<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 6, 1996
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
COLORADO INTERSTATE GAS COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-0173305
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
TWO NORTH NEVADA AVENUE
COLORADO SPRINGS, COLORADO 80903-1727
(719) 473-2300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
AUSTIN M. O'TOOLE, ESQ.
SENIOR VICE PRESIDENT AND SECRETARY
THE COASTAL CORPORATION
COASTAL TOWER
NINE GREENWAY PLAZA
HOUSTON, TEXAS 77046-0995
(713) 877-1400
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPY TO:
GERALD S. TANENBAUM, ESQ.
CAHILL GORDON & REINDEL
80 PINE STREET
NEW YORK, NEW YORK 10005
(212) 701-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
----------------
CALCULATION OF REGISTRATION FEE
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- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(3) PER UNIT(2)(3) PRICE(2)(3) FEE
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<S> <C> <C> <C> <C>
Debt Securities.................. $100,000,000 $1,000 $100,000,000 $34,483
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</TABLE>
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(1) To the extent Debt Securities are issued with original issue discount,
amount to be registered includes such greater amount as shall result in an
initial aggregate offering price of $100,000,000.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
(3) In United States dollars or the equivalent thereof in foreign currency or
currency units.
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 6, 1996
PROSPECTUS
Colorado Interstate Gas Company
DEBT SECURITIES
Colorado Interstate Gas Company ("CIG" or the "Company") intends to issue
from time to time its senior unsecured debt securities (the "Debt Securities")
at an aggregate initial offering price not to exceed $100,000,000 (or, if the
principal of the Debt Securities is payable in a foreign currency, the
equivalent thereof at the time of offering), which will be offered on terms to
be determined at the time of sale. The accompanying Prospectus Supplement (the
"Prospectus Supplement") sets forth the specific terms of the Series of Debt
Securities (the "Series") in respect of which this Prospectus is being
delivered, including the designation of the Debt Securities, the aggregate
principal amount offered, the rate or rates of interest or the provisions for
determining such rate or rates and the time of payment thereof, maturity,
currency of payment, offering price, terms relating to redemption (whether
mandatory, at the option of the Company or the holder) and information as to
listing on any securities exchange.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURI-
TIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Debt Securities may be sold directly by the Company, through agents
designated by the Company from time to time or through underwriters or dealers
designated by the Company from time to time. If any agents of the Company or
any dealers or underwriters are involved in the sale of the Series of Debt
Securities in respect of which this Prospectus is being delivered, the names of
such agents, dealers or underwriters and any applicable agent's commission,
dealer's purchase price or underwriter's discount are set forth in or may be
calculated from the Prospectus Supplement. The net proceeds to the Company from
such sale will be the purchase price of such Series of Debt Securities less
such commission in the case of an agent, the purchase price of such Series of
Debt Securities in the case of a dealer or the public offering price of such
Series of Debt Securities less such discount in the case of an underwriter and
less, in each case, other attributable issuance expenses. See "Plan of
Distribution" for indemnification arrangements for agents, dealers and
underwriters.
-----------
The date of this Prospectus is , 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024 Washington, D.C. 20549, and at regional offices of the Commission at
the following addresses: 7 World Trade Center, Suite 1300, New York, New York
10048; and Northwest Atrium Center, 500 West Madison Street, 14th Floor,
Chicago, Illinois 60661. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549-1004, upon the payment of fees prescribed by the
Commission. In addition, the Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission at
http://www.sec.gov. Similar information concerning the Company can also be
inspected at the offices of the New York Stock Exchange, Inc. at 20 Broad
Street, New York, New York 10005.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 (together with all amendments, exhibits and
Schedules thereto, the "Registration Statement"), of which this Prospectus is
a part, and exhibits relating thereto, which CIG has filed with the Commission
under the Securities Act of 1933, as amended (the "Securities Act").
Statements contained herein concerning the provisions of documents are
necessarily summaries of such documents, and each statement is qualified in
its entirety by reference to the copy of the applicable document filed with
the Commission. Copies of the Registration Statement and the exhibits are on
file at the offices of the Commission and may be obtained, upon payment of the
fee prescribed by the Commission, or may be examined without charge at the
public reference facilities of the Commission described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
CIG hereby incorporates in this Prospectus by reference the following
documents which have been filed with the Commission pursuant to the Exchange
Act (File No. 1-4874):
(a) CIG's Annual Report on Form 10-K for the year ended December 31, 1995
(the "1995 Annual Report"); and
(b) CIG's Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31 and June 30, 1996.
All documents filed by CIG pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document that also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Any person, including any beneficial owner, receiving a copy of this
Prospectus may obtain without charge, upon request, a copy of any of the
documents incorporated by reference herein, except for the exhibits to such
documents (unless such exhibits are specifically incorporated by reference in
such documents). Such requests should be directed to Colorado Interstate Gas
Company, c/o The Coastal Corporation, Coastal Tower, Nine Greenway Plaza,
Houston, Texas 77046-0995, Attention: Corporate Secretary, telephone number:
(713) 877-1400.
2
<PAGE>
THE COMPANY
CIG is a Delaware corporation organized in 1927. All of CIG's outstanding
common stock is owned by Coastal Natural Gas Company, which is a wholly-owned
subsidiary of The Coastal Corporation ("Coastal"). CIG owns and operates an
interstate natural gas pipeline system and also has gas and oil exploration
and production operations.
The Company's principal office is located at Two North Nevada Avenue,
Colorado Springs, Colorado 80903-1727 (telephone number (719) 473-2300).
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net proceeds
from the sale of the Debt Securities will be used for general corporate
purposes.
RATIO OF EARNINGS TO FIXED CHARGES
A description of the Company's ratio of earnings to fixed charges, on a
consolidated basis, will appear in the accompanying Prospectus Supplement.
DESCRIPTION OF BUSINESS
The Company is involved in the production, gathering, processing,
transportation, storage and sale of natural gas. CIG purchases and produces
natural gas and makes sales of such gas at the wellhead principally to local
gas distribution companies for resale. Separately, CIG contracts to gather,
process, transport and store natural gas owned by third parties.
CIG's gas transmission system extends from gas production areas in the Texas
Panhandle, western Oklahoma and western Kansas, northwesterly through eastern
Colorado to the Denver area, and from production areas in Montana, Wyoming and
Utah, southeasterly to the Denver area. The Company's gas gathering and
processing facilities are located throughout the production areas adjacent to
its transmission system. Most of the Company's gathering facilities connect
directly to its transmission system, but some gathering systems are connected
to other pipelines. The Company also has certain gathering facilities located
in New Mexico. CIG owns four underground gas storage fields; three located in
Colorado, and one in Kansas.
The Company's principal pipeline facilities at December 31, 1995 consisted
of 6,381 miles of pipeline and 68 compressor stations with approximately
345,000 installed horsepower. At December 31, 1995, the design peak day
delivery capacity of the transmission system was approximately 2 billion cubic
feet ("Bcf") per day. The underground storage facilities have a working
capacity of approximately 29 Bcf and a peak day delivery capacity of
approximately 780 million cubic feet ("MMcf").
Beginning in October 1993, CIG implemented Order 636 on its system and as a
result, CIG's gas sales contracts have been "unbundled" and such sales are now
made at the producer wellhead. Effective October 1, 1993, CIG formed an
unincorporated Merchant Division to conduct most of the Company's sales
activity in the Order 636 environment. Gas sales volumes include sales which
continue to be made by CIG together with sales of its Merchant Division.
CIG has engaged in "open access" transportation and storage of gas owned by
third parties for several years. As a result of Order 636, the Company has
"unbundled" these services from its sales services and continues to provide
these services to third parties under individual contracts. Such services are
at negotiated rates that are within minimum and maximum levels approved by the
Federal Energy Regulatory Commission. Also, pursuant to Order 636, the
Company, on September 30, 1993, sold all of its working gas except for 3.8 Bcf
which it retained for operational needs.
3
<PAGE>
CIG's deliveries for the years 1995, 1994 and 1993 were as follows:
<TABLE>
<CAPTION>
TOTAL SYSTEM DAILY AVERAGE
YEAR DELIVERIES SYSTEM DELIVERIES
---- ------------ -----------------
<S> <C> <C>
(Bcf) (MMcf)
1995 456 1,248
1994 436 1,195
1993 453 1,241
</TABLE>
CIG has approximately 3,000 miles of gathering lines and approximately
109,200 horsepower of compression in its gathering operations. CIG owns and
operates six gas processing plants which recovered approximately 81 million
gallons of liquid hydrocarbons in 1995, compared to 88 million gallons in 1994
and 86 million gallons in 1993, and 4,600 long tons of sulfur in 1995,
compared to 4,300 long tons in 1994 and 4,400 long tons in 1993. Additionally,
in 1995 and 1994, CIG processed approximately 6 million gallons of liquid
hydrocarbons owned by others compared to 12 million gallons in 1993. These
plants, with a total operating capacity of approximately 697 MMcf daily,
recover mainly propane, butanes, natural gasoline, sulfur and other by-
products, which are sold to refineries, chemical plants and other customers.
The table below represents estimates of the Company's owned or controlled
reserves as of December 31, 1995, 1994 and 1993, as prepared by CIG's
independent engineers.
<TABLE>
<CAPTION>
1995 1994 1993
---- ---- ----
<S> <C> <C> <C>
Owned or controlled by CIG (Bcf)........................... 346 383 433
</TABLE>
At December 31, 1995, CIG maintained under its own account 1.4 Bcf of
natural gas in underground working storage for system balancing. The Company
has an additional 37.8 Bcf of base gas in its four owned storage fields.
The Company has domestic gas and oil production operations. The gas is
delivered primarily to CIG's interstate gas pipeline system while the crude
oil and condensate are sold at the wellhead to oil purchasing companies at
prevailing market prices. The production of gas and oil is subject to
regulation in states in which the Company operates.
The following table shows gas, oil and condensate production volumes of the
Company, including quantities attributable to its natural gas system, for the
three years ended December 31, 1995:
<TABLE>
<CAPTION>
1995 1994 1993
------ ------ ------
<S> <C> <C> <C>
Gas (MMcf)........................................... 52,341 61,046 56,454
Oil (000 barrels).................................... 20 8 8
Condensate (000 barrels)............................. 63 74 49
</TABLE>
The following table summarizes sales price and unit cost information of the
Company's exploration and production operations for the three years ended
December 31, 1995:
<TABLE>
<CAPTION>
1995 1994 1993
------ ------ ------
<S> <C> <C> <C>
Average sales price (net of production taxes):
Gas--per thousand cubic feet ("Mcf")............... $ 1.04 $ 1.44 $ 1.81
Oil--per barrel.................................... 15.96 14.38 15.18
Condensate--per barrel............................. 16.05 15.09 15.92
Average production cost per unit (equivalent Mcf).... $ 0.45 $ 0.37 $ 0.51
</TABLE>
At December 31, 1995, the gas and oil properties of the Company included
leasehold interests covering 459,411 acres (345,150 net acres), of which
381,455 acres (317,538 net acres) were developed and 77,956 acres (27,612 net
acres) were undeveloped. The net developed acreage is concentrated principally
in Texas (78%), Oklahoma (8%), Wyoming (6%) and Utah (6%). The net undeveloped
acreage is principally in Wyoming (52%), Montana (21%) and Colorado (9%).
The Company drilled 7 gross (2.44 net) gas wells, 19 gross (7.68 net) gas
wells and 22 gross (12.53 net) gas wells in 1995, 1994 and 1993, respectively.
The Company had 986 gross (840.22 net) productive gas wells and 7 gross (6.24
net) productive oil wells as of December 31, 1995.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated as of a date on
or prior to the issuance of the Debt Securities (the "Indenture"), between the
Company and a trustee (the "Trustee"). A copy of the form of Indenture has
been filed as an exhibit to the Registration Statement of which this
Prospectus is a part, subject to such amendments or supplements as may be
adopted from time to time. The Indenture will be subject to and governed by
the Trust Indenture Act of 1939, as amended. The summaries of certain
provisions of the Indenture hereunder do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all of the
provisions of the Indenture, including the definitions therein of certain
terms and those terms made part of the Indenture by reference to the Trust
Indenture Act of 1939 as in effect on the date of the Indenture. Certain
capitalized terms used below and not defined have the respective meanings
assigned thereto in the Indenture.
TERMS
The Indenture provides for the issuance by the Company from time to time of
its Debt Securities in one or more Series. The Indenture does not limit the
amount of Debt Securities which may be issued thereunder, and provides that
the specific terms of any Series of Debt Securities shall be set forth in, or
determined pursuant to, an Authorizing Resolution and/or a supplemental
indenture, if any, relating to such Series.
The specific terms of the Series of Debt Securities in respect of which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement relating thereto, including the following, as applicable:
1. the title of the Series;
2. the aggregate principal amount of the Debt Securities of the Series;
3. the date or dates on which principal and premium, if any, on the Debt
Securities of the Series is payable, and, if applicable, the terms on which
such maturity may be extended;
4. the rate or rates of interest (if any) on the Debt Securities of such
Series (whether floating or fixed), the provisions, if any, for determining
such interest rate or rates and adjustments thereto, the interest payment
dates and the regular record dates with respect thereto;
5. the currency(ies) in which principal, premium, if any, and interest
are payable by the Company, if other than United States dollars;
6. provisions relating to redemption, at the option of the Company,
pursuant to a Sinking Fund or otherwise or at the option of a Holder and
the respective redemption dates and redemption prices and the terms and
conditions for such redemption;
7. whether Debt Securities of the Series are to be issuable initially in
temporary global form and whether any Debt Securities of the Series are to
be issuable in permanent global form and, if so, whether beneficial owners
of interests in any such security in permanent global form may exchange
such interests for Debt Securities of such Series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in the applicable
Indenture, and, if Debt Securities of the Series are to be issuable as a
Global Security (as defined below), the identity of the depository for such
Series;
8. additional or different covenants or Events of Default, if any, with
respect to the Debt Securities of such Series in addition to or in lieu of
the covenants and Events of Default specified in the Indenture; and
9. if less than 100% of the principal amount of the Debt Securities of
such Series is payable on acceleration or provable in bankruptcy (which may
be the case for Original Issue Discount Securities), a schedule of the
amounts which would be so payable or provable from time to time.
5
<PAGE>
The Debt Securities will be issued only in registered form, without coupons,
in denominations of $1,000 and integral multiples thereof, or in such other
currencies or denominations as may be specified in, or pursuant to, the
Authorizing Resolution and/or supplemental indenture relating to such Series
of Debt Securities. The Debt Securities will be senior unsecured obligations
of the Company.
Except as otherwise specified in the Authorizing Resolution and/or
supplemental indenture relating to the Debt Securities in respect of which
this Prospectus is being delivered, principal and interest will be payable,
and the Debt Securities will be transferable, at the corporate trust office of
the Trustee in New York, New York or at such other office of the Trustee as is
set forth in the applicable Prospectus Supplement. At the Company's option,
interest may be paid by check mailed to the registered holders of the Debt
Securities. The Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection with certain transfers
or exchanges. Initially, the Trustee will act as paying agent and registrar
under the Indenture. The Company may act as paying agent and registrar and may
change any paying agent or registrar without notice.
Except as otherwise specified in the Authorizing Resolution and/or
supplemental indenture relating to the Debt Securities in respect of which
this Prospectus is being delivered, the Debt Securities do not contain event
risk provisions designed to require the Company to redeem the Debt Securities,
reset the interest rate or take other actions in response to highly leveraged
transactions, change in credit rating or other similar occurrences.
CERTAIN COVENANTS
The applicable Prospectus Supplement will describe any material covenants in
respect of a Series of Debt Securities that are not described in this
Prospectus. Unless otherwise indicated in the applicable Prospectus
Supplement, Debt Securities will include the covenants described below.
Definitions
"Attributable Debt" will mean, with respect to any Sale and Leaseback
Transaction as of any particular time, the present value (discounted at the
rate of interest implicit in the terms of the lease) of the obligations of the
lessee under such lease for net rental payments during the remaining term of
the lease (including any period for which such lease has been extended or may,
at the option of the Company, be extended).
"Consolidated Net Tangible Assets" will mean the total assets appearing on a
consolidated balance sheet of the Company and its Subsidiaries, less, without
duplication: (i) current liabilities; (ii) reserves for estimated rate refunds
pending the outcome of a rate proceeding to the extent such refunds have not
been finally determined; (iii) all intangible assets; and (iv) deferred income
tax assets.
"Funded Debt" will mean all Indebtedness maturing one year or more from the
date of the creation thereof, all Indebtedness directly or indirectly
renewable or extendible, at the option of the debtor, by its terms or by the
terms of any instrument or agreement relating thereto, to a date one year or
more from the date of the creation thereof, and all Indebtedness under a
revolving credit or similar agreement obligating the lender or lenders to
extend credit over a period of one year or more, even though such Indebtedness
may also conform to the definition of Short-Term Borrowing (as defined in the
Indenture).
"Indebtedness" will mean (i) any liability of any person (a) for borrowed
money, (b) evidenced by a note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
property or assets (other than inventory or similar property acquired in the
ordinary course of business), including securities, or (c) for the payment of
money relating to a Capitalized Lease Obligation (as defined in the
Indenture); (ii) any guarantee by any person of any liability of others
described in the preceding clause (i); and (iii) any amendment, renewal,
extension or refunding of any liability of the types referred to in clauses
(i) and (ii) above.
"Lien" will mean any mortgage, lien, pledge, charge or other security
interest or encumbrance of any kind.
6
<PAGE>
"Principal Domestic Property of the Company" will mean any property, plant,
equipment or facility of the Company which is located in the United States or
any territory or political subdivision thereof, except any property which the
Board of Directors or management of the Company shall determine to be not
material to the business or operations of the Company and its Subsidiaries,
taken as a whole.
"Sale and Leaseback Transaction" will have the meaning set forth in the
"Restrictions on Sales and Leasebacks" covenant described below.
"Significant Subsidiary" will mean a Subsidiary, including its Subsidiaries,
which meets any of the following conditions:
(a) the Company's and its other Subsidiaries' investments in and advances
to the Subsidiary exceed 10 percent of the total assets of the Company and
its Subsidiaries consolidated as of the end of any two of the three most
recently completed fiscal years;
(b) the Company's and its other Subsidiaries' proportionate share of the
total assets of the Subsidiary exceeds 10 percent of the total assets of
the Company and its Subsidiaries consolidated as of the end of any two of
the three most recently completed fiscal years; or
(c) the Company's and its other Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the Subsidiary
exceeds 10 percent of such income of the Company and its Subsidiaries
consolidated as of the end of any two of the three most recently completed
fiscal years.
"Stated Maturity" when used with respect to any security or any installment
of interest thereon means the date specified in such security as the fixed
date on which the principal of such security or such installment of interest
is due and payable.
"Subsidiary" will mean (i) a corporation a majority of whose Capital Stock
with voting power, under ordinary circumstances, to elect directors is at the
time, directly or indirectly, owned by the Company, by the Company and a
Subsidiary (or Subsidiaries) of the Company or by a Subsidiary (or
Subsidiaries) of the Company or (ii) any person (other than a corporation) in
which the Company, a Subsidiary (or Subsidiaries) of the Company or the
Company and a Subsidiary (or Subsidiaries) of the Company, directly or
indirectly, at the date of determination thereof has at least majority
ownership interest; provided that no corporation shall be deemed a Subsidiary
until the Company, a Subsidiary (or Subsidiaries) of the Company or the
Company and a Subsidiary (or Subsidiaries) of the Company acquires more than
50% of the outstanding voting stock thereof and has elected a majority of its
board of directors.
Restrictions on Liens
The Company will not incur, create, assume or otherwise become liable with
respect to any Indebtedness secured by a Lien, or guarantee any Indebtedness
with a guarantee which is secured by a Lien, on any Principal Domestic
Property of the Company or any shares of stock or Indebtedness of any
Significant Subsidiary, without effectively providing that the Debt Securities
(together with, if the Company shall so determine, any other Indebtedness of
the Company then existing or thereafter created ranking equally with the Debt
Securities) shall be secured equally and ratably with (or, at the option of
the Company, prior to) such secured Indebtedness, so long as such secured
Indebtedness shall be so secured; provided, however, that this covenant will
not apply to Indebtedness secured by: (a) Liens existing on the date of the
Indenture; (b) Liens in favor of governmental bodies to secure progress,
advance or other payments; (c) Liens existing on property, shares of stock or
Indebtedness at the time of acquisition thereof (including acquisition through
lease, merger or consolidation) or Liens to secure the payment of all or any
part of the purchase price thereof or the cost of construction, installation,
renovation, improvement or development thereon or thereof or to secure any
Indebtedness incurred prior to, at the time of, or within 360 days after the
later of the acquisition, completion of such construction, installation,
renovation, improvement or development or the commencement of full operation
of such property
7
<PAGE>
or within 360 days after the acquisition of such shares or Indebtedness for
the purpose of financing all or any part of the purchase price thereof; (d)
Liens securing Indebtedness in an aggregate amount which, at the time of
incurrence and together with all outstanding Attributable Debt in respect of
Sale and Leaseback Transactions permitted by clause (y) in the "Restrictions
on Sales and Leasebacks" covenant, does not exceed ten percent of the
Consolidated Net Tangible Assets of the Company; (e) Liens securing
Indebtedness other than Funded Debt; and (f) any extension, renewal or
replacement (or successive extensions, renewals or replacements), as a whole
or in part, of any Liens referred to in the foregoing clauses (a) through (e)
inclusive; provided that such extension, renewal or replacement of such Lien
is limited to all or any part of the same property, shares of stock or
Indebtedness that secured the Lien extended, renewed or replaced (plus
improvements on such property), and that such secured Indebtedness at such
time is not increased.
