EXHIBIT 4.1
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TRANSCONTINENTAL GAS PIPE LINE CORPORATION
, as Company
and
CITIBANK N.A.
, as Trustee
INDENTURE
Dated as of July 3, 2002
Series A and Series B
8-7/8% Notes due July 15, 2012
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CROSS-REFERENCE TABLE*
TIA Section Indenture Section
----------- -----------------
310 (a)(1) .................................................................................. 6.10
(a)(2).................................................................................. 6.10
(a)(3).................................................................................. N.A.
(a)(4).................................................................................. N.A.
(a)(5).................................................................................. 6.10
(b)..................................................................................... 6.10;
7.01(b)
(c)..................................................................................... N.A.
311 (a)...................................................................................... 6.11
(b)..................................................................................... 6.11
(c)..................................................................................... N.A.
312 (a)...................................................................................... 2.05
(b)..................................................................................... 10.03
(c)..................................................................................... 10.03
313 (a)...................................................................................... 6.06
(b)..................................................................................... 6.06
(c)..................................................................................... 6.06
(d)..................................................................................... 6.06
314 (a)...................................................................................... 3.03
(b)..................................................................................... N.A.
(c)(1).................................................................................. 10.04
(c)(2).................................................................................. 10.04
(c)(3).................................................................................. N.A.
(d)..................................................................................... N.A.
(e)..................................................................................... 10.05
(f)..................................................................................... N.A.
315 (a)...................................................................................... 6.01(b)
(b)..................................................................................... 6.05
(c)..................................................................................... 6.01(a)
(d)..................................................................................... 6.01(c)
(e)..................................................................................... 5.11
316 (a)(last sentence)....................................................................... 2.09
(a)(1)(A)............................................................................... 5.05
(a)(1)(B)............................................................................... 5.04
(a)(2).................................................................................. N.A.
(b)..................................................................................... 5.07
(c)..................................................................................... 8.04
317 (a)(1)................................................................................... 5.08
(a)(2).................................................................................. 5.09
(b)..................................................................................... 2.04
318 (a)...................................................................................... 9.01
318 (c)...................................................................................... 9.01
----------
N.A. means not applicable
* This Cross-Reference Table is not part of this
Indenture
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions..................................................................................1
Section 1.02 Other Definitions............................................................................5
Section 1.03 Incorporation by Reference of Trust
Indenture Act............................................5
Section 1.04 Rules of Construction........................................................................5
ARTICLE II
THE SECURITIES
Section 2.01 Form and Dating..............................................................................6
Section 2.02 Execution and Authentication.................................................................7
Section 2.03 Registrar and Paying Agent...................................................................7
Section 2.04 Paying Agent to Hold Money in Trust..........................................................8
Section 2.05 Holder Lists.................................................................................8
Section 2.06 Transfer and Exchange........................................................................8
Section 2.07 Certificated Securities.....................................................................12
Section 2.08 Replacement Securities......................................................................13
Section 2.09 Outstanding Securities......................................................................13
Section 2.10 Treasury Securities.........................................................................13
Section 2.11 Temporary Securities........................................................................13
Section 2.12 Cancellation................................................................................14
Section 2.13 Defaulted Interest..........................................................................14
Section 2.14 Persons Deemed Owners.......................................................................14
Section 2.15 CUSIP Numbers...............................................................................14
ARTICLE III
COVENANTS
Section 3.01 Payment of Securities.......................................................................14
Section 3.02 Maintenance of Office or Agency.............................................................15
Section 3.03 SEC Reports; Financial Statements...........................................................15
Section 3.04 Compliance Certificate......................................................................16
Section 3.05 Limitation on Liens.........................................................................16
Section 3.06 Limitation on Sale and Lease-Back Transactions..............................................19
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
Section 4.01 Limitation on Mergers and Consolidations....................................................19
Section 4.02 Successors Substituted......................................................................20
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default...........................................................................20
Section 5.02 Acceleration................................................................................21
Section 5.03 Other Remedies..............................................................................22
Section 5.04 Waiver of Existing Defaults.................................................................22
Section 5.05 Control by Majority.........................................................................23
Section 5.06 Limitations on Suits........................................................................23
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Section 5.07 Rights of Holders to Receive Payment........................................................23
Section 5.08 Collection Suit by Trustee..................................................................24
Section 5.09 Trustee May File Proofs of Claim............................................................24
Section 5.10 Priorities..................................................................................24
Section 5.11 Undertaking for Costs.......................................................................24
ARTICLE VI
TRUSTEE
Section 6.01 Duties of Trustee...........................................................................25
Section 6.02 Rights of Trustee...........................................................................26
Section 6.03 Individual Rights of Trustee................................................................27
Section 6.04 Trustee's Disclaimer........................................................................27
Section 6.05 Notice of Defaults..........................................................................27
Section 6.06 Reports by Trustee to Holders...............................................................27
Section 6.07 Compensation and Indemnity..................................................................27
Section 6.08 Replacement of Trustee......................................................................28
Section 6.09 Successor Trustee by Merger, etc............................................................29
Section 6.10 Eligibility; Disqualification...............................................................29
Section 6.11 Preferential Collection of Claims Against Company...........................................29
ARTICLE VII
DISCHARGE OF
INDENTURE
Section 7.01 Termination of Company's Obligations........................................................29
Section 7.02 Application of Trust Money..................................................................31
Section 7.03 Repayment to Company........................................................................31
Section 7.04 Reinstatement...............................................................................32
ARTICLE VIII
AMENDMENTS
Section 8.01 Without Consent of Holders..................................................................32
Section 8.02 With Consent of Holders.....................................................................33
Section 8.03 Compliance with Trust
Indenture Act.........................................................34
Section 8.04 Revocation and Effect of Consents...........................................................34
Section 8.05 Notation on or Exchange of Securities.......................................................34
Section 8.06 Trustee to Sign Amendments, etc.............................................................34
ARTICLE IX
REDEMPTION
Section 9.01 Notices to Trustee..........................................................................35
Section 9.02 Selection of Securities to be Redeemed......................................................35
Section 9.03 Notices to Holders..........................................................................35
Section 9.04 Effect of Notices of Redemption.............................................................36
Section 9.05 Deposit of Redemption Price.................................................................36
Section 9.06 Securities Redeemed in Part.................................................................36
Section 9.07 Optional Redemption.........................................................................36
ARTICLE X
MISCELLANEOUS
Section 10.01 Trust
Indenture Act Controls................................................................37
Section 10.02 Notices.....................................................................................37
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Section 10.03 Communication by Holders with Other Holders..............................................38
Section 10.04 Certificate and Opinion as to Conditions Precedent.......................................38
Section 10.05 Statements Required in Certificate or Opinion............................................38
Section 10.06 Rules by Trustee and Agents..............................................................38
Section 10.07 Legal Holidays...........................................................................38
Section 10.08 No Recourse Against Others...............................................................39
Section 10.09 Governing Law............................................................................39
Section 10.10 No Adverse Interpretation of Other Agreements............................................39
Section 10.11 Successors...............................................................................39
Section 10.12 Severability.............................................................................39
Section 10.13 Counterpart Originals....................................................................39
Section 10.14 Table of Contents, Headings, etc.........................................................39
EXHIBITS
EXHIBIT A Form of Security........................................................................A-1
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INDENTURE dated as of July 3, 2002 between Transcontinental Gas Pipe
Line Corporation, a Delaware corporation (the "Company") and Citibank N.A., a
national banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's 8-7/8% Series
A Notes due July 15, 2012 (the "Series A Securities") and 8-7/8% Series B Notes
due July 15, 2012 (the "Series B Securities" and together with the Series A
Securities, the "Securities").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing. The Trustee may
request and may conclusively rely upon an Officers' Certificate to determine
whether any Person is an Affiliate of any specified Person.
"Agent" means any Registrar or Paying Agent.
"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).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Board of Directors" of any Person means the board of directors of such
Person or any committee thereof duly authorized, with respect to any particular
matter, to act by or on behalf of the board of directors of such Person.
"Business Day" means any day that is not a Legal Holiday.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this
Indenture, and thereafter
"Company" shall mean such successor corporation.
"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:
(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 ▇▇▇▇▇▇▇▇ 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.
"Corporate Trust Office of the Trustee" means the office of the Trustee
at which the corporate trust business of the Trustee shall be principally
administered, which office shall initially be located at the address of the
Trustee specified in Section 10.02 hereof and may be located at such other
address as the Trustee may give notice to the Company and the Holders or such
other address as a successor Trustee may designate from time to time by notice
to the Holders and the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice or
the passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
"Exchange Offer" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange the Series B
Securities for the Series A Securities.
"Exchange Offer Registration Statement" means a registration statement
under the Securities Act relating to an Exchange Offer, including the related
prospectus.
"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.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect from time to time.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" means indebtedness which is for money borrowed from
others.
"
Indenture" means this Indenture as amended or supplemented from time
to time.
"Initial Issue Date" means the first date on which the Series A
Securities are issued under this Indenture.
