximately 11:00 A.M., New York City Time, on such Interest
Determination Date for loans in U.S. dollars to leading European
banks, for the period of the Index Maturity and in a principal amount
of not less than U.S. $1,000,000 that is representative of a single
transaction in such market at such time; provided, however, that if
fewer than three banks selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, LIBOR for such Interest
Reset Period will be the same as LIBOR for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable hereon shall be the Initial Interest
Rate).
Determination of Prime Rate. If the Base Rate specified on the
face hereof is the Prime Rate, the Prime Rate with respect to this Note shall
be determined on each Interest Determination Date and shall be the rate set
forth in H.15(519) for such date opposite the caption "Bank Prime Loan." If
such rate is not yet published by 9:00 A.M., New York City time, on the
Calculation Date, the Prime Rate for such Interest Determination Date will be
the arithmetic mean of the rates of interest publicly announced by each bank
named on the Reuters Screen NYMF Page as such bank's prime rate or base lending
rate as in effect for such Interest Determination Date as quoted on the Reuters
Screen NYMF Page on such Interest Determination Date, or, if fewer than four
such rates appear on the Reuters Screen NYMF Page for such Interest
Determination Date, the rate shall be the arithmetic mean of the prime rates
quoted on the basis of the actual number of days in the year divided by 360 as
of the close of business on such Interest Determination Date by at least two of
the three major money center banks in The City of New York selected by the
Calculation Agent from which quotations are requested. If fewer than two
quotations are provided, the Prime Rate shall be calculated by the Calculation
Agent and shall be determined as the arithmetic mean on the basis of the prime
rates in The City of New York by the appropriate number of substitute banks or
trust companies organized and doing business under the laws of the United
States, or any State thereof, in each case having total equity capital of at
least U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates.
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<PAGE> 13
If in any month or two consecutive months the Prime Rate is
not published in H.15(519) and the banks or trust companies selected as
aforesaid are not quoting as mentioned in the preceding paragraph, the "Prime
Rate" for such Interest Reset Period will be the same as the Prime Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If this failure continues over three or more consecutive months, the
Prime Rate for each succeeding Interest Determination Date until the maturity
or redemption or repayment of this Note or, if earlier, until this failure
ceases, shall be LIBOR determined as if the Base Rate specified on the face
hereof were LIBOR, and the Spread, if any, shall be the number of basis points
specified on the face hereof as the "Alternative Rate Event Spread."
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is the Treasury Rate, the Treasury Rate with respect to this
Note shall be determined on each Interest Determination Date and shall be the
rate for the auction held on such date of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified on the face
hereof, as published in H.15(519) under the heading "Treasury Bills--auction
average (investment)," or if not so published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
auction average rate on such Interest Determination (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date or if no such auction is held on such Determination Date,
then the Treasury Rate shall be calculated by the Calculation Agent and shall
be a yield to maturity (expressed as a bond equivalent, on the basis of a year
of 365 days, as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 P.M., New York
City time, on such Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate for such
13
<PAGE> 14
Interest Reset Date will be the same as the Treasury Rate for the immediately
preceding Interest Reset Period (or if there was no such Interest Reset Period,
the rate of interest payable hereon shall be the Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate. If any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event
be higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or Maturity Date (or any redemption
or repayment date), as the case may be; provided, however, that if the Interest
Reset Period with respect to this Note is daily or weekly, interest payable on
any Interest Payment Date, other than interest payable on any date on which
principal hereof is payable, will include interest accrued through and
including the Record Date next preceding the applicable Interest Payment Date.
Accrued interest hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day in the
period for which interest is being paid. The interest factor for each such
date shall be computed by dividing the interest rate applicable to such day by
360 if the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate,
Prime Rate or LIBOR, as specified on the face hereof, or by the actual number
of days in the year if the Base Rate is the Treasury Rate, as specified on the
face hereof. All percentages resulting from any calculation of the rate of
interest on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded upward). The interest rate in effect on any
Interest Reset
14
<PAGE> 15
Date will be the applicable rate as reset on such date. The interest rate
applicable to any other day is the interest rate from the immediately preceding
Interest Reset Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, if denomination in U.S. Dollars, is issuable only in denominations of U.S.
$100,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, it is
issuable only in denominations of the equivalent of U.S. $100,000 (rounded down
to an integral multiple of 1,000 units of such Specified Currency), or any
amount in excess thereof which is an integral multiple of 1,000 units of such
Specified Currency, as determined by reference to the noon dollar buying rate
in New York City for cable transfers of such Specified Currency published by
the Federal Reserve Bank of New York (the "Market Exchange Rate") on the
Business Day immediately preceding the date of issuance: provided, however, in
the case of ECUs, the Market Exchange Rate shall be the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the official Journal of the European Communities, or
any successor publication on the Business Day immediately preceding the day of
issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in New York, New York, a register for
the registration and transfer of Notes. This note may be transferred at the
aforesaid office of the Trustee or the agency of the Trustee in the Borough of
Manhattan, City of New York by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions for a like aggregate
principal amount in authorized denominations,
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<PAGE> 16
subject to the terms and conditions set forth herein; provided, however, that
the Trustee will not be required (i) to register the transfer of or exchange
any Note that has been called for redemption in whole or in part, except the
unredeemed portion of Notes being redeemed in part, (ii) to register the
transfer of or exchange any Note if the holder thereof has exercised has right,
if any, to require the Issuer to repurchase such Note in whole or in part,
except the portion of such Note not required to be repurchased, or (iii) to
register the transfer of or exchange Notes to the extent and during the period
so provided in the Senior Indenture with respect to the redemption of Notes.
