EXHIBIT 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
dated as of
July 3, 2002
among
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
and
SALOMON SMITH BARNEY INC.
on behalf of itself and the Initial Purchasers listed on Schedule I
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of July 3, 2002 , by and among TRANSCONTINENTAL GAS PIPE LINE
CORPORATION (the "COMPANY"), a corporation duly organized and existing under the
laws of the State of Delaware, and Salomon Smith Barney Inc., acting on behalf
of itself and the several initial purchasers listed on Schedule I hereto, (the
"INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated June
28, 2002, by and among the Company and the Initial Purchasers (the "PURCHASE
AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of $325,000,000 principal amount of its 8.875% Notes due 2012 (the
"SECURITIES"). The Notes are to be issued pursuant to the provisions of an
Indenture dated as of July 3, 2002 (as amended, supplemented or otherwise
modified from time to time, the "INDENTURE") by and among the Company and
Citibank, N.A., as trustee (the "TRUSTEE").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to each Initial Purchaser and its
direct and indirect transferees the registration rights with respect to the
Securities set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"AGREEMENT" shall have the meaning set forth in the preamble.
"BUSINESS DAY" shall have the meaning set forth in Rule 13e-4(a)(3)
under the 1934 Act.
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"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"EXCHANGE DATES" shall have the meaning set forth in Section 2(a)(ii).
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Securities for all Securities that are Registrable Securities pursuant
to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement on Form S-4 (or, if applicable, on another appropriate form) relating
to an offering of Exchange Securities pursuant to an Exchange Offer and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean any securities issued by the Company
to be offered to Holders in exchange for Securities (pursuant to the Exchange
Offer or otherwise) pursuant to an Exchange Offer Registration Statement
containing terms identical to the Securities for which they are exchanged except
that (i) interest thereon shall accrue from the last date on which interest was
paid on the Securities or, if no such interest has been paid, from the date of
issuance of the Securities and (ii) the Exchange Securities will not contain the
legend appearing on the face of the Securities in the form recited in the
Indenture and will not contain terms with respect to transfer restrictions.
"HOLDER" shall mean each Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Holder" shall include Participating Broker-Dealers (as
defined in Section 4(a)).
"INDEMNIFIED PARTY" shall have the meaning set forth in Section 5(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in Section 5(c).
"INDENTURE" shall have the meaning set forth in the preamble.
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"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 2(e).
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that,
for purposes of Section 6(b), whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its affiliates (as such
term is defined in Rule 405 under the 1933 Act)(other than the Initial
Purchasers or subsequent Holders of Registrable Securities if such subsequent
Holders are deemed to be such affiliates solely by reason of their holding of
such Registrable Securities) shall not be considered outstanding and shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount.
"PARTICIPANT" shall have the meaning set forth in Section 5(a).
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 4(a) hereof.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"REGISTRABLE SECURITIES" shall mean the Securities; provided, however,
that the Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such Securities shall have been exchanged for
Exchange Securities pursuant to an Exchange Offer Registration Statement or
disposed of pursuant to a Shelf Registration Statement, as applicable, (ii) such
Securities have been sold to the public pursuant to Rule 144 under the 1933 Act
or are saleable pursuant to Rule 144(k)(or any similar
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provision then in force, but not Rule 144A) under the 1933 Act or (iii) such
Securities shall have ceased to be outstanding.
"REGISTRATION DEFAULT" shall have the meaning set forth in Section
2(e).
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities), (iii) all expenses of any Person
in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) and (viii) the fees and
disbursements of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, but excluding fees of counsel to
the Underwriters (other than the fees and expenses set forth in clause (ii)
above) and the Holders and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company that covers any of the Exchange Securities or the Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES" shall have the meaning set forth in the preamble.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
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"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities (but no other
securities unless approved by the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities that are covered by such
Shelf Registration Statement) on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and all amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(1) hereof.
"TRUSTEE" shall have the meaning set forth in the preamble.