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"Initial Purchasers" means any initial purchasers of Series A
Securities issued in connection with an offering under Rule 144A and/or
Regulation S, including without limitation, the Original Initial Purchasers, as
such in the Original Offering.
"Interest Payment Date" shall have the meaning assigned to such term in
the Securities.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in any of ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ or a place of payment
are authorized or obligated by law, regulation or executive order to remain
closed.
"Liquidated Damages" has the meaning given to such term in any
Registration Rights Agreement.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, any Vice Chairman of the Board, any Vice President, the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a
Person, one of whom must be the Person's Chief Executive Officer, Chief
Financial Officer or Chief Accounting Officer.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. Such counsel may be an employee of or counsel to the
Company, its parent corporation or the Trustee.
"Original Initial Purchasers" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ABN AMRO
Incorporated, Banc of America Securities LLC, Commerzbank Capital Markets Corp.,
Credit Lyonnais Securities (USA) Inc., Credit Suisse First Boston Corporation,
▇.▇. ▇▇▇▇▇▇ Securities Inc., The Royal Bank of Scotland plc, Scotia Capital
(USA) Inc., UBS Warburg LLC, Banc One Capital Markets, Inc., Barclays Capital
Inc., Mizuho International plc and TD Securities (USA) Inc., as initial
purchasers of the Series A Securities in the Original Offering.
"Original Offering" means the offering of the Series A Securities
pursuant to the Original Offering Memorandum.
"Original Offering Memorandum" means the Confidential Offering
Memorandum of the Company, dated June 28, 2002, relating to the offering of the
Series A Securities.
"Person" means any individual, corporation, partnership, limited
liability company, limited or general partnership, joint venture, incorporated
or unincorporated association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof or
other entity of any kind.
"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 of the Company is not of
material importance to the total business conducted by the Company 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 Company after December 31,
1996.
3
"Private Exchange" means the offer by the Company to any of the Initial
Purchasers to issue and deliver to such Initial Purchaser, in exchange for the
Series A Securities held by such Initial Purchaser as part of its initial
distribution, a like aggregate principal amount of Private Exchange Securities.
"Private Exchange Securities" means the Series B Securities to be
issued pursuant to this Indenture to an Initial Purchaser in a Private Exchange.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" shall have the meaning assigned to such term in the
Securities.
"Registration Rights Agreement" means any registration rights agreement
entered into by the Company relating to any Securities issued hereunder,
including without limitation, the Registration Rights Agreement, dated as of
July 3, 2002, among the Company and the Original Initial Purchasers.
"Responsible Officer" when used with respect to the Trustee means any
vice president, (whether or not designated by numbers or words added before or
after the title "vice president") , any assistant vice president, or any other
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 and who shall have direct
responsibility for the administration of this Indenture.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B Securities.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"Series A Securities" means the Company's 8-7/8% Series A Notes due
July 15, 2012, to be issued pursuant to this Indenture.
"Series B Securities" means the Company's 8-7/8% Series B Notes due
July 15, 2012 to be issued pursuant to this Indenture in the Exchange Offer.
"Shelf Registration Statement" means the registration statement to be
filed by the Company, in connection with the offer and sale of Series A
Securities or Private Exchange Securities, pursuant to the Registration Rights
Agreement.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the principal of such
Security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
Security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subsidiary" of any Person means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person
and one or more other Subsidiaries of such Person. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for the
election of directors,
4
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb), as in effect on the Initial Issue Date.
"Transfer Restricted Securities" with respect to any Securities, means
Registrable Securities (as defined in the Registration Rights Agreement
applicable to such Securities).
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged.
Section 1.02 Other Definitions
Term Defined in Section
---- ------------------
"Agent Members"................................................. 2.01(c)
"DTC"........................................................... 2.03
"Event of Default".............................................. 5.01
"Global Security"............................................... 2.01(b)
"Paying Agent".................................................. 2.03
"Registrar"..................................................... 2.03
"Regulation S".................................................. 2.01(b)
"Rule 144A"..................................................... 2.01(b)
"Sale and Lease-Back Transaction"............................... 3.06
"Successor"..................................................... 4.01
Section 1.03 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All terms used in this Indenture that are defined by the TIA, defined
by a TIA reference to another statute or defined by an SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04 Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
5
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.01 Form and Dating
(a) General. The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A to this
Indenture, the terms of which are hereby incorporated into this
Indenture. The Securities may have notations, legends or endorsements
required by law, securities exchange rule, the Company's certificate of
incorporation, memorandum of association, articles of association,
other organizational documents, agreements to which the Company is
subject, if any, or usage, provided that any such notation, legend or
endorsement is in a form acceptable to the Company. Each Security shall
be dated the date of its authentication. The Securities shall be in
registered form without coupons and only in denominations of $1,000 and
any integral multiples thereof. The terms and provisions contained in
the Securities shall constitute, and are hereby expressly made, a part
of this Indenture and to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby. The
Securities shall be dated the date of their authentication.
(b) Global Securities. Series A Securities offered and sold to
a QIB in reliance on Rule 144A under the Securities Act ("Rule 144A")
or in reliance on Regulation S under the Securities Act ("Regulation
S") shall be issued initially in the form of one or more permanent
global Securities in definitive, fully registered form without interest
coupons with the global securities legend and restricted securities
legend set forth in Section 2.06 (each, a "Global Security"), which
shall be deposited on behalf of the purchasers of the Series A
Securities represented thereby with the Trustee, at its
New York
office, as custodian for the Depositary (or with such other custodian
as the Depositary may direct), and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee as hereinafter provided.
(c) Book-entry Provisions. This Section 2.01(c) shall apply
only to a Global Security deposited with or on behalf of the
Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary for such
Global Security or Global Securities or the nominee of such Depositary and (ii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such Global Security, and the Depositary may be treated by
the
6
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices of
such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
(d) Certificated Securities. Except as provided in this
Section 2.01 or Section 2.06 or 2.07, owners of beneficial interests in
Global Securities will not be entitled to receive physical delivery of
certificated Securities.
Section 2.02 Execution and Authentication
One Officer of the Company shall sign the Securities on behalf of the
Company by manual or facsimile signature. The Company's seal may be (but shall
not be required to be) impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer of the Company whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose until authenticated by the manual
signature of an authorized signatory of the Trustee, which signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate (i) for original issue on the Initial
Issue Date, Series A Securities in the aggregate principal amount of
$325,000,000, (ii) Series B Securities for original issue, pursuant to any
Exchange Offer or Private Exchange, for a like principal amount of Series A
Securities and (iii) any amount of additional Securities specified by the
Company, in each case, upon a written order of the Company signed by one Officer
of the Company. Such order shall specify (a) the amount of the Securities to be
authenticated and the date of original issue thereof, and (b) whether the
Securities are Series A Securities or Series B Securities. The aggregate
principal amount of Securities of any series outstanding at any time may not
exceed the aggregate principal amount of Securities of such series authorized
for issuance by the Company pursuant to one or more written orders of the
Company, except as provided in Section 2.08 hereof. Subject to the foregoing,
the aggregate principal amount of Securities of any series that may be issued
under this Indenture shall not be limited.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, or an Affiliate of any of
them.
The Series A Securities and the Series B Securities shall be considered
collectively to be a single class for all purposes of this Indenture, including,
without limitation, waivers, amendments, redemptions and offers to purchase.
Section 2.03 Registrar and Paying Agent
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or exchange ("Registrar") and an office
or agency where Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent.
7
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to each Global Security.
Section 2.04 Paying Agent to Hold Money in Trust
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium, if any, or interest on the Securities, whether such
money shall have been paid to it by the Company and will notify the Trustee of
any default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed. Upon payment over to the Trustee and upon accounting
for any funds disbursed, the Paying Agent (if other than the Company or a
Subsidiary of the Company) shall have no further liability for the money. If the
Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent.
Section 2.05 Holder Lists
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, and the
Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange
(a) Transfer and Exchange of Global Securities. (iii) The
transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with
this Indenture (including applicable restrictions on transfer set forth
herein, if any) and the procedures of the Depositary therefor. A
transferor of a beneficial interest in a Global Security shall deliver
to the Registrar a written order given in accordance with the
Depositary's procedures containing information regarding the
participant account of the Depositary to be credited with a beneficial
interest in the Global Security. The Registrar shall, in accordance
with such instructions, instruct the Depositary to credit to the
account of the Person specified in such instructions a beneficial
interest in the Global Security and to debit the account of the Person
making the transfer the beneficial interest in the Global Security
being transferred.
(i) Notwithstanding any other provisions of this
Indenture (other than the provisions set forth in Section
2.07), a Global Security may not be transferred as a whole
except by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary
8
or any such nominee to a successor Depositary or a nominee of
such successor Depositary.
(ii) If a Global Security is exchanged for Securities
in definitive registered form pursuant to this Section 2.06 or
Section 2.07, prior to the consummation of an Exchange Offer
or prior to or in a transfer made pursuant to an effective
Shelf Registration Statement with respect to such Securities,
such Securities may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions
of this Section 2.06 (including the certification and other
requirements set forth on the reverse of the Series A
Securities intended to ensure that such transfers comply with
Rule 144A or Regulation S, as the case may be, or are
otherwise in compliance with the requirements of the
Securities Act) and such other procedures as may from time to
time be adopted by the Company.