Restrictions on Sales and Leasebacks
The Company will not sell or transfer any Principal Domestic Property of the
Company, with the Company taking back a lease of such Principal Domestic
Property of the Company (a "Sale and Leaseback Transaction"), unless (i) such
Principal Domestic Property of the Company is sold within 360 days from the
date of acquisition of such Principal Domestic Property of the Company or the
date of the completion of construction or commencement of full operations of
such Principal Domestic Property of the Company, whichever is later, or (ii)
the Company, within 120 days after such sale, applies or causes to be applied
to the retirement of Funded Debt of the Company or any Subsidiary (other than
Funded Debt of the Company which by its terms or the terms of the instrument
pursuant to which it was issued is subordinate in right of payment to the Debt
Securities) an amount not less than the greater of (A) the net proceeds of the
sale of such Principal Domestic Property of the Company or (B) the fair value
(as determined in any manner approved by the Board of Directors) of such
Principal Domestic Property of the Company. The provisions of this covenant
shall not prevent a Sale and Leaseback Transaction (x) if the lease entered
into by the Company in connection therewith is for a period, including
renewals, of not more than 36 months or (y) if the Company would, at the time
of entering into such Sale and Leaseback Transaction, be entitled, without
equally and ratably securing the Debt Securities, to create or assume a Lien
on such Principal Domestic Property of the Company securing Indebtedness in an
amount at least equal to the Attributable Debt in respect of such Sale and
Leaseback Transaction pursuant to clause (d) above in the "Restrictions on
Liens" covenant.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company shall not consolidate with or merge with or into any other
corporation or transfer all or substantially all of its property and assets as
an entirety to any person, unless (i) either the Company shall be the
continuing person, or the person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company as an entirety
are transferred is a corporation organized and existing under the laws of the
United States or any State thereof or the District of Columbia which expressly
assumes all of the obligations of the Company under each Series of Debt
Securities and the Indenture with respect to each such Series and (ii)
immediately before and immediately after giving effect to such transaction, no
Event of Default and no event which, after notice or passage of time or both,
would become an Event of Default shall have occurred and be continuing.
Notwithstanding the foregoing, any Subsidiary may consolidate with, merge with
or into or transfer all or part of its properties and assets to the Company or
any other Subsidiary or Subsidiaries.
RANKING
The Debt Securities constitute senior unsecured obligations of the Company.
As of June 30, 1996, the Company had approximately $180 million of
indebtedness outstanding which would rank pari passu with the Debt Securities.
Except as otherwise specified in the Authorizing Resolution and/or
supplemental indenture relating to the Debt Securities in respect of which
this Prospectus is being delivered, there are no limitations in
8
<PAGE>
the Indenture relating to the Debt Securities on the amount of additional
Indebtedness which may rank pari passu with the Debt Securities or on the
amount of Indebtedness, secured or otherwise, which may be incurred or
preferred stock which may be issued by any of the Company's Subsidiaries;
provided, that the incurrence of secured Indebtedness by the Company is
subject to the limitations set forth in the "Restrictions on Liens" covenant.
DISCHARGE
Unless otherwise provided in the Prospectus Supplement, the Company may
terminate its obligations under any Series of Debt Securities and the
Indenture with respect to such Series, at any time, (a) by delivering all
outstanding Debt Securities of such Series to the Trustee for cancellation and
paying any other sums payable by it under such Debt Securities and the
Indenture with respect to such Series, or (b) after giving notice to the
Trustee of its intention to defease all of the Debt Securities of such Series
by irrevocably depositing with the Trustee or a paying agent (other than the
Company or a Subsidiary) (i) in the case of any Debt Securities of any Series
denominated in U.S. dollars, cash or U.S. Government Obligations sufficient to
pay all principal of and interest on such Debt Securities and (ii) in the case
of any Debt Securities of any Series denominated in any currency other than
U.S. dollars, an amount of the Required Currency (as defined in the Indenture)
sufficient to pay all principal of and interest on such Debt Securities;
provided that if such irrevocable deposit pursuant to (b) above is made on or
prior to one year from the Stated Maturity for payment of principal of such
Series of Debt Securities, the Company shall have delivered to the Trustee
either an opinion of counsel with no material qualifications or a favorable
ruling of the Internal Revenue Service, in either case to the effect that
holders of such Debt Securities (i) will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit (and the
defeasance contemplated in connection therewith) and (ii) will be subject to
Federal income tax on the same amounts and in the same manner and at the same
time as would have been the case if such deposit and defeasance had not
occurred.
MODIFICATION AND WAIVER
Modification and amendment of the Indenture will be permitted to be made by
the Company and the Trustee with the consent of the holders of not less than a
majority in principal amount of the outstanding Debt Securities of all Series
affected thereby (voting as a single class); provided that such modification
or amendment may not, without the consent of each holder of the Debt
Securities affected thereby, (i) extend the Stated Maturity of the principal
of or any installment of interest with respect to the Debt Securities; (ii)
reduce the principal amount of, or the rate of interest on, or alter the
redemption provisions with respect to, the Debt Securities; (iii) change the
currency of payment of principal of or interest on the Debt Securities; (iv)
impair the right to institute suit for the enforcement of any payment on or
with respect to the Debt Securities; (v) reduce the above-stated percentage of
holders of the Debt Securities of any Series necessary to modify or amend the
Indenture relating to such Series; or (vi) modify the foregoing requirements
or reduce the percentage of outstanding Debt Securities necessary to waive any
covenant or past default. Holders of not less than a majority in principal
amount of the outstanding Debt Securities of all Series affected thereby
(voting as a single class) may waive certain past defaults and may waive
compliance by the Company with any provision of the Indenture relating to such
Debt Securities (subject to the immediately preceding sentence); provided,
that only the holders of a majority in principal amount of Debt Securities of
a particular Series may waive compliance with a provision of the Indenture
relating to such Series or the Debt Securities of such Series having
applicability solely to such Series.
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless otherwise provided in the applicable Prospectus Supplement, each
Indenture will provide that the following events are "Events of Default" with
respect to any Series of Debt Securities issued thereunder: (i) failure of the
Company to pay interest on such Series of Debt Securities within 30 days of
when due or principal
9
<PAGE>
on such Series of Debt Securities when due (including any Sinking Fund
installment); (ii) failure to perform any other agreement contained in the
Debt Securities of such Series or the Indenture relating to such Series (other
than an agreement relating solely to another Series of Debt Securities) for 60
days after notice; (iii) certain events of bankruptcy, insolvency or
reorganization with respect to the Company. Additional or different Events of
Default, if any, applicable to the Series of Debt Securities in respect of
which this Prospectus is being delivered will be specified in the applicable
Prospectus Supplement.
The Indenture will provide that the Trustee shall, within 75 days after the
occurrence of any default (the term "default" to include the events specified
above without grace or notice) with respect to any Series of Debt Securities
actually known to it, give to the holders of such Debt Securities notice of
such default; provided that, except in the case of a default in the payment of
principal of or interest on any of the Debt Securities of such Series or in
the payment of any Sinking Fund installment, the Trustee for such Series shall
be protected in withholding such notice if it in good faith determines that
the withholding of such notice is in the interest of the holders of such Debt
Securities. The Indenture will require the Company to certify to the Trustee
under the Indenture quarterly as to whether any default occurred during such
quarter.
In case an Event of Default (other than an Event of Default resulting from
bankruptcy, insolvency or reorganization) with respect to any Series of Debt
Securities shall occur and be continuing, the Trustee for such Series or the
holders of at least 25% in aggregate principal amount of the Debt Securities
of such Series then outstanding, by notice in writing to the Company (and to
the Trustee for such Series if given by the holders of the Debt Securities of
such Series), will be entitled to declare all unpaid principal of and accrued
interest on such Debt Securities then outstanding to be due and payable
immediately. In case an Event of Default resulting from certain events of
bankruptcy, insolvency or reorganization shall occur, all unpaid principal of
and accrued interest on all Debt Securities of such Series then outstanding
shall be due and payable immediately without any declaration or other act on
the part of the Trustee for such Series or the holders of any Debt Securities
of such Series. Such acceleration may be annulled and past defaults (except,
unless theretofore cured, a default in payment of principal of or interest on
the Debt Securities of such Series) may be waived by the holders of a majority
in principal amount of the Debt Securities of such Series then outstanding
upon the conditions provided in the Indenture.
The Indenture will provide that no holder of the Debt Securities of any
Series issued thereunder may pursue any remedy under the Indenture unless the
Trustee for such Series shall have failed to act after, among other things,
notice of an Event of Default and request by holders of at least 25% in
principal amount of the Debt Securities of such Series of which the Event of
Default has occurred and the offer to the Trustee for such Series of indemnity
satisfactory to it; provided, however, that such provision does not affect the
right to sue for enforcement of any overdue payment on such Debt Securities.
THE TRUSTEE
The Indenture will contain certain limitations on the right of the Trustee
thereunder, as a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any
such claim as security or otherwise. The Trustee will be permitted to engage
in other transactions; provided, however, if it acquires any conflicting
interest, it must eliminate such conflict or resign.
The holders of a majority in principal amount of all outstanding Debt
Securities of a Series (or if more than one Series is affected thereby, of all
Series so affected voting as a single class) will have the right to direct the
time, method and place of conducting any proceeding for exercising any remedy
or power available to the Trustee for such Series or all such Series so
affected.
In case an Event of Default shall occur (and shall not be cured) relating to
a Series of Debt Securities and is known to the Trustee for such Series, such
Trustee shall exercise such of the rights and powers vested in it by the
Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use
10
<PAGE>
under the circumstances in the conduct of his own affairs. Subject to such
provisions, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request of any of the holders of
Debt Securities unless they shall have offered to the Trustee security and
indemnity satisfactory to it.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by the laws of the
State of New York.
GLOBAL SECURITIES; BOOK-ENTRY SYSTEM
The Debt Securities of any Series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depository (the "Depository") identified in
the Prospectus Supplement relating to such Series. Global Securities, if any,
issued in the United States are expected to be deposited with The Depository
Trust Company ("DTC"), as Depository. Global Securities may be issued in fully
registered form and may be issued in either temporary or permanent form.
Unless and until it is exchanged in whole or in part for the individual Debt
Securities represented thereby, a Global Security may not be transferred
except as a whole by the Depository for such Global Security to a nominee of
such Depository or by a nominee of such Depository to such Depository or
another nominee or such Depository or by such Depository or any nominee of
such Depository to a successor Depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to any Series
of Debt Securities will be described in the Prospectus Supplement relating to
such Series. The Company expects that unless otherwise indicated in the
applicable Prospectus Supplement, the following provisions will apply to
depository arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and
transfer system the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons that
have accounts with such Depository ("Participants"). Such accounts will be
designated by the underwriters, dealers or agents with respect to such Debt
Securities or by the Company if such Debt Securities are offered directly by
the Company. Ownership of beneficial interests in such Global Security will be
limited to Participants or persons that may hold interests through
Participants.
The Company expects that, pursuant to procedures established by DTC,
ownership of beneficial interests in any Global Security with respect to which
DTC is the Depository will be shown on, and the transfer of that ownership
will be effected only through, records maintained by DTC or its nominee (with
respect to beneficial interests of Participants) and records of Participants
(with respect to beneficial interests of persons who hold through
Participants). Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records of DTC or for
maintaining, supervising or reviewing any records of DTC or any of its
Participants relating to beneficial ownership interests in the Debt
Securities. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and laws may impair the ability to own, pledge or transfer beneficial
interest in a Global Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable
Prospectus Supplement, owners of beneficial interest in a Global Security will
not be entitled to have any of the individual Debt Securities represented by
such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of any such Debt Securities in
definitive form and will not be considered the owners or holders thereof under
the applicable Indenture. Beneficial owners of Debt Securities evidenced by a
Global Security will not be considered the owners or holders thereof under the
applicable Indenture for any purpose, including with respect to the giving of
any direction, instructions or
11
<PAGE>
approvals to the Trustee thereunder. Accordingly, each person owning a
beneficial interest in a Global Security with respect to which DTC is the
Depository must rely on the procedures of DTC and, if such person is not a
Participant, on the procedures of the Participant through which such person
owns its interests, to exercise any rights of a holder under the applicable
Indenture. The Company understands that, under existing industry practice, if
it requests any action of holders or if an owner of a beneficial interest in a
Global Security desires to give or take any action which a holder is entitled
to give or take under the applicable Indenture. DTC would authorize the
Participants holding the relevant beneficial interest to give or take such
action, and such Participants would authorize beneficial owners through such
Participants to give or take such actions or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments of principal of, and any interest on, individual Debt Securities
represented by a Global Security registered in the name of a Depository or its
nominee will be made to or at the direction of the Depository or its nominee,
as the case may be, as the registered owner of the Global Security under the
applicable Indenture. Under the terms of the applicable Indenture, the Company
and the Trustee may treat the persons in whose name Debt Securities, including
a Global Security, are registered as the owners thereof for the purpose of
receiving such payments. Consequently, neither the Company nor the Trustee has
or will have any responsibility or liability for the payment of such amounts
to beneficial owners of Debt Securities (including principal and interest).
The Company believes, however, that it is currently the policy of DTC to
immediately credit the accounts of relevant Participants with such payments,
in amounts proportionate to their respective holdings of beneficial interests
in the relevant Global Security as shown on the records of DTC or its nominee.
The Company also expects that payments by Participants to owners of beneficial
interests in such Global Security held through such Participants will be
governed by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered in
street name, and will be the responsibility of such Participants. Redemption
notices with respect to any Debt Securities represented by a Global Security
will be sent to the Depository or its nominee. If less than all of the Debt
Securities of any series are to be redeemed, the Company expects the
Depository to determine the amount of the interest of each Participant in such
Debt Securities to be redeemed to be determined by lot. None of the Company,
the Trustee, any Paying Agent or the Registrar for such Debt Securities will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining any records with respect
thereto.
Neither the Company nor the Trustee will be liable for any delay by the
holders of a Global Security or the Depository in identifying the beneficial
owners of Debt Securities and the Company and the Trustee may conclusively
rely on, and will be protected in relying on, instructions from the holder of
a Global Security or the Depository for all purposes. The rules applicable to
DTC and its Participants are on file with the Securities and Exchange
Commission.
If a Depository for any Debt Securities is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual
Debt Securities in exchange for the Global Security representing such Debt
Securities. In addition, the Company may at any time and in its sole
discretion, subject to any limitations described in the Prospectus Supplement
relating to such Debt Securities, determine not to have any of such Debt
Securities represented by one or more Global Securities and in such event will
issue individual Debt Securities in exchange for the Global Security or
Securities representing such Debt Securities. Individual Debt Securities so
issued will be issued in denominations of $1,000 and integral multiples
thereof.
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer global securities (a "Bearer Global Security")
that will be deposited with a depository, or with a nominee for such
depository, identified in the applicable Prospectus Supplement. Any such
Bearer Global Securities may be issued in temporary or permanent form. The
specific terms and procedures, including the specific terms of the depository
arrangement, with respect to any portion of a series of Debt Securities to be
represented by one or more Bearer Global Securities will be described in the
applicable Prospectus Supplement.
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<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three ways: (i) through
underwriters or dealers; (ii) directly to a limited number of institutional
purchasers or to a single purchaser; or (iii) through agents. Any such dealer
or agent, in addition to any underwriter, may be deemed to be an underwriter
within the meaning of the Securities Act of 1933, as amended. The terms of the
offering of the Series of Debt Securities with respect to which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement, including the name or names of any underwriters, dealers or
agents, the purchase price of such Series and the proceeds to the Company from
such sale, any underwriting discounts and other items constituting
underwriters' compensation, the initial public offering price and any
discounts or concessions which may be allowed or reallowed or paid to dealers
and any securities exchanges on which the Series may be listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
Debt Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
underwriters acting alone. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the Debt
Securities described in the accompanying Prospectus Supplement will be subject
to certain conditions precedent and the underwriters will be obligated to
purchase all such Debt Securities if any are so purchased by them. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
The Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agents involved in the offer
or sale of the Debt Securities in respect of which this Prospectus is being
delivered are named, and any commissions payable by the Company to such agents
are set forth in the accompanying Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a
best efforts basis for the period of its appointment.
If dealers are utilized in the sale of any Debt Securities, the Company will
sell the Debt Securities to the dealers, as principals. Any dealer may resell
the Debt Securities to the public at varying prices to be determined by the
dealer at the time of resale. The name of any dealer and the terms of the
transaction will be set forth in the Prospectus Supplement with respect to the
Debt Securities being offered thereby.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase the Series of Debt Securities to which this
Prospectus and the Prospectus Supplement relates from the Company at the
public offering price set forth in the Prospectus Supplement, plus accrued
interest, pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be subject
only to those conditions set forth in the Prospectus Supplement, and the
Prospectus Supplement will set forth the commission payable for solicitation
of such contracts.
Underwriters will not be obligated to make a market in any Debt Securities.
The Company cannot predict the activity of trading in, or liquidity of, any
Debt Securities.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribution by the Company to payments they may be required to make in
respect thereof. Agents, dealers and underwriters may be customers of, engage
in transactions with or perform services for the Company in the ordinary
course of business.
13
<PAGE>
LEGAL MATTERS
Certain legal matters in connection with the Debt Securities offered hereby
are being passed upon for the Company by Austin M. O'Toole, Esq., Senior Vice
President and Secretary of CIG, and for the underwriters, agents and dealers
by Cahill Gordon & Reindel (a partnership including a professional
corporation), New York, New York. As of August 1, 1996, Mr. O'Toole
beneficially owned approximately 32,865 shares of Common Stock and 655 shares
of Class A Common Stock of Coastal, including exercisable stock options.
EXPERTS
The annual consolidated financial statements of the Company incorporated in
this Prospectus by reference from the 1995 Annual Report on Form 10-K have
been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
14
<PAGE>
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No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in this Prospectus and,
if given or made, such information or representation must not be relied upon as
having been authorized by the Company, by any underwriters, agents or dealers
or by any other person. This Prospectus does not constitute an offer to sell or
a solicitation of an offer to buy any of the securities offered hereby to any
person or by anyone in any jurisdiction in which such offer or solicitation may
not lawfully be made. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date hereof.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Company................................................................ 3
Use of Proceeds............................................................ 3
Ratio of Earnings to Fixed Charges......................................... 3
Description of Business.................................................... 3
Description of Debt Securities............................................. 5
Plan of Distribution....................................................... 13
Legal Matters.............................................................. 14
Experts.................................................................... 14
</TABLE>
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Colorado Interstate
Gas Company
DEBT SECURITIES
----------------
PROSPECTUS
----------------
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<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses, other than underwriting discounts and commissions, in
connection with the offering are as follows (all amounts except for the
Securities and Exchange Commission filing fee are estimated):
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................... $ 34,483
Printing and engraving expenses................................. 20,000
Legal fees and expenses......................................... 10,000
Accounting fees and expenses.................................... 25,000
Blue sky qualification fees and expenses........................ 15,000
Miscellaneous................................................... 15,517
--------
Total....................................................... $120,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware grants
each corporation organized thereunder, such as the Registrant, the power to
indemnify directors and officers under certain circumstances. Article III of
the Registrant's By-laws provide for indemnification of directors and officers
to the fullest extent permitted by law.
Directors and officers of the Company are parties to an Indemnity Agreement
with The Coastal Corporation indemnifying such persons with respect to matters
arising out of his or her serving as a director and/or officer of the Company.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1 --Form of Underwriting Agreement with respect to Debt Securities
(including form of Terms Agreement).
4.1 --Form of Indenture for the Debt Securities.
4.2 --Form of Debt Security (included in Exhibit No. 4.1).
5 --Opinion of Austin M. O'Toole, Esq., Senior Vice President and
Secretary of the Registrant, as to the legality of the securities
being registered.
23.1 --Independent Auditors' Consent.
23.2 --Consent of Austin M. O'Toole, Esq. (included in Exhibit 5).
24 --Powers of Attorney (included on the signature pages hereof).
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions described under Item 15 above,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is,
II-1
<PAGE>
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any fact or events arising after the effective
date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs (1)(i) and
(1)(ii) do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the Trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the
rules and regulations of the Securities and Exchange Commission under Section
305(b)(2) of the Securities Act of 1933.
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<PAGE>
POWERS OF ATTORNEY
Each person whose signature appears below hereby appoints David A. Arledge,
Coby C. Hesse and Austin M. O'Toole and each of them, any one of whom may act
without the joinder of the others, as his attorney-in-fact to sign on his
behalf and in the capacity stated below and to file all amendments and post-
effective amendments to this Registration Statement, which amendment or
amendments may make such changes and additions in this Registration Statement
as such attorney-in-fact may deem necessary or appropriate.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED ON SEPTEMBER 6, 1996.
COLORADO INTERSTATE GAS COMPANY
(Registrant)
/s/ Jon R. Whitney
By __________________________________
Jon R. Whitney
President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Jon R. Whitney President, Chief Executive September 6, 1996
____________________________________ Officer and Director
Jon R. Whitney
/s/ David A. Arledge Principal Financial Officer September 6, 1996
____________________________________ and Director
David A. Arledge
/s/ Dan A. Homec Assistant Vice President and September 6, 1996
____________________________________ Principal Accounting Officer
Dan A. Homec
/s/ James F. Cordes Director September 6, 1996
____________________________________
James F. Cordes
/s/ Jeffrey A. Connelly Director September 6, 1996
____________________________________
Jeffrey A. Connelly
/s/ C. Scott Hobbs Director September 6, 1996
____________________________________
C. Scott Hobbs
</TABLE>
II-3
<PAGE>
EXHIBIT 1.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COLORADO INTERSTATE GAS COMPANY
and
---------------------
UNDERWRITING AGREEMENT
DATED
AND
TERMS AGREEMENT
DATED
---------------------
$
% DUE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
COLORADO INTERSTATE GAS COMPANY
UNDERWRITING AGREEMENT
----------------------
, 199
Lead Underwriters
and Address
Dear Sirs:
Colorado Interstate Gas Company, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time certain of its senior unsecured
debt securities referred to below (the "Securities") registered under the
registration statement referred to below. The Securities will be issued under
an Indenture, as amended from time to time (the "Indenture"), dated as of
, 199 , between the Company and , as Trustee, and will have
varying designations, interest rates and times of payment of any interest,
maturities, redemption provisions, currencies and other terms, with all such
terms for any particular series of the Securities being determined at the time
of the sale. Particular series of the Securities may be sold to you, and to
other firms on whose behalf you may act, for resale in accordance with the
terms of offering determined at the time of sale. The Securities involved in
any such offering are hereinafter referred to as the "Purchased Securities",
and the firm or firms which agree to purchase the same are hereinafter
referred to as the "Underwriters" of such Purchased Securities and the
representative or representatives of the Underwriters, if any, specified in a
"Terms Agreement" are hereinafter referred to as the "Representatives";
provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term "Representatives" as used in this
Agreement shall mean the Underwriters. The terms and conditions herein shall
constitute a separate agreement between the Company and the respective
Underwriters in regard to each offering of Purchased Securities.
This Agreement shall not limit or affect the right of the Company to offer
or sell any of the Securities through any other underwriters or agents or
through any other arrangements specified by the Company from time to time, and
this Agreement shall apply only to Securities in respect of which a Terms
Agreement shall have been executed as referred to herein.