Notes are exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms and
provisions. All such exchanges and transfers of Notes will be free of charge,
but the Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge in connection therewith. All Notes surrendered for
exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and executed by the registered holder in person or
by the holder's attorney duly authorized in writing. The date of registration
of any Note delivered upon any exchange or transfer of Notes shall be such that
no gain or loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated, or in lieu of the Note so destroyed or
lost or stolen, but, in the case of any destroyed or lost or stolen Note, only
upon receipt of evidence satisfactory to the Trustee and the Issuer that such
Note was destroyed or lost or stolen and, if required, upon receipt also of
indemnity satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of the
Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in such Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Medium-Term
Notes of which this Note forms a part, or due to
16
<PAGE> 17
the default in the performance or breach of any other covenant or warranty of
the Issuer applicable to the debt securities of such series but not applicable
to all outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principle amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable immediately and
(b) if an Event of Default due to a default in the performance of any other of
the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of not
less than 25% in principal amount of all debt securities issued under the
Senior Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due
and payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of each series issued under the Senior Indenture
then outstanding and affected, to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each
series so affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption or repayment
thereof, or change the currency of payment thereof, or impair or affect the
rights of any holder to institute suit for the payment thereof without the
consent of the holder of each debt security so affected; or (b) reduce the
aforesaid percentage in principal amount of debt securities the consent of the
holders of which is required for any such supplemental indenture, without the
consent of the holders of each debt security so affected.
17
<PAGE> 18
Except as set forth below, if the principal of, or interest
on, this Note is payable in a Specified Currency other than U.S. dollars and
such Specified Currency is not available to the Issuer for making payments
hereon due to the imposition of exchange controls or other circumstances beyond
the control of the Issuer or is no longer used by the government of the country
issuing such currency or for the settlement of transactions by public
institutions within the international banking community, then the Issuer will
be entitled to satisfy its obligations to the holder of this Note by making
such payments in U.S. dollars on the basis of the Market Exchange Rate on the
date of such payment or, if the Market Exchange Rate is not available on such
date, as of the most recent practicable date. Any payment made under such
circumstances in U.S. dollars where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default.
If payment in respect of this Note is required to be made in
ECUs and ECUs are unavailable due to the imposition of exchange controls or
other circumstances beyond the Issuer's control or are no longer used in the
European Monetary System, then all payments in respect of this Note shall be
made in U.S. dollars until ECUs are again available or so used. The amount of
each payment in U.S. dollars shall be computed on the basis of the equivalent
of the ECU in U.S. dollars, determined as described below, as of the second
Business Day prior to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date (the
"Day of Valuation") shall be determined by the Issuer or its agent on the
following basis. The component currencies of the ECU for this purpose (the
"Components") shall be the currency amounts that were components of the ECU as
of the last date on which the ECU was used in the European Monetary System.
The equivalent of the ECU in U.S. dollars shall be calculated by aggregating
the U.S. dollar equivalents of the Components. The U.S. dollar equivalent of
each of the Components shall be determined by the Issuer or such agent on the
basis of the most recently available Market Exchange Rates for such Components.
If the official unit of any Component is altered by way of
combination or subdivision, the number of units of that currency as a Component
shall be divided or multiplied in the same proportion. If two or more
Components are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single currency
equal to the sum of the amounts of the
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<PAGE> 19
consolidated component currencies expressed in such single currency. If any
Component is divided into two or more currencies, the amount of the original
component currency shall be replaced by the amounts of such two or more
currencies, each of which shall be equal to the amount of the original
component currency separated into the number of currencies into which such
original currency was divided.
All determinations referred to above made by the Issuer or its
agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
binding on holders of Notes.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be such
an agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee for the payment of the principal of or interest or premium, if any, on
any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee shall notify the
holders of such Notes that such moneys shall be repaid to the Issuer and any
person claiming such moneys shall thereafter look only to the Issuer for
payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon
such repayment all liability of the Trustee with respect to such moneys shall
thereupon cease, without, however, limiting in any way any obligation that the
Issuer may have to pay the principal of or interest or premium, if any, on this
Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency,
19
<PAGE> 20
herein prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Issuer,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
20
<PAGE> 21
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-____________Custodian____________
(Cust) (Minor)
Under Uniform Gifts to Minors Act__________________
(State)
Additional abbreviations may also be used though not in the
above list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto [PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________!
!
________________________________________!______________________________________
_________________________________________________________________ [PLEASE PRINT
OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_______________________________________________________________________________
constituting and appointing such person attorney to transfer
_______________________________________________________________________________
such note on the books of the Issuer, with full power of
_______________________________________________________________________________
substitution in the premises.
Dated:_______________________
21
<PAGE> 22
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
22
<PAGE> 23
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion hereof specified below) pursuant to
its terms at a price equal to the applicable Repayment Price thereof together
with interest to the Repayment Date, to the undersigned at
________________________________________________
________________________________________________
________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid___________________; and specify the denomination or denominations (which
shall be in authorized denominations) of the Notes to be issued to the holder
for the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
________________________________________________________________________________
Date:___________________________ ______________________________________________
(Signature)
23
<PAGE> 1
EXHIBIT 4.3
Fixed Rate Note
REGISTERED REGISTERED
No. FXR CUSIP: *
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAS BEEN COMPLETED SOLELY
FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL INITIAL REDEMPTION INTEREST RATE: MATURITY
ISSUE DATE: DATE: DATE:
INTEREST PAYMENT
DATES: March 1
September 1
INTEREST SPECIFIED
ACCRUAL DATE: CURRENCY:
__________________________________
*Applies only if this Note is a Registered Global Security.