(b) Legend.
(i) Except as permitted by the following paragraphs
(ii), (iii) and (iv), each Security certificate evidencing the
Global Securities (and all Securities issued in exchange
therefor or in substitution thereof) shall bear a legend in
substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER,
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, OR (B) IT HAS
ACQUIRED THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY, EXCEPT (A) TO TRANSCONTINENTAL GAS PIPE LINE CORPORATION OR
ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT,
(D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH OF THE CASES, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION;
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; AND
(4) AGREES THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE
TRANSFERS THIS SECURITY, TRANSCONTINENTAL GAS PIPE LINE CORPORATION MAY
REQUIRE THE HOLDER OF THIS SECURITY TO DELIVER A WRITTEN OPINION,
CERTIFICATIONS AND/OR OTHER INFORMATION THAT IT REASONABLY REQUIRES
9
TO CONFIRM THAT SUCH PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE UNITED STATES.
AS USED IN THIS SECURITY, THE TERMS "OFFSHORE TRANSACTION," "U.S.
PERSON" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT.
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted
Security represented by a Global Security) pursuant to Rule
144 under the Securities Act, in the case of any Transfer
Restricted Security that is represented by a Global Security,
the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a certificated Security that
does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted
Security, if the Holder certifies in writing to the Registrar
that its request for such exchange was made in reliance on
Rule 144 (such certification to be in the form set forth on
the reverse of the Security).
(iii) After a transfer of any Series A Securities or
Private Exchange Securities during the period of the
effectiveness of and pursuant to a Shelf Registration
Statement with respect to such Series A Securities or Private
Exchange Securities, as the case may be, all requirements
pertaining to legends on such Original Security or such
Private Exchange Security will cease to apply, the
requirements requiring any such Original Security or such
Private Exchange Security issued to certain Holders be issued
in global form will cease to apply, and a certificated
Original Security or Private Exchange Security without legends
will be available to the transferee of the Holder of such
Series A Securities or Private Exchange Securities upon
exchange of such transferring Holder's certificated Original
Security or Private Exchange Security or directions to
transfer such Holder's interest in the Global Security, as
applicable.
(iv) Upon the consummation of a Registered Exchange
Offer with respect to the Series A Securities pursuant to
which Holders of such Series A Securities are offered Exchange
Securities in exchange for their Series A Securities, all
requirements pertaining to such Series A Securities that
Series A Securities issued to certain Holders be issued in
global form will cease to apply and certificated Series A
Securities with the restricted securities legend set forth in
Section 2.06(b) will be available to Holders of such Series A
Securities that do not exchange their Series A Securities, and
Exchange Securities in certificated or global form will be
available to Holders that exchange such Series A Securities in
such Exchange Offer.
(v) Upon the consummation of a Private Exchange with
respect to the Series A Securities pursuant to which Holders
of such Series A Securities are offered Private Exchange
Securities in exchange for their Series A Securities, all
requirements pertaining to such Series A Securities that
Series A Securities issued to certain Holders be issued in
global form will still apply, and Private Exchange Securities
in global form with the Restricted Securities Legend set forth
in Section 2.06(b) will be available to Holders that exchange
such Series A Securities in such Private Exchange.
(c) Cancellation or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been
exchanged for certificated Securities, redeemed, repurchased or
canceled, such Global Security shall be returned to the Depositary for
cancellation or retained and canceled by the Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Security
is exchanged for certificated Securities, redeemed, repurchased or
canceled, the principal amount of Securities represented by such Global
Security shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the
10
Securities Custodian for such Global Security) with respect to such
Global Security, by the Trustee or the Securities Custodian, to reflect
such reduction.
(d) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate certificated Securities and Global Securities at
the Registrar's or co-Registrar's request. No service charge
shall be made for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charge
payable upon exchange or transfer pursuant to Sections 5.11,
8.05 and 9.06).
(ii) The Registrar or co-registrar shall not be
required to register the transfer of or exchange of (a) any
certificated Security selected for redemption in whole or in
part pursuant to Article IX, except the unredeemed portion of
any certificated Security being redeemed in part, or (b) any
Security for a period beginning 15 Business Days before the
mailing of a notice of an offer to repurchase or redeem
Securities or 15 Business Days before an interest payment
date.
(iii) Prior to the due presentation for registration
of transfer of any Security, the Company, the Trustee, the
Paying Agent, the Registrar or any co-Registrar may deem and
treat the Person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving
payment of principal of, premium, if any, and interest and
Liquidated Damages, if any, on such Security and for all other
purposes whatsoever, whether or not such Security is overdue,
and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to
the contrary.
(iv) All Securities issued upon any transfer or
exchange pursuant to the terms of this Indenture shall
evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
(e) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Security, any
Agent Member or other Person with respect to the accuracy of
the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to
any participant, member, beneficial owner or other Person
(other than the Depositary) of any notice (including any
notice of redemption) or the payment of any amount, under or
with respect to such Securities. All notices and
communications to be given to the Holders and all payments to
be made to Holders under the Securities shall be given or made
only to or upon the order of the registered Holders (which
shall be the Depositary or its nominee in the case of a Global
Security). The rights of beneficial owners in any Global
Security shall be exercised only through the Depositary
subject to the applicable rules and procedures of the
Depositary. The Trustee may rely conclusively and shall be
fully protected in relying upon information furnished by the
Depositary with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in
any Security
11
(including any transfers between or among Depositary
participants, members or beneficial owners in any Global
Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine
substantial compliance as to form with the express
requirements hereof.
Section 2.07 Certificated Securities
(a) A Global Security deposited with the Depositary or with
the Trustee as custodian for the Depositary pursuant to Section 2.01
shall be transferred to the beneficial owners thereof in the form of
certificated Securities in an aggregate principal amount equal to the
principal amount of such Global Security, in exchange for such Global
Security, only if such transfer complies with Section 2.06 and (i) the
Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a "clearing agency" registered under the
Exchange Act and a successor depositary is not appointed by the Company
within 90 days of such notice, or (ii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferred to the beneficial
owners thereof pursuant to this Section shall be surrendered by the
Depositary to the Trustee at its office located in the Borough of
Manhattan, The City of
New York, to be so transferred, in whole or from
time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such
Global Security, an equal aggregate principal amount of certificated
Securities of authorized denominations. Any portion of a Global
Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the
Depositary shall direct. Any certificated Original Security delivered
in exchange for an interest in the Global Security shall, except as
otherwise provided by Section 2.06(d), bear the restricted securities
legend set forth in Section 2.06(b).
(c) Subject to the provisions of Section 2.06(b), the
registered Holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(d) If either of the events specified in Section 2.07(a)
occurs, the Company shall promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
(e) If a certificated Security issued pursuant to this Section
2.07 is exchanged for another certificated Security prior to the
consummation of an Exchange Offer or prior to or in a transfer made
pursuant to an effective Shelf Registration Statement with respect to
such Securities, such Securities may be exchanged only in accordance
with such procedures as are substantially consistent with the
provisions of (i) Section 2.06(a)(iii) (including the certification and
other requirements set forth on the reverse of the Series A Securities
intended to ensure that such transfers comply with Rule 144A or
Regulation S, as the case may be, or are otherwise in compliance with
the requirements of the Securities Act) and such other procedures as
may from time to time be adopted by the Company and (ii) Section
2.06(b).
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Section 2.08 Replacement Securities
If any mutilated Security is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, the Company shall issue and the Trustee shall
authenticate a replacement Security, but only if the Trustee's requirements are
met. If required by the Trustee or the Company, such Holder must furnish an
indemnity bond that is sufficient in the judgment of the Trustee and the Company
to protect the Company, the Trustee, any Agent or any authenticating agent from
any loss which any of them may suffer if a Security is replaced. The Company and
the Trustee may charge for their expenses in replacing a Security. If, after the
delivery of such replacement Security, a bona fide purchaser of the original
Security in lieu of which such replacement Security was issued presents for
payment or registration such original Security, the Trustee shall be entitled to
recover such replacement Security from the Person to whom it was delivered or
any Person taking therefrom, except a bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Trustee or the Company in
connection therewith.
Every replacement Security is an additional obligation of the Company.
Section 2.09 Outstanding Securities
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee hereunder and those described in this Section 2.09 as
not outstanding; provided, however, that in determining whether the holders of
the requisite principal amount of outstanding Securities are present at a
meeting of holders of Securities for quorum purposes or have consented to or
voted in favor of any request, demand, authorization, direction, notice,
consent, waiver, amendment or modification hereunder, Securities held for the
account of the Company, any of its Subsidiaries or any of their respective
Affiliates shall be disregarded and deemed not to be outstanding, except that in
determining whether the Trustee shall be protected in making such a
determination or relying upon any such quorum, consent or vote, only Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded.