This is to confirm the agreement concerning the purchase of the Securities
from the Company by the Underwriters.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to,
and agrees with each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333- ), prepared
by the Company in conformity with the requirements of the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Securities Act"), has been filed with the Securities
and Exchange Commission (the "Commission") and has become effective for the
registration under the Securities Act of the Securities. Copies of such
registration statement and any amendments thereto, and all forms of the
related prospectuses relating to the Securities contained therein, have
been delivered to each Underwriter. Such registration statement, including
the documents incorporated by reference therein and all financial schedules
and exhibits thereto, as amended at the date of any Terms Agreement, is
herein referred to as the "Registration Statement". As used in this
Agreement, the term "Prospectus" means such prospectus included in the
Registration Statement, supplemented by a Prospectus Supplement as
1
<PAGE>
contemplated by Section 2 hereof to reflect the terms of the Purchased
Securities and the plan of distribution thereof. Any reference herein to
the Registration Statement or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date of the
Prospectus, and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to any Prospectus shall be deemed to refer to and
include any documents filed with the Commission after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder (collectively, the "Exchange
Act"), and so incorporated by reference (all such incorporated documents
being herein called the "Incorporated Documents").
(b) As of the date of any Terms Agreement, when the Prospectus is first
filed pursuant to Rule 424(b) under the Securities Act and when, prior to
the Closing Date (as defined in Section 2 hereof), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement) and at
the Closing Date, the Registration Statement and the Prospectus, as amended
or supplemented, shall comply in all material respects with the
requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated by the Commission
thereunder (collectively, the "Trust Indenture Act"). No such document
shall contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing shall not
apply to statements in or omissions from any such document in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter specifically for use in the preparation thereof or to the part
of the Registration Statement which constitutes the Statement of
Eligibility of the Trustee under the Trust Indenture Act on Form T-1 (the
"Form T-1"), except statements or omissions in the Form T-1 made in
reliance on information furnished in writing to the Trustee by or on behalf
of the Company for use in preparation thereof. There is no contract or
document required to be described in the Registration Statement or the
Prospectus or required to be filed as an exhibit to the Registration
Statement that is not described or filed as required.
(c) Deloitte & Touche LLP, whose report is incorporated by reference in
the Prospectus, are independent certified public accountants as required by
the Securities Act. The financial statements and schedules (including the
related notes) included or incorporated by reference in the Registration
Statement and the Prospectus, present fairly, in all material respects, the
financial condition, the results of operations and cash flows of the
entities purported to be shown thereby at the dates and for the periods
indicated and have been prepared in accordance with generally accepted
accounting principles.
(d) The Incorporated Documents, when they became effective or were filed
with the Commission, as the case may be, complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as
applicable, and any documents so filed and incorporated by reference
subsequent to the date of the Prospectus shall, when they are filed with
the Commission, conform in all material respects to the requirements of the
Securities Act and the Exchange Act, as applicable.
(e) Each of the Company and its Subsidiaries has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority (corporate
and other) to own or lease its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business and is in
good standing in each jurisdiction in which the character of the business
conducted by it or the location of the properties owned or leased by it
makes such qualification necessary, except where the failure to so qualify
would not have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
(f) All of the outstanding capital stock or other equity securities of
each of the Subsidiaries of the Company have been duly and validly
authorized and issued, are fully paid and nonassessable, and are owned by
the Company free and clear of any mortgage, pledge (other than any negative
pledge agreement to which the Company or any of its Subsidiaries may be a
party), security interest or restrictions on transferability or voting.
2
<PAGE>
(g) Except as described in or contemplated by the Prospectus, there has
not been any material adverse change in, or any adverse development which
materially affects, the condition (financial or other), results of
operation, business, prospects, net worth or assets of the Company and its
Subsidiaries taken as a whole, from the date as of which information is
given in the Prospectus.
(h) Neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution or delivery hereof or consummation of
the transactions contemplated hereby result in a violation of, or
constitute a default under, the certificate of incorporation, by-laws or
other governing documents of the Company or any of its Subsidiaries, or any
agreement, indenture or other instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, or to which any
of their properties is subject where the effect of such violation or
default would have a material adverse effect on the Company and its
Subsidiaries taken as a whole. The execution and delivery of this
Agreement, the applicable Terms Agreement, the Indenture and any Delayed
Delivery Contract (as defined in Section 2(c) hereof), the authorization,
issuance and sale of the Purchased Securities, the fulfillment of this
Agreement, the applicable Terms Agreement, the Indenture, the Purchased
Securities and any Delayed Delivery Contract and the consummation of the
transactions contemplated by each such agreement will not conflict with or
constitute a breach of, or default (with the passage of time or otherwise)
under, or result in the imposition of a lien on any properties of the
Company or its Subsidiaries or an acceleration of indebtedness pursuant to,
the certificate of incorporation or by-laws, or other governing documents
of the Company or any of its Subsidiaries, or any bond, debenture, note or
any other evidence of indebtedness or any indenture, mortgage, deed or
trust or any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which it or any of them is bound
or to which any of the property or assets of the Company or any of its
Subsidiaries is subject, or any law, administrative regulation or order of
any court or governmental agency or authority applicable to the Company or
any of its Subsidiaries. Except for the orders of the Commission declaring
the Registration Statement effective under the Securities Act and
qualifying the Indenture under the Trust Indenture Act, and permits and
similar authorizations required under the securities or Blue Sky laws of
certain jurisdictions, no consent, approval, authorization or order of any
court, governmental agency or body or financial institution is required in
connection with the consummation of the transactions contemplated by this
Agreement or the applicable Terms Agreement.
(i) This Agreement and the applicable Terms Agreement have been duly
authorized, executed and delivered by the Company and each constitutes the
legal, valid and binding obligation of the Company.
(j) The Purchased Securities have been duly authorized and when executed,
authenticated and delivered in accordance with the terms of the Indenture
will be legal, valid and binding obligations of the Company enforceable in
accordance with their terms, except that (i) the enforceability thereof may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings therefor may be
brought and (iii) the waiver as to usury may be unenforceable. The
Purchased Securities will be entitled to the benefits of the Indenture, and
will conform in all material respects to the description thereof in the
Prospectus.
(k) The Indenture has been duly authorized and when executed and
delivered by the Company will be the legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except that (i) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought and (iii) the waiver as to
usury may be unenforceable. The Indenture conforms in all material respects
to its description in the Prospectus.
(l) The Delayed Delivery Contracts, if any, have been duly authorized and
when executed and delivered by the Company will be the legal, valid and
binding agreements of the Company enforceable in accordance
3
<PAGE>
with their terms, except that (i) the enforceability thereof may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and (ii)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceedings therefor may be brought.
(m) Subsequent to the respective dates as of which information is given
in the Registration Statement and Prospectus and prior to the Closing Date,
neither the Company nor any of its Subsidiaries has incurred or will have
incurred any liabilities or obligations for borrowed money, direct or
contingent, or entered into any transactions, not in the ordinary course of
business and material to the business of the Company and its Subsidiaries
taken as a whole, and there has not been and will not have been any
material change in the capital stock or long-term indebtedness of the
Company or any of its Subsidiaries, or any material adverse change in the
business, prospects, financial position, net worth or assets or results of
operations of the Company and its Subsidiaries taken as a whole.
(n) The Company and its Subsidiaries have such interests in their
respective real (including leasehold interests) and personal properties
that they reasonably believe are necessary, in the aggregate, to use such
properties in the manner presently used or proposed to be used by the
Company and its Subsidiaries.
(o) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company or any of its Subsidiaries is
a party or to which any property of the Company or any of its Subsidiaries
is subject or which is pending or, to the knowledge of the Company,
contemplated against the Company or any of its Subsidiaries which might
result in any material adverse change in the condition (financial or
other), results of operations, business, prospects, net worth or assets of
the Company and its Subsidiaries taken as a whole.
(p) Neither the Company nor any Subsidiary is in violation of any law,
ordinance, governmental rule or regulation or court decree to which it may
be subject which violation might have a material adverse effect on the
condition (financial or other), results of operations, business, prospects,
net worth or assets of the Company and its Subsidiaries taken as a whole.
(q) The conditions for use of Form S-3, set forth in the General
Instructions thereto, have been satisfied.
2. PURCHASE AND OFFERING.
(a) The obligations of the Underwriters to purchase the Purchased
Securities will be evidenced by an exchange of telegraphic or other written
communications substantially in the form attached as Exhibit A hereto (a
"Terms Agreement") at each time the Company determines to sell Purchased
Securities, with such other provisions which the Representatives and the
Company shall agree upon. Each Terms Agreement shall specify the firms
which will be Underwriters (who shall become bound by the terms hereof when
the Terms Agreement has been entered into), the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the
Underwriters and the terms of the Purchased Securities not already
specified in the Indenture, including, but not limited to, interest rates,
maturities, redemption provisions and sinking fund requirements. Each Terms
Agreement shall also specify the date of delivery and payment for the
Purchased Securities other than any Contract Securities (as defined below)
and any details of the terms of offering which should be reflected in the
Prospectus Supplement relating to the offering of the Purchased Securities.
Such Prospectus Supplement shall set forth the terms contained in the Terms
Agreement and such other information that you and the Company agree at the
time the Terms Agreement is entered into should be included in the
Prospectus Supplement. Insofar as any provision of this Agreement is
inconsistent with any provision of the applicable Terms Agreement, the
Terms Agreement shall be deemed to control. Purchased Securities to be
purchased by Underwriters are herein referred to as "Underwriters'
Securities", and any Purchased Securities to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein referred to
as "Contract Securities". The obligations of the Underwriters to purchase
the Underwriters' Securities shall be several and not joint. It is
understood that the Underwriters propose to offer the Purchased Securities
for sale as set forth in such Prospectus Supplement.
4
<PAGE>
(b) Payment of the purchase price for the Underwriters' Securities shall
be made to the Company or its order in New York Clearing House funds, by
certified or official bank check, against delivery of the Underwriters'
Securities to you for the respective accounts of the Underwriters;
provided, however, that at the request of the Company, payment will be made
in immediately available funds, in which case the Company will reimburse
you for your cost of obtaining such funds. Such payment and delivery shall
be made at 10:00 A.M. New York time on the date of delivery specified in
the Terms Agreement (unless another time not later than 10:00 A.M. New York
time on the fifth Business Day thereafter shall be agreed to by you and the
Company or unless postponed in accordance with the provisions of Section 7
hereof). The time and date that such payment and delivery are actually made
is herein sometimes referred to as the "Closing Date". The Underwriters'
Securities shall be delivered to you in definitive form, in temporary or
final form, and in such names and denominations as you shall request at
least one Business Day prior to the Closing Date by written notice to the
Company. For the purpose of expediting the checking and packaging of the
Underwriters' Securities by you, the Company agrees to make them available
to you for such purpose before the close of business on the Business Day
prior to the Closing Date.
(c) If any Terms Agreement provides for sales of Purchased Securities
pursuant to Delayed Delivery Contracts, the Company authorizes the
Underwriters to solicit offers to purchase Contract Securities pursuant to
Delayed Delivery Contracts substantially in the form of Schedule I attached
hereto (the "Delayed Delivery Contracts") with such changes therein as the
Company may approve. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and
charitable institutions. At the time of purchase the Company will pay you
as compensation, for the accounts of the Underwriters, the compensation set
forth in such Terms Agreement in respect of the principal amount of
Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities shall be deducted from the Purchased Securities to be
purchased by the several Underwriters and the aggregate principal amount of
Purchased Securities to be purchased by each Underwriter shall be reduced
pro rata in proportion to the principal amount of Purchased Securities set
forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that you determine that such reduction shall be otherwise
allocated and so advise the Company.
3. COVENANTS. The Company covenants and agrees with each Underwriter that
they will furnish to counsel for the Underwriters, without charge, one signed
copy of the Registration Statement, including all exhibits, in the form it
became effective and of all amendments thereto and that, in connection with
each offering of Securities:
(a) The Company shall notify you promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement
or the Prospectus, or for additional information; the Company shall prepare
and file with the Commission, promptly upon your request, any amendments of
or supplements to the Registration Statement or the Prospectus which, in
your opinion after consultation with the Company, may be necessary or
advisable in connection with the distribution of the Securities and the
Company shall not file any amendment or supplement to the Registration
Statement or the Prospectus or file any document under the Exchange Act
before the termination of the offering of the Securities if such document
would be deemed to be incorporated by reference therein which is not
approved by you after reasonable notice thereof, such approval not to be
unreasonably withheld or delayed. The Company shall notify you promptly of
the filing with the Commission of the Prospectus supplemented by the
Prospectus Supplement relating to the Purchased Securities. The Company
shall advise you promptly of the issuance by the Commission or any State or
other regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, suspending or preventing the
use of the Prospectus, or suspending the qualification of the Securities
for offering or sale in any jurisdiction, or of the institution of any
proceedings for any such purpose; and the Company shall use its best
efforts to prevent the issuance of any stop order or other such order and,
should a stop order or other such order be issued, to obtain as soon as
possible the lifting thereof.
5
<PAGE>
(b) The Company shall furnish to you, from time to time and without
charge, copies of the Registration Statement of which each Representative
shall receive a conformed copy and which shall include exhibits and all
amendments and supplements to any of such documents (including any
Incorporated Documents), in each case as soon as available and in such
quantities as you may from time to time reasonably request.
(c) If any event occurs as a result of which the Prospectus as then
amended or supplemented would include an 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, or if it is necessary to amend the Registration Statement or
supplement the Prospectus to comply with the Securities Act, the Company
shall promptly notify you and shall amend the Registration Statement or
supplement the Prospectus or file such document (at the expense of the
Company) so as to correct such statement or omission or effect such
compliance.
(d) The Company shall take or cause to be taken all necessary action and
furnish to whomever you may direct such information as may be required in
qualifying the Purchased Securities for sale under the laws of such
jurisdictions as the Representative shall designate and to continue such
qualifications in effect for as long as may be necessary for the
distribution of the Purchased Securities; except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation, or to execute a general consent for service of process.
(e) The Company shall make generally available to holders of the
Purchased Securities, in the manner contemplated by Rule 158(b) under the
Securities Act or otherwise, as soon as practicable after the date of the
applicable Terms Agreement, but in any event not later than 45 days after
the end of its fiscal quarter in which the first anniversary date of the
date of the Terms Agreement occurs (or 90 days if such fiscal quarter is
the last fiscal quarter of its fiscal year), an earnings statement
satisfying the requirements of Section 11(a) of the Securities Act and
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement.
(f) The Company shall apply the net proceeds of the sale of Purchased
Securities as set forth in the Prospectus.
(g) Whether or not this Agreement becomes effective or is terminated or
the sale of the Purchased Securities to you is consummated, the Company
shall pay or cause to be paid (A) all expenses (including transfer taxes)
incurred in connection with the delivery to the Underwriters of the
Purchased Securities, (B) all fees and expenses (including, without
limitation, fees and expenses of the Company's accountants and counsel, but
excluding fees and expenses of counsel to the Underwriters except as set
forth in (C)) in connection with the preparation, printing, filing,
delivery and shipping of the Registration Statement (including the
financial statements therein and all amendments and exhibits thereto) and
the Prospectus as amended or supplemented, and the printing, delivery and
shipping of this Agreement, any Terms Agreement, any agreement among or
between Underwriters and other underwriting documents, including the Blue
Sky Survey and any legal investment survey, (C) all filing fees and fees
and disbursements of counsel to the Underwriters incurred in connection
with the qualification of the Purchased Securities under state securities
laws as provided in Section 3(d) hereof, (D) the filing fee of the National
Association of Securities Dealers, Inc., if any, (E) any applicable listing
fees, (F) the cost of printing the Indenture and certificates representing
the Purchased Securities, (G) the cost and charges of the Trustee, (H) any
fees payable to rating agencies in connection with the rating of the
Purchased Securities and (I) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise provided
for in this Section. It is understood however, that, except as provided in
this Section 3(g), Section 5 and Section 6 hereof, each of the Underwriters
shall pay all of its own costs and expenses including the fees of its
counsel (except as set forth in (C) above) and any advertising expenses
connected with any offers it may make. If the sale of the Purchased
Securities provided for herein is not consummated by reason or acts of the
Company pursuant to Section 6 hereof which prevent this Agreement or any
Terms Agreement from becoming effective, or by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on
its part to be performed or because any other condition of the
Underwriters' obligations hereunder is not fulfilled, the Company shall
reimburse each of the Underwriters for all reasonable out-of-
6
<PAGE>
pocket disbursements (including fees and disbursements of counsel) incurred
by the Underwriters in connection with your investigation of or any
preparation by them in respect of marketing the Purchased Securities or in
contemplation of performing their respective obligations hereunder.
(h) Prior to the Closing Date, the Company, at your request, shall
furnish to you as soon as they have been prepared by the Company a copy of
any unaudited interim consolidated financial statements of the Company and
its Subsidiaries for any period subsequent to the period covered by the
financial statements appearing in the Registration Statement and the
Prospectus.
4. CONDITIONS OF YOUR OBLIGATIONS. Your obligations are subject to the
accuracy, as of the date hereof and the Closing Date (as if made at such
Closing Date), of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Company shall have filed with the Commission on a timely basis
pursuant to Rule 424(b) under the Securities Act, the Prospectus as
supplemented by the Prospectus Supplement covering the Purchased
Securities. No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
be pending, threatened or contemplated by the Commission or any state
securities or Blue Sky authority.
(b) You shall not have advised the Company that the Registration
Statement, any Prospectus, or any amendment or supplement thereto, contains
an untrue statement of fact which, in your opinion, is material or omits to
state a fact which, in your opinion, is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(c) You shall have received an opinion of Austin M. O'Toole, Esq., Senior
Vice President and Secretary of the Company, dated the Closing Date and
satisfactory to Cahill Gordon & Reindel, your counsel, to the effect that:
(i) each of the Company and its Subsidiaries has been duly
incorporated and is a validly existing corporation in good standing
under the laws of its respective jurisdiction of incorporation with
full corporate power and authority to own and occupy its properties and
carry on its business as presently conducted and as described in the
Prospectus, and the Company and each of its Subsidiaries is registered
or qualified to conduct business and is in good standing in each
jurisdiction in which, to the best of such counsel's knowledge, their
failure to so register or qualify would have a material adverse effect
on the Company and its Subsidiaries taken as a whole; all of the
outstanding capital stock or other equity securities of each of the
Subsidiaries of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable, and are owned by the Company
free and clear of any mortgage, pledge (other than any negative pledge
agreement to which the Company or any of its Subsidiaries may be a
party), security interest or restrictions on transferability or voting,
other than the capital stock of the first tier subsidiaries of the
Company which has been pledged to secure certain borrowings;
(ii) this Agreement, the Terms Agreement and the Indenture have been
duly authorized, executed and delivered by the Company, and this
Agreement, the Terms Agreement and the Indenture are legal, valid and
binding agreements of the Company enforceable in accordance with their
respective terms, except that (a) the enforceability hereof and thereof
may be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally, (b) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceedings therefor may be brought, (c) rights to indemnity and
contribution hereunder may be limited by Federal and state securities
laws or the policies underlying such laws and (d) the waiver as to
usury in the Indenture may be unenforceable;
7
<PAGE>
(iii) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming that
they have been duly authorized, executed and delivered by the
purchasers thereunder) are valid and binding agreements of the Company;
(iv) to the best knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened to which the Company or
any of its Subsidiaries is a party, or of which the business or
properties of the Company or any of its Subsidiaries is the subject,
which are required to be disclosed in the Registration Statement and
the Prospectus and are not so disclosed and there is no contract or
document concerning the Company or any of its Subsidiaries of a
character required to be described in the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or
filed as required;
(v) the execution and delivery of this Agreement, the Terms Agreement
and any Delayed Delivery Contract, the authorization, issuance and sale
of the Purchased Securities, the fulfillment of the terms of the
Indenture, this Agreement, the Terms Agreement and any Delayed Delivery
Contract, and the consummation of the transactions contemplated by the
Indenture, this Agreement, the Terms Agreement and any Delayed Delivery
Contract, will not conflict with or constitute a breach of, or default
(with the passage of time or otherwise) under, or result in the
imposition of a lien on any properties of the Company or its
Subsidiaries or an acceleration of indebtedness pursuant to, the
certificate of incorporation and by-laws, or other equivalent
instruments of the Company or any of its Subsidiaries or, to the best
of such counsel's knowledge, any bond, debenture, note or any other
evidence of indebtedness or any indenture, mortgage, deed of trust, or
any other material agreement or instrument to which the Company or any
of its Subsidiaries is subject where such breach or default would have
a material adverse effect on the Company and its Subsidiaries taken as
a whole, or any law, administrative regulation or court or governmental
agency or authority ruling or decree known to such counsel to be
applicable to the Company or any of its Subsidiaries or any of their
properties or assets; and all legally required proceedings in
connection with the authorization, issuance and sale of the Securities
in accordance with the terms of this Agreement, the Terms Agreement and
the Indenture have been taken and, except for permits and similar
authorizations required under the securities or Blue Sky laws of
certain jurisdictions (as to which such counsel need express no
opinion), all consents, approvals, authorizations or other orders of
any regulatory body, administrative agency or other governmental body
legally required for the valid issuance and sale of the Purchased
Securities or any transactions contemplated hereunder have been
obtained;
(vi) the Underwriters' Securities have been duly authorized and when
executed and authenticated in accordance with the terms of the
Indenture and delivered to, and paid for by, you will be legal, valid
and binding obligations of the Company; the Contract Securities have
been duly authorized and when executed and authenticated in accordance
with the terms of the Indenture and when issued and delivered against
payment as provided in the Delayed Delivery Contracts, will have been
duly issued and will constitute legal, valid and binding obligations of
the Company, enforceable in accordance with their terms and the
Underwriters' Securities are, and the Contract Securities will be,
entitled to the benefits provided by the Indenture, except that (a) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, (b) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding therefor
may be brought and (c) the waiver as to usury in the Indenture may be
unenforceable;
(vii) the Registration Statement has become effective under the
Securities Act, and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are pending or contemplated;
(viii) the Indenture has been qualified under the Trust Indenture
Act;
(ix) the Purchased Securities, the Delayed Delivery Contracts (if
any) and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus; and
8
<PAGE>
(x) except as to financial statements and schedules and other
financial or statistical data included therein, and the exhibits
thereto including the Form T-1, as to which such counsel need not
express any opinion, (a) the Registration Statement and the Prospectus
and any supplements or amendments thereto comply as to form in all
material respects with the Securities Act, (b) the Indenture complies
as to form in all material respects with the Trust Indenture Act, and
(c) the Incorporated Documents comply as to form in all material
respects with the requirements of the Exchange Act and, to the best
knowledge of such counsel, no such Incorporated Document contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
In addition, such counsel shall state that such counsel has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company and
you at which the contents of the Registration Statement and Prospectus and
related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement and
Prospectus (except to the extent stated in paragraph (ix) above), on the
basis of the foregoing (relying as to materiality to a large extent upon
the opinions of officers and other representatives of the Company), no
facts have come to the attention of such counsel that lead him to believe
that either the Registration Statement or any amendment thereto at the time
such Registration Statement or amendment became effective contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus as of its date or any supplement
thereto as of its date, and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need not comment as to the financial statements, schedules and
other statistical and financial data included in the Registration Statement
or Prospectus or the exhibits (including the Form T-1) to the Registration
Statement).