<PAGE> 2
APPLICABILITY OF
TOTAL AMOUNT INITIAL REDEMPTION MODIFIED PAYMENT
OF OID: PERCENTAGE: UPON ACCELERATION:
ANNUAL REDEMPTION If yes, state
ORIGINAL PERCENTAGE Issue Price:
YIELD TO REDUCTION:
MATURITY:
INITIAL INITIAL REPAYMENT
ACCRUAL DATE:
PERIOD OID:
INITIAL REPAYMENT
PERCENTAGE:
ANNUAL REPAYMENT
PERCENTAGE
REDUCTION:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-mentioned
Senior Indenture.
_____________,
as Trustee
By:________________________________
Authorized Officer
2
<PAGE> 3
Transcontinental Gas Pipe Line Corporation, a Delaware
corporation, (the "Issuer") for value received, hereby promises to pay to
or registered assignees, the principal sum of
, on the Maturity Date specified above (except to the extent redeemed or repaid
prior to the Maturity Date) and to pay interest thereon at the Interest Rate
per annum specified above from the Original Issue Date specified above until
the principal hereof is paid or duly made available for payment (except as
provided below), semiannually in arrears on the first day of March and
September in each year commencing on the Interest Payment Date next succeeding
the Original Issue Date specified above, and on the Maturity Date (or any
redemption or repayment date); provided, however, that if the Original Issue
Date occurs between a Record Date, as defined below, and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date succeeding the Original Issue Date to the registered holder of
this Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from the Original Issue
Date, until the principal hereof has been paid or duly made available for
payment (except as provided below). The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date, will, subject to
certain exceptions described herein, 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 date 15 calendar days prior to an Interest Payment Date (whether or not
a Business Day) (the "Record Date"); provided, however, that interest payable
on the Maturity Date (or any redemption or repayment date) will be payable to
the person to whom the principal hereof shall be payable. As used herein,
"Business Day" means any day, other than a Saturday or Sunday, and that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York and (i) with
respect to Notes denominated in a Specified Currency other than U.S. dollars or
European Currency Units ("ECUs") in the capital city of the country
3
<PAGE> 4
of the Specified Currency and (ii) with respect to Notes denominated in ECUs,
in Brussels, Belgium.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date) will be
made in immediately available funds upon surrender of this Note at the office
or agency of the Trustee as defined on the reverse hereof, maintained for that
purpose in the Borough of Manhattan, The City of New York. Payment of the
principal of and premium, if any, and interest on this Note will be made in
such coin or currency of the United States of America or in a Specified
Currency other than U.S. dollars as indicated herein as at the time of payment
is legal tender for payment of public and private debts; provided, however,
that U.S. dollar payments of interest, other than interest due at maturity or
any date of redemption or repayment, will be made by United States dollar check
mailed to the address of the person entitled thereto as such address shall
appear in the Note register. A holder of U.S. $10,000,000 or more in aggregate
principal amount of Notes having the same Interest Payment Date will be
entitled to receive payments of interest, other than interest due at maturity
or any date of redemption or repayment, by wire transfer of immediately
available funds if appropriate wire transfer instructions in writing have been
received by the Trustee not less than 15 calendar days prior to the applicable
Interest Payment Date. Payments of interest on Notes in a Specified Currency
other than U.S. dollars will be made by wire transfer of immediately available
funds to an account maintained by the holder with a bank located outside the
United States and the holder of such Notes shall provide the Trustee with the
appropriate wire transfer instructions.
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 Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
4
<PAGE> 5
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By: ___________________________
Title:
5
<PAGE> 6
This Note is one of a duly authorized issue of Senior
Medium-Term Notes having maturities more than nine months from the date of
issue (the "Notes") of the Issuer. The Notes are issuable under a Senior
Indenture, dated as of _____________, 199_ (herein called the "Senior
Indenture") between the Issuer and ______________, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Senior
Indenture), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The terms of individual Notes may vary with respect to interest
rates, interest rate formulas, issue dates, maturity dates, or otherwise, all
as provided in the Senior Indenture. To the extent not inconsistent herewith
the terms of the Senior Indenture are hereby incorporated by reference herein.
Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Maturity Date. If so indicated on the face of
this Note, this Note may be redeemed at the option of the Issuer on or after a
specified date or dates prior to the Maturity Date on the terms set forth on
the face hereof, together with interest accrued and unpaid thereon to the date
of redemption (except as provided below). Notice of redemption shall be mailed
to the registered holders of the Notes designated for redemption at their
addresses as the same shall appear on the Note register not less than 30 nor
more than 60 days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Senior Indenture. In the event of redemption
of this Note in part only, a new Note or Notes for the amount of the unredeemed
portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
Unless otherwise indicated on the face of this Note, this Note
may not be repaid prior to the Maturity Date. If so indicated on the face of
this Note, this Note may be subject to repayment at the option of the holder on
or after a specified date or dates prior to the Maturity Date on the terms set
forth on the face hereof, together with interest accrued and unpaid thereon to
the date of repayment (except as provided below). For this Note to be repaid
in whole or in part at the option of the holder hereof, the Trustee must
receive not less than 30 or more than 45 days prior to the Repayment Date (i)
the Note with
6
<PAGE> 7
the form entitled "Option to Elect Repayment" below duly completed or (ii) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or
a commercial bank or a trust company in the United States of America setting
forth the name of the holder of this Note, the principal amount hereof, the
certificate number of this Note or a description of the Note's tenor or terms,
the principal amount hereof to be prepaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this Note to be
prepaid with the form entitled "Option to Elect Repayment" below duly completed
will be received by the Trustee no later than five Business Days after the date
of such telegram, telex, facsimile transmission or letter and this Note and
form duly completed are received by the Trustee by such fifth Business Day.