If a Security is replaced pursuant to Section 2.08 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 3.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the Company or any
of its Affiliates holds the Security.
Section 2.10 Treasury Securities
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any of its Affiliates shall be disregarded, except that for
the purpose of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities which a Responsible
Officer of the Trustee actually knows are so owned shall be so disregarded.
Section 2.11 Temporary Securities
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities, but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive
13
Securities in exchange for temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 2.12 Cancellation
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation. All canceled
Securities held by the Trustee shall be disposed of in accordance with the usual
disposal procedures of the Trustee. The Company may not issue new Securities to
replace Securities that have been paid or that have been delivered to the
Trustee for cancellation.
Section 2.13 Defaulted Interest
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest on the defaulted interest, in each case at the rate provided in
the Securities and in Section 3.01 hereof. The Company may pay the defaulted
interest to the Persons who are Holders on a subsequent special record date. At
least 15 days before any special record date, the Company (or the Trustee, in
the name of and at the expense of the Company) shall mail to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.
Section 2.14 Persons Deemed Owners
The Company, the Trustee, any Agent and any authenticating agent may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payments of principal of or premium, if
any, or interest on such Security and for all other purposes. None of the
Company, the Trustee, any Agent or any authenticating agent shall be affected by
any notice to the contrary.
Section 2.15 CUSIP Numbers
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
COVENANTS
Section 3.01 Payment of Securities
The Company shall pay the principal of and premium, if any, Liquidated
Damages, if any, and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal, premium, if any,
Liquidated Damages, if any, and interest shall be considered paid on the date
due if the Paying Agent, other than the Company or a Subsidiary of the Company,
holds by 11:00 a.m., Eastern time, on that date money deposited by the Company
designated for and sufficient to pay all principal, premium, if any, Liquidated
Damages, if any, and interest then due.
14
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal, premium, if any, Liquidated Damages, if any, and interest payments
(without regard to any applicable grace period) at a rate equal to the then
applicable interest rate on the Securities.
Section 3.02 Maintenance of Office or Agency
The Company shall maintain, in the Borough of Manhattan, The City of
New York, an office or agency (which may be an office of the Trustee, the
Registrar or the Paying Agent) where Securities may be presented for
registration of transfer or exchange, where Securities may be presented for
payment and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. Unless otherwise designated by the
Company by written notice to the Trustee, such office or agency shall be the
principal office of the Trustee in the Borough of Manhattan, The City of
New
York, which, on the date hereof, is located at the address set forth in Section
10.02 hereof. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of
New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.03 hereof.
Section 3.03 SEC Reports; Financial Statements
(a) Notwithstanding that the Company may not be required to
remain subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company shall file with the SEC and provide the
Trustee and the Holders with such annual and quarterly reports and such
information, documents and other reports specified in Sections 13 and
15(d) of the Exchange Act within 15 days after the date it is required
(or would otherwise have been required) to file such reports,
information and documents. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information
contained therein, including the Company's compliance with any of the
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
(b) In addition, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all such
information and reports with the SEC for public availability (unless
the SEC will not accept such filing). In addition, the Company shall
furnish to the Holders and to prospective investors, upon the requests
of Holders, any information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act so long as the Securities are not
freely transferable under the Securities Act.
(c) The Company shall provide the Trustee with a sufficient
number of copies of all reports and other documents and information
that the Trustee may be required to deliver to Holders under this
Section 3.03.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive
15
notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with
any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officer's Certificates).
Section 3.04 Compliance Certificate
(a) The Company shall deliver to the Trustee, on or prior to
the last day of the fifth month after the end of each fiscal year of
the Company, a statement signed by two Officers of the Company (one of
whom shall be the principal financial, principal accounting or
principal executive officer of the Company), which statement need not
constitute an Officers' Certificate, complying with TIA Section
314(a)(4) and stating that in the course of performance by the signing
Officers of the Company of their duties as such Officers, they would
normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company, of its obligations under this Indenture, and
further stating, as to each such Officer signing such statement, that
to the best of his knowledge, the Company has kept, observed, performed
and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default
of which such Officer may have knowledge and what action the Company is
taking or proposes to take with respect thereto).
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer of the
Company becoming aware of any Default or Event of Default under this
Indenture, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with
respect thereto.
Section 3.05 Limitation on Liens
After the date hereof and so long as any Securities are outstanding,
the Company shall not, and shall not permit any Subsidiary of the Company 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 Company
or of any Subsidiary of the Company, without effectively providing that the
Securities (together with, if the Company shall so determine, any other
Indebtedness of the Company 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 Company or a
Subsidiary of the Company to secure all or part of the purchase price
of any property (or to secure a loan made to enable the Company or a
Subsidiary of the Company to acquire the property described in such
mortgage), provided that the principal amount of the Indebtedness
secured by any such mortgage, together with all 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 Company or a Subsidiary of the Company
whether or not assumed by the Company or a Subsidiary of the Company,
and any mortgage on any property acquired or constructed by the Company
or a Subsidiary of the Company 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 Company or a
Subsidiary of the Company, 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;
16
(c) any mortgage created or assumed by the Company or a
Subsidiary of the Company 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 Company or a
Subsidiary of the Company 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 of
the Company at the time it becomes a Subsidiary of the Company 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 Company or a
Subsidiary of the Company to secure loans to the Company or a
Subsidiary of the Company 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;
(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 Company or a Subsidiary of the
Company 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 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 Company or a Subsidiary of the Company;
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(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 Company and its Subsidiaries considered as a whole;
(p) any mortgages securing Indebtedness neither assumed nor
guaranteed by the Company or a Subsidiary of the Company 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 Company or a Subsidiary of the Company, which mortgages
do not materially impair the use of such property for the purposes for
which it is held by the Company or such Subsidiary of the Company;
(q) easements, exceptions or reservations in any property of
the Company or a Subsidiary of the Company 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 Company or such Subsidiary of the Company;
(r) rights reserved to or vested in any municipality or public
authority to control or regulate any property of the Company or a
Subsidiary of the Company, 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 Company or such Subsidiary of the Company;
(s) any obligations or duties, affecting the property of the
Company or a Subsidiary of the Company, to any municipality or public
authority with respect to any franchise, grant, license or permit;
(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 (y)
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 Company 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 Company or a Subsidiary of the Company shall
hereafter secure the Securities equally and ratably with any other obligation or
Indebtedness pursuant to the provisions of this Section 3.5, the Trustee is
hereby authorized at the written discretion of the Company to enter into an
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indenture supplemental hereto and to take such action, if any, as necessary to
enable it to enforce the rights of the Holders of the Securities so secured,
equally and ratably with such other obligation or Indebtedness.
The Trustee, at its request, may require and be provided with an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
or steps taken to secure the Securities equally and ratably comply with the
provisions of this Section 3.5.
Section 3.06 Limitation on Sale and Lease-Back Transactions
The Company shall not, and shall not permit any Subsidiary of the
Company to, enter into any arrangement with any Person providing for the leasing
by the Company or a Subsidiary of the Company 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 Company or any Subsidiary of the Company to
such Person (herein referred to as a "Sale and Lease-Back Transaction"), unless:
(a) the Company or any Subsidiary of the Company would, at the
time of entering into a Sale and Lease-Back Transaction, be entitled to
incur Indebtedness secured by a mortgage on the property to be leased
in an amount at least equal to the Attributable Debt in respect of such
transaction without equally and ratably securing the Securities
pursuant to Section 3.5; or
(b) the Company 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 Company shall be
reduced by (i) the principal amount of any Securities delivered by the
Company 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 Company within 90 days following such Sale and
Lease-Back Transaction, provided, further, the covenant contained in
this Section 3.6 shall not apply to, and there shall be excluded from
Attributable Debt in any computation under this Section 3.6,
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 Company and/or any of its Subsidiaries.
Notwithstanding the foregoing, the Company 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 Company and its Subsidiaries does not exceed 5% of Consolidated Net
Tangible Assets.
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
Section 4.01 Limitation on Mergers and Consolidations
The Company shall not consolidate with or merge into any other entity
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless (a) the corporation, limited liability company,
limited partnership, joint stock company, or trust formed by such consolidation
or into which the Company is merged or the Person which acquires by conveyance,
transfer or lease the
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properties and assets of the Company substantially as an entirety shall
expressly assume, by a supplemental indenture hereto, executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of and interest on all the Securities, and the
performance of every covenant of this Indenture on the part of the Company to be
performed or observed, (b) immediately after giving effect to such transaction,
no Default or Event of Default, shall have happened and be continuing, and (c)
the Company 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.
Section 4.02 Successors 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 Company, 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 Company prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor Person, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the Company 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 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 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 Company 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 V
DEFAULTS AND REMEDIES
Section 5.01 Events of Default
"Event of Default," means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest (or Liquidated
Damages, if any) upon any Security when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
or breach for
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a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
outstanding Securities 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; provided, however, that the occurrence
of any of the events described in this clause (3) 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 Company's independent public accountants; or
(4) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of the property of
the Company, or ordering the winding up or liquidation of the affairs
of the Company, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(5) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of the property of
the Company, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action.