(d) You shall have received on the Closing Date from Cahill Gordon &
Reindel, your counsel, an opinion to the effect set forth in clauses (ii),
(iii), (vi), (vii), (viii), (ix), (x)(a) (except with respect to the
Incorporated Documents) and (x)(b) of Section 4(c) hereof. In addition,
such counsel shall state that such counsel has participated in conferences
with officers and other representatives of the Company, counsel for the
Company, representatives of the independent public accountants for the
Company and your representatives at which the contents of the Registration
Statement and Prospectus and related matters were discussed and, although
such counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except to the extent provided in
paragraph (ix) of Section 4(c) hereof), on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers
and other representatives of the Company), no facts have come to the
attention of such counsel that lead them to believe that either the
Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date or any supplement thereto
as of its date contained an untrue statement of a material fact or omitted
to state a material fact necessary in order the make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no comment
with respect to the financial statements, schedules and other financial or
statistical data included or incorporated by reference in the Registration
Statement or Prospectus or the exhibits (including the Form T-1) to the
Registration Statement).
(e) There shall have been furnished to you a certificate, dated the
Closing Date and addressed to you, signed by the President, or any Vice
President and the Chief Financial Officer, any financial Vice President or
the Treasurer of the Company to the effect that: (i) the representations
and warranties of the Company contained in this Agreement are true and
correct, as if made at and as of the Closing Date, and the Company
9
<PAGE>
has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date; (ii)
no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have been initiated or
threatened; (iii) all filings required by Rule 424 of the Securities Act
have been made; (iv) the signers of said certificate have carefully
examined the Registration Statement and the Prospectus, and any amendments
or supplements thereto (including any documents filed under the Exchange
Act and deemed to be incorporated by reference therein), and such documents
contain all statements and information required to be included therein, and
do not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; and (v) since the execution of the Terms
Agreement, there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or the Prospectus
which has not been so set forth; and there has been no document required to
be filed under the Exchange Act that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not been so filed.
(f) Since the execution of the Terms Agreement, neither the Company nor
any of its Subsidiaries shall have sustained any loss by fire, flood,
accident or other calamity, or shall have become a party to or be subject
to any litigation, which is material to the Company and its Subsidiaries
taken as a whole, nor shall there have been a material adverse change in
the general affairs, business, key personnel, capitalization, financial
position or net worth of the Company and its Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, which loss,
litigation or change, in your judgment, shall render it inadvisable to
proceed with the delivery of the Purchased Securities.
(g) On the date of execution of the Terms Agreement and the Closing Date
you shall have received a letter of Deloitte & Touche LLP, dated the date
of execution of the Terms Agreement and the Closing Date, as the case may
be, and addressed to you, confirming that they are independent certified
public accountants, within the meaning of the Securities Act, and stating,
as of the date of such letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given or incorporated in the Prospectus, and a
date not more than five days prior to the date of such letter), the
conclusions and findings of such firm with respect to the financial
information and other matters requested to be covered by its letter
delivered to you concurrently with the execution of the Terms Agreement
and, with respect to the letter delivered on the Closing Date, confirming
the conclusions and findings set forth in such prior letter.
(h) That the Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
(i) You shall have been furnished with such additional documents and
certificates as you may reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and to counsel for the
Underwriters. The Company shall furnish to you such conformed copies of
such opinions, certificates, letters and other documents as you shall
reasonably request. If any of the conditions specified in this Section 4
shall not have been fulfilled when and as required by this Agreement, this
Agreement and the applicable Terms Agreement and all obligations of the
Underwriters hereunder and thereunder may be cancelled at, or at any time
prior to, the Closing Date, by you. Any such cancellation shall be without
liability of the Underwriters to the Company. Notice of such cancellation
shall be given to the Company in writing, or by telegraph or telephone and
confirmed in writing.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify and
hold harmless each of the Underwriters against any loss, claim, damage or
liability to which the Underwriters may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage or liability (or action
in respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement made by the Company in Section 1 hereof, or (ii) any
untrue statement or alleged untrue statement of a material fact contained (A)
in the Registration
10
<PAGE>
Statement or the Prospectus or any amendment or supplement thereto, or (B) in
any Blue Sky application or other document executed by the Company
specifically for the purpose or based upon any written information furnished
by the Company filed in any state or other jurisdiction in order to qualify
any or all of the Purchased Securities under the securities laws thereof (any
such application, document or information being hereinafter called "Blue Sky
Information"), or (iii) the omission or alleged omission to state in the
Registration Statement or the Prospectus or any amendment or supplement
thereto or in any Blue Sky Information a material fact required to be stated
therein or necessary to make the statements therein not misleading; and shall
reimburse each of the Underwriters for any legal or other reasonable expenses
as incurred by the Underwriters in connection with investigating or defending
against or appearing as a third-party witness in connection with any such
loss, claim, damage, liability or action, notwithstanding the possibility that
payments for such expenses might later be held to be improper, in which case
the person receiving them shall promptly refund them; provided, however, that
the Company shall not be liable to an Underwriter in any such case to the
extent, but only to the extent, that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter specifically
for use in the preparation of the Registration Statement, Prospectus or any
amendment or supplement thereto, or any Blue Sky Information.
(b) Each of the Underwriters, severally but not jointly, shall indemnify and
hold harmless the Company against any loss, claim, damage or liability to
which the Company may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage or liability (or action in respect
thereof) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in the Registration
Statement or the Prospectus or any amendment or supplement thereto, or (B) in
any Blue Sky Information, or (ii) the omission or alleged omission to state in
the Registration Statement or the Prospectus or any amendment or supplement
thereto or in any Blue Sky Information a material fact required to be stated
therein or necessary to make the statements therein not misleading; and shall
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending against any such loss, claim,
damage, liability or action, notwithstanding the possibility that payments for
such expenses might later be held to be improper, in which case the Company
shall promptly refund them; provided, however, that such indemnification and
expense reimbursement shall be available from an Underwriter to the extent,
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under
such subsection. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under such
subsection for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; except that you shall have the right to employ counsel
to represent you in connection with any claim in respect of which indemnity
may be sought by the Underwriters against the Company under such subsection
if, in your reasonable judgment, it is advisable for you to be represented by
separate counsel, and in that event the reasonable fees and expenses of such
separate counsel shall be paid by the Company.
(d) If the indemnification provided for in this Section 5 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount
11
<PAGE>
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Purchased Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Purchased Securities (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the
Underwriters as set forth in the Prospectus Supplement covering the Purchased
Securities. Relative fault 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 the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were to be determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to in the first sentence of this subsection (d). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Purchased Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each party entitled to
contribution agrees that upon the service of a summons or other initial legal
process upon it in any action instituted against it in respect of which
contribution may be sought, it shall promptly give written notice of such
service to the party or parties from whom contribution may be sought, but the
omission so to notify such party or parties of any such service shall not
relieve the party from whom contribution may be sought from any obligation it
may have hereunder or otherwise.
(e) The obligations of the Company under this Section 5 shall be in addition
to any liability which the Company may otherwise have, and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Securities Act and the Exchange Act; and
the obligations of the Underwriters under this Section 5 shall be in addition
to any liability that the respective Underwriters may otherwise have, and
shall extend, upon the same terms and conditions, to each director of the
Company (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company), to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
6. EFFECTIVE DATE AND TERMINATION OF TERMS AGREEMENT. This Agreement shall
become effective (a) at 11:00 A.M., New York City time, on the first full
Business Day following the date of the Terms Agreement or (b) at such earlier
time after the date of the Terms Agreement as you shall first release the
Purchased Securities for sale to the public. You shall notify the Company
immediately after you have taken any action which causes this Agreement to
become effective. Until this Agreement is effective, it may be terminated by
the Company by giving notice as hereinafter provided to you or by you by
giving notice as hereinafter provided to the Company, except that the
provisions of Section 3(g) and Section 5 shall at all times be effective.
Your obligations under any Terms Agreement may be terminated by you by
giving notice as hereinafter provided to the Company, if (i) the Company shall
have failed, refused or been unable, at or prior to the Closing
12
<PAGE>
Date to perform any agreement on its part to be performed hereunder, (ii) any
other condition of the obligations of the Underwriters hereunder is not
fulfilled, (iii) trading in securities generally on the New York Stock
Exchange ("NYSE") or the American Stock Exchange or the over-the-counter
market shall have been suspended or minimum prices shall have been established
on either of such exchanges or such market by the Commission or by such
exchange or other regulatory body or governmental authority having
jurisdiction, (iv) a general banking moratorium shall have been declared by
Federal or state authorities, (v) the United States engages in hostilities or
there is an escalation of hostilities involving the United States or there is
a declaration of war or national emergency by the United States after the date
hereof which, in your judgment, makes it inadvisable or impracticable to
proceed with the delivery of the Purchased Securities, or (vi) there shall
have been such a material change in general economic, political or financial
conditions or if the effect of international conditions on the financial
markets in the United States shall be such as, in your judgment, makes it
inadvisable or impracticable to proceed with the delivery of the Purchased
Securities. Any termination of this Agreement pursuant to this Section 6 shall
be without liability on the part of the Company or the Underwriters except as
otherwise provided in Sections 3(g) and 5 hereof.
Any notice referred to above may be given at the address specified in
Section 9 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, shall be immediately confirmed in writing.
7. INCREASE IN UNDERWRITERS' COMMITMENTS. If any Underwriter shall default
in its obligation to take up and pay for the Purchased Securities to be
purchased by it under any Terms Agreement and if the principal amount of
Purchased Securities which all Underwriters so defaulting shall have so failed
to take up and pay for does not exceed 10% of the total principal amount of
Purchased Securities agreed to be purchased pursuant to such Terms Agreement,
the non-defaulting Underwriters shall take up and pay for (in addition to the
principal amount of Purchased Securities they are obligated to purchase
pursuant to such Terms Agreement) the principal amount of Purchased Securities
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Purchased Securities shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you
may designate with the consent of each Underwriter so designated or, in the
event no such designation is made, such Purchased Securities shall be taken up
and paid for by all non-defaulting Underwriters pro rata in proportion to the
principal amount of Purchased Securities they have agreed to purchase under
such Terms Agreement.
Without relieving any defaulting Underwriter from its obligations hereunder,
the Company agrees with the non-defaulting Underwriters that it will not sell
any Purchased Securities under any Terms Agreement unless all of the
Underwriters' Securities under any such Terms Agreement are purchased by the
Underwriters (or by substituted underwriters selected by you with the approval
of the Company or selected by the Company with your approval).
If a new underwriter or underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you shall have the right to postpone
the Closing Date for a period not exceeding five full business days in order
that necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include
any underwriter substituted under this Section 7.
8. SURVIVAL OF INDEMNITIES, CONTRIBUTIONS, WARRANTIES AND REPRESENTATIONS.
The indemnity and contribution agreements contained in Section 5 and the
representations, warranties and agreements of the Company in Sections 1 and 3
shall survive the delivery of the Purchased Securities to the Underwriters
hereunder and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or
on behalf of any indemnified party.
9. NOTICES. Except as otherwise provided in this Agreement, (a) whenever
notice is required by the provisions of this Agreement to be given to the
Company, such notice shall be in writing addressed to the
13
<PAGE>
Company at Colorado Interstate Gas Company, Two North Nevada Avenue, Colorado
Springs, Colorado 80903-1727, Attention: Principal Accounting Officer, with a
copy to Austin M. O'Toole, Esq. at The Coastal Corporation, Coastal Tower,
Nine Greenway Plaza, Houston, Texas 77046-0995; and (b) whenever notice is
required by the provisions of this Agreement to be given to the Underwriters,
such notice shall be in writing and addressed to the Underwriters at their
respective addresses furnished to the Company in writing for the purpose of
communications hereunder.
10. INFORMATION FURNISHED BY UNDERWRITERS. The statements with respect to
the public offering of the Purchased Securities on the cover page of the
Prospectus Supplement covering the Purchased Securities and under the caption
"Plan of Distribution", if any in such Prospectus Supplement constitute the
only information furnished to the Company in writing on behalf of or by you
expressly for use in the Registration Statement, the Prospectus, or any
amendment or supplement thereto referred to in this Agreement.
11. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company, any officer, director or controlling
person referred to in Section 5 hereof, and their respective successors and
assigns, and no other person shall acquire or have any right by virtue of this
Agreement. The term "successors and assigns", as used in this Agreement, shall
not include any purchaser of any of the Purchased Securities from the
Underwriters merely by reason of such purchase.
12. DEFINITION OF "BUSINESS DAY" AND "SUBSIDIARY". For purposes of this
Agreement, (a) "Business Day" means any day on which the NYSE is open for
trading, and (b) "Subsidiary" has the meaning set forth in Rule 405 of the
Securities Act.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE CHOICE OF LAW OR CONFLICT OF LAWS PRINCIPLES THEREOF.
14. COUNTERPART. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
Please confirm, by signing and returning to us four counterparts of this
Agreement, that the foregoing correctly sets forth the Agreement between you
and the Company.
Very truly yours,
COLORADO INTERSTATE GAS COMPANY
By: _________________________________
Confirmed and accepted as of
the date first above mentioned:
[Lead Underwriters]
By:
By: _________________________________
14
<PAGE>
SCHEDULE A
TO
TERMS AGREEMENT
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF PURCHASED
NAME SECURITIES
---- ----------------
<S> <C>
$
------------
Total................................................ $
============
</TABLE>
<PAGE>
EXHIBIT A
TERMS AGREEMENT
[TITLE OF SECURITIES]
[Date]
Colorado Interstate Gas Company
Two North Nevada Avenue
Colorado Springs, Colorado 80903-1727
Dear Sirs:
Colorado Interstate Gas Company (the "Company") and [Lead Underwriters] [as
representatives of the underwriters set forth on Schedule A hereto] the
"Underwriters") have entered into an Underwriting Agreement (the "Underwriting
Agreement"), dated , relating to the issuance from time to time by the
Company of its senior unsecured debt securities under an indenture (the
"Indenture"), dated as of , 199 , as amended from time to time, between
the Company and [ ], as Trustee. This Terms Agreement, relating to the
Purchased Securities referred to below, is being entered into pursuant to the
Underwriting Agreement. Capitalized terms used herein, not otherwise defined,
have the meanings given them in the Underwriting Agreement, except for terms
which are not used in the Underwriting Agreement, which terms shall have the
meanings given them in the Indenture.
The Underwriters understand that the Company proposes to issue and sell
$ aggregate principal amount of [Title of Securities] (the
"Purchased Securities"). Subject to the terms, conditions, representations and
warranties set forth or incorporated by reference herein, the Company agrees
to sell to the Underwriters and the Underwriters agree, severally but not
jointly, to purchase from the Company the Purchased Securities in the
respective principal amounts set forth next to their names in Schedule A
hereto, at % of the principal amount thereof. The Prospectus Supplement
with respect to the Purchased Securities is dated and includes the
Prospectus dated .
The Underwriters will pay for such Purchased Securities upon delivery
thereof in New York City at 10:00 A.M. (New York time) on (the
"Closing Date") in New York Clearing House funds, or at such other time on the
Closing Date as shall be agreed upon by the Company and the Underwriters.
The Purchased Securities shall have the following terms, in addition to
those set forth in the Indenture:
<TABLE>
<S> <C>
(a) Interest: % per annum
(b) Maturity:
(c) Initial Public % of the principal amount of the Purchased
Offering Price: Securities.
(d) Interest Payment and of each year, commencing
Dates: .
(e) Redemption:
</TABLE>
All provisions contained in the Underwriting Agreement are incorporated by
reference herein in their entirety and shall be deemed to be part of this
Agreement to the same extent as if such provisions had been set forth in full
herein.
1
<PAGE>
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW OR
CONFLICT OF LAWS PRINCIPLES THEREOF.
This instrument may be signed by the parties in counterparts which together
shall constitute one and the same agreement between the parties and shall
become effective at such time as each of the parties shall have signed such
counterparts and shall have notified the other party thereof.
Please confirm your agreement herewith by having an authorized officer sign
a copy of this Agreement in the space provided below.
Very truly yours,
[LEAD UNDERWRITERS]
By:
By: _________________________________
Name:
Title:
Accepted and Agreed to
as of the date first
above written
Colorado Interstate Gas Company
By: _________________________________
Name:
Title:
2
<PAGE>
EXHIBIT 4.1
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
COLORADO INTERSTATE GAS COMPANY
[LOGO OF AND
COASTAL APPEARS
HERE] , TRUSTEE
------------------
INDENTURE
DATED AS OF , 199
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SENIOR DEBT SECURITIES
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CROSS-REFERENCE TABLE
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INDENTURE
TIA SECTION SECTION
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Section 310 (a)(1).......................................... 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.08
(b)............................................. 7.08; 7.10; 10.02
(c)............................................. N.A.
Section 311 (a)............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
Section 312 (a)............................................. 2.06
(b)............................................. 10.03
(c)............................................. 10.03
Section 313 (a)............................................. 7.06
(b)(1).......................................... N.A.
(b)(2).......................................... 7.06
(c)............................................. 7.06; 10.02
(d)............................................. 7.06
Section 314 (a)............................................. 4.06; 10.02
(b)............................................. N.A.
(c)(1).......................................... 10.04
(c)(2).......................................... 10.04
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 10.05
(f)............................................. N.A.
Section 315 (a)............................................. 7.01(b)
(b)............................................. 7.05; 10.02
(c)............................................. 7.01(a)
(d)............................................. 7.01(c)
(e)............................................. 6.11
Section 316 (a)(last sentence).............................. 2.10
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07
(c)............................................. 9.04
Section 317 (a)(1).......................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.05
Section 318 (a)............................................. 10.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Indenture.
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i
TABLE OF CONTENTS
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Recitals of the Company................................................... 1
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.............................................. 1
Section 1.02. Incorporation by Reference of Trust Indenture Act........ 8
Section 1.03. Rules of Construction.................................... 8
ARTICLE 2
The Securities
Section 2.01. Form of Securities....................................... 9
Section 2.02. Title and Terms.......................................... 10
Section 2.03. Execution and Authentication............................. 12
Section 2.04. Registrar and Paying Agent............................... 15
Section 2.05. Paying Agent to Hold Money in Trust...................... 15
Section 2.06. Securityholder Lists..................................... 15
Section 2.07. Transfer and Exchange.................................... 16
Section 2.08. Replacement Securities................................... 18
Section 2.09. Outstanding Securities................................... 18
Section 2.10. Treasury Securities...................................... 19
Section 2.11. Temporary Securities..................................... 19
Section 2.12. Cancellation............................................. 20
Section 2.13. Defaulted Interest....................................... 20
Section 2.14. Persons Deemed Owners.................................... 20
ARTICLE 3A
Redemption
Section 3A.01. Right of Redemption...................................... 21
Section 3A.02. Applicability of Article................................. 21
Section 3A.03. Election to Redeem; Notice to Trustee.................... 21
Section 3A.04. Selection by Trustee of Securities to be Redeemed........ 21
Section 3A.05. Notice of Redemption..................................... 22
Section 3A.06. Deposit of Redemption Price.............................. 23
Section 3A.07. Securities Payable on Redemption Date.................... 23
Section 3A.08. Securities Redeemed in Part.............................. 23
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ii
ARTICLE 3B
Sinking Fund
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Section 3B.01. Sinking Fund Payments.................................... 24
Section 3B.02. Satisfaction of Sinking Fund Payments with Securities.... 24
Section 3B.03. Redemption of Securities for Sinking Fund................ 25
ARTICLE 4
Covenants
Section 4.01. Payment of Securities.................................... 25
Section 4.02. Maintenance of Office or Agency.......................... 26
Section 4.03. Corporate Existence...................................... 26
Section 4.04. Liquidation.............................................. 27
Section 4.05. Compliance Certificate................................... 28
Section 4.06. SEC Reports.............................................. 28
Section 4.07. Waiver of Stay, Extension or Usury Laws.................. 28
Section 4.08. Restrictions on Liens.................................... 29
Section 4.09. Restrictions on Sales and Leasebacks..................... 30
ARTICLE 5
Successor Corporation
Section 5.01. When Company May Merge, etc. ............................ 31
Section 5.02. Successor Corporation Substituted........................ 31
ARTICLE 6
Default and Remedies
Section 6.01. Events of Default........................................ 32
Section 6.02. Acceleration............................................. 33
Section 6.03. Other Remedies........................................... 34
Section 6.04. Waiver of Past Defaults.................................. 34
Section 6.05. Control by Majority...................................... 35
Section 6.06. Limitation on Suits...................................... 35
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iii
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Section 6.07. Rights of Holders to Receive Payment..................... 35
Section 6.08. Collection Suit by Trustee............................... 36
Section 6.09. Trustee May File Proofs of Claim......................... 36
Section 6.10. Priorities............................................... 37
Section 6.11. Undertaking for Costs.................................... 37
ARTICLE 7
Trustee
Section 7.01. Duties of Trustee........................................ 38
Section 7.02. Rights of Trustee........................................ 39
Section 7.03. Individual Rights of Trustee............................. 39
Section 7.04. Trustee's Disclaimer..................................... 40
Section 7.05. Notice of Defaults....................................... 40
Section 7.06. Reports by Trustee to Holders............................ 40
Section 7.07. Compensation and Indemnity............................... 40
Section 7.08. Replacement of Trustee................................... 41
Section 7.09. Successor Trustee by Merger, etc......................... 42
Section 7.10. Eligibility; Disqualification............................ 42
Section 7.11. Preferential Collection of Claims Against Company........ 43
ARTICLE 8
Discharge of Indenture
Section 8.01. Termination of Company's Obligations..................... 43
Section 8.02. Application of Trust Money............................... 44
Section 8.03. Repayment to Company..................................... 45
Section 8.04. Reinstatement............................................ 45
Section 8.05. Indemnity for U.S. Government Obligations................ 45
ARTICLE 9
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders............................... 46
Section 9.02. With Consent of Holders.................................. 46
Section 9.03. Compliance With Trust Indenture Act...................... 48
Section 9.04. Revocation and Effect of Consents........................ 48
Section 9.05. Notation On or Exchange of Securities.................... 49
Section 9.06. Trustee to Sign Amendments, etc.......................... 49
</TABLE>
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iv
ARTICLE 10
Miscellaneous
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Section 10.01. Trust Indenture Act Controls............................ 49
Section 10.02. Notices................................................. 49
Section 10.03. Communications by Holders With Other Holders............ 50
Section 10.04. Certificate and Opinion as to Conditions Precedent...... 50
Section 10.05. Statements Required in Certificate or Opinion........... 50
Section 10.06. Rules by Trustee, Paying Agent, Registrar............... 51
Section 10.07. Legal Holidays.......................................... 51
Section 10.08. Governing Law........................................... 51
Section 10.09. No Adverse Interpretation of Other Agreements........... 51
Section 10.10. No Recourse Against Others.............................. 51
Section 10.11. Successors.............................................. 52
Section 10.12. Duplicate Originals..................................... 52
Section 10.13. Separability............................................ 52
Section 10.14. Action of Holders When Securities are Denominated in
Different Currencies.................................. 52
Section 10.15. Monies of Different Currencies to be Segregated......... 53
Section 10.16. Payment to be in Proper Currency........................ 53
Signatures.............................................................. 54
Exhibit A--Form of Security............................................. A-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
INDENTURE, dated as of , 199 between Colorado Interstate Gas Company,
a Delaware corporation (the "Company"), and , as Trustee (the "Trust-
ee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured notes, deben-
tures or other evidences of indebtedness (collectively, the "Securities"), to
be issued from time to time in one or more series (a "Series") as provided in
this Indenture and as shall be provided, in respect of any Series, in or pur-
suant to the Authorizing Resolution hereinafter referred to and/or in the in-
denture supplemental hereto (if any) relating to such Series.