Exercise of such repayment option shall be irrevocable. Such option may be
exercised by the holder for less than the entire principal amount provided that
the principal amount remaining outstanding after repayment is at least $100,000
or any larger amount that is an integral multiple of $1,000. In the event of
repayment of this Note in part only, a new Note or Notes for the amount of the
portion hereof that is not repaid shall be issued in the name of the holder
hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date (or earlier
redemption date), as the case may be. Interest payments for this Note will be
computed and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or on the Maturity Date (or the redemption or repayment date), and no
interest shall accrue for the period from and after the Interest Payment Date
or the Maturity Date (or the redemption or repayment date) to the next such
succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer, and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer.
7
<PAGE> 8
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and, if denominated in U.S. dollars, is issuable only in denominations of U.S.
$100,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, it is
issuable only in denominations of the equivalent of U.S. $100,000 (rounded down
to an integral multiple of 1,000 units of such Specified Currency), or any
amount in excess thereof which is an integral multiple of 1,000 units of such
Specified Currency, as determined by reference to the noon dollar buying rate
in New York City for cable transfers of such Specified Currency published by
the Federal Reserve Bank of New York (the "Market Exchange Rate") on the
Business Day immediately preceding the date of issuance; provided, however, in
the case of ECUs, the Market Exchange Rate shall be the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities, or
any successor publication, on the Business Day immediately preceding the date
of issuance.
The Trustee has been appointed registrar for the Notes, and
the Trustee will maintain at its office in New York, New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee or the agency of the Trustee in the Borough of
Manhattan, City of New York by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee will
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and for a like aggregate
principal amount in authorized denominations, subject to the terms and
conditions set forth herein; provided, however, that the Trustee will not be
required (i) to register the transfer of or exchange any Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer or
exchange Notes to the extent and during the period so provided in the Senior
Indenture with respect to the redemption of Notes. Notes are exchangeable at
said office for other Notes of
8
<PAGE> 9
other authorized denominations of equal aggregate principal amount having
identical terms and provisions. All such exchanges of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge in connection therewith. All Notes surrendered
for exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and executed by the registered holder in person or
by the holder's attorney duly authorized in writing. The date of registration
of any Note delivered upon any exchange or transfer of Notes shall be such that
no gain or loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated or defaced, or in lieu of the Note so
destroyed or lost or stolen, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that such Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of principal
of, premium, if any, or interest on, any series of debt securities issued under
the Senior Indenture, including the series of Senior Medium-Term Notes of which
this Note forms a part, or due to the default in the performance or breach of
any other covenant or warranty of the Issuer applicable to the debt securities
of such series but not applicable to all outstanding debt securities issued
under the Senior Indenture shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then declare
the principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default due to
a default in the performance of any other of the covenants or agreements in the
Senior Indenture applicable
9
<PAGE> 10
to all outstanding debt securities issued thereunder, including this Note, or
due to certain events of bankruptcy, insolvency and reorganization of the
Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all debt securities issued
under the Senior Indenture then outstanding (treated as one class) may declare
the principal of all such debt securities and interest accrued thereon to be
due and payable immediately, but upon certain conditions such declarations may
be annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in principal amount of the debt securities of all
affected series then outstanding.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration," then if the principal hereof is declared
to be due and payable as described in the preceding paragraph, the amount of
principal due and payable with respect to this Note shall be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Original
Issue Date to the date of declaration, which amortization shall be calculated
using the "Interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration).
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of each series issued under the Senior Indenture
then outstanding and affected, to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each
series so affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption or repayment
thereof, or change the currency of payment thereof, or impair or affect the
rights of any holder to institute suit for the payment thereof without the
consent of the holder of each debt security so affected; or (b) reduce the
aforesaid percentage in principal amount of debt securities the consent of the
holders of which is required for any such supplemental indenture, without the
consent of the holders of each debt security so affected.
10
<PAGE> 11
Except as set forth below, if the principal of, or interest
on, this Note is payable in a Specified Currency other than U.S. dollars and
such Specified Currency is not available to the Issuer for making payments
hereon due to the imposition of exchange controls or other circumstances beyond
the control of the Issuer or is no longer used by the government of the country
issuing such currency or for the settlement of transactions by public
institutions within the international banking community, then the Issuer will
be entitled to satisfy its obligations to the holder of this Note by making
such payments in U.S. dollars on the basis of the Market Exchange Rate on the
date of such payment or, if the Market Exchange Rate is not available on such
date, as of the most recent practicable date. Any payment made under such
circumstances in U.S. dollars where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default.
If payment in respect of a Note is required to be made in ECUs
and ECUs are unavailable due to the imposition of exchange controls or other
circumstances beyond the Issuer's control or are no longer used in the European
Monetary System, then all payments in respect of this Note shall be made in
U.S. dollars until ECUs are again available or so used. The amount of each
payment in U.S. dollars shall be computed on the basis of the equivalent of the
ECU in U.S. dollars, determined as described below, as of the second Business
Day prior to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date (the
"Day of Valuation") shall be determined by the Issuer or its agent on the
following basis. The component currencies of the ECU for this purpose (the
"Components") shall be the currency amounts that were components of the ECU as
of the last date on which the ECU was used in the European Monetary System.
The equivalent of the ECU in U.S. dollars shall be calculated by aggregating
the U.S. dollar equivalents of the Components. The U.S. dollar equivalent of
each of the Components shall be determined by the Issuer or such agent on the
basis of the most recently available Market Exchange Rates for such Components.