"UNDERWRITER" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company shall
(1) cause to be filed an Exchange Offer Registration Statement within
75 days following the Closing Date covering the offer by the Company to
the Holders to exchange all of the Registrable Securities for an equal
aggregate principal amount of Exchange Securities and (2) use its
reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective within 120 days following the Closing
Date. The Company shall use its reasonable best efforts to have the
Exchange Offer Registration Statement remain effective until the
closing of the Exchange Offer. The Company shall commence the Exchange
Offer promptly after the Exchange Offer Registration Statement has been
declared effective by the SEC and use its reasonable best efforts to
have the Exchange Offer consummated not later than 60 days after such
effective date. The Company shall commence the Exchange Offer by
mailing the related exchange offer Prospectus and accompanying
documents to each Holder stating, in addition to such other disclosures
as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Registration Rights Agreement and that all Registrable
Securities validly tendered will be accepted for exchange;
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(ii) the dates of acceptance for exchange (which shall
be a period of at least 20 Business Days from the date such
notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will
not retain any rights under this Agreement;
(iv) that Holders electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Security, together with
the enclosed letters of transmittal, to the institution and at
the address specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last
Exchange Date, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of New
York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing his
election to have such Registrable Securities exchanged.
As soon as practicable after the last Exchange Date, the
Company shall:
(A) accept for exchange Registrable
Securities or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer; and
(B) deliver, or cause to be delivered, to
the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for
exchange by the Company and issue, and cause the
Trustee to promptly authenticate and mail to each
Holder, an Exchange Security equal in aggregate
principal amount to the aggregate principal amount of
the Registrable Securities surrendered by such
Holder.
The Company shall use its reasonable best efforts to complete
the Exchange Offer as provided above and shall comply with the
applicable requirements of the 1933 Act, the 1934 Act and other
applicable laws and
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regulations in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions, other than that the Exchange
Offer does not violate applicable law or any applicable interpretation
of the Staff of the SEC. The Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the
right, subject to applicable law, to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
If, during the period the Exchange Offer Registration
Statement is effective, an event occurs which makes any statement made
in such Exchange Offer Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any
changes in such Exchange Offer Registration Statement or Prospectus in
order to make the statements therein not misleading, the Company shall
use its reasonable best efforts to prepare and file with the SEC a
supplement or post-effective amendment to the Exchange Offer
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company agrees to notify the Holders to
suspend the exchange of the Registrable Securities as promptly as
practicable after the occurrence of such an event, and the Holders
hereby agree to suspend such exchange until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission.
(b) If (i) the Company determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may
not be consummated as soon as practicable after the last Exchange Date
because it would violate applicable law or the applicable
interpretations of the Staff of the SEC, (ii) the Exchange Offer is not
for any other reason consummated within 180 days following the Closing
Date or (iii) in the written opinion of counsel for the Holders a Shelf
Registration Statement must be filed and a Prospectus must be delivered
by any Holder in connection with any reoffering or resale of
Registrable Securities, the Company shall (x) file with the SEC within
75 days following such determination, date or notice of such opinion of
counsel is given to the Company a Shelf Registration Statement
providing for the resale by the Holders (other than those who fail to
comply with the paragraph immediately following clause (p) of Section
3) of all of their Registrable Securities and (y) use its reasonable
best efforts to cause such Shelf Registration Statement to become
effective within 60 days thereafter. If the Company is required to file
a
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Shelf Registration Statement solely as a result of the matters referred
to in clause (iii) of the preceding sentence, the Company shall use its
reasonable best efforts to file and have declared effective by the SEC
both an Exchange Offer Registration Statement pursuant to Section 2(a)
with respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to reoffers and
resales of Registrable Securities held by the Holders who must deliver
the related Prospectus. The Company agrees to use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective
until the expiration of the period referred to in Rule 144(k) with
respect to the Registrable Securities or such shorter period that will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities within the
meaning of this Agreement. The Company further agrees to supplement or
amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the 1933 Act or
by any other rules and regulations thereunder for shelf registration or
if reasonably requested by a Holder with respect to information
relating to such Holder, and to use its reasonable best efforts to
cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter
practicable. The Company agrees to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or Section
2(b). Each Holder shall pay all underwriting discounts, if any, and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to a Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective unless
it has been declared effective by the SEC; provided, however, that, if,
after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the
SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period
of such interference until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
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(e) The Company and the Initial Purchasers agree that the