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"Affiliate" of any specified person means any other person directly or indi-
rectly controlling or controlled by or under direct or indirect common control
with such specified person. For the purposes of this definition, "control"
when used with respect to any person means the power to direct the management
and policies of such person, directly or indirectly, whether through the own-
ership of voting securities, by contract or otherwise; and the terms "control-
ling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Attributable Debt" means, with respect to any Sale and Leaseback Transaction
as of any particular time, the present value (discounted at the rate of inter-
est 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 (in-
cluding any period for which such lease has been extended or may, at the op-
tion of the Company, be extended).
"Authorizing Resolution" means a Board Resolution providing for the issuance
of a Series of Securities.
<PAGE>
2
"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Board of Directors" means the Board of Directors of the Company or any duly
authorized committee of the Board.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certifica-
tion, and delivered to the Trustee (except as provided in Section 2.03).
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means, with respect to any person, any and all shares, inter-
ests, participations or other equivalents (however designated) of corporate
stock of such person other than Mandatory Redemption Preferred Stock.
"Capitalized Lease Obligation" means Indebtedness represented by obligations
under a lease that is required to be capitalized for financial reporting pur-
poses in accordance with generally accepted accounting principles and the
amount of such Indebtedness shall be the capitalized amount of such obliga-
tions determined in accordance with such principles.
"Company" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by two Officers of the Company or
by an Officer and the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, and delivered to the Trustee in respect of the Series to
which the Company Request or Company Order shall relate.
"Consolidated Net Tangible Assets" means the total assets appearing on a con-
solidated balance sheet of the Company and its Subsidiaries less, without du-
plication: (i) current liabilities; (ii) reserves for estimated rate refunds
pending the outcome of a rate proceeding to the extent such refunds have not
been finally determined; (iii) all intangible assets; and (iv) deferred income
tax assets.
<PAGE>
3
"Consolidated Subsidiary" means a Subsidiary which for financial reporting
purposes is accounted for by the Company as a consolidated subsidiary.
"Corporate Trust Office" or other similar term means the principal office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date hereof is located at ; the
Trustee will notify the Company of any change thereof.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or passage of time or
both would become, an Event of Default.
"Depository" means, with respect to the Securities of any Series issuable or
issued in the form of one or more Global Securities, the Person designated as
Depository by the Company pursuant to Section 2.02, initially The Depository
Trust Company, until a successor Depository shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depository" shall
mean or include each person who is then a Depository hereunder, and, if at any
time there is more than one such person, "Depository" as used with respect to
the Securities of any such Series shall mean the Depository with respect to
the Global Securities of such Series.
"Event of Default" shall have the meaning provided in Section 6.01.
"Extendible Securities" means Securities of any Series issued hereunder the
final maturity of which is extendible for a stated period of time, as shall be
provided in, or pursuant to, the Authorizing Resolution and/or supplemental
indenture (if any) relating to such Series.
"Funded Debt" means all Indebtedness maturing one year or more from the date
of the creation thereof, all Indebtedness directly or indirectly renewable or
extendible, at the option of the debtor, by its terms or by the terms of any
instrument or agreement relating thereto, to a date one year or more from the
date of the creation thereof, and all Indebtedness under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a pe-
riod of one year or more, even though such Indebtedness may also conform to
the definition of Short-Term Borrowing.
"Global Security" means a Security evidencing all or a part of a Series of
Securities issued to and registered in the name of the Depository for such Se-
ries, or its nominee, in accordance with Section 2.02, and bearing the legend
prescribed in Section 2.03.
<PAGE>
4
"Holder" or "Securityholder" means, with respect to any Security, the person
in whose name such Security is registered on the Security Register.
"Indebtedness" means (i) any liability of any person (a) for borrowed money,
(b) evidenced by a note, debenture or similar instrument (including a purchase
money obligation) given in connection with the acquisition of any property or
assets (other than inventory or similar property acquired in the ordinary course
of business), including securities, or (c) for the payment of money relating to
a Capitalized Lease Obligation; (ii) any guarantee by any person of any liabil-
ity of others described in the preceding clause (i); and (iii) any amendment,
renewal, extension or refunding of any liability of the types referred to in
clauses (i) and (ii) above.
"Indenture" means this Indenture as amended or supplemented from time to time
and shall include the forms and terms of particular Series of Securities es-
tablished as contemplated hereunder.
"Interest Payment Date" means, for any Series of Securities issued and out-
standing hereunder, the date or dates in each year on which any interest on
such Series is paid or made available for payment.
"Legal Holiday" shall have the meaning provided in Section 10.07.
"Lien" means any mortgage, lien, pledge, charge, or other security interest
or encumbrance of any kind.
"Mandatory Redemption Preferred Stock" means, with respect to any person, any
and all shares of preferred stock of such person now outstanding or hereafter
issued, subject to mandatory redemption provisions.
"Maturity" when used with respect to any Security means the date on which the
principal of such Security becomes due and payable as therein or herein pro-
vided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Maturity Date" means the date specified in each Security on which the prin-
cipal thereof is due and payable in full.
"Officer" means the Principal Executive Officer, Principal Financial Officer
or Principal Accounting Officer of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and the Treasurer or an Assistant Treasurer or the Secretary or an As-
sistant Secretary of the Company and delivered to the Trustee. See Sections
10.04 and 10.05.
<PAGE>
5
"Opinion of Counsel" means a written opinion from legal counsel who is ac-
ceptable to the Trustee. The counsel may be an employee of or counsel to the
Company. See Sections 10.04 and 10.05.
"Original Issue Date" means the date on which a Security is issued to the
original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which provide for an
amount less than 100% of the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02.
"Paying Agent" shall have the meaning provided in Section 2.04, except that
for the purposes of Article 8 and Section 4.04 the Paying Agent shall not be
the Company or any Subsidiary.
"person" means any individual, corporation, partnership, joint venture, asso-
ciation, joint-stock company, trust, unincorporated organization or government
or other agency or political subdivision thereof.
"principal" of a debt security means the principal of the security plus, when
appropriate, the premium, if any, on the security.
"Principal Domestic Property of the Company" shall mean any property, plant,
equipment or facility of the Company which is located in the United States or
any territory or political subdivision thereof, except any property which the
Board of Directors or management of the Company shall determine to be not ma-
terial to the business or operations of the Company and its Subsidiaries,
taken as a whole.
"Redeemable Securities" means Securities of any Series which may be redeemed,
at the option of the Company, prior to the Stated Maturity thereof, on the
terms specified in or pursuant to the Authorizing Resolution and/or supplemen-
tal indenture relating to such Series and in accordance with Article 3A
herein.
"Redemption Date" when used with respect to any Security of any Series to be
redeemed means the date fixed for such redemption by or pursuant to the provi-
sions of such Security, this Indenture and the Authorizing Resolution and/or
supplemental indenture (if any) relating to such Security.
"Redemption Price" when used with respect to any Security of any Series to be
redeemed means the price at which it is to be redeemed pursuant to the provi-
sions of such Security, this Indenture and the Authorizing Resolution and/or
supplemental indenture relating to such Security.
"Registrar" shall have the meaning provided in Section 2.04.
<PAGE>
6
"Regular Record Date" means, for the interest payable on any Interest Payment
Date in respect of any Series of Securities, except as provided in, or pursu-
ant to, the Authorizing Resolution and/or supplemental indenture (if any) re-
lating thereto, the day (whether or not a Business Day) that is fifteen days
preceding the applicable Interest Payment Date.
"Required Currency" shall have the meaning provided in Section 10.16.
"Sale and Leaseback Transaction" shall have the meaning provided in
Section 4.09.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities, as amended or supplemented from time to
time pursuant to the terms of this Indenture, of the Company of any Series
that are issued under this Indenture.
"Security Register" shall have the meaning provided in Section 2.04.
"Series" means, with respect to Securities issued hereunder, the Securities
issued pursuant to any particular Authorizing Resolution and/or supplemental
indenture (if any), subject to the right of the Board of Directors to specify
in such Authorizing Resolution and/or supplemental indenture (if any) that
such Securities shall constitute more than one Series.
"Short-Term Borrowing" means all Indebtedness in respect of borrowed money
maturing on demand or within one year from the date of the creation thereof
and not directly or indirectly renewable or extendible, at the option of the
debtor, by its terms or by the terms of any instrument or agreement relating
thereto, to a date one year or more from the date of the creation thereof;
provided, that Indebtedness in respect of borrowed money arising under a re-
volving credit or similar agreement which obligates the lender or lenders to
extend credit over a period of one year or more shall constitute Funded Debt
and not Short-Term Borrowing even though the same matures on demand or within
one year from the date as of which such Short-Term Borrowing is to be deter-
mined.
"Significant Subsidiary" means a Subsidiary, including its Subsidiaries,
which meets any of the following conditions:
(a) the Company's and its other Subsidiaries' investments in and advances
to the Subsidiary exceed 10 percent of the total assets of the Company and
its Subsidiaries consolidated as of the end of any two of the three most re-
cently completed fiscal years; or
(b) the Company's and its other Subsidiaries' proportionate share of the
total assets of the Subsidiary exceeds 10 percent of the total assets of the
<PAGE>
7
Company and its Subsidiaries consolidated as of the end of any two of the
three most recently completed fiscal years; or
(c) the Company's and its other Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and cumula-
tive effect of a change in accounting principles of the Subsidiary exceeds
10 percent of such income of the Company and its Subsidiaries consolidated
as of the end of any two of the three most recently completed fiscal years.
"Sinking Fund" means, with respect to any Sinking Fund Securities, a sinking
fund provided for in Article 3B.
"Sinking Fund Securities" means Securities of any Series which are required
to be redeemed from time to time prior to the Stated Maturity thereof in whole
or in part under a Sinking Fund, on the terms specified in the Authorizing
Resolution and/or supplemental indenture (if any) relating to such Series and
in accordance with Article 3B herein.
"Special Record Date" shall have the meaning provided in Section 2.13.
"Stated Maturity" when used with respect to any Security or any installment
of interest thereon means the date specified in such Security as the fixed
date on which the principal of such Security or such installment of interest
is due and payable.
"Subsidiary" means (i) a corporation a majority of whose Capital Stock with
voting power, under ordinary circumstances, to elect directors is at the time,
directly or indirectly, owned by the Company, by the Company and a Subsidiary
(or Subsidiaries) of the Company or by a Subsidiary (or Subsidiaries) of the
Company or (ii) any other person (other than a corporation) in which the Com-
pany, a Subsidiary (or Subsidiaries) of the Company or the Company and a Sub-
sidiary (or Subsidiaries) of the Company, directly or indirectly, at the date
of determination thereof has at least majority ownership interest; provided,
that no corporation shall be deemed a Subsidiary until the Company, a Subsidi-
ary (or Subsidiaries) of the Company or the Company and a Subsidiary (or Sub-
sidiaries) of the Company acquires more than 50% of the outstanding voting
stock thereof and has elected a majority of its board of directors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-
77bbbb) as in effect on the date of this Indenture except as provided in Sec-
tion 9.03.
"Trustee" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and thereafter
means and includes the person or each person who is then a Trustee hereunder,
and if at any time there is more than one such person, "Trustee" as used with
<PAGE>
8
respect to the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
"Trust Officer" means any officer or assistant officer of the Trustee as-
signed by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided in Section
8.01.
"Yield to Maturity" means, with respect to any Series of Securities, the
yield to maturity thereof, calculated at the time of issuance thereof, or, if
applicable, at the most recent redetermination of interest thereon, and calcu-
lated in accordance with accepted financial practice.
Section 1.02. 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 Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other obli-
gor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA, de-
fined by TIA reference to another statute or defined by SEC rule and not oth-
erwise defined herein have the meanings assigned to them therein.
Section 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with generally accepted accounting principles in effect in the
United States, and any other reference in this Indenture to "generally ac-
cepted accounting principles" refers to generally accepted accounting prin-
ciples in effect in the United States;
<PAGE>
9
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural in-
clude the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof," "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(7) "include," "included," and "including" as used herein shall be deemed
in each case to be folowed by the phrase "without limitation."
ARTICLE 2
The Securities
Section 2.01. Form of Securities.
The Securities of each Series and the certificate of authentication thereon
shall be in substantially the forms set forth in Exhibit A or in such other
forms as shall be specified in, or pursuant to, the Authorizing Resolution
and/or in the indenture supplemental hereto (if any) relating to such Series,
with such appropriate insertions, omissions, substitutions and other varia-
tions as are required or permitted by this Indenture or the said Authorizing
Resolution and/or supplemental indenture (if any).
The definitive Securities of each Series shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, or, if they shall
not be listed on any securities exchange, in any other manner consistent here-
with, all as shall be determined by the officers executing such Securities, as
evidenced by their execution of such Securities. The Securities may have nota-
tions, legends or endorsements required by law, stock exchange rule or usage.
The Company shall approve the form of the Securities and any notation, legend
or endorsement on them.
The terms and provisions contained in the Securities, annexed hereto as Ex-
hibit A or such other forms as specified in the Authorizing Resolution and/or
supplemental indenture (if any) relating thereto, shall constitute, and are
hereby expressly made, a part of this Indenture.
<PAGE>
10
Section 2.02. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series. The terms of each Series
shall be as provided in an Authorizing Resolution and/or supplemental inden-
ture (if any) or shall be determined in the manner specified therein. The
terms to be specified in respect of each Series in the Authorizing Resolution
and/or supplemental indenture (if any), or by such person and/or procedures as
shall be provided therein, shall include the following:
(1) the title of the Securities of such Series, which shall distinguish
such Series from all other Series;
(2) any limit upon the aggregate principal amount of the Securities of such
Series which may be authenticated and delivered under this Indenture (except
for Securities of such Series authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities pursuant
to Section 2.07, 2.08, 2.11, 3A.08 or 9.05);
(3) the date or dates on which the principal of the Securities of such Se-
ries is payable, and, if the Series shall be Extendible Securities, the
terms on which the Company or any other person shall have the option to ex-
tend the Maturity of such Securities and the rights, if any, of the Holders
to require payment of the Securities;
(4) the rate or rates at which the Securities of such Series shall bear in-
terest, if any (whether floating or fixed), the provisions, if any, for de-
termining such interest rate or rates and adjustments thereto, the date or
dates from which such interest shall accrue, the provisions, if any, for de-
termining such date or dates, the Interest Payment Dates therefor and the
Regular Record Dates (if different from those provided in the form of Secu-
rity herein set forth) for the determination of Holders of the Securities of
such Series to whom interest is payable and the basis upon which interest,
if any, shall be calculated if other than that of a 360-day year of twelve
30-day months;
(5) the place or places where the principal of and interest on Securities
of such Series shall be payable (if other than as provided in Section 4.02),
where Securities of such Series may be surrendered for registration of
transfer or exchange and where notices or demands to or upon the Company in
respect of Securities of such Series and this Indenture may be served;
(6) the price or prices at which, the period or periods within which and
the terms and conditions upon which the Securities of such Series may be re-
deemed, in whole or in part, at the option of the Company, pursuant to a
Sinking Fund or otherwise;
<PAGE>
11
(7) the obligation, if any, of the Company to redeem, purchase or repay Se-
curities of such Series, in whole or in part, pursuant to a Sinking Fund or
otherwise or at the option of a Holder thereof, and the price or prices at
which, the period or periods within which and the terms and conditions upon
which such redemption, purchase or repayment shall be made;
(8) any deletions from, modifications of or additions to the Events of De-
fault provided for herein with respect to the Securities of such Series, and
any deletions from, modifications of or additions to the covenants or obli-
gations provided for herein of the Company to the Holders of the Securities
of such Series;
(9) if less than 100% of the principal amount of the Securities of such Se-
ries is payable on acceleration under Section 6.02 or in bankruptcy under
Section 6.09 at any time, a schedule of or the manner of computing the
amounts which are so payable from time to time;
(10) the form of the Securities of such Series (which may be, but which
need not be, consistent with the form set forth in Exhibit A attached here-
to), including whether the Securities of such Series shall be issued in
whole or in part in the form of one or more Global Securities and, in such
case, the Depository with respect to such Global Security or Securities and
the circumstances under which any Global Security may be registered for
transfer or exchange, or authenticated and delivered, in the name of a Per-
son other than such Depository or its nominee, if other than as set forth in
Section 2.07;
(11) if other than United States dollars, the currency(ies) in which pay-
ment of the principal of or interest, if any, on the Securities of such Se-
ries shall be payable;
(12) if the principal of or interest, if any, on the Securities of such Se-
ries is to be payable, at the election of the Company or a Holder thereof,
in a currency or currencies other than that in which the Securities are
stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(13) if the amount of payments of principal of or interest, if any, on the
Securities of such Series may be determined with reference to an index based
on a currency or currencies other than that in which the Securities are
stated to be payable, the manner in which such amounts shall be determined;
(14) whether and under what circumstances the Company will pay any addi-
tional amounts on the Securities of such Series in respect of any tax, as-
sessment or governmental charge and, if so, whether the Company will have
the option to redeem the Securities of such Series in lieu of making such
payment;
(15) any provision relating to the issuing of the Securities of such Series
as Original Issue Discount Securities (including, without limitation, the
issue price thereof, the rate or rates at which such original issue discount
shall
<PAGE>
12
accrue, if any, and the date or dates from or to which, or period or periods
during which, such original issue discount shall accrue at such rate or
rates;
(16) if other than denominations of $1,000 and any integral multiple there-
of, the denominations in which Securities of such Series shall be issued;
and
(17) any other terms of the Securities of such Series; provided, that such
other terms shall not be inconsistent with any express terms of this Inden-
ture or in conflict with any express terms of any other Series of Securities
which shall be issued and outstanding.
All Securities of any one Series shall be substantially identical in form ex-
cept as to denomination and except as may be otherwise provided in and pursu-
ant to the Authorizing Resolutions and/or supplemental indenture (if any) re-
lating thereto. All Securities of any one Series need not be issued at the
same time and may be issued from time to time, consistent with this Indenture,
if so provided by or pursuant to such Authorizing Resolutions and/or supple-
mental indenture (if any) relating thereto.
Any such Authorizing Resolution with respect to the Securities of any Series
filed with the Trustee on or before the initial issuance of the Securities of
such Series shall be incorporated herein by reference with respect to Securi-
ties of such Series and shall thereafter be deemed to be a part of this Inden-
ture for all purposes relating to the Securities of such Series as if such Au-
thorizing Resolution were set forth herein in full.
Section 2.03. Execution and Authentication.
Two Officers or an Officer and the Secretary of the Company shall sign the
Securities for the Company by manual or facsimile signature. The Company's
seal shall be reproduced on the Securities and may be in facsimile form.
If an Officer or a Secretary whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until the Trustee manually signs the certifi-
cate of authentication on the Security. The signature shall be conclusive evi-
dence that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any Series executed by the
Company to the Trustee, together with a Company Order for the authentication
<PAGE>
13
and delivery of such Securities. The Company Order may provide that the Secu-
rities which are the subject thereof shall be authenticated and delivered by
the Trustee upon the telephonic, written or other order of persons designated
in the Company Order, and that such persons are authorized to specify the
terms and conditions of such Securities, to the extent permitted by the Autho-
rizing Resolution and/or supplemental indenture (if any) relating thereto. The
Trustee shall execute and deliver the supplemental indenture (if any) relating
to said Securities and the Trustee shall authenticate and deliver said Securi-
ties as specified in such Company Order; provided that, prior to authentica-
tion and delivery of the first Securities of any Series, the Trustee shall
have received:
(1) a copy of the Authorizing Resolution, with a copy of the form of Secu-
rity approved thereby attached thereto, or a supplemental indenture in re-
spect of the issuance of the Series, executed on behalf of the Company;
(2) an Officers' Certificate to the effect that the Securities of such Se-
ries comply or will comply with the requirements of this Indenture and the
said Authorizing Resolution and/or supplemental indenture (if any);
(3) an Opinion of Counsel (a) to the effect that (i) the Securities of such
Series, the Authorizing Resolution and/or the supplemental indenture (if
any) relating thereto comply or will comply with the requirements of this
Indenture, and (ii) the Securities of such Series, when authenticated and
delivered by the Trustee in accordance with the said Company Order, will
constitute valid and binding obligations of the Company enforceable in ac-
cordance with their terms, subject to (A) bankruptcy and other laws affect-
ing creditors' rights generally as in effect from time to time, (B) limita-
tions of generally applicable equitable principles and (C) other exceptions
acceptable to the Trustee and its counsel; and (b) relating to such other
matters as may reasonably be requested by the Trustee or its counsel; and
(4) if the Securities to be issued are Original Issue Discount Securities,
an Officers' Certificate setting forth the Yield to Maturity for the Securi-
ties or other information sufficient to compute amounts due on acceleration,
or specifying the manner in which such amounts are to be determined, pro-
vided that such Yield to Maturity and other facts are not specified in the
form of the Securities.