If the official unit of any Component is altered by way of
combination or subdivision, the number of units of that currency as a Component
shall be divided or multiplied in the same proportion. If two or more
Components are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single currency
equal to the sum of the amounts of the
11
<PAGE> 12
consolidated component currencies expressed in such single currency. If any
Component is divided into two or more currencies, the amount of the original
component currency shall be replaced by the amounts of such two or more
currencies, each of which shall be equal to the amount of the original
component currency separated into the number of currencies into which such
original currency was divided.
All determinations referred to above made by the Issuer or its
agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
binding on holders of Notes.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as aforesaid
of the Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be any
such agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee for payment of the principal of or interest or premium, if any, on any
Notes, that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee shall notify the
holders of such Notes that such moneys shall be repaid to the Issuer and any
person claiming such moneys shall thereafter look only to the Issuer for
payment thereof and (ii) such moneys shall be so repaid to the Issuer. Upon
such repayment all liability of the Trustee with respect to such moneys shall
thereupon cease, without, however, limiting in any way any obligation that the
Issuer may have to pay the principal of or interest or premium, if any, on this
Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency,
12
<PAGE> 13
herein prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Issuer,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer of any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
13
<PAGE> 14
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian...........
(Cust) (Minor)
Under Uniform Gifts to Minors Act...............
(State)
Additional abbreviations may also be used though not in the
above list.
_____________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_______________________________________!
!
_______________________________________!________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
________________________________________________________________________________
constituting and appointing such person attorney to transfer
________________________________________________________________________________
such note on the books of the Issuer, with full power of
________________________________________________________________________________
substitution in the premises.
Dated:______________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
14
<PAGE> 15
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion hereof specified below) pursuant to
its terms at a price equal to the applicable Repayment Price thereof together
with interest to the Repayment Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid ___________________; and specify the denomination or denominations
(which shall be in authorized denominations) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not being
repaid):
________________________________________________________________________________
Date:_____________________ ______________________________________________
(Signature)
15
<PAGE> 1
EXHIBIT 4.4
[FORM OF FACE OF DEBENTURE]
CUSIP #
No. $
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
_____% Debenture Due ____
Transcontinental Gas Pipe Line Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Company"), for value received, hereby promises to pay to or
registered assigns, the principal sum of Dollars on ____________,
____, at the office or agency of the Company in the Borough of Manhattan, The
City of New York, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually on ____________ and
____________ of each year, commencing ____________, on said principal sum at
said office or agency, in like coin or currency, at the rate per annum
specified in the title of this Debenture, from the ____________ or the
____________, as the case may be, next preceding the date of this Debenture to
which interest has been paid or duly provided for, unless the date hereof is a
date to which interest has been paid or duly provided for, in which case from
the date of this Debenture, or unless no interest has been paid on this
Debenture or duly provided for, in which case from ____________, until payment
of said principal sum has been made or duly provided for; provided, that
payment of interest may be made at the option of the Company by check mailed to
the address of the person entitled thereto as such address shall appear on the
Security register. Notwithstanding the foregoing, if the date hereof is after
1
<PAGE> 2
____________ or ____________, as the case may be, and before the following
____________ or ____________, this Debenture shall bear interest from such
____________ or ____________; provided, that if the Company shall default in
the payment of interest due on such ____________ or ____________, then this
Debenture shall bear interest from the next preceding ____________ or
____________, to which interest has been paid or duly provided for or, if no
interest has been paid on this Debenture or duly provided for, from
____________. The interest so payable on any ____________ or ____________,
will, subject to certain exceptions provided in the Indenture referred to on
the reverse hereof, be paid to the person in whose name this Debenture (or one
or more predecessor Debentures) is registered at the close of business on the
____________ or ____________ (whether or not a Business Day), as the case may
be, next preceding such ____________ or ____________.
Reference is made to the further provisions of this Debenture
set forth on the reverse hereof. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Debenture shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been executed
by the Trustee under the Indenture referred to on the reverse hereof by manual
signature.
IN WITNESS WHEREOF, Transcontinental Gas Pipe Line Corporation
has caused this instrument to be duly executed.
Dated:
TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By______________________________
2
<PAGE> 3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
,
as Trustee
By__________________________
Authorized Officer
3
<PAGE> 4
[FORM OF REVERSE OF DEBENTURE]
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
_____% Debenture Due ____
This Debenture is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the Company
(hereinafter called the "Securities") of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture dated as of
____________, 1995 (herein called the "Indenture"), duly executed and delivered
by the Company to , as Trustee (herein called the "Trustee"), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any) and may otherwise vary
as provided in the Indenture. This Debenture is one of a series designated as
the _____% Debentures Due ____ (the "Debentures") of the Company, limited in
aggregate principal amount to $__________.