The Trustee shall not be deemed to know of a Default or Event of
Default unless a Responsible Officer at the Corporate Trust Office of the
Trustee has actual knowledge of such Default or Event of Default or the Trustee
receives written notice at the Corporate Trust Office of the Trustee of such
Default or Event of Default with specific reference to such Default.
When a Default is cured, or when an Event of Default is deemed cured
pursuant to Section 5.04, such Default, or Event of Default, as the case may be,
ceases.
Section 5.02 Acceleration
If an Event of Default (other than an Event of Default specified in
clause (5) or (6) of Section 5.01 hereof with respect to the Company) occurs and
is continuing, the Trustee by notice to the Company, or the Holders of at least
25% in principal amount of the then outstanding Securities by notice to the
Company and the Trustee, may declare the principal of and premium, if any, and
accrued and unpaid interest and Liquidated Damages, if any, on all then
outstanding Securities to be due and payable immediately. Upon any such
declaration the amounts due and payable on the Securities, as determined in
accordance with the next succeeding paragraph, shall be due and payable
immediately. If an Event of Default specified in clause (5) or (6) of Section
5.01 hereof with respect to the Company occurs, the principal of and premium, if
any, and accrued and unpaid interest and Liquidated Damages, if any, on all
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Securities then outstanding shall ipso facto become and be immediately due and
payable without any declaration, notice or other act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration with respect to
the Securities has been made and before a judgment for payment of the money due
has been obtained by the Trustee as hereinafter in this Article V provided, the
Holders of a majority in principal amount of the outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration and Liquidated Damages, if any,
and any interest thereon at the rate or rates prescribed
therefor in such Securities or in this Indenture,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest and overdue Liquidated
Damages, if any, at the rate or rates prescribed therefor in
the Securities or in this Indenture, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.04.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
If the maturity of the Securities is accelerated pursuant to this
Section 5.02, 100% of the principal amount thereof shall become due and payable
plus premium, if any, and accrued interest and Liquidated Damages, if any, to
the date of payment.
Section 5.03 Other Remedies
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, or premium, if any,
Liquidated Damages, if any, or interest on the Securities or to enforce the
performance of any provision of the Securities, this Indenture or any
Registration Rights Agreement.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
Section 5.04 Waiver of Existing Defaults
Subject to Sections 5.07 and 8.02 hereof, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its
22
consequences (including waivers obtained in connection with a tender offer or
exchange offer for the Securities or a solicitation of consents in respect of
the Securities, provided that in each case such offer or solicitation is made to
all Holders of the Securities then outstanding on equal terms), except (1) a
continuing Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on the Securities or (2) a continuing Default in
respect of a provision that under Section 8.02 hereof cannot be amended without
the consent of each Holder affected. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
Section 5.05 Control by Majority
The Holders of a majority in principal amount of the Securities then
outstanding 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 it hereunder. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders, or that may
involve the Trustee in personal liability; provided, however, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
Section 5.06 Limitations on Suits
Subject to Section 5.07 hereof, a Holder may pursue a remedy with
respect to this Indenture or the Securities only if:
(1) such Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
Securities then outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the Securities do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
Section 5.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of, and premium, if any,
and interest on the Security, on or after the respective due dates expressed in
the Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, is absolute and unconditional and shall not be
impaired or affected without the consent of such Holder.
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Section 5.08 Collection Suit by Trustee
If an Event of Default specified in clause (1) or (2) of Section 5.01
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
amount of principal and premium, if any, and interest (and Liquidated Damages,
if any) remaining unpaid on the Securities, and interest on overdue principal,
premium, if any, and Liquidated Damages, if any and, to the extent lawful,
interest on overdue interest (and Liquidated Damages, if any), and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
Section 5.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim and other papers
or documents and to take such actions, including participating as a member,
voting or otherwise, of any committee of creditors, as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company or its creditors or properties and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 6.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 5.10 Priorities
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.07 hereof;
Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, Liquidated Damages, if any, and interest ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Securities for principal, premium, if any, Liquidated Damages, if
any, and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Article.
Section 5.11 Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a trustee, a court in its discretion may require the filing
24
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 5.07 hereof, or a suit by a Holder or Holders of
more than 10% in principal amount of the Securities then outstanding.
ARTICLE VI
TRUSTEE
Section 6.01 Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in such
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, with respect to certificates or opinions
specifically required by any provision hereof to be furnished to it,
the Trustee shall examine such certificates and opinions to determine
whether or not, on their face, they appear to conform substantially to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law. All money received by
the Trustee shall, until applied as herein provided, be held in trust
for the payment of the principal of, and premium if any, and interest
on the Securities.
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Section 6.02 Rights of Trustee
(a) The Trustee may rely conclusively on any document (whether
in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its own selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through agents or attorneys and shall
not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(f) The Trustee is not required to give any bond or surety
with respect to the performance of its duties or the exercise of its
powers under this Indenture.
(g) The Trustee's immunities and protections from liability
and its right to indemnification in connection with the performance of
its duties under this Indenture shall extend and be enforceable by the
Trustee in each of its capacities hereunder and shall extend to the
Trustee's officers, directors, agents, attorneys and employees. Such
immunities and protections and right to indemnity, together with the
Trustee's right to compensation, shall survive the Trustee's
resignation or removal, the discharge of this Indenture and final
payment of the Securities.
(h) The permissive right of the Trustee to take the actions
permitted by this Indenture shall not be construed as an obligation or
duty to do so.
(i) Except for information provided by the Trustee concerning
the Trustee, the Trustee shall have no responsibility for any
information in any offering memorandum or other disclosure material
distributed with respect to the Securities, and the Trustee shall have
no responsibility for compliance with any state or federal securities
laws in connection with the Securities.
(j) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
(k) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction.
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(l) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts.
Section 6.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any of
its Affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 6.10 and 6.11 hereof.
Section 6.04 Trustee's Disclaimer
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities or any money paid to the Company or upon
the Company's direction under any provision hereof, it shall not be responsible
for the use or application of any money received by any Paying Agent other than
the Trustee and it shall not be responsible for any statement or recital herein
or any statement in the Securities other than its certificate of authentication.
Section 6.05 Notice of Defaults
If a Default or Event of Default occurs and is continuing and it is
actually known to a Responsible Officer of the Trustee, the Trustee shall mail
to Holders a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, or premium, if any, Liquidated Damages, if any, or interest on any
Security, the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice is
in the interests of Holders.
Section 6.06 Reports by Trustee to Holders
On or before July 15 of each year, beginning with July 15, 2003, the
Trustee shall mail to Holders a brief report dated as of a date convenient to
the Trustee no more than 60 nor less than 45 days prior thereto, that complies
with TIA Section 313(a); provided, however, that if no event described in TIA
Section 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted. The Trustee also shall comply with TIA
Section 313(b). The Trustee shall also transmit by mail all reports as required
by TIA Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each securities exchange, if any, on which the Securities
are listed. The Company shall notify the Trustee if and when the Securities are
listed on any stock exchange or delisted therefrom.
Section 6.07 Compensation and Indemnity
The Company agrees to pay to the Trustee from time to time such
compensation as agreed to by the Company and the Trustee, for its acceptance of
this Indenture and its services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company agrees to reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses incurred by it. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company agrees to fully indemnify the Trustee or any predecessor
Trustee and their agents for and to hold them harmless against any and all loss,
liability damage, claims, or expense (including taxes, other than taxes based
upon, measured by or determined by the income of the Trustee) incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture,
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including the costs and expenses of defending itself against any claim (whether
asserted by the Company, any Holder or any other Person), except as set forth
in the next paragraph. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel, and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The Company shall not be obligated to reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through its own
negligence or bad faith.
To secure the payment obligations of the Company in this Section 6.07,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay principal of,
and premium, if any, and interest and Liquidated Damages, if any, on the
Securities. Such lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(5) or (6) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 6.08 Replacement of Trustee
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 6.08.
The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of
the then outstanding Securities may remove the Trustee by so notifying the
Trustee and the Company. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities then outstanding may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the Securities then outstanding
may petition (at the expense of the Company) any court of competent jurisdiction
at the expense of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in
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Section 6.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 6.08 hereof, the obligations of the Company under Section 6.07 hereof
shall continue for the benefit of the retiring Trustee.
Section 6.09 Successor Trustee by Merger, etc
Subject to Section 6.10 hereof, if the Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated; and in case at that time any of the
Securities 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 to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have.