Subject to Section 7.01 hereof, the Trustee shall be fully protected in rely-
ing upon the documents delivered to it as provided above in connection with
the issuance of any Series of Securities.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section 2.03 if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in
good faith by a committee of its Trust Officers shall determine that such ac-
tion would
<PAGE>
14
expose the Trustee to liability to Holders of previously issued and outstand-
ing Securities.
Each Security shall be dated the date of its authentication unless otherwise
specified in the Authorizing Resolution and/or supplemental indenture relating
thereto.
The Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate Securities. 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 au-
thenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company
The Securities of each Series shall be issuable only in registered form with-
out coupons and only in denominations of $1,000 and any integral multiple
thereof, or in such other currencies or denominations as may be specified in,
or pursuant to, the Authorizing Resolution and/or supplemental indenture (if
any) relating to the Series.
If Securities of any Series are to be issued in the form of one or more
Global Securities, then the Company shall deliver such Global Security or Se-
curities executed by the Company to the Trustee, together with a Company Order
for the authentication and delivery of such Global Security or Securities, and
the Trustee shall, in accordance with this Section 2.03 and such Company Or-
der, authenticate and deliver such Global Security or Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such Series to be issued in the
form of such Global Security or Securities and not yet cancelled, (ii) shall
be registered in the name of the Depository for such Global Security or Secu-
rities or the nominee of such Depository, (iii) shall be delivered by the
Trustee to such Depository or pursuant to such Depository's instructions and
(iv) shall bear a legend substantially to the following effect: "Unless and
until this Security is exchanged in whole or in part for Securities in certif-
icated form, this Security may not be transferred except as a whole by the De-
pository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or
its nominee to a successor Depository or its nominee."
Each Depository designated must, at the time of its designation and at all
times while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other applicable statute
or regulation.
<PAGE>
15
Section 2.04. Registrar and Paying Agent.
The Company shall cause to be kept a register (the "Security Register") at an
office or agency where Securities may be presented for registration of trans-
fer or for exchange ("Registrar") and an office or agency where Securities may
be presented for payment ("Paying Agent"). The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall give prompt writ-
ten notice to the Trustee of the name and address of any such Agent and the
Trustee shall have the right to inspect the Security Register at all reason-
able times and to obtain copies thereof. If the Registrar shall not be the
Trustee in respect of any Series, the Company shall promptly notify the Regis-
trar as to the amounts and terms of each Security of such Series which shall
be authenticated and delivered hereunder, and as to the names in which such
Securities shall be registered. If the Company fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to appro-
priate compensation therefor pursuant to Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying Agent.
Section 2.05. Paying Agent to Hold Money In Trust.
Each Paying Agent shall hold in trust for the benefit of Securityholders or
the Trustee all money held by the Paying Agent for the payment of principal of
or interest on the Securities (whether such money has been paid to it by the
Company or any other obligor on the Securities), and shall notify the Trustee
of any default by the Company (or any other obligor on the Securities) in mak-
ing any such payment. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate the money and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so the Paying Agent shall have no
further liability for the money.
Section 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list furnished to it of the names and addresses of Security-
holders. If
<PAGE>
16
the Trustee is not the Registrar, the Company shall furnish to the Trustee ten
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 of Securities of
any Series and the Company shall otherwise comply with Section 312(a) of the
TIA.
The Trustee shall be entitled to rely upon a certificate of the Registrar,
the Company or such other Paying Agent, as the case may be, as to the names
and addresses of the Holders of Securities of any Series and the principal
amounts and serial numbers of such Securities.
Section 2.07. Transfer and Exchange.
When Securities are presented to the Registrar or a co-Registrar with a re-
quest to register the transfer or to exchange them for an equal principal
amount of Securities of the same Series and Stated Maturity of other autho-
rized denominations, the Registrar shall register the transfer or make the ex-
change as requested if its requirements for such transactions are met. To per-
mit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's request. No serv-
ice charge shall be made to any Holder for any registration of transfer or ex-
change, but the Company or the Trustee may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges pursuant to Section 2.11, 3A.08 or 9.05 in which case
such transfer taxes or similar governmental charges shall be paid by the Com-
pany).
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security of any Series during a period beginning at the opening
of the day which is 15 Business Days before the day of the mailing of a notice
of redemption of Securities of such Series selected for redemption under Sec-
tion 3A.04 or 3B.01 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so se-
lected for redemption in whole or in part, except, in the case of any Security
to be redeemed in part, the portion thereof not to be redeemed.
Notwithstanding any other provision of this Section 2.07, unless and until it
is exchanged in whole or in part for Securities, a Global Security represent-
ing all or part of the Securities of a Series may not be transferred except as
a whole by the Depository for such Series to a nominee of such Depository or
by a nominee
<PAGE>
17
of such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository for such Se-
ries or a nominee of such successor Depository.
If at any time the Depository for any Securities of a Series represented by
one or more Global Securities notifies the Company that it is unwilling or un-
able to continue as Depository for such Series or if at any time the Deposi-
tory for such Series shall no longer be eligible under Section 2.03, the Com-
pany shall appoint a successor Depository with respect to such Series. If a
successor Depository for such Series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such ineligi-
bility, the Company's election that the Securities be represented by one or
more Global Securities pursuant to Section 2.02 shall no longer be effective
and the Company shall deliver Securities of such Series executed by the Com-
pany to the Trustee, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, in accordance with Section
2.03 and such Company Order, authenticate and deliver Securities of such Se-
ries, in any authorized denominations, in an aggregate principal amount equal
to the principal amount of the Global Security or Securities representing such
Series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the Se-
curities of any Series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such
event the Company shall deliver Securities of such Series executed by the Com-
pany to the Trustee, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, in accordance with Section
2.03 and such Company Order, authenticate and deliver Securities of such Se-
ries, in any authorized denominations, in an aggregate principal amount equal
to the principal amount of the Global Security or Securities representing such
Series, in exchange for such Global Security or Securities.
If specified by the Company in the Authorizing Resolution and/or supplemental
indenture (if any) relating to the Securities of a Series represented by a
Global Security, the Depository for such Series may surrender such Global Se-
curity in exchange in whole or in part for Securities of the same Series on
such terms as are acceptable to the Company and the Depository. Thereupon, the
Company shall deliver Securities of such Series executed by the Company to the
Trustee, together with a Company Order for the authentication and delivery of
such
<PAGE>
18
Securities, and the Trustee shall, in accordance with Section 2.03 and such
Company Order, authenticate and deliver, without charge,
(1) to the person specified by such Depository, a new Security or Securi-
ties of the same Series, in any authorized denominations as requested by
such person, in an aggregate principal amount equal to and in exchange for
such person's beneficial interest in the Global Security; and
(2) to such Depository a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities authenticated and
delivered pursuant to clause (1) above.
Upon the exchange of a Global Security for the Securities of a Series repre-
sented thereby, in authorized denominations, such Global Security shall be
cancelled by the Trustee or an Agent of the Company or the Trustee. Securities
of a Series issued in exchange for a Global Security pursuant to this Section
2.07 shall be registered in such names and in such authorized denominations as
the Depository for such Global Security, pursuant to instructions from its di-
rect or indirect participants or otherwise, shall instruct the Trustee or an
Agent of the Company or the Trustee. The Trustee or such Agent shall deliver
at its office such Securities to or as directed by the persons in whose names
such Securities are so registered.
Section 2.08. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully tak-
en, the Company shall issue and the Trustee shall authenticate a replacement
Security of like tenor, Series and principal amount, bearing a number not as-
signed to any Security of the same Series then outstanding, if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be sufficient in the judgment of the Trustee to protect the Company,
the Trustee or any Agent from any loss which any of them may suffer if a Secu-
rity is replaced. The Company may charge such Holder for its expenses in re-
placing a Security.
Every replacement Security is an additional obligation of the Company.
Section 2.09. Outstanding Securities.
Securities, or Securities of any particular Series, outstanding at any time
are all such Securities that have been authenticated and delivered by the
Trustee except for those cancelled by it, those delivered to it for cancella-
tion and those
<PAGE>
19
described in this Section as not outstanding. A Security does not cease to be
outstanding because the Company or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be outstand-
ing unless the Trustee receives proof satisfactory to it that the replaced Se-
curity is held by a bona fide purchaser.
If the Trustee or Paying Agent (other than the Company or a Subsidiary) holds
on the Maturity Date or Redemption Date money sufficient to pay Securities
payable on such date, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue; provided that, if such Se-
curities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made.
Section 2.10. Treasury Securities.
In determining whether the Holders of the required principal amount of Secu-
rities of any Series have concurred in any direction, waiver or consent (a)
the principal amount of an Original Issue Discount Security, if any, of such
Series that shall be deemed to be outstanding for such purposes shall be the
amount that would be due and payable as of the date of determination upon a
declaration of acceleration thereof pursuant to Section 6.02 and (b) Securi-
ties of such Series owned by the Company or an Affiliate of the Company shall
be disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or con-
sent, only Securities of such Series which the Trustee actually knows are so
owned shall be so disregarded. Upon the request of the Trustee, the Company
shall furnish to the Trustee an Officers' Certificate identifying all Securi-
ties of such Series, if any, known by the Company to be owned by it or any of
its Affiliates.
Section 2.11. Temporary Securities.
Until definitive Securities of any Series are ready for delivery, the Company
may prepare and execute and, upon compliance with the requirements of Section
2.03, the Trustee shall authenticate temporary Securities of such Series. Tem-
porary Securities of any Series shall be substantially in the form of defini-
tive Securities of such Series but may have variations that the Company con-
siders appropriate for temporary Securities. In the case of Securities of any
Series, such temporary Securities may be in global form. Except in the case of
temporary Global Securities (which shall be exchanged as otherwise provided
herein or as otherwise provided in or pursuant to an Authorizing Resolution
and/or supplemental indenture, (if any), without unreasonable delay, the Com-
pany shall pre-
<PAGE>
20
pare and the Trustee shall authenticate definitive Securities for such Series
in exchange for temporary Securities of such Series in an exchange pursuant to
Section 2.07.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for cancella-
tion. The Registrar and the Paying Agent shall forward to the Trustee any Se-
curities surrendered to them for transfer, exchange or payment. The Trustee
and no one else shall cancel all Securities surrendered for transfer, ex-
change, payment or cancellation or for credit against any Sinking Fund Payment
in respect of such Series pursuant to Section 3B.02. The Company may not issue
new Securities to replace Securities it has paid or delivered to the Trustee
for cancellation.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities of any Se-
ries, it shall pay the defaulted interest, plus any interest payable on the
defaulted interest, to the persons who are Holders of such Securities on a
subsequent special record date ("Special Record Date") and such term, as used
in this Section 2.13 with respect to the payment of any defaulted interest,
shall mean the fifteenth day next preceding the date fixed by the Company for
the payment of defaulted interest, whether or not such day is a Business Day.
At least 15 days before the Special Record Date, the Company shall mail to
each holder of such Securities a notice that states the Special Record Date,
the payment date and the amount of defaulted interest to be paid.
Section 2.14. Persons Deemed Owners.
The Company, the Trustee and any Agent may treat the person in whose name any
Security is registered as the owner of such Security for the purpose of re-
ceiving payment of principal of and (subject to Section 2.13) interest on such
Security and for all other purposes whatsoever, whether or not such Security
shall have matured, and neither the Company, the Trustee nor any Agent shall
be affected by any notice to the contrary.
<PAGE>
21
ARTICLE 3A
Redemption
Section 3A.01. Right of Redemption.
Redeemable Securities may be redeemed otherwise than through the operation of
the Sinking Fund provided for in Article 3B at the election of the Company at
the times, on the conditions and at the Redemption Prices specified therein,
in (or pursuant to) the Authorizing Resolution relating thereto or in the sup-
plemental indenture (if any) executed in connection with the issuance of such
Securities to the extent provided therein, any Redemption Price to be accompa-
nied by accrued interest to the Redemption Date.
Section 3A.02. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as per-
mitted or required by any provision referred to in Section 3A.01, shall be
made in accordance with such provision and this Article.
Section 3A.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any Series shall be
evidenced by a Board Resolution or set forth in an Officers' Certificate which
states that such election has been duly authorized by all requisite corporate
action on the part of the Company. In case of any redemption at the election
of the Company of less than all of the Securities of such Series the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company (un-
less a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
the Series or the several Series, as the case may be, to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restric-
tion on such redemption provided in the Securities or elsewhere in this Inden-
ture, the Company shall furnish the Trustee with an Officers' Certificate evi-
dencing compliance with such restriction.
Section 3A.04. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any Series are to be redeemed, the partic-
ular Securities of such Series to be redeemed shall be selected not more than
90 days prior to the Redemption Date by the Trustee, from the outstanding Se-
curities of
<PAGE>
22
such Series not previously called for redemption, in compliance with the re-
quirements of the principal national securities exchange, if any, on which
such Securities are listed or, if the Securities are not listed on a national
securities exchange, on a pro rata basis or by lot, as the Trustee deems ap-
propriate in its sole discretion. The Trustee may select for redemption por-
tions (equal to the minimum authorized denomination of the Series or any inte-
gral multiple thereof) of the principal amount of such Securities of a denomi-
nation larger than such minimum denomination. If the Company shall so specify,
Securities held by the Company or any of its Subsidiaries or Affiliates shall
not be included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for par-
tial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 3A.05. Notice of Redemption.
Notice of redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the Se-
curity Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all outstanding Securities of the Series are to be re-
deemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security, and that interest thereon shall cease to
accrue on and after said date;
(5) that the redemption is for a Sinking Fund, if such is the case; and
(6) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
<PAGE>
23
Notice of redemption of Securities to be redeemed at the election of the Com-
pany shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company.
Section 3A.06. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.05) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on, all the Secu-
rities or portions thereof which are to be redeemed on that date.
Section 3A.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemp-
tion Price thereof and from and after such date (unless the Company shall de-
fault in the payment of the Redemption Price and accrued interest) such Secu-
rities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the Redemp-
tion Date; provided, however, that installments of interest whose Stated Matu-
rity is on or prior to the Redemption Date shall be payable to the Holders of
such Securities registered as such on the relevant Regular or Special Record
Date according to their terms and the provisions of such Security and Section
2.13.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the Redemption Date at the rate borne by the Security or,
in the case of Original Issue Discount Securities, at a rate equal to the
Yield to Maturity thereof.
Section 3A.08. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at the
office or agency of the Company maintained for that purpose pursuant to Sec-
tion 4.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney duly au-
thorized in
<PAGE>
24
writing), and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities of the same Series, of any authorized denomination as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE 3B
Sinking Fund
Section 3B.01. Sinking Fund Payments.
As and for a Sinking Fund for the retirement of Sinking Fund Securities, the
Company will, until all such Securities are paid or payment thereof is duly
provided for, deposit in accordance with Section 3A.06, at such times and sub-
ject to such terms and conditions as shall be specified in the provisions of
such Securities and the Authorizing Resolution and/or supplemental indenture
(if any) relating thereto, such amounts in cash or such other Required Cur-
rency as shall be required or permitted under such provisions in order to re-
deem Securities on the specified Redemption Dates at a Redemption Price equal
to their principal amounts, less in each such case the amount of any credit
against such payment received by the Company under Section 3B.02. Each such
Sinking Fund payment shall be applied to the redemption of Securities on the
specified Redemption Date as herein provided.
Section 3B.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Securities of the same Series (other than any Se-
curities of such Series previously called for redemption pursuant to the Sink-
ing Fund or theretofore applied as a credit against a Sinking Fund payment)
and (2) may apply as a credit Securities of the same Series redeemed at the
election of the Company pursuant to Section 3A.01 or through the operation of
the Sinking Fund in any period in excess of the minimum amount required for
such period under Section 3B.01 and not theretofore applied as a credit
against a Sinking Fund payment, in each case in satisfaction of all or any
part of any Sinking Fund payment required to be made pursuant to Section
3B.01. Each such Security so delivered or applied shall be credited for such
purpose by the Trustee at a Redemption Price equal to its principal amount or,
in the case of an Original Issue Discount Security, its then accreted value,
and the required amount of such Sinking Fund payment in respect of such Series
shall be reduced accordingly.
<PAGE>
25
Section 3B.03. Redemption of Securities for Sinking Fund.
If in any year the Company shall elect to redeem in excess of the minimum
principal amount of Securities of any Series required to be redeemed pursuant
to Section 3B.01 or to satisfy all or any part of any Sinking Fund payment by
delivering or crediting Securities of the same Series pursuant to Section
3B.02, then at least 45 days prior to the date on which the Sinking Fund pay-
ment in question shall be due, the Company shall deliver to the Trustee an Of-
ficers' Certificate specifying the amount of the Sinking Fund payment and the
portions thereof which are to be satisfied by payment of cash or such other
Required Currency, by delivery of Securities of such Series or by crediting
Securities of such Series, and, at least 45 days prior to the Sinking Fund
payment date (or such shorter period as shall be approved by the Trustee),
will also deliver to the Trustee the Securities of such Series to be so deliv-
ered. Such Officers' Certificate shall also state that the Securities forming
the basis of any such credit do not include any Securities which have been re-
deemed through the operation of the Sinking Fund in the minimum amount re-
quired under Section 3B.01 or previously credited against any Sinking Fund
payment. The Trustee shall, upon the receipt of such Officers' Certificate
(or, if it shall not have received such an Officers' Certificate at least 45
days prior to the Sinking Fund payment date, then following such 45th day),
select the Securities of such Series to be redeemed upon the next Sinking Fund
payment date, in the manner specified in Section 3A.04, and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3A.05. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 3A.06, 3A.07 and 3A.08.
ARTICLE 4
Covenants
Section 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities of each
Series on the dates and in the manner provided in the Securities and in this
Indenture. An installment of principal or interest shall be considered paid on
the date due if the Trustee or Paying Agent (other than the Company or a Sub-
sidiary) holds on that date money designated for and sufficient to pay the in-
stallment.
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26
The Company shall pay interest on overdue principal at the respective rates
borne by such Securities or, in the case of Original Issue Discount Securi-
ties, at rates equal to the respective Yields to Maturity thereof; it shall
pay interest on overdue installments of interest at the respective rates borne
by such Securities to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
Except as otherwise provided in the Authorizing Resolutions and/or supplemen-
tal indenture (if any) relating to any Series, the Company will maintain in
The City of New York, an office or agency where Securities may be surrendered
for registration of transfer or exchange or for presentation for payment and
where notices and demands to or upon the Company in respect to the Securities
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address there-
of, such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of any Series or a particular Series may be pre-
sented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an of-
fice or agency in The City of New York, for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescis-
sion and of any change in the location of any such other office or agency.
The Company hereby initially designates the Trustee in The City of New York,
as an agency of the Company in accordance with Section 2.04.
Section 4.03. Corporate Existence.
Subject to Article 5 and Section 4.04, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and material fran-
chises of the Company; provided, however, that the Company shall not be re-
quired to preserve any such right or franchise if the Board of Directors or
management of the Company shall determine that the preservation thereof is no
longer desirable in
<PAGE>
27
the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and if the loss thereof is not, and will not be, adverse in any mate-
rial respect to the Holders.
Section 4.04. Liquidation.
The Board of Directors or the stockholders of the Company may not adopt a
plan of liquidation which provides for, contemplates or the effectuation of
which is preceded by (i) the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company otherwise than substan-
tially as an entirety (Article 5 of this Indenture being the Article which
governs any such sale, lease, conveyance or other disposition substantially as
an entirety) and (ii) the distribution of all or substantially all of the pro-
ceeds of such sale, lease, conveyance or other disposition and of the remain-
ing assets of the Company to the holders of Capital Stock of the Company, un-
less the Company shall in connection with the adoption of such plan make pro-
visions for, or agree that prior to making any liquidating distributions it
will make provisions for, the satisfaction of the Company's obligations here-
under and under the Securities of each Series as to the payment of principal
and interest. The Company shall be deemed to make provision for such payments
only if (a) the Company delivers in trust to the Trustee or Paying Agent
(other than the Company or a Subsidiary) (i) in the case of any Securities of
any Series denominated in United States dollars, an amount of cash sufficient
to pay principal of and interest on such outstanding securities at their re-
spective Stated Maturities or U.S. Government Obligations in an aggregate
principal amount equal to the unpaid principal amount of such Securities and
having maturities and interest payment dates that shall coincide, as nearly as
may be practicable, with the dates that the principal of and interest on such
Securities are due and (ii) in the case of any Securities of any Series denom-
inated in any currency other than United States dollars, an amount of the Re-
quired Currency sufficient to pay principal of and interest on such outstand-
ing Securities at their respective Stated Maturities or (b) there is an ex-
press assumption of the due and punctual payment of the Company's obligations
hereunder and under the Securities of each Series and the performance and ob-
servance of all covenants and conditions to be performed by the Company here-
under, by the execution and delivery of a supplemental indenture in form sat-
isfactory to the Trustee by a person which acquires or will acquire (otherwise
than pursuant to a lease) a portion of the assets of the Company, and which
person will have assets (immediately after the acquisition) and aggregate net
earnings (for such person's four full fiscal quarters immediately preceding
the acquisition) equal to not less
<PAGE>
28
than the assets of the Company (immediately preceding the acquisition) and the
aggregate net earnings of the Company (for its four full fiscal quarters imme-
diately preceding such acquisition), respectively, and which is organized and
existing under the laws of the United States, any State thereof or the Dis-
trict of Columbia; provided, however, that the Company shall not make any liq-
uidating distribution until after the Company shall have certified to the
Trustee with an Officers' Certificate and an Opinion of Counsel at least five
days prior to the making of any liquidating distribution that it has complied
with the provisions of this Section 4.04.
Section 4.05. Compliance Certificate.
The Company shall deliver to the Trustee within 90 days after the end of each
fiscal quarter of the Company an Officers' Certificate stating whether or not
the signers know of the existence of any Default or Event of Default by the
Company and whether all of the conditions and covenants of the Company are be-
ing complied with regardless of any period of grace or requirement of notice
provided under the Indenture. If they do know of such a Default or Event of
Default, the certificate shall describe the Default or Event of Default, as
the case may be, and its status. The first Officers' Certificate to be deliv-
ered pursuant to this Section 4.05 shall be for the fiscal quarter ending im-
mediately after the Original Issue Date.