In case an Event of Default with respect to the Debentures
shall have occurred and be continuing, the principal hereof may be declared,
and upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of each series issued under such
Indenture then Outstanding and affected, voting as one class, to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the Holders of the
Securities of each series so affected; provided that the Company and the
Trustee may not, without the consent of the Holder of each outstanding Security
affected thereby, (i) extend the stated maturity of the principal of any
Security, or reduce the principal amount thereof or reduce the rate or extend
the time of payment of interest thereon, or reduce
4
<PAGE> 5
any amount payable on redemption thereof or change the currency in which the
principal thereof (including any amount in respect of original issue discount)
or interest thereon is payable or reduce the amount of any original issue
discount security payable upon acceleration or provable in bankruptcy or impair
the right to institute suit for the enforcement of any payment on any Security
when due or (ii) reduce the aforesaid percentage in principal amount of
Securities of any series issued under such Indenture, the consent of the
Holders of which is required for any such modification. It is also provided
in the Indenture that, with respect to certain defaults or Events of Default
regarding the Securities of any series, prior to any declaration accelerating
the maturity of such Securities, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or, in the case
of certain defaults or Events of Default, all or certain series of the
Securities) may on behalf of the Holders of all the Securities of such series
(or all or certain series of the Securities, as the case may be) waive any such
past default or Event of Default and its consequences. The preceding sentence
shall not, however, apply to a default in the payment of the principal of or
interest on any of the Securities. Any such consent or waiver by the Holder of
this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Debenture and any Debentures which may be issued in exchange or
substitution herefor or on registration of transfer hereof, irrespective of
whether or not any notation thereof is made upon this Debenture or such other
Debentures.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
The Debentures are issuable in registered form without coupons
in denominations of $1,000 and any multiple of $1,000 at the office or agency
of the Company in the Borough of Manhattan, The City of New York, and in the
manner and subject to the limitations provided in the Indenture, but without
the payment of any service charge, Debentures may be exchanged for a like
aggregate principal amount of Debentures of other authorized denominations.
[The Debentures are not redeemable prior to maturity.] [Add
optional redemption language, if applicable.]
Upon due presentment for registration of transfer of
5
<PAGE> 6
this Debenture at the office or agency of the Company in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company, the Trustee and any authorized agent of the
Company or the Trustee may deem and treat the registered Holder hereof as the
absolute owner of this Debenture (whether or not this Debenture shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal hereof
and subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and none of the Company, the Trustee or any authorized agent of
the Company or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or any indenture supplemental thereto
or in any Debenture, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
This Debenture shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
6
<PAGE> 1
EXHIBIT 5
April , 1996
Transcontinental Gas Pipe Line Corporation
2800 Post Oak Boulevard
Houston, Texas 77251
Gentlemen:
You have requested me, as General Counsel of The Williams Companies,
Inc., to render my opinion regarding certain matters in connection with the
preparation and filing of a registration statement by Transcontinental Gas Pipe
Line Corporation (the "Company") on Form S-3 (the "Registration Statement")
under the Securities Act of 1933, as amended, with respect to $400,000,000
aggregate initial offering price of debt securities ("Securities"). The
Securities are to be issued from time to time as senior indebtedness of the
Company under an indenture between the Company and Citibank, N.A., as trustee
(the "Indenture"). The form of the Indenture and the Securities are filed as
exhibits to the Registration Statement.
I am familiar with the Certificate of Incorporation and the By-laws,
each as amended to date, of the Company and have examined the originals, or
copies certified or otherwise identified to my satisfaction, of corporate
records of the Company, statutes and other instruments and documents as the
basis for the opinion expressed herein. In addition, I am, or someone under my
supervision is, familiar with the forms of the Indenture and the Securities.
Based upon the foregoing, and having regard for such legal
considerations as I have deemed relevant, I am of the opinion that, when the
Securities have been duly authorized by the Board of Directors of the Company,
the Indenture has been duly executed and delivered and the Securities have been
duly issued in accordance with the provisions of the Indenture and duly paid
for by the purchasers thereof, all required corporate action will have been
taken with respect to the issuance and sale of the Securities, and the
Securities will have been validly issued and will constitute valid and binding
obligations of the Company enforceable in accordance with their terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or
other laws relative to or affecting generally the enforcement of creditor's
rights and by principles of equity.
<PAGE> 2
EXHIBIT 5
Transcontinental Gas Pipe Line Corporation
Page 2
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to the undersigned appearing under
the caption "Legal Matters" in the related Prospectus.
Very truly yours,
J. Furman Lewis
JFL/RHH/sa
<PAGE> 1
EXHIBIT 12
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
------------------------------------------
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
-------------------------------------------------
($ THOUSANDS)
<TABLE>
<CAPTION>
Post-Acquisition Pre-Acquisition
---------------- |-----------------------------------------------------------
For the Period | For the Period
January 18, | January 1,
1995, to | 1995, to Years Ended December 31,
December 31, | January 17, -----------------------------------------
1995 | 1995 1994 1993 1992 1991
---------------- |-------------- --------- -------- -------- --------
Description |
----------- |
<S> <C> |<C> <C> <C> <C> <C>
Earnings Available for Fixed Charges: |
|
Net Income (Loss) .................................. $ 86,589 |$ (9,662) $ 110,726 $ 94,225 $ 73,543 $ (59,663)
|
Plus - Interest expense, portion of rents |
representative of the interest factor |
and amortization of debt expense, |
discount and premium .................. 61,947 | 3,156 72,373 74,259 84,520 123,590
- Federal income taxes .................. 66,819 | (2,734) 72,364 38,593 53,180 63,604
- Deferred federal income taxes ......... (17,404) | 4,577 (23,669) 1,767 (25,353) (101,331)
- State and municipal income taxes ...... 5,063 | 466 9,038 8,981 6,152 (2,363)
--------- | --------- --------- --------- --------- ---------
Total ............................. $ 203,014 | $ (4,197) $ 240,832 $ 217,825 $ 192,042 $ 23,837
========= | ========= ========= ========= ========= =========
|
Fixed Charges |
Interest on long-term debt .................... $ 52,214 | $ 2,472 $ 54,126 $ 55,899 $ 61,367 $ 65,319
Other interest expense ........................ 3,215 | 125 5,201 6,569 11,360 47,818
Portion of rents representative of interest |
factor ........................................ 7,836 | 593 13,426 11,992 11,946 10,611
Amortization of debt expense, discount and |
premium ....................................... 334 | 48 1,044 1,011 1,056 1,271
--------- | --------- --------- --------- --------- ---------
Total ............................. $ 63,599 | $ 3,238 $ 73,797 $ 75,471 $ 85,729 $ 125,019
========= | ========= ========= ========= ========= =========
|
Ratio of Earnings to Fixed Charges ................. 3.19 | (a) 3.26 2.89 2.24 (a)
====== | ====== ====== ====== ====== ======
</TABLE>
(a) Earnings were inadequate to cover fixed charges for the period January 1,
1995 to January 17, 1995 and for the year ended December 31, 1991 by $7.4
million and $101.2 million, respectively.