Holders will suffer damages if the Company fails to fulfill its
obligations under Section 2(a) or Section 2(b) hereof and that it would
not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees that if:
(i) the Exchange Offer Registration Statement is not
filed with the SEC on or prior to the 75th day following the
Closing Date,
(ii) the Exchange Offer Registration Statement is not
declared effective on or prior to the 120th day following the
Closing Date,
(iii) the Exchange Offer is not completed on or prior
to the 180th day following the Closing Date, or
(iv) the Shelf Registration Statement is required to
be filed but is not filed or declared effective within the
time period set forth herein or is declared effective but
thereafter ceases to be effective or usable prior to the
expiration of the period referred to in Rule 144(k) with
respect to the Registrable Securities other than after the
Registrable Securities have been disposed of under the Shelf
Registration Statement or cease to be Registrable Securities,
without being succeeded within two Business Days by a
post-effective amendment which cures the failure and that is
itself immediately declared effective,
(each such event referred to in clauses (i) through (iv) a
"REGISTRATION DEFAULT"), liquidated damages ("LIQUIDATED DAMAGES") will
accrue on the affected Registrable Securities and the affected Exchange
Securities, as applicable. The rate of Liquidated Damages will be 0.25%
per annum of the principal amount of Registrable Securities held by
such Holder for the first 90-day period immediately following the
occurrence of a Registration Default, increasing to 0.50% per annum
thereafter, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on
which all Registration Defaults have been cured or (2) the date on
which all the Registrable Securities and Exchange Securities otherwise
become freely transferable by Holders other than affiliates of the
Securities without further registration under the 1933 Act.
Notwithstanding the foregoing, (1) the amount of Liquidated
Damages payable shall not increase because more than one Registration
Default has occurred and is pending and (2) a Holder of Registrable
Securities or Exchange
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Securities who is not entitled to the benefits of the Shelf
Registration Statement (i.e., such Holder has not elected to including
information) shall not be entitled to Liquidated Damages with respect
to a Registration Default that pertains to the Shelf Registration
Statement.
(f) The Company shall notify the Trustee within one Business
Day after each date on which an event occurs in respect of which
Liquidated Damages are required to be paid. Any amounts of Liquidated
Damages due pursuant to this Section 2 will be payable in addition to
any other interest payable from time to time with respect to the
Registrable Securities in cash semi-annually on the interest payment
dates specified in the Indenture (to the holders of record as specified
in the Indenture), commencing with the first such interest payment date
occurring after any such Liquidated Damages commence to accrue. The
amount of Liquidated Damages will be determined in a manner consistent
with the calculation of interest under the Indenture.
(g) Without limiting the remedies available to the Holders,
the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2(a) and Section 2(b) hereof may result
in material irreparable injury to the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages
for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall as expeditiously as possible (provided, however, that the Company
shall not be required to take actions more promptly than required by Sections
2(a) and 2(b)):
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the 1933 Act, which form shall (x) be
selected by the Company, (y) in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling
Holders thereof and (z) comply as to form in all material respects with
the applicable requirements of the 1933 Act and rules and regulations
promulgated thereunder and include all financial statements required by
the SEC to be filed therewith, and use reasonable best efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
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(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the 1933 Act; and keep each Prospectus
current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, to counsel for the Initial Purchasers
and to counsel for the Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus and any amendment or supplement thereto and such other
documents as such Holder or Underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities; and, subject to Section 3(i), the Company
consents to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling
Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities
covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue
sky laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement shall reasonably request in writing
by the time the applicable Registration Statement is declared effective
by the SEC, and to cooperate with such Holders in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc. and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d), (ii) file any general
consent to service of process or (iii) subject itself to taxation in
any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the
Initial
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Purchasers (or, if applicable, separate counsel for the Holders)
promptly and, if requested by any such Holder or counsel, confirm such
advice in writing, (i) when a Registration Statement has become
effective and when any post-effective amendment thereto has been filed
and becomes effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company
receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (v)
of the happening of any event during the period a Shelf Registration
Statement is effective which makes any statement made in such Shelf
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vi) of any determination by the Company
that a post-effective amendment to a Registration Statement would be
appropriate;
(f) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment and provide immediate notice to each
Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends (unless
required by applicable securities laws) and enable such Registrable
Securities to be in such denominations (consistent with the provisions
of the Indenture) and registered in such names as the selling Holders
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may reasonably request at least two Business Days prior to the closing
of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence
of any event contemplated by Section 3(e)(v) hereof, use its reasonable
best efforts to prepare and file with the SEC a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