Section 6.10 Eligibility; Disqualification
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under such
laws to exercise corporate trust power, shall be subject to supervision or
examination by Federal or State (or the District of Columbia) authority and
shall have, or be a Subsidiary of a bank or bank holding company having, a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
Section 6.11 Preferential Collection of Claims Against Company
The Trustee is subject to and shall comply with the provisions of TIA
Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01 Termination of Company's Obligations
(a) This Indenture shall cease to be of further effect (except
that the Company's obligations under Section 6.07 hereof and the
Trustee's and Paying Agent's obligations under Section 7.03 hereof
shall survive), and the Trustee, on demand of the Company, shall
execute proper instruments acknowledging the satisfaction and discharge
of this Indenture and the Securities, when:
(1) either
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(A) all outstanding Securities theretofore authenticated and issued
(other than destroyed, lost or stolen Securities that have been replaced or
paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities not theretofore delivered to the Trustee
for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year,
and the Company, in the case of clause (i) or (ii) above, has deposited or
caused to be deposited with the Trustee as funds (immediately available to the
Holders in the case of clause (i)) in trust for such purpose an amount which,
together with earnings thereon, will be sufficient to pay and discharge the
entire indebtedness on the Securities for principal, premium, if any, Liquidated
Damages, if any, and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity, as the
case may be;
(2) the Company has paid all other sums payable by it
hereunder; and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture have been complied with, together with an
Opinion of Counsel to the same effect.
(b) The Company may, subject as provided herein, terminate all
of its obligations under this Indenture with respect to Securities if:
(1) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments dedicated solely to the
benefit of the Holders (i) cash in an amount, or (ii) U.S. Government
Obligations 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, without consideration of the reinvestment of any such amounts
and after payment of all taxes or other charges or assessments in
respect thereof payable by the Trustee, the principal of, and premium,
if any, Liquidated Damages, if any, and interest on all Securities on
each date that such principal, premium, if any, Liquidated Damages, if
any, or interest is due and payable and to pay all other sums payable
by it hereunder; provided that the Trustee shall have been irrevocably
instructed to apply such money and/or the proceeds of such U.S.
Government Obligations to the payment of said principal, premium, if
any, Liquidated Damages, if any, and interest with respect to the
Securities as the same shall become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities have been
complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as clauses (5) and
(6) of Section 5.01 hereof 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);
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel from a nationally recognized counsel acceptable to the
Trustee or a tax ruling to the effect that the Holders of the
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of the Company's exercise of its option under
this Section 7.01(b) and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have
been the case if such option had not been exercised;
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(5) such deposit and discharge will not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound;
(6) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the passage of 91 days following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
In such event, this Indenture shall cease to be of further effect
(except as provided in the next succeeding paragraph), and the Trustee, on
demand of the Company, shall execute proper instruments acknowledging
satisfaction and discharge under this Indenture.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 3.01, 3.02, 3.03, 4.01, 6.07, 6.08, 7.01 and 7.04 hereof, the
Company's obligations in Sections 4.01, 6.07, 7.04 and 9.01 hereof and the
Trustee's and Paying Agent's obligations in Section 7.03 hereof shall survive
until the Securities are no longer outstanding. Thereafter, only the Company's
obligations in Section 6.07 hereof and the Trustee's and Paying Agent's
obligations in Section 7.03 hereof shall survive such satisfaction and
discharge.
After such irrevocable deposit made pursuant to this Section 7.01(b)
and satisfaction of the other conditions set forth herein, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under this Indenture except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of,
premium, if any, Liquidated Damages, if any, or interest on the Securities, the
U.S. Government Obligations shall be payable as to principal or interest on or
before such payment date in such amounts as will provide the necessary money.
U.S. Government Obligations shall not be callable at the issuer's option.
Section 7.02 Application of Trust Money
The Trustee or a trustee satisfactory to the Trustee and the Company
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 7.01 hereof. It shall apply the deposited money and the
money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of, premium, if any,
Liquidated Damages, if any, and interest on the Securities.
Section 7.03 Repayment to Company
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time.
Subject to the requirements of any applicable abandoned property laws,
the Trustee and the Paying Agent shall pay to the Company upon written request
any money held by them for the payment of principal, premium, if any, Liquidated
Damages, if any, or interest that remains unclaimed for two years after the date
upon which such payment shall have become due; provided, however, that the
Company shall have either caused notice of such payment to be mailed to each
Holder entitled thereto no less than 30 days prior to such repayment or within
such period shall have published such notice in a financial newspaper of
widespread circulation published in The City of
New York. After payment to the
Company, Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and the Paying Agent with respect to
such money shall cease.
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Section 7.04 Reinstatement
If the Trustee or the Paying Agent is unable to apply any money or U.
S. Government Obligations in accordance with Section 7.01 hereof by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 7.01 hereof until such time as the Trustee or the Paying
Agent is permitted to apply all such money or U. S. Government Obligations in
accordance with Section 7.01 hereof; provided, however, that if the Company has
made any payment of principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or the Paying Agent.
ARTICLE VIII
AMENDMENTS
Section 8.01 Without Consent of Holders
The Company and the Trustee may amend or supplement this Indenture or
any of the Securities or waive any provision hereof or thereof without the
consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Sections 4.01 and 4.02 hereof;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to add any additional Events of Default;
(5) to add to, change or eliminate any of the provisions of
this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable or
not registrable as to principal, and with or without interest coupons;
(6) to provide for the acceptance of appointment hereunder of
a successor trustee in compliance with the provisions hereof;
(7) to secure the Securities pursuant to the requirements of
Section 3.09 or otherwise;
(8) to comply with any requirement in order to effect or
maintain the qualification of this Indenture under the TIA;
(9) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA;
(10) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company; or
(11) to make any change that does not adversely affect the
rights hereunder of any Holder in any material respect.
Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 8.06 hereof, the Trustee shall join with the Company in the
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execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and make any further appropriate agreements and stipulations that
may be therein contained. After an amendment, supplement or waiver under this
Section 8.01 becomes effective, the Company shall mail to the Holders of each
Security affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
Section 8.02 With Consent of Holders
Except as provided below in this Section 8.02, the Company and the
Trustee may amend or supplement this Indenture or the Securities with the
written consent (including consents obtained in connection with a tender offer
or exchange offer for the Securities or a solicitation of consents in respect of
the Securities, provided that in each case such offer or solicitation is made to
all Holders of the Securities then outstanding on equal terms) of the Holders of
at least a majority in principal amount of the Securities then outstanding.
Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 8.06 hereof, the Trustee shall join with the
Company in the execution of such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
The Holders of a majority in principal amount of the Securities then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities (including waivers obtained in
connection with a tender offer or exchange offer for the Securities or a
solicitation of consents in respect of the Securities, provided that in each
case such offer or solicitation is made to all Holders of the Securities then
outstanding on equal terms).
Without the consent of each Holder affected, an amendment, supplement
or waiver under this Section may not:
(1) reduce the percentage of principal amount of the
Securities whose Holders must consent to an amendment, supplement or
waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of or change the fixed maturity of
any Security or alter the premium or other provisions with respect to
redemption under Section 9.07 or specified in the Securities;
(4) change the place of payment or make any Security payable
in money other than that stated in the Security;
(5) impair the right to institute suit for the enforcement of
any payment of principal of, or premium, if any, or interest on any
Security pursuant to Sections 5.07 and 5.08 hereof, except as limited
by Section 5.06 hereof;
(6) make any change in the percentage of principal amount of
the Securities necessary to waive compliance with certain provisions of
this Indenture pursuant to Section 5.04 or 5.07 hereof or this clause
of this Section 8.02; or
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(7) waive a continuing Default or Event of Default in the
payment of principal of, or premium, if any, or interest on the
Securities.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of the Securities with respect to which such consent is required or sought as of
a date identified by the Trustee in a notice furnished to Holders in accordance
with the terms of this Indenture.
Section 8.03 Compliance with Trust Indenture Act
Every amendment to this Indenture or the Securities shall comply in
form and substance with the TIA as then in effect.
Section 8.04 Revocation and Effect of Consents
A consent to an amendment (which includes a supplement) or waiver by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to his
or her Security or portion of a Security if the Trustee receives written notice
of revocation at any time prior to (but not after) the date the Trustee receives
an Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver or to take any other action under this Indenture. If a record date is
fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record date
unless consents from Holders of the principal amount of the Securities required
hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it is of the type described in any of clauses (1)
through (7) of Section 8.02 hereof. In such case, the amendment or waiver shall
bind each Holder who has consented to it and every subsequent Holder that
evidences the same debt as the consenting Holder's Security.
Section 8.05 Notation on or Exchange of Securities
If an amendment changes the terms of a Security, the Trustee may
require the Holder of the Security to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security regarding the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to
make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
Section 8.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, waiver or supplemental indenture
authorized pursuant to this Article if the amendment, waiver or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In
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signing or refusing to sign such amendment, waiver or supplemental indenture,
the Trustee shall receive, and subject to Section 6.01 hereof, shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate,
as conclusive evidence that such amendment, waiver or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company in accordance with its
terms.
ARTICLE IX
REDEMPTION
Section 9.01 Notices to Trustee
If the Company elects to redeem Securities pursuant to the redemption
provisions of Section 9.07, it shall furnish to the Trustee, at least 45 days
but not more than 60 days before a Redemption Date (unless the Trustee consents
in writing to a shorter period of at least 30 days prior to the Redemption
Date), an Officers' Certificate setting forth the Redemption Date, the principal
amount of such Securities to be redeemed and the Redemption Price.