For the purpose of the ratio (i) earnings consist of income or loss before
fixed charges and income taxes for the Company, and (ii) fixed charges consist
of interest and debt expense on all indebtedness (without reduction for interest
capitalized) and that portion of rental payments on operating leases estimated
to represent an interest factor for the Company.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of Transcontinental
Gas Pipe Line Corporation for the registration of $400 million of debt
securities and to the incorporation by reference therein of our report dated
February 9, 1996, with respect to the consolidated financial statements of
Transcontinental Gas Pipe Line Corporation included in its Annual Report (Form
10-K) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Tulsa, Oklahoma
April 2, 1996
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 20,
1995 included in Transcontinental Gas Pipe Line Corporation's Form 10-K for the
year ended December 31, 1995 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
April 1, 1996
<PAGE> 1
Exhibit 24.1
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned
individuals, in their capacity as a director or officer, or both, as
hereinafter set forth below their signature, of Transcontinental Gas Pipe Line
Corporation, a Delaware corporation ("TGPL"), does hereby constitute and
appoint J. FURMAN LEWIS, RANDALL R. CONKLIN, and NICK A. BACILE their true and
lawful attorneys and each of them (with full power to act without the others)
their true and lawful attorneys for them and in their name and in their
capacity as a director or officer, or both, of TGPL, as hereinafter set forth
below their signature, to sign a registration statement on Form S-3 for the
registration on a continuing basis under Rule 415 under the Securities Act of
1933, as amended, of up to four hundred million dollars ($400,000,000) initial
aggregate offering price of Debt Securities of TGPL, and any and all amendments
(including post-effective amendments) to said registration statement and any
and all instruments necessary or incidental in connection therewith; and
That the undersigned TGPL does hereby constitute and appoint J. FURMAN
LEWIS, RANDALL R. CONKLIN, and NICK A. BACILE its true and lawful attorneys
and each of them (with full power to act without the others) its true and
lawful attorneys for it and in its name and on its behalf to sign said
registration statement and any and all amendments (including post-effective
amendments) thereto and any and all instruments necessary or incidental in
connection therewith.
Each of said attorneys shall have full power of substitution and
resubstitution, and said attorneys or any of them or any substitute appointed
by any of them hereunder shall have full power and authority to do and perform
in the name and on behalf of each of the undersigned, in any and all
capacities, every act whatsoever requisite or necessary to be done in the
premises, as fully to all intents and purposes as each of the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys or any of them or of any such substitute pursuant hereto.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned have executed this instrument, all
as of the 22nd day of March, 1996.
<TABLE>
<S> <C>
/s/ Keith E. Bailey /s/ Brian E. O'Neill
- ----------------------------------------- ------------------------------------------------
Keith E. Bailey, Chairman of the Board Brian E. O'Neill, President, CEO
(Principal Executive Officer) and Director
/s/ Cuba Wadlington, Jr. /s/ Nick A. Bacile
- ----------------------------------------- ------------------------------------------------
Cuba Wadlington, Jr., Senior V. P., Nick A. Bacile, V.P., Treasurer,
General Manager and Director Controller (Principal Financial and
Accounting Officer) and Director
/s/ Ronald L. Adams /s/ Frank J. Ferazzi
- ----------------------------------------- ------------------------------------------------
Ronald L. Adams, V.P. and Director Frank J. Ferazzi, V.P. and Director
/s/ Thomas P. Griffin /s/ Lewis A. Posekany, Jr.
- ----------------------------------------- ------------------------------------------------
Thomas P. Griffin, Director Lewis A. Posekany, Jr., V.P. and Director
ATTEST: TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
/s/ Randall R. Conklin BY: /s/ Nick A. Bacile
- ----------------------------------------- --------------------------------------------
Randall R. Conklin, Assistant Secretary Nick A. Bacile, Vice President
</TABLE>
<PAGE> 1
Exhibit 24.2
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
I, the undersigned, Nick A. Bacile, Assistant Secretary of
TRANSCONTINENTAL GAS PIPE LINE CORPORATION, a Delaware corporation (hereinafter
called the "Corporation"), do hereby certify that at a meeting of the Board of
Directors of the Corporation, duly convened and held on March 22, 1996, at
which a quorum of said Board was present and acting throughout, the following
resolution was duly adopted:
RESOLVED that the issuance and sale by the Company in a public
offering (the "Offering") of up to four hundred million dollars
($400,000,000), aggregate principal amount of debt securities (or, if
such securities are sold at prices reflecting an original issue
discount, such greater principal amount as will result in an initial
public offering price of $400 million) at such times, upon such terms
and under such conditions as may be subsequently approved, (the
"Debt") is hereby authorized and approved.