Company agrees to notify the Holders to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and
the Holders hereby agree to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such
misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to the Holders or until the Company notifies
the Holders that the sale of the Registrable Securities may be resumed;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, or any document which is to be
incorporated by reference into a Registration Statement or Prospectus
after the initial filing of a Registration Statement, provide copies of
such document to the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders and their counsel)
and make such of the representatives of the Company as shall be
reasonably requested by the Initial Purchasers or their counsel (and,
in the case of a Shelf Registration Statement, the Holders or their
counsel) available for discussion of such document, and shall not at
any time file or make any amendment to the Shelf Registration
Statement, any Prospectus or any amendment of or supplement to a Shelf
Registration Statement or a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and, in
the case of a Shelf Registration Statement, the Holders or their
counsel) shall not have previously been advised and furnished a copy or
to which the Initial Purchasers or their counsel (and, in the case of a
Shelf Registration Statement, the Holders or their counsel) shall
reasonably object;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of the applicable Registration Statement;
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(l) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities or Registrable Securities, as
the case may be, and cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA
and execute, and use commercially reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and
properties of the Company, and cause the respective officers, directors
and employees of the Company to supply all information reasonably
requested by any such representative, Underwriter, attorney or
accountant in connection with a Shelf Registration Statement, in each
case that would customarily be reviewed or examined in connection with
"due diligence" review of the Company;
(n) use its reasonable best efforts to cause the Exchange
Securities to continue to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule
436(g)(2) under the 1933 Act), if the Registrable Securities have been
rated;
(o) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably
requests to be included therein and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
reasonably practicable after the Company has received notification of
the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection
therewith (including those reasonably requested by the Holders of a
majority of the Registrable Securities being sold thereunder) in order
to expedite or facilitate the disposition of such Registrable
Securities thereunder including, but not limited to, pursuant to an
Underwritten Offering and in such connection, (i) to the
15
extent possible, make such representations and warranties to the
Holders and any Underwriters of such Registrable Securities with
respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company (which
counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders of a majority in principal amount of the
Registrable Securities being sold under such Shelf Registration
Statement, such Underwriters and their respective counsel) addressed to
each selling Holder and Underwriter of Registrable Securities, covering
the matters customarily covered in opinions requested in underwritten
offerings, (iii) obtain "cold comfort" letters from the independent
certified public accountants of the Company (and, if necessary, any
other certified public accountant of any subsidiary of the Company, or
of any business acquired by the Company for which financial statements
and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and
Underwriter of Registrable Securities, such letters to be in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings, and (iv)
deliver such documents and certificates as may be reasonably requested
by the Holders of a majority in principal amount of the Registrable
Securities being sold under such Shelf Registration Statement or by the
Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations
and warranties of the Company made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Company may
require each Holder of Registrable Securities to furnish to the Company
such information regarding the Holder and the proposed distribution by
such Holder of such Registrable Securities as the Company may from time
to time reasonably request in writing. No Holder of Registrable
Securities may include its Registrable Securities in such Shelf
Registration Statement unless and until such Holder furnishes such
information to the Company. Each Holder including Registrable
Securities in a Shelf Registration Statement shall agree to furnish
promptly to the Company all information regarding such Holder and the
proposed distribution by such Holder of such Registrable Securities
required to make the information previously furnished to the Company by
such Holder not materially misleading.
16
In connection with an Exchange Offer Registration, each Holder
exchanging Securities for Exchange Securities shall be required to
represent that (i) the Exchange Securities are being obtained in the
ordinary course of business of the Person receiving such Exchange
Securities, whether or not such Person is a Holder, (ii) neither such
Holder nor any such other Person has an arrangement or understanding
with any Person to participate in the distribution of Exchange
Securities, (iii) other than as set forth in Section 4, if the Holder
is not a broker-dealer, or is a broker-dealer but will not receive
Exchange Securities for its own account in exchange for Securities,
neither the Holder nor any such other Person is engaged in or intends
to participate in a distribution of the Exchange Securities and (iv)
neither the Holder nor any such other Person is an "affiliate" of the
Company within the meaning of Rule 405 under the Securities Act or, if
such Person is an "affiliate", that such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act
to the extent applicable.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e)(v) hereof,
such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof, and, if so directed by the
Company, such Holder will destroy or deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration
Statement, the Company shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including
the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions. The Company may give
such notice so long as there are no more than 90 days during any 365
day period in which such suspensions are in effect.