Section 4.06. SEC Reports.
The Company shall file with the Trustee within 15 days after it files them
with the SEC copies of the annual and quarterly reports and of the informa-
tion, documents and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which the Company
is required to file with the SEC pursuant to Section 13 or 15(d) of the Secu-
rities Exchange Act of 1934, as amended. The Company also shall comply with
the other provisions of TIA (S) 314(a).
Section 4.07. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or
other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities of any Series as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may
<PAGE>
29
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or im-
pede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
Section 4.08. Restrictions on Liens.
The Company will not incur, create, assume or otherwise become liable in re-
spect of any Indebtedness secured by a Lien, or guarantee any Indebtedness
with a guarantee which is secured by a Lien, on any Principal Domestic Prop-
erty of the Company or any shares of stock or Indebtedness of any Significant
Subsidiary, without effectively providing that the Securities of each Series
(together with, if the Company shall so determine, any other Indebtedness of
the Company then existing or thereafter created ranking equally with the Secu-
rities of each Series) shall be secured equally and ratably with (or, at the
option of the Company, prior to) such secured Indebtedness, so long as such
secured Indebtedness shall be so secured; provided, however, that this Section
4.08 shall not apply to Indebtedness secured by:
(1) Liens existing on the date of this Indenture;
(2) Liens in favor of governmental bodies to secure progress, advance or
other payments;
(3) Liens existing on property, shares of stock or Indebtedness at the time
of acquisition thereof (including acquisition through lease, merger or con-
solidation) or Liens to secure the payment of all or any part of the pur-
chase price thereof or the cost of construction, installation, renovation,
improvement or development thereon or thereof or to secure any Indebtedness
incurred prior to, at the time of, or within 360 days after the later of the
acquisition, completion of such construction, installation, renovation, im-
provement or development or the commencement of full operation of such prop-
erty or within 360 days after the acquisition of such shares or Indebtedness
for the purpose of financing all or any part of the purchase price thereof;
(4) Liens securing Indebtedness in an aggregate amount which, at the time
of incurrence and together with all outstanding Attributable Debt in respect
of Sale and Leaseback Transactions permitted by clause (y) of the second
paragraph of Section 4.09, does not exceed ten percent of the Consolidated
Net Tangible Assets of the Company;
(5) Liens to secure Indebtedness other than Funded Debt; and
<PAGE>
30
(6) any extension, renewal or replacement (or successive extensions, renew-
als or replacements), as a whole or in part, of any Lien referred to in the
foregoing clauses (1) to (5) inclusive; provided, that such extension, re-
newal or replacement of such Lien is limited to all or any part of the same
property, shares of stock or Indebtedness that secured the Lien extended,
renewed or replaced (plus improvements on such property), and that such se-
cured Indebtedness at such time is not increased.
If at any time the Company shall incur, create, assume or otherwise become
liable in respect of any Indebtedness secured by a Lien, or guarantee any In-
debtedness with a guarantee which is secured by a Lien, on any Principal Do-
mestic Property of the Company or any shares of stock or Indebtedness of any
Significant Subsidiary other than as permitted under clauses (1) through (6)
of this Section 4.08, the Company shall promptly deliver to the Trustee (i) an
Officers' Certificate stating that the covenant of the Company to secure the
Securities equally and ratably with such secured Indebtedness pursuant to this
Section 4.08 has been complied with and (ii) an Opinion of Counsel that such
covenant has been complied with and that any instruments executed by the Com-
pany in performance of such covenant comply with the requirements of such cov-
enant.
Section 4.09. Restrictions on Sales and Leasebacks.
The Company will not sell or transfer any Principal Domestic Property of the
Company, with the Company taking back a lease of such Principal Domestic Prop-
erty of the Company (a "Sale and Leaseback Transaction"), unless (i) such
Principal Domestic Property of the Company is sold within 360 days from the
date of acquisition of such Principal Domestic Property of the Company or the
date of the completion of construction or commencement of full operations on
such Principal Domestic Property of the Company, whichever is later, or (ii)
the Company, within 120 days after such sale, applies or causes to be applied
to the retirement of Funded Debt of the Company or any Subsidiary (other than
Funded Debt of the Company which by its terms or the terms of the instrument
pursuant to which it was issued is subordinate in right of payment to the Se-
curities of each Series) an amount not less than the greater of (A) the net
proceeds of the sale of such Principal Domestic Property of the Company or (B)
the fair value (as determined in any manner approved by the Board of Direc-
tors) of such Principal Domestic Property of the Company.
The provisions of this Section 4.09 shall not prevent a Sale and Leaseback
Transaction (x) if the lease entered into by the Company in connection there-
with is for a period, including renewals, of not more than 36 months or (y) if
the Company would, at the time of entering into such Sale and Leaseback
Transac-
<PAGE>
31
tion, be entitled, without equally and ratably securing the Securities, to
create or assume a Lien on such Principal Domestic Property of the Company se-
curing Indebtedness in an amount at least equal to the Attributable Debt in
respect of such Sale and Leaseback Transaction pursuant to clause (4) of Sec-
tion 4.08.
ARTICLE 5
Successor Corporation
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge with or into any other corpo-
ration or transfer all or substantially all of its properties and assets as an
entirety to any person, unless:
(1) either the Company shall be the continuing person, or the person (if
other than the Company) formed by such consolidation or into which the Com-
pany is merged or to which all or substantially all of the properties and
assets of the Company as an entirety are transferred shall be a corporation
organized and existing under the laws of the United States or any State
thereof or the District of Columbia and shall expressly assume, by an inden-
ture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities of each Series and this Indenture;
(2) immediately before and immediately after giving effect to such transac-
tion, no Event of Default and no Default shall have occurred and be continu-
ing; and
(3) the Company shall have delivered to the Trustee an Officers' Certifi-
cate and an Opinion of Counsel, each stating that such consolidation, merger
or transfer and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transac-
tions have been complied with.
Notwithstanding the foregoing, any Subsidiary may consolidate with, merge
with or into or transfer all or part of its properties and assets to the Com-
pany or any other Subsidiary or Subsidiaries.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or substantially all
of the properties and assets of the Company in accordance with Section 5.01,
the successor corporation formed by such consolidation or into which the Com-
pany is merged or to which such transfer is made shall succeed to, and be sub-
stituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
<PAGE>
32
ARTICLE 6
Default and Remedies
Section 6.01. Events of Default.
An "Event of Default" occurs if, with respect to any Series of Securities,
unless it is either inapplicable to a particular Series or it is specifically
deleted or modified in the Authorizing Resolution and/or supplemental inden-
ture (if any) in respect of such Series, and upon any other events which may
be specified as Events of Default in the Authorizing Resolution and/or supple-
mental indenture (if any) in respect of such Series:
(1) the Company defaults in the payment of interest on any Securities of
such Series when the same becomes due and payable and the default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal of any Securities
of such Series when the same becomes due and payable at its Maturity or oth-
erwise or defaults in the deposit of any Sinking Fund installment in respect
of such Series, when and as payable by the terms of Section 3B.01 hereof;
(3) the Company fails to comply with any of its other agreements contained
in the Securities of such Series or this Indenture (other than an agreement
relating exclusively to another Series of Securities) and the default con-
tinues for the period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an invol-
untary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all or sub-
stantially all of its property, or
(D) makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case or proceed-
ing,
(B) appoints a Custodian of the Company for all or substantially all of
its properties, or
(C) orders the liquidation of the Company,
<PAGE>
33
and in each case the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the Trustee noti-
fies the Company, or the Holders of at least 25% in principal amount of the
outstanding Securities of such Series notify the Company and the Trustee, of
the Default and the Company does not cure the Default within 60 days after re-
ceipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." When a Default is
cured, it ceases. Such notice shall be given by the Trustee if so requested by
the Holders of at least 25% in principal amount of the Securities of such Se-
ries then outstanding.
Subject to the provisions of Sections 7.01 and 7.02, the Trustee shall not be
charged with knowledge of any Event of Default unless written notice thereof
shall have been given to a Trust Officer at the corporate trust office of the
Trustee by the Company, the Paying Agent, any Holder or an agent of any Hold-
er.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in Section
6.01(4) or (5)) with respect to Securities of any Series occurs and is contin-
uing, the Trustee may, by notice to the Company, or the Holders of at least
25% in principal amount of such Securities of such Series then outstanding
may, by notice to the Company and the Trustee, and the Trustee shall, upon the
request of such Holders, declare all unpaid principal (or, if such Securities
are Original Issue Discount Securities, such portion of the principal amount
as may then be payable on acceleration as provided in the terms thereof) and
accrued interest to the date of acceleration on all such Securities of such
Series then outstanding (if not then due and payable) to be due and payable
and, upon any such declaration, the same shall become and be immediately due
and payable. If an Event of Default specified in Section 6.01(4) or (5) oc-
curs, all unpaid principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal amount as may then be payable on ac-
celeration as provided in the terms thereof) and accrued interest on all Secu-
rities of every Series then outstanding shall ipso facto become and be immedi-
ately due and payable without any declaration or
<PAGE>
34
other act on the part of the Trustee or any Securityholder. Upon payment of
such principal amount and interest, all of the Company's obligations under
such Securities of such Series and this Indenture with respect to such Securi-
ties of such Series, other than obligations under Section 7.07, shall termi-
nate. The Holders of a majority in principal amount of the Securities of such
Series then outstanding by notice to the Trustee may rescind an acceleration
and its consequences if (i) all existing Events of Default, other than the
non-payment of the principal of the Securities of such Series which has become
due solely by such declaration of acceleration, have been cured or waived,
(ii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid, (iii) the rescission
would not conflict with any judgment or decree of a court of competent juris-
diction and (iv) all payments due to the Trustee and any predecessor Trustee
under Section 7.07 have been made. Anything herein contained to the contrary
notwithstanding, in the event of any acceleration pursuant to this Section
6.02, the Company shall not be obligated to pay any premium in connection with
any repayment arising from an Event of Default.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Securities of the Series as to which the Event
of Default shall have occurred or to enforce the performance of any provision
of such Securities or the Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Securities of the Series as to which the Event of Default shall have occurred
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Securityholder 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. No remedy is exclusive of
any other remedy. All available remedies are cumulative to the extent permit-
ted by law.
Section 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in principal
amount of the outstanding Securities of a Series by written notice to the
Trustee may waive an existing Default or Event of Default and its conse-
quences, except a Default in the payment of principal of or interest on any
such Security as
<PAGE>
35
specified in clauses (1) and (2) of Section 6.01. When a Default or Event of
Default is waived, it is cured and ceases.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding Securities
of a Series (or, if more than one Series is affected, of all such Series vot-
ing as a single class) 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. However, the Trustee may refuse to follow any direction
that conflicts with any law or this Indenture that the Trustee determines may
be unduly prejudicial to the rights of another Securityholder, or that may in-
volve the Trustee in personal liability; provided that the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.
Section 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture or
the Securities of the applicable Series unless:
(1) the 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 outstanding Se-
curities of the Series in respect of which the Event of Default has occurred
make a written request to the Trustee to pursue a 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 re-
ceipt 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 outstanding Securities of such Series do not give the Trustee a di-
rection which, in the opinion of the Trustee, is inconsistent with the re-
quest.
A Holder of Securities of any Series may not use this Indenture to prejudice
the rights of any other Holders of Securities of that Series or to obtain a
preference or priority over any other Holders of Securities of that Series.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Security, on or
after the respective due dates expressed in such Security, or to bring suit
for the enforce-
<PAGE>
36
ment of any such payment on or after such respective dates, shall not be im-
paired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in Sec-
tion 6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company or any
other obligor on the Securities of the Series in respect of which the Event of
Default has occurred for the whole amount of principal and accrued interest
remaining unpaid, together with interest overdue on principal or, in the case
of Original Issue Discount Securities, the then accreted value, and to the ex-
tent that payment of such interest is lawful, interest on overdue installments
of interest, in each case at the rate per annum borne by such Securities or,
in the case of Original Issue Discount Securities, at a rate equal to the
Yield to Maturity thereof, and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensa-
tion, expenses, disbursements and advances of the Trustee, its agents and
counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (in-
cluding any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and the Securityholders al-
lowed in any judicial proceedings relative to the Company (or any other obli-
gor upon the Securities), its creditors or its property and shall be entitled
and empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian
in any such judicial proceedings is hereby authorized by each Securityholder
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 Securityholders, 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 7.07. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Securityholder any plan of reorganization, arrange-
ment, adjustment or composition affecting the Securities of any Series or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
<PAGE>
37
Section 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article 6 with
respect to Securities of a Series, it shall pay out the money or property in
the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities of such Se-
ries in respect of which monies have been collected for principal and inter-
est, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and interest, re-
spectively; 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 Securityholders pursuant to this Section
6.10.
Section 6.11. 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
Trustee, a court in its discretion may require the filing by any party liti-
gant 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, 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 Sec-
tion 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 6.07, or a suit by any Holder or a group of Holders of more than
10% in principal amount of the outstanding Securities of all Series (or, if
the matter in issue does not relate to all Series of Securities, then the
Holders of 10% in principal amount of the outstanding Securities of all Series
to which such issue relates) (treated as a single class).
<PAGE>
38
ARTICLE 7
Trustee
Section 7.01. Duties of Trustee.
(a) The Trustee, except during the continuance of an Event of Default known
to it pursuant to Section 6.01, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. If an Event of
Default known to the Trustee pursuant to Section 6.01 has occurred and is con-
tinuing, 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 their exercise
as a prudent person would exercise or use under the circumstances in the con-
duct of his own affairs.
(b) Except during the continuance of an Event of Default known to the Trustee
pursuant to Section 6.01:
(1) the Trustee need perform only those duties as are specifically set
forth in this Indenture and no others and no implied covenants or obliga-
tions shall be read into this Indenture against the Trustee;
(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, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent ac-
tion, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraphs (a) and (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts;
(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 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the perfor-
mance of any of its duties hereunder or in the exercise of any of its rights
or powers if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reason-
ably assured to it.
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39
(e) Every provision of this Indenture that in any way relates to the Trustee
is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree with the Company in writing. Money held in
trust by the Trustee need not be segregated from other funds except to the ex-
tent required by law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) the Trustee may rely on any document 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 Of-
ficers' Certificate or an Opinion of Counsel, which shall conform to Section
10.05; the Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such certificate or opinion;
(c) the Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent 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 reasonably believes to be authorized or within
its rights or powers;
(e) the Trustee may consult with counsel and the advice or opinion of such
counsel as to matters of law shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it hereun-
der in good faith and in accordance with the advice or opinion of such coun-
sel; and
(f) 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 the
Holders, including, without limitation, the duties, rights and powers speci-
fied in Section 6.02 hereof, unless such Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by the Trustee in compliance with such request or
action.
Section 7.03. 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 its Affili-
ates 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 7.10
and 7.11.
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40
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities of any Series, it shall not be accountable for the
recitals contained in this Indenture or for the Company's use of the proceeds
from the Securities of any Series, and it shall not be responsible for any
statement in the Securities of any Series, or in any prospectus used to sell
the Securities of any Series, other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing with respect of
any Series of Securities, and if it is actually known to the Trustee pursuant
to Section 6.01 hereof, the Trustee shall mail to each Holder of the Securi-
ties of such Series notice of the Default or Event of Default within 75 days
after it occurs. Except in the case of a Default or an Event of Default in
payment of principal of or interest on any Security or in the payment of any
Sinking Fund installment, the Trustee may withhold such notice if and so long
as a committee of its Trust Officers in good faith determines that withholding
the notice is in the interest of Securityholders.
Section 7.06. Reports by Trustee to Holders.
The Trustee shall transmit to the Holder such reports concerning, among other
things, the Trustee and its action under this Indenture as may be required
pursuant to the TIA at the time and in compliance with TIA (S) 313(a). The
Trustee also shall comply with TIA (S) 313(b)(2) and 313(c).
A copy of each such report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange, if any, on which the Se-
curities of any Series are listed.
The Company shall notify the Trustee if the Securities of any Series become
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such compensation as
shall be agreed upon in writing by the Company and the Trustee. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Company shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
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41
The Company shall indemnify the Trustee for, and hold it harmless against,
any loss or liability incurred by it in connection with the administration of
this trust and its duties hereunder, including the reasonable expenses of de-
fending itself against any claim of liability arising hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee
for which it may seek indemnity. The Company need not pay for any settlement
made without its written consent, which consent shall not be unreasonably
withheld. The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07, the Trustee
shall have a lien prior to the Securities of each Series on all money or prop-
erty held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of De-
fault specified in Section 6.01(4) or (5) occurs, the expenses and the compen-
sation for the services are intended to constitute expenses of administration
under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The Holders of
a majority in principal amount of the outstanding Securities of all Series
(voting as a single class) may remove the Trustee by so notifying the Trustee
in writing and may appoint a successor Trustee with the Company's consent.
Pursuant to a Company Order, the Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee 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 Trust-
ee. Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the Securities of all Series (voting as a sin-
gle class) may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Immediately after that, the retiring
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42
Trustee shall transfer, after payment of all sums then owing to the Trustee
pursuant to Section 7.07, all property and documentation held by it as Trustee
to the successor Trustee, subject to the lien provided in Section 7.07, 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. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Hold-
ers of at least 10% in principal amount of the outstanding Securities of all
Series (voting as a single class) may petition any court of competent juris-
diction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may pe-
tition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Any successor Trustee shall comply
with TIA (S) 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the resulting, surviving or transferee corporation without any further act
shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements of
TIA (S) 310(a)(1). The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA (S) 310(b), including the provi-
sion permitted by the second sentence of TIA (S) 310(b).
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43
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA (S) 311(a), excluding from the operation of
(S) 311(a) any creditor relationship listed in TIA (S) 311(b). A Trustee who
has resigned or been removed shall be subject to TIA (S) 311(a) to the extent
indicated.
ARTICLE 8
Discharge of Indenture
Section 8.01. Termination of Company's Obligations.
The Company may terminate its obligations under the Securities of any Series
and this Indenture with respect to such Series, except those obligations re-
ferred to in the immediately succeeding paragraph, (a) if all Securities of
such Series previously authenticated and delivered (other than destroyed, lost
or stolen Securities of such Series which have been replaced or paid or Secu-
rities of such Series for whose payment money or securities have theretofore
been held in trust and thereafter repaid to the Company, as provided in Sec-
tion 8.03) have been delivered to the Trustee for cancellation and the Company
has paid all sums payable by it hereunder, or (b) if, following the date on
which the Company shall have given notice to the Trustee of its intention to
defease all of the Securities of such Series, the Company has irrevocably de-
posited or caused to be deposited with the Trustee or a Paying Agent (other
than the Company or a Subsidiary), under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee and any such Pay-
ing Agent, as trust funds in trust solely for the benefit of the Holders for
that purpose, (i) in the case of any Securities of any Series denominated in
United States dollars, an amount of cash sufficient to pay principal of and
interest on such outstanding Securities at their respective Stated Maturities,
or direct non-callable obligations of, or non-callable obligations guaranteed
by, the United States of America for the payment of which guarantee or obliga-
tion the full faith and credit of the United States is pledged, including but
not limited to depository receipts issued by a bank as custodian with respect
to any such security held by the custodian for the benefit of the holder of
such depository receipt ("U.S. Government Obligations"), maturing as to prin-
cipal and interest in such amounts and at such times as are sufficient without
consideration of any reinvestment of such interest, to pay principal of and
interest on such outstanding Securities at their respective Stated Maturities
and (ii) in the case of any Securities of any Series denominated in any cur-
rency other than United States dollars, an amount of the Required Currency
sufficient
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44
to pay principal of and interest on such outstanding Securities at their re-
spective Stated Maturities; provided that the Trustee or such Paying Agent
shall have been irrevocably instructed to apply such cash, the proceeds of
such U.S. Government Obligations or the Required Currency, as the case may be,
to the payment of said principal and interest with respect to the Securities
of such Series; and provided further, that if such irrevocable deposit in
trust with the Trustee of cash, U.S. Government Obligations or the Required
Currency, as the case may be, is made on or prior to one year from the Stated
Maturity for payment of principal of the Securities of the applicable Series,
the Company shall have delivered to the Trustee either an Opinion of Counsel
with no material qualifications in form and substance satisfactory to the
Trustee to the effect that Holders of such Securities (i) will not recognize
income, gain or loss for Federal income tax purposes as a result of such de-
posit (and the defeasance contemplated in connection therewith) and (ii) will
be subject to Federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if such deposit and defea-
sance had not occurred, or an applicable favorable ruling to that effect re-
ceived from or published by the Internal Revenue Service.
Notwithstanding the foregoing paragraph, the Company's obligations in Sec-
tions 2.04, 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 7.08, 8.03 and 8.04, and
except as otherwise provided in the Authorizing Resolution and/or the supple-
mental indenture (if any) in respect of any Series, shall survive until the
Securities are no longer outstanding. Thereafter, the Company's obligations in
Sections 7.07, 8.03 and 8.04 shall survive.
After any such irrevocable deposit the Trustee upon request shall acknowledge
in writing the discharge of the Company's obligations under the Securities of
the applicable Series and this Indenture with respect to such Series except
for those surviving obligations specified above.
Section 8.02. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust cash, U.S. Government Obliga-
tions or the Required Currency, as the case may be, deposited with it pursuant
to Section 8.01, and shall apply the deposited cash, the money from U.S. Gov-
ernment Obligations or the Required Currency, as the case may be, in accor-
dance with this Indenture to the payment of principal of and interest on the
Securities.
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45
Section 8.03. Repayment to Company.
Subject to Section 8.01, the Trustee and the Paying Agent shall promptly pay
to the Company upon request any excess money held by them at any time. Subject
to the provisions of applicable law, the Trustee and the Paying Agent shall
pay to the Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years; provided, however,
the Trustee or such Paying Agent before being required to make any payment may
at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such publi-
cation or mailing, any unclaimed balance of such money then remaining will be
repaid to the Company. After payment to the Company, the Trustee shall be re-
leased from all further liability with respect to such money and
Securityholders entitled to money must look to the Company for payment as gen-
eral creditors unless an applicable abandoned property law designates another
person.
Section 8.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash, U.S. Government
Obligations or the Required Currency, as the case may be, in accordance with
Section 8.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or oth-
erwise prohibiting such application, the Company's obligations under this In-
denture (with respect to the applicable Series) and the Securities of the ap-
plicable Series shall be revived and reinstated as though no deposit had oc-
curred pursuant to Section 8.01 until such time as the Trustee or Paying Agent
is permitted to apply all such cash, U.S. Government Obligations and Required
Currency, as the case may be, in accordance with Section 8.01; provided, how-
ever, that if the Company has made any payment of interest on or principal of
any Securities of any Series because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securi-
ties to receive such payment from the cash, U.S. Government Obligations or the
Required Currency, as the case may be, held by the Trustee or Paying Agent.