RESOLVED that the officers of the Company be, and they hereby
are, authorized on behalf of the Company to take any and all actions
which such officers deem necessary or appropriate in order to obtain a
permit, register or qualify the Debt for issuance and sale (including
filing of a registration statement, ("Registration Statement"), with
the Securities and Exchange Commission) or to request an exemption
from registration of the Debt or to register or to obtain a license
for the Company as a dealer or broker under the securities laws of
such of the states of the United States of America and of such foreign
jurisdictions as such officers may deem necessary or appropriate; and
that in connection with such registrations, permits, licenses,
qualifications and exemptions, such officers are authorized and
directed to execute, acknowledge, verify, deliver, file and publish
all such applications, reports, resolutions, irrevocable consents to
service or process, powers of attorney and other papers and
instruments as may be required under such laws, and to take any and
all further action which such officers deem necessary or appropriate
in order to maintain the registration in effect for such time period
as they may deem to be in the best interests of the Company.
RESOLVED that if any resolutions are required to be adopted in
connection with any application or other document to be submitted
under the securities or "Blue Sky" laws of any state in order to
permit the offering of the Debt, such resolutions shall be deemed to
have been adopted in the required language with the same force and
effect
<PAGE> 2
as if set forth here at length and copies thereof shall be filed with
the minutes of this meeting.
RESOLVED that if an officer of the Company shall so elect,
application may be made to the New York Stock Exchange, Inc. and to
the Pacific Stock Exchange for the listing upon notice of issuance of
the Debt and that the Chairman of the Board, the President or any Vice
President or the Secretary of the Company be, and each of them hereby
is, authorized and directed by the Company to prepare, execute and
file the applications required by such stock exchanges and to make
such changes as may be necessary to conform with requirements for the
listing of the Debt, to appear (if requested) before officials of such
exchanges, to pay any fees required for such additional listing and to
perform all other acts and things as may be deemed necessary to effect
such listing.
RESOLVED that the officers of the Company be, and each of them
hereby is, authorized to take all such further action and to execute
and deliver all such further instruments and documents in the name and
on behalf of the Company with its corporate seal or otherwise and to
pay such fees and expenses as, in their judgment, shall be proper or
advisable in order to carry out the intent and to accomplish the
purposes of the foregoing resolutions.
I further certify that the foregoing resolution has not been modified,
revoked or rescinded and is in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of April,
1996.
/s/ Nick A. Bacile
---------------------------------------
Nick A. Bacile
Assistant Secretary
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a trustee pursuant to
Section 305(b)(2) ____
___________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
_______________________
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 74-1079400
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
2800 Post Oak Boulevard
Houston, Texas 77251
(Address of Principal Executive Offices) (Zip Code)
_____________________
Debt Securities
(Title of the indenture securities)
<PAGE> 2
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, DC
Federal Reserve Bank of New York
35 Liberty Street, New York, NY
Federal Deposit Insurance Corporation, Washington, DC
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with the Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as
now in effect. (Exhibit 1 to T-1 to Registration
Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration
Statement No. 2- 29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to
Registration Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4
to T-1 to Registration Statement No. 33- 34988)
<PAGE> 3
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4
to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b)
of the Trust Indenture Act of 1939. (Exhibit 6 to
T-1 to Registration Statement No. 33-19227).
Exhibit 7 - Copy of the latest Report of Condition of Citibank,
N.A. as of December 31, 1995 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
______________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York and State of New York,
on the 25th day of March, 1996.
CITIBANK, N.A.
/s/ ROBERT T. KIRCHNER
-------------------------------
By Robert T. Kirchner
Vice President
<PAGE> 4
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business on December 31,
1995, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
ASSETS
<TABLE>
<CAPTION>
Thousands
of dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin $ 7,451,000
Interest-bearing balances 9,256,000
Held-to-maturity securities 0
Available-for-sale securities 15,587,000
Federal funds sold and securities purchased under
agreements to resell in domestic offices of
the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold 3,981,000
Securities purchased under agreements to resell 423,000
Loans and lease financing receivables:
Loans and Leases, net of unearned income $ 145,221,000
LESS: Allowance for loan and lease losses 4,403,000
Loans and leases, net of unearned income, allowance,
and reserve 140,818,000
Trading assets 28,407,000
Premises and fixed assets (including capitalized leases) 3,454,000
Other real estate owned 849,000
Investments in unconsolidated subsidiaries and
associated companies 1,181,000
Customers' liability to this bank on acceptances
outstanding 1,542,000
Intangible assets 14,000
Other assets 7,147,000
TOTAL ASSETS $ 220,110,000
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices $ 35,377,000
Noninterest-bearing $ 13,214,000
Interest-bearing 22,163,000
In foreign offices, Edge and
Agreement subsidiaries, and IBFs 121,599,000
Noninterest-bearing 8,014,000
Interest-bearing 113,585,000
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased 1,852,000
Securities sold under agreements to repurchase 556,000
Trading liabilities 17,544,000
Other borrowed money:
With original maturity of one year or less 7,740,000
With original maturity of more than one year 5,788,000
Mortgage indebtedness and obligations under
capitalized leases 95,000
Bank's liability on acceptances executed
and outstanding 1,559,000
Subordinated notes and debentures 4,700,000
Other liabilities 8,483,000
TOTAL LIABILITIES $ 205,293,000
EQUITY CAPITAL
Common stock $ 751,000
Surplus 6,744,000
Undivided profits and capital reserves 7,816,000
Net unrealized holding gains (losses) on
available-for-sale securities 62,000
Cumulative foreign currency translation adjustments (556,000)
TOTAL EQUITY CAPITAL $ 14,817,000
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL $ 220,110,000
</TABLE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare
that this Report of Condition is true and correct to the best of my knowledge
and belief.
ROGER W. TRUPIN
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
PEI-YUAN CHIA
WILLIAM R. RHODES
PAUL J. COLLINS
DIRECTORS