Section 9.02 Selection of Securities to be Redeemed
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed by such method as the Trustee in its
sole discretion shall deem appropriate. The particular Securities to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 days nor
more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of them selected shall be in amounts of $1,000 or whole multiples of
$1,000. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
Section 9.03 Notices to Holders
(a) At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail in conformity with Section
10.02 a notice of redemption to each Holder whose Securities are to be
redeemed.
The Notice shall identify the Securities to be redeemed (including
CUSIP numbers, if any) and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be
redeemed and that, after the Redemption Date, upon surrender
of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in
such notice to collect the Redemption Price;
35
(vi) that unless the Company defaults in making the
redemption payment, interest on Securities called for
redemption ceases to accrue on and after the Redemption Date
and the only remaining right of the Holders is to receive
payment of the Redemption Price upon surrender to the Paying
Agent of the Securities; and
(vii) the aggregate principal amount of Securities
being redeemed.
If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to redemptions.
(b) At the Company's request, the Trustee shall give the
notice required in Section 9.03(a) in the Company's name; provided,
however, that the Company shall deliver to the Trustee, at least 45
days prior to the Redemption Date (unless the Trustee consents in
writing to a shorter period at least 30 days prior to the Redemption
Date), an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in Section 9.03(a).
Section 9.04 Effect of Notices of Redemption
Once notice of redemption is mailed pursuant to Section 9.03,
Securities called for redemption become due and payable on the Redemption Date
at the Redemption Price. Upon surrender to the Paying Agent, such Securities
shall be paid out at the Redemption Price.
Section 9.05 Deposit of Redemption Price
At or prior to 11:00 am
New York City time on the Redemption Date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the Redemption Price of all Securities to be redeemed on that date. The
Trustee or the Paying Agent shall return to the Company any money not required
for that purpose less the expenses of the Trustee as provided herein.
If the Company complies with the preceding paragraph, interest on the
Securities or portions thereof to be redeemed (whether or not such Securities
are presented for payment) will cease to accrue on the applicable Redemption
Date. If any Security called for redemption shall not be so paid upon surrender
because of the failure of the Company to comply with the preceding paragraph,
then interest will be paid on the unpaid principal and premium, if any, from the
Redemption Date until such principal and premium are paid and, to the extent
lawful, on any interest not paid on such unpaid principal, in each case at the
rate provided in the Securities and in Section 3.01.
Section 9.06 Securities Redeemed in Part
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder, at the expense of
the Company, a new Security equal in principal amount to the unredeemed portion
of the Security surrendered.
Section 9.07 Optional Redemption
The Securities may be redeemed at any time, at the option of the
Company, in whole or from time to time in part, at the Redemption Price
specified in such Securities.
Any redemption pursuant to this Section 9.07 shall be made, to the
extent applicable, pursuant to the provisions of Sections 9.01 through 9.06.
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ARTICLE X
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If this Indenture excludes any provision
of the TIA that is required to be included, such provision shall be deemed
included herein.
Section 10.02 Notices
Any notice or communication by the Company or the Trustee to the others
is duly given if in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Transcontinental Gas Pipe Line Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
If to the Trustee:
Citibank N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.:(▇▇▇) ▇▇▇-▇▇▇▇
Attention: Citibank Agency & Trust
Each of the Company and the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Notwithstanding the foregoing, notices to the Trustee shall be effective only
upon receipt.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to
the Trustee or the Company by Holders, shall be in writing, except as set forth
below, and in the English language.
37
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice required by
this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 10.03 Communication by Holders with Other Holders
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 10.04 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 10.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
Notwithstanding the foregoing, no such Opinion of Counsel shall be
required in connection with the issuance of the Series A Securities pursuant to
the Original Offering.
Section 10.05 Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 10.06 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 10.07 Legal Holidays
If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
38
Section 10.08 No Recourse Against Others
A director, officer, employee or stockholder of the Company as such,
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release shall be
part of the consideration for the issue of the Securities.
Section 10.09 Governing Law
This Indenture and the Securities shall be governed by and constructed
in accordance with the laws of the State of
New York.
Section 10.10 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, or any other Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.11 Successors
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
Section 10.12 Severability
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.13 Counterpart Originals
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 10.14 Table of Contents, Headings, etc
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
39
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
Company:
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Treasurer
----------------------------
Trustee:
CITIBANK N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
40
[FACE OF SECURITY]
[Global Securities Legend]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF 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. THE DEPOSITORY TRUST COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A
SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"), TO THE COMPANY 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 MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[Transfer Restricted Securities Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER, AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT, OR (B) IT HAS ACQUIRED THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY,
EXCEPT (A) TO TRANSCONTINENTAL GAS PIPE LINE CORPORATION OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
IN EACH OF THE CASES, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION;
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; AND
(4) AGREES THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE TRANSFERS
THIS SECURITY, TRANSCONTINENTAL GAS PIPE LINE CORPORATION MAY REQUIRE THE HOLDER
OF THIS SECURITY TO DELIVER A WRITTEN OPINION, CERTIFICATIONS AND/OR OTHER
INFORMATION THAT IT REASONABLY REQUIRES TO CONFIRM THAT SUCH PROPOSED TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
UNITED STATES.
AS USED IN THIS SECURITY, THE TERMS "OFFSHORE TRANSACTION," "U.S.
PERSON" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT.]***
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
8-7/8% Series [A/B] Note due July 15, 2012
CUSIP [ ]
----------
No. $
--- ----------
Transcontinental Gas Pipe Line Corporation, a Delaware corporation (the
"Company"), for value received promises to pay to ___________________________ or
registered assigns, the principal sum of _________ United States Dollars [or
such greater or lesser amount as is indicated on the Schedule of Exchanges of
Securities on the other side of this Security]***** on July 15, 2012.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
---------
*This paragraph should be included only if the Security is a Global Security.
**These paragraphs should be included only if the Security is a Transfer
Restricted Security.
***This phrase should be included only if the Security is a Global Security.
41
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officer.
Dated:
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
By:
---------------------------------------
Name:
---------------------------------------
Title:
----------------------------------------
Certificate of Authentication:
CITIBANK N.A.,
as Trustee, certifies that this is one of the Securities referred
to in the within-mentioned Indenture.
By:
----------------------------------------------------
Authorized Signatory
42
[REVERSE OF SECURITY]
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
8-7/8% Series [A/B] Note due July 15, 2012
This Security is one of a duly authorized issue of 8-7/8% Series [A/B]
Notes due July 15, 2012 (the "Securities") of Transcontinental Gas Pipe Line
Corporation, a Delaware corporation (the "Company").
1. Interest. The Company promises to pay interest on the principal
amount of this Security at 8-7/8% per annum from ________ __, ____ until
maturity. The Company will pay interest semiannually on January 15 and July 15
of each year (each an "Interest Payment Date"), or if any such day is not a
Business Day, on the next succeeding Business Day. Interest on the Securities
will accrue from the most recent Interest Payment Date on which interest has
been paid or, if no interest has been paid, from ________ __, ____; provided
that if there is no existing Default in the payment of interest, and if this
Security is authenticated between a record date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be ________ __, ____ and interest accrued from
________ __, ____ shall be payable on such date. Further, the Company shall pay
interest on overdue principal and premium, if any, from time to time on demand
at a rate equal to the interest rate then in effect; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender this
Security to a Paying Agent to collect payments of principal and premium, if any.
The Company will pay the principal of, and premium, if any, and interest on the
Securities in money of the United States of America that at the time of payment
is legal tender for payment of public and private debts. Payments in respect of
the Securities represented by a Global Security (including principal, premium,
if any, Liquidated Damages, if any, and interest) will be made by wire transfer
of immediately available funds to the accounts specified by The Depository Trust
Company. The Company will make all payments in respect of a certificated
Security (including principal, premium, if any, Liquidated Damages, if any, and
interest) by mailing a check to the registered address of each Holder thereof;
provided, however, that payments on a certificated Security will be made by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Ranking. The Securities are senior unsecured obligations of the
Company.
4. Optional Redemption. The Securities may be redeemed at any time, at
the option of the Company, in whole or from time to time in part, at a price
equal to the greater of (i) 100% of the principal amount of the Securities then
outstanding to be redeemed, or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon from the
Redemption Date to the Stated Maturity Date computed by discounting such
payments to the Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at a rate equal to the sum of 50 basis
points plus the Adjusted Treasury Rate on the third Business Day prior to the
Redemption Date, as calculated by an Independent Investment Banker.
"Adjusted Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Board of Governors of the Federal
Reserve System and which contains yields on actively traded U.S. Treasury
securities adjusted to constant maturity under the caption "Treasury Constant
Maturities," for the maturity corresponding to the Comparable Treasury Issue (if
no maturity is within three months before or after the remaining term of the
Securities, yields for the two published maturities most closely corresponding
to the Comparable Treasury Issue will be determined and the Adjusted Treasury
Rate will be interpolated or extrapolated from such yields on a straight line
basis, rounding to the nearest month), or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the semiannual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury
43
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the U.S. Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Securities that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Securities or, if, in the reasonable judgment of the Independent
Investment Banker, there is no such security, then the Comparable Treasury Issue
will mean the U.S. Treasury security or securities selected by an Independent
Investment Banker as having an actual or interpolated maturity or maturities
comparable to the remaining term of the Securities.