The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable
Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or
managers (the "Underwriters") that will administer the offering will be
selected by the Majority Holders of the
17
Registrable Securities included in such offering, provided that such
Underwriters shall be reasonably acceptable to the Company.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The parties hereto understand that the Staff of the SEC
has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating
Broker-Dealer"), may be deemed to be an "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
The Company understands that it is currently the Staff's
position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a
statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery
obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, the Company agrees that the provisions of
this Agreement as they relate to a Shelf Registration shall also apply
to an Exchange Offer Registration to the extent, and with such
reasonable modifications thereto as may be, reasonably requested by the
Initial Purchasers or by one or more Participating Broker-Dealers, in
each case as provided in clause (ii) below, in order to expedite or
facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in
Section 4(a) above; provided that:
(i) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise be contemplated by
Section 3(i), for a period exceeding 180 days after the last
Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and
Participating Broker-Dealers shall not be authorized by the
Company to deliver and shall not
18
deliver such Prospectus after such period in connection with
the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an
Exchange Offer Registration, to the extent not required by the
positions of the Staff of the SEC or the 1933 Act and the
rules and regulations thereunder, will be in conformity with
the reasonable request in writing to the Company by the
Initial Purchasers or with the reasonable request in writing
to the Company by one or more broker-dealers who certify to
the Initial Purchasers and the Company in writing that they
anticipate that they will be Participating Broker-Dealers; and
provided further that, in connection with such application of
the Shelf Registration procedures set forth in Section 3 to an
Exchange Offer Registration, the Company shall be obligated
(x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be Salomon Smith
Barney Inc. unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one
counsel representing the Participating Broker-Dealers, which
shall be counsel to the Initial Purchasers unless such counsel
elects not to so act and (z) to cause to be delivered only
one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the last Exchange Date and
with respect to each subsequent amendment or supplement, if
any, effected during the period specified in clause (i) above.
(c) The Initial Purchasers shall have no liability to the
Company, other than as Holders in accordance with the terms hereof, or
to any other Holder with respect to any request that they may make
pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Initial Purchasers, each Holder and each Person, if any, who controls
the Initial Purchasers or any Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under
common control with, or is controlled by, the Initial Purchasers or any
Holder (each, a "Participant"), from and against all losses, claims,
damages and liabilities (including, without limitation, any legal fees
or other expenses reasonably incurred by a Participant in connection
with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto)
pursuant to which
19
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) forming a part of such Registration
Statement, or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue
statement or omission based upon and in conformity with information
relating to the Initial Purchasers or any Holder furnished to the
Company in writing by the Initial Purchasers or any selling Holder
expressly for use therein; provided that the foregoing indemnity with
respect to any Prospectus shall not inure to the benefit of any Holder
from whom the Person asserting any such losses, claims, damages or
liabilities purchased Securities, or any Person controlling such
Holder, if a copy of the final Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent by, or delivered on behalf of, such
Holder to such Person at or prior to the written confirmation of the
sale of the Securities to such Person, if the final Prospectus (as so
amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage or liability. In connection with any
Underwritten Offering permitted by Section 3, the Company will also
enter into an underwriting agreement pursuant to which the Company will
agree to indemnify the Underwriters, if any, selling brokers, dealers
and similar securities industry professionals participating in such
Underwritten Offering, their officers and directors and each Person who
controls such Persons (within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act) to the same extent as provided
above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement for such Underwritten
Offering.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Initial Purchasers and the
other selling Holders, and each of their respective directors and
officers who sign the Registration Statement and each Person, if any,
who controls the Company, the Initial Purchasers and any other selling
Holder within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Company to the Initial Purchasers and the Holders
pursuant to Section 5(a), but only with reference to information
relating to such Holder furnished to the Company in writing by such
20
Holder expressly for use in any Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of
which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such Person (the "INDEMNIFIED PARTY") shall
promptly notify the Person against whom such indemnity may be sought
(the "INDEMNIFYING PARTY") in writing, but the failure to so promptly
notify the Indemnifying Party shall not negate the obligation to so
indemnify such Indemnified Party unless the Indemnifying Party is