Section 8.05. Indemnity for U.S. Government Obligations.
The Company shall pay, and shall indemnify the Trustee against, any tax, fee
or other charge imposed on or assessed against U.S. Government Obligations
<PAGE>
46
deposited pursuant to Section 8.01 or the principal and interest received on
such U.S. Government Obligations.
ARTICLE 9
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee may amend
or supplement this Indenture or the Securities of any Series without notice to
or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to certificated
Securities;
(4) to secure the Securities in connection with Section 4.08;
(5) to make any change that does not adversely affect the rights of any
Securityholder of such Series;
(6) to provide for the issuance and the terms of any particular Series of
Securities, the rights and obligations of the Company and the Holders of the
Securities of such Series, the form or forms of the Securities of such Se-
ries and such other matters in connection therewith as the Board of Direc-
tors of the Company shall authorize, including, without limitation, provi-
sions for (a) additional or different covenants, restrictions or conditions
applicable to such Series, (b) additional or different Events of Default in
respect of such Series, (c) a longer or shorter period of grace and/or no-
tice in respect of any provision applicable to such Series than is provided
in Section 6.01, (d) immediate enforcement of any Event of Default in re-
spect of such Series or (e) limitations upon the remedies available in re-
spect of any Events of Default in respect of such Series or upon the rights
of the holders of Securities of such Series to waive any such Event of De-
fault; provided, that this paragraph (6) shall not be deemed to require the
execution of a supplemental indenture to provide for the issuance of any Se-
ries of Securities unless the same shall be provided for in the Authorizing
Resolution relating thereto; or
(7) to provide for a separate Trustee for one or more Series.
Section 9.02. With Consent of Holders.
Subject to Section 6.07, with the written consent of the Holders of at least
a majority in principal amount of the outstanding Securities of all Series af-
fected
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47
thereby (voting as a single class), the Company, when authorized by a Board
Resolution, and the Trustee may amend or supplement this Indenture or such Se-
curities without notice to any Securityholder. Subject to Section 6.07, the
Holders of a majority in principal amount of the outstanding Securities of all
Series affected thereby (voting as a single class) may waive compliance by the
Company with any provision of this Indenture or such Securities without notice
to any Securityholder; provided, that, only the holders of a majority in prin-
cipal amount of Securities of a particular Series may waive compliance with a
provision of this Indenture or the Securities of such Series having applica-
bility solely to such Series. However, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a
waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities of such Series or all Series (voting as
a single class), as the case may be, whose Holders must consent to an amend-
ment, supplement or waiver;
(2) reduce the rate or change the Stated Maturity for payment of interest
on any Security;
(3) reduce the principal or any premium payable upon the redemption of or
change the Stated Maturity of any Security;
(4) waive a Default in the payment of the principal of or interest on any
Security;
(5) make any changes in Section 6.04, 6.07 or the third sentence of this
Section 9.02; or
(6) make any Security payable in money other than that stated in the Secu-
rity.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular Series of Securities, or which modifies the
rights of the Holders of Securities of such Series with respect to such cove-
nant or other provision, shall be deemed not to affect the rights under the
Indenture of the Holders of Securities of any other Series.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment, supplement or waiv-
er, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes effec-
tive, the Company shall mail to the Holders affected thereby a notice briefly
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48
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 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of such Se-
curity or portion of such Security that evidences the same debt as the con-
senting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke in writing
the consent as to his Security or portion of a Security. Such revocation shall
be effective only if the Trustee receives the written notice of revocation be-
fore the date the amendment, supplement or waiver becomes effective.
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, sup-
plement or waiver which shall be at least 30 days prior to the first solicita-
tion of such consent. If a record date is fixed, then notwithstanding the last
two sentences 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 con-
tinue to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind ev-
ery Holder of a Security of such Series, unless it makes a change described in
any of clauses (1) through (6) of Section 9.02. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security of the
same Series that evidences the same debt as the consenting Holder's Security.
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49
Section 9.05. Notation On or Exchange of Securities.
If an amendment, supplement or waiver 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 about 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 is-
sue and the Trustee shall authenticate a new Security of the same Series that
reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected in re-
lying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of any amendment, supplement or waiver authorized pursuant to
this Article 9 is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
ARTICLE 10
Miscellaneous
Section 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with an-
other provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 10.02. Notices.
Any notice or communication shall be sufficiently given if in writing and de-
livered in person or mailed by first-class mail addressed as follows:
if to the Company:
Colorado Interstate Gas Company
% The Coastal Corporation
Coastal Tower
Nine Greenway Plaza
Houston, Texas 77046-0995
Attention: Director, Financial Administration
if to the Trustee:
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50
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to him
at his address as it appears on the Security Register and shall be suffi-
ciently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
Except for a notice to the Trustee, which is deemed given only when received,
if a notice or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it.
Section 10.03. Communications by Holders With Other Holders.
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the Secu-
rities of an applicable Series. The Company, the Trustee, the Registrar and
any other person shall have the protection of TIA (S) 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 ac-
tion under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
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, other than the Officers' Certificate
required by Section 4.05, shall include:
(1) a statement that the person making such certificate or opinion has read
such covenant or condition;
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51
(2) a brief statement as to the nature and scope of the examination or in-
vestigation upon which the statements or opinions contained in such certifi-
cate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such exam-
ination or investigation as is necessary to enable him to express an in-
formed opinion as to whether or not such covenant or condition has been com-
plied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
Section 10.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
Section 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking institu-
tions in New York, New York are not required to be open. 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 ac-
crue for the intervening period.
Section 10.08. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE SECURI-
TIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 10.09. 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 of its Subsidiaries. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
Section 10.10. 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
<PAGE>
52
Indenture or for any claim based on, in respect of or by reason of such obli-
gations or their creation. Each Securityholder by accepting a Security waives
and releases all such liability.
Section 10.11. Successors.
All agreements of the Company in this Indenture and the Securities shall bind
its successor. All agreements of the Trustee in this Indenture shall bind its
successor.
Section 10.12. Duplicate 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 10.13. Separability.
In case any provision in this Indenture or in the Securities shall be inval-
id, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby, and
a Holder shall have no claim therefor against any party hereto.
Section 10.14. Action of Holders when Securities are Denominated in Different
Currencies.
Whenever any action is to be taken hereunder by the Holders of two or more
Series of Securities denominated in different currencies, then, for the pur-
poses of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a currency
other than United States dollars shall be deemed to be that amount of United
States dollars that could be obtained for such principal amount on the basis
of the spot rate of exchange for such currency as determined by the Company or
by an authorized exchange rate agent and evidenced to the Trustee by an Offi-
cers' Certificate as of the date the taking of such action by the Holders of
the requisite percentage in principal amount of the Securities is evidenced to
the Trustee. An exchange rate agent may be authorized in advance or from time
to time by the Company, and may be the Trustee or its Affiliate. Any such de-
termination by the Company or by any such exchange rate agent shall be conclu-
sive and binding on all Holders and the Trustee, and neither the Company nor
such exchange rate agent shall be liable therefor in the absence of bad faith.
<PAGE>
53
Section 10.15. Monies of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds, and accounts held by the Trustee
hereunder in one currency from any monies, funds or accounts in any other cur-
rencies, notwithstanding any provision herein which would otherwise permit the
Trustee to commingle such amounts.
Section 10.16. Payment to be in Proper Currency.
Each reference in any Security, or in the Authorizing Resolution and/or sup-
plemental indenture, if any, relating thereto, to any currency shall be of the
essence. In the case of any Security denominated in any currency (the "Re-
quired Currency") other than United States dollars, except as otherwise pro-
vided therein or in the related Authorizing Resolution and/or supplemental in-
denture, if any, the obligation of the Company to make any payment of princi-
pal of or interest thereon shall not be discharged or satisfied by any tender
by the Company, or recovery by the Trustee, in any currency other than the Re-
quired Currency, except to the extent that such tender or recovery shall re-
sult in the Trustee timely holding the full amount of the Required Currency.
The costs and risks of any such exchange, including without limitations, the
risks of delay and exchange rate fluctuation, shall be borne by the Company;
the Company shall remain fully liable for any shortfall or delinquency in the
full amount of Required Currency then due and payable, and in no circumstances
shall the Trustee be liable therefor. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by the Trustee,
is less than the full amount of Required Currency then due and payable.
<PAGE>
54
SIGNATURES
In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and at-
tested, all as of the date first written above.
Colorado Interstate Gas Company
[SEAL]
By: ________________________________________
Attest:_________________________
_________________________________________
[SEAL]
By: ________________________________________
Attest:_________________________
<PAGE>
EXHIBIT A
[Form of Face of Security]
[If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and
the following two legends apply:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DE-
POSITORY TRUST COMPANY ("DTC"), 55 WATER STREET, NEW YORK, NEW YORK TO THE IS-
SUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS
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, SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REG-
ISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY
DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.]
[The following is to be included if the Security is an Original Issue Dis-
count Security:]
[FOR PURPOSES OF SECTION 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE
CODE OF 1986, AS AMENDED: (I) THE ISSUE DATE OF THIS SECURITY IS ;
(II) THE YIELD TO MATURITY IS %; (III) THE ORIGINAL ISSUE DISCOUNT PER
$ FACE AMOUNT AT WHICH THE SECURITY IS ISSUED IS $ ; AND (IV) THE
[EXACT] [APPROXIMATE] METHOD HAS BEEN USED TO DETERMINE YIELD FOR THE ACCRUAL
PERIOD BEGINNING AND ENDING AND THE AMOUNT OF THE
ORIGINAL ISSUE DISCOUNT PER $ FACE AMOUNT ALLOCABLE TO THE ACCRUAL PE-
RIOD BEGINNING AND ENDING IS $ ].
<PAGE>
A-2
Colorado Interstate Gas Company
[title of Security]
<TABLE>
<CAPTION>
RATE OF INTEREST MATURITY DATE ORIGINAL ISSUE DATE
- ---------------- ------------- -------------------
<S> <C> <C>
No. ___________________ $______________
</TABLE>
Colorado Interstate Gas Company, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), for
value received, hereby promises to pay to or registered assigns, the
principal sum of on the Maturity Date shown above, and to pay interest
thereon, at the annual rate of interest shown above, from the Original Issue
Date shown above or from the most recent Interest Payment Date (as hereinafter
defined) to which interest has been paid or duly provided for, payable semi-
annually on and of each year and at maturity (an "Interest Payment
Date"), commencing on the first such date after the Original Issue Date, ex-
cept that if the Original Issue Date is on or after a Regular Record Date but
before the next Interest Payment Date, interest payments will commence on the
second Interest Payment Date following the Original Issue Date.
[reference to currency[ies] of payment and currency exchange arrangements, if
applicable.]
The interest so payable, and punctually paid or duly provided for, on any In-
terest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this [name of Security] is registered at the close of business
on the Regular Record Date for any such Interest Payment Date, which shall be
the fifteenth calendar day (whether or not a Business Day) preceding the ap-
plicable Interest Payment Date. Any such interest not so punctually paid or
duly provided for, and any interest payable on such defaulted interest (to the
extent lawful), will forthwith cease to be payable to the Holder on such Regu-
lar Record Date and shall be paid to the person in whose name this [name of
Security] is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company, notice of
which shall be given to Holders of [name of Series] not less than 15 days
prior to such special record date. Payment
<PAGE>
A-3
of the principal of and interest on this [name of Security] will be made at
the agency of the Company maintained for that purpose in [New York, New York
or other place of payment] and at any other office or agency maintained by the
Company for such purpose, in [reference to United States dollars or other cur-
rency of payment]; provided, however, that at the option of the Company pay-
ment of interest, other than interest due on the Maturity Date, may be made by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register. [Include the following, if applicable:]
Payments on the Maturity Date will be made in immediately available funds
against presentment of this [name of Security].
Reference is hereby made to the further provisions of this [name of Security]
set forth on the reverse hereof, which further provisions shall for all pur-
poses have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this [name of
Security] shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
In Witness Whereof, Colorado Interstate Gas Company has caused this instru-
ment to be executed in its corporate name by the facsimile signature of its
duly authorized officers and has caused a facsimile of its corporate seal to
be affixed hereunto or imprinted hereon.
Colorado Interstate Gas Company
Attest: ________________________ By: ________________________________________
[Assistant] Secretary [Title of Officer]
<PAGE>
A-4
DATED:
Trustee's Certificate of Authentication
This is one of the [name of Series] referred to in the within-mentioned In-
denture.
By: ________________________________________
Authorized Signatory
[Reverse Side]
Colorado Interstate Gas Company
[Name of Security]
This [name of Security] is one of a duly authorized issue of [name of Securi-
ties] of the Company (which term includes any successor corporation under the
Indenture hereinafter referred to) designated as its [title of Series] (the
"[name of Series]"), issued or to be issued pursuant to an Indenture,
dated as of , 199 (the "Indenture"), between the Company and , as
Trustee (the "Trustee," which term includes any successor trustee under the
Indenture); and under [reference to Authorizing Resolution and/or supplemental
indenture (if any) relating to the Series]. The terms of this [name of Securi-
ty] include those stated in the Indenture and [reference to Authorizing Reso-
lution and/or supplemental indenture (if any) relating to the Series] and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as in effect on the date of the Indenture. Reference is hereby made to
the Indenture and all [further] supplemental indentures thereto for a state-
ment of the respective rights, limitation of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders and of the terms upon
which the [name of Security] are, and are to be, authenticated and delivered.
This [name of Series] is a Series of Securities issued or to be issued by the
Company under the Indenture, and this Series is limited in aggregate principal
amount to $ . The Indenture provides that the Securities of the Com-
<PAGE>
A-5
pany referred to therein ("Securities"), including the [name of Series], may
be issued in one or more Series, which different Series may be issued in such
aggregate principal amounts and on such terms (including, but not limited to,
terms relating to interest rate or rates, provisions for determining such in-
terest rate or rates and adjustments thereto, maturity, redemption (optional
and mandatory), sinking fund, covenants and Events of Default) as may be pro-
vided in or pursuant to the Authorizing Resolutions and/or supplemental inden-
ture (if any) relating to the several Series.
[The following to be included if the Securities are not redeemable prior to
maturity.]
This [name of Security] may not be redeemed prior to its Maturity Date.
[The following paragraph, or other appropriate redemption provisions, to be
included if the Securities are Redeemable Securities:]
The [name of Series] are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, [the following clause to be included if there is
a Sinking Fund:] [(1) on [annual Sinking Fund Redemption Date] in each year
commencing with the year [year of first Sinking Fund payment] through opera-
tion of the Sinking Fund at a Redemption Price equal to their principal amount
and (2)] [at any time or from time to time] in whole or in part, at the elec-
tion of the Company at a Redemption Price equal to the percentage set forth
below of the principal amount to be redeemed for the respective twelve-month
periods beginning [ ] of the years indicated:
[Schedule of Redemption Prices]
and thereafter at 100% of the principal amount thereof, together in each case
with accrued interest to the Redemption Date.
<PAGE>
A-6
[The following paragraph, or other appropriate Sinking Fund provision, to be
included if there is a Sinking Fund for the Series:]
The Sinking Fund provides for the redemption on [first Sinking Fund Redemp-
tion Date] and on [annual Sinking Fund Redemption Date] in each year thereaf-
ter through [year of final Sinking Fund date] of not less than [minimum re-
quired Sinking Fund redemption amount] principal amount nor more than [maximum
permitted Sinking Fund redemption amount] principal amount of [name of Se-
ries]. [name of Series] purchased, acquired or redeemed by the Company other-
wise than by redemption through the Sinking Fund may be credited against Sink-
ing Fund requirements to the extent not previously so credited.
[The following paragraph to be included if the Securities are Redeemable Se-
curities or Sinking Fund Securities:]
If an event of redemption of this [name of Security] in part only, a new
[name of Security] or [name of Series] for the unredeemed portion hereof shall
be issued in the name of the Holder hereof upon the surrender hereof.
[The following paragraph to be included if the Securities are not Original
Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the Authorizing
Resolution and/or supplemental indenture (if any) relating to the [name of Se-
ries] (if there shall be any additional Events of Default specified in respect
of the [name of Series]), shall occur and be continuing, the principal of all
the [name of Series] may be declared due and payable in the manner and with
the effect provided in the Indenture.
[If the Securities are Original Issue Discount Securities, insert schedule as
to amounts which are payable on acceleration under Section 6.02 and provable
in bankruptcy under Section 6.09 from time to time.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the [name of Series] under the Inden-
ture at any time by the Company and the Trustee with the consent of the Hold-
ers of a majority in aggregate principal amount of the Securities affected
thereby, voting as a single class (which may include the [name of Series]), at
the time outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securi-
ties at the time outstand-
<PAGE>
A-7
ing to waive compliance by the Company with certain provisions of the Inden-
ture and certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this [name of Security] shall be con-
clusive and binding upon such Holder and upon all future Holders of this [name
of Security] and of any [name of Security] issued upon the registration of
transfer hereof or in exchange herefor in lieu hereof, whether or not notation
of such consent or waiver is made upon this [name of Security].
The Indenture provides that no Holder may pursue any remedy under the Inden-
ture unless the Trustee shall have failed to act after notice of an Event of
Default and written request by Holders of at least 25% in principal amount of
the [name of Securities] of the applicable Series and the offer to the Trustee
of indemnity satisfactory to it; however, such provision does not affect the
right to sue for enforcement of any overdue payment on any Security.
No reference herein to the Indenture and no provision of this [name of Secu-
rity] or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this [name of Security] at the times, places and rates, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this [name of Security] is registrable in the Security
Register upon surrender of this [name of Security] for registration of trans-
fer at the agency of the Company provided for that purpose duly endorsed by,
or accompanied by a written instrument of transfer in substantially the form
accompanying this [name of Security] duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new [name
of Series], of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The [name of Series] are issuable only in registered form without coupons in
denominations of [currency and minimum denomination] and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, the [name of Series] are exchangeable for a like aggregate
principal amount of [name of Series] of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or ex-
change, but the Company may require payment of a sum sufficient to cover
<PAGE>
A-8
any transfer tax or similar governmental charge payable in connection there-
with (other than any such transfer taxes or similar governmental charge pay-
able upon exchanges pursuant to Section 2.11, 3A.08 or 9.05 in which case such
transfer taxes or similar governmental charges shall be paid by the Company).
Prior to due presentment of this [name of Security] for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this [name of Security] is registered as
the owner hereof for all purposes, whether or not this [name of Security] be
overdue, and neither the Company, the Trustee nor any such agent shall be af-
fected by notice to the contrary.
[Reference to Foreign Currencies]
All terms used in this [name of Security] which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a [name of Security]
holder or any assignee, such as: TEN COM ( = tenants in common), TEN ENT
( = tenants by the entireties), JT TEN ( = joint tenants with right of survi-
vorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A
( = Uniform Gifts to Minors Act).
The Company will furnish to any [name of Security] holder of record, upon
written request, without charge, a copy of the Indenture. Requests may be made
to: Colorado Interstate Gas Company, c/o The Coastal Corporation, Coastal Tow-
er, Nine Greenway Plaza, Houston, Texas 77046-0995, Attention: Corporate Sec-
retary.
<PAGE>
A-9
ASSIGNMENT FORM
If you the holder want to assign this [name of Security], fill in the form
below and have your signature guaranteed:
I or we assign and transfer this [name of Security] to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(PRINT OR TYPE NAME, ADDRESS AND ZIP CODE AND
SOCIAL SECURITY OR TAX ID NUMBER OF ASSIGNEES)
and irrevocably appoint, ______agent to transfer this [name of Security] on the
books of the Company. The agent may substitute another to act for him.
Dated: _________________________ Signed: __________________________________
__________________________________________
(SIGN EXACTLY AS NAME APPEARS ON THE
OTHER SIDE OF THIS [NAME OF SECURITY])
SIGNATURE GUARANTEE: __________________________________________________________
Notice: Signature(s) must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
<PAGE>
EXHIBIT 5
September 6, 1996
Colorado Interstate Gas Company
Two North Nevada Avenue
Colorado Springs, Colorado 80903-1727
Gentlemen:
I have acted as counsel to Colorado Interstate Gas Company, a Delaware
corporation (the "Company"), in connection with the offering by the Company of
$100 million aggregate public offering price of the Company's debt securities
(the "Debt Securities"), pursuant to a registration statement on Form S-3 (the
"Registration Statement"), filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act").
In this connection, I have examined the corporate proceedings of the Company
relating to the Debt Securities to be issued pursuant to a proposed indenture,
as amended or supplemented from time to time setting forth specific terms of
any series of Debt Securities, between the Company and a trustee to be
selected by the Company (the "Indenture" and the "Trustee," respectively). I
have also examined all statutes, corporate records and other instruments and
documents which I have deemed it necessary to examine for the purposes of this
opinion.
Based on the foregoing, I am of the opinion that:
1. The Company has been duly organized and is validly existing under the
laws of the State of Delaware.
2. The Indenture has been duly authorized by the Board of Directors of the
Company and, upon execution and delivery thereof by the Company and the
Trustee, will be the legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except that (a) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, (b) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding therefor may
be brought, and (c) the waiver as to usury in the Indenture may be
unenforceable.
3. When the Registration Statement has become effective under the Act and
the terms of any series of Debt Securities and of their issue and sale
have been duly established so as not to violate any applicable law or
agreement or instrument binding on the Company and upon execution and
authentication of such Debt Securities in accordance with the terms of
the Indenture (assuming the due authentication, execution and delivery
thereof by the Trustee) and delivery of such Debt Securities to the
purchasers thereof against payment therefor, such Debt Securities will
be legal, valid and binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits provided by the
Indenture except that (a) the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought, and (c) the waiver as to
usury in the Indenture may be unenforceable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to the undersigned under the
caption therein entitled "Legal Matters."
Very truly yours,
/s/ Austin M. O'Toole
-------------------------------------
Austin M. O'Toole
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Colorado Interstate Gas Company on Form S-3 of our report dated February 1,
1996, appearing in the Annual Report on Form 10-K of Colorado Interstate Gas
Company for the year ended December 31, 1995, and to the reference to us under
the heading "Experts" in the Prospectus, which is a part of this Registration
Statement.
Deloitte & Touche LLP
Houston, Texas