"Comparable Treasury Price" means (i) the average of five Reference
Treasury Dealer Quotations for the applicable Redemption Date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (ii) if the
Independent Investment Banker obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Independent Investment Banker" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and any
successor firm, or if any such firm is unwilling or unable to serve as such, an
independent investment and banking institution of national standing appointed by
the Company.
"Reference Treasury Dealer Quotations" means the average, as determined
by the Independent Investment Banker of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker and the
Trustee at 5:00 p.m.,
New York City time, on the third Business Day preceding
such Redemption Date.
Periodic interest installments with respect to which the Interest
Payment Date is on or prior to any Redemption Date will be payable to Holders of
record at the close of business on the relevant record dates referred to herein,
all as provided in the Indenture.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. On or after the
Redemption Date interest will cease to accrue on Securities or on the portions
thereof called for redemption, as the case may be.
5. Paying Agent and Registrar. Initially, Citibank N.A. (the
"Trustee"), the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar, co-registrar or
additional paying agent without notice to any Holder. The Company or any of its
subsidiaries may act in any such capacity.
6. Indenture. The Company issued the Securities under an Indenture
dated as of July 3, 2002 (as amended, supplemented or otherwise modified form
time to time, the "Indenture") between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Sections 77aaa-77bbbb), as in effect on the date of execution of the
Indenture (the "TIA"). The Securities are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. The
Securities are unsecured general obligations of the Company. Capitalized terms
used but not defined in this Security have the respective meanings given to such
terms in the Indenture.
7. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not exchange or register the transfer of any
Securities during the period between a record date and the corresponding
Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Security shall be
treated as its owner for all purposes.
44
9. Amendments and Waivers. Subject to certain exceptions and
limitations, the Indenture or the Securities may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Securities, and compliance in a particular instance by the
Company with any provision of the Indenture may be waived (other than certain
provisions, including any continuing Default or Event of Default in the payment
of the principal of, or premium, if any, or interest on the Securities) by the
Holders of at least a majority in principal amount of the Securities then
outstanding in accordance with the terms of the Indenture. Without the consent
of any Holder, the Company and the Trustee may amend or supplement the Indenture
or the Securities to cure any ambiguity, omission, defect or inconsistency; to
comply with the Indenture in the case of the merger, consolidation or sale or
other disposition of all or substantially all of the assets of the Company; to
provide for uncertificated Securities in addition to or in place of certificated
Securities; to add any additional Events of Default; to provide for the
acceptance under the Indenture of a successor trustee in compliance with the
provisions thereof; to secure the Securities pursuant to the requirements under
the Indenture; to comply with any requirements in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act of 1939, as
amended; to comply with any requirements of the SEC in connection with
qualifying the Indenture under the TIA; to add to the covenants of the Company
for the benefit of the Holders or to surrender any power conferred upon the
Company; or to make any change that does not adversely affect the rights of any
Holder in any material respect.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required or sought as of
a date identified by the Trustee in a notice furnished to Holders in accordance
with the terms of the Indenture.
Without the consent of each Holder affected, the Company may not (i)
reduce the percentage of principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver, (ii) reduce the rate of or change
the time for payment of interest, including default interest, on any Security,
(iii) reduce the principal of or change the fixed maturity of any Security or
alter the premium or other provisions with respect to redemption, (iv) make any
Security payable in money other than that stated in the Security, (v) impair the
right to institute suit for the enforcement of any payment of principal of, or
premium, if any, or interest on any Security, (vi) make any change in the
percentage of principal amount of Securities necessary to waive compliance with
certain provisions of the Indenture or (vii) waive a continuing Default or Event
of Default in the payment of principal of, or premium, if any, or interest on
the Securities.
10. Defaults and Remedies. Events of Default include: default in
payment of interest or Liquidated Damages, if any, on the Securities for 30
days; default in payment of principal of, or premium, if any, on the Securities;
default in the performance, or breach, of any of its other covenants, warranties
or agreements in the Indenture by the Company for 90 days after written notice
by the Trustee or by the Holders of at least 25% of the aggregate principal
amount of the Securities then outstanding; certain voluntary or involuntary
events involving bankruptcy, insolvency or reorganization of the Company. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Securities may declare the
principal of, and premium, if any, and interest on all the Securities to be
immediately due and payable, except that in the case of an Event of Default
arising from certain events of bankruptcy, insolvency or reorganization of the
Company, all outstanding Securities become due and payable immediately without
further action or notice. The amount due and payable upon the acceleration of
any Security is equal to 100% of the principal amount thereof plus premium, if
any, and accrued interest to the date of payment. Holders may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee may
require indemnity reasonably satisfactory to it before it enforces the Indenture
or the Securities. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Securities may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders notice
of any continuing default (except a default in payment of principal or premium,
if any, or interest) if it determines that withholding notice is in their
interests. The Company must furnish an annual compliance certificate to the
Trustee.
11. Discharge Prior to Maturity. The Indenture shall be discharged and
canceled upon the payment of all of the Securities and shall be discharged
except for certain obligations upon the irrevocable deposit with the Trustee of
funds or U.S. Government Obligations sufficient for such payment.
12. Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
45
13. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
14. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
15. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed thereon.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. Governing Law. The Indenture and the Securities shall be governed
by and constructed in accordance with, the laws of the State of
New York.
18. [Additional Rights and Obligations of Holders of Transfer
Restricted Securities. In addition to the rights provided to Holders of
Securities under the Indenture, Holders of Transfer Restricted Securities shall
have all the rights set forth in the Registration Rights Agreement applicable to
such Securities. Each Holder of a Transfer Restricted Security , by his
acceptance thereof, acknowledges and agrees to the provisions of such
Registration Rights Agreement, including without limitation the obligations of
the Holders with respect to a registration and the indemnification of the
Company to the extent provided therein.]**
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
Transcontinental Gas Pipe Line Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
----------
**This paragraph should be included only if the Security is a Transfer
Restricted Security.
46
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
----------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date:
--------------------------------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:
------------------------------------------------------------
(Participant in a Recognized Signature Guaranty
Medallion Program)
In connection with any transfer of any of the Securities evidenced by
this certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act after the later of the date of original
issuance of such Securities and the last date, if any, on which such Securities
were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Securities are being transferred as specified below:
CHECK ONE
(1) [ ] to the Company or a Subsidiary thereof; or
(2) [ ] to a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933) that purchases for its own
account or for the account of a qualified institutional buyer to
whom notice is given that such transfer is being made in reliance
on Rule 144A, in each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
(3) [ ] outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act of 1933; or
(4) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(5) [ ] pursuant to an exemption from the registration requirements of the
Securities Act of 1933, provided by Rule 144 thereunder.
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933 (an "Affiliate"):
> [ ] The transferee is an Affiliate of the Company.
Unless one of items (1) through (5) above is checked, the Trustee will
refuse to register any of the Securities evidenced by this certificate in the
name of any person other than the registered Holder thereof; provided, however,
that if item (3) or (5) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Securities, in their sole
discretion, such written legal opinions, certifications (including an investment
letter, and in the case of a transfer pursuant to item (3), a Regulation S
Letter in substantially the form set forth below) and other information as the
Trustee or the Company have reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933.
47
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.06 of the Indenture shall have
been satisfied.
Signed:
----------------------------------------
(Sign exactly as your name appears on the other
side of this Security)
Signature Guarantee:
------------------------------------------------------------
48
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
----------------------------------------------- -----------------------------------------------------
Notice: to be executed by an executive officer***
----------
***These paragraphs should be included only if the Security is a Transfer
Restricted Security.
49
FORM OF REGULATION S LETTER TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
------------------, ----
Citibank, N.A., as Trustee.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Citibank Agency & Trust
Re: 8-7/8% Series A Notes due July 15, 2012 of Transcontinental Gas Pipe
Line Corporation.
Gentlemen:
In connection with our proposed sale of $________________ principal
amount of the above referenced Securities (the "Securities"), we confirm that
such sale has been effected pursuant to and in accordance with Regulation S
under the Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States of America;
(2) at the time the buy order was originated, the transferee was
outside the United States of America or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States of
America;
(3) no directed selling efforts have been made by us in the United
States of America in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
You and Transcontinental Gas Pipe Line Corporation are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used but not
defined in this letter have the meanings set forth in Regulation S under the
Securities Act.
Very truly yours,
[Name of Transferor]
By
---------------------------------------
Authorized Signature
50
SCHEDULE OF EXCHANGES OF SECURITIES***
The following exchanges, redemptions or repurchases of a part of this
Global Security have been made:
Principal Amount of
Global Security Signature of
Amount of decrease Amount of increase following such authorized Officer,
in Principal Amount in Principal Amount decrease (or Trustee or
Date of Transaction of Global Security of Global Security increase) Securities Custodian
------------------- ------------------ ------------------ -------------------- --------------------
----------
***This Schedule should be included only if the Security is a Global Security.
51