materially prejudiced by such delay, and the Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Indemnifying Party may designate in such
proceeding and shall pay the fees and expenses of such counsel related
to such proceeding. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless
(i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and, in
the opinion of counsel to the Indemnifying Party, representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood that
the Indemnifying Party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (a) the
fees and expenses of more than one separate firm (in addition to any
local counsel) for the Initial Purchasers and all Persons, if any, who
control the Initial Purchasers within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the
Registration Statement and each Person, if any, who controls the
Company within the meaning of either such Section and (c) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Holders and all Persons, if any, who control any
Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such
case involving the Initial Purchasers and Persons who control the
Initial Purchasers, such firm shall be designated in writing by the
Initial Purchasers. In such case involving the Holders and such Persons
who control Holders, such firm shall be designated in writing by the
Majority Holders. In all other cases, such firm shall be designated by
the Company. The Indemnifying Party shall not be liable for any
settlement of any proceeding
21
effected without its written consent but, if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying
Party agrees to indemnify the Indemnified Party from and against any
loss or liability by reason of such settlement or judgment. No
Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which such Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an Indemnified Party
or insufficient in respect of any losses, claims, damages or
liabilities, then each Indemnifying Party under such paragraph, in lieu
of indemnifying such Indemnified Party thereunder, shall contribute to
the amount paid or payable by such Indemnified Party as a result of
such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party or
parties on the one hand and of the Indemnified Party or parties on the
other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company
and the Holders shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Holders' respective obligations to contribute pursuant to this Section
5(d) are several in proportion to the respective principal amount of
Registrable Securities of the applicable Holder that were registered
pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in Section 5(d) above. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages and liabilities
referred to in Section 5(d) above shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 5, no Holder shall be required to
indemnify or contribute any amount in excess of the amount by which the
total price at which Registrable Securities
22
were sold by such Holder exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Initial Purchasers, any
Holder or any Person controlling the Initial Purchasers or any Holder,
or by or on behalf of the Company, its officers or directors or any
Person controlling the Company, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered
into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the
Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and
outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the
written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or consent; provided,
however, that no amendment, modification, supplement, waiver or consent
to any departure from the provisions of Section 5 hereof or this
paragraph (b) shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder.
23
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current
address given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section 6(c), which address
initially is, with respect to the Initial Purchasers, the address set
forth in the Purchase Agreement; and (ii) if to the Company, initially
at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c).
All such 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 pre-paid,
if mailed; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the successors, assigns and
transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders of
Registrable Securities; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Securities and the Purchase
Agreement. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits
hereof. The Initial Purchasers shall have no liability or obligation to
the Company with respect to any failure by a Holder to comply with, or
any breach by any other Holder of, any of the obligations of such
Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not,
and shall use its reasonable best efforts to cause its affiliates (as
defined in Rule 405
24
under the 1933 Act) not to, purchase and then resell or otherwise
transfer any Securities.
(f) Third Party Beneficiary. Each Holder shall be a third
party beneficiary to the agreements made hereunder between the Company,
on the one hand, and the Initial Purchasers, on the other hand, shall
be bound by all of the terms and provisions of this Agreement and shall
have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law This Agreement shall be governed by the laws
of the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRANSCONTINENTAL GAS PIPELINE
CORPORATION
By: /s/ Jeffrey P. Heinrichs
------------------------
Name: Jeffrey P. Heinrichs
Title: Treasurer
Confirmed and accepted as of
the date first above written:
SALOMON SMITH BARNEY INC.
on behalf of itself and the
several Managers listed
on Schedule I hereto
By: /s/ James Hanson
-----------------------------------
Name: James Hanson
Title: Vice President
26
SCHEDULE I
Initial Purchasers
Salomon Smith Barney Inc.
ABN AMRO Incorporated.
Banc of America Securities LLC
Commerzbank Capital Markets Corp.
Credit Lyonnais Securities (USA) Inc.
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
The Royal Bank of Scotalnd plc.
Scotia Capital (USA) Inc.
UBS Warburg LLC
Banc One Capital Markets, Inc.
Barclays Capital Inc.
Mizuho International plc.
TD Securities (USA) Inc.
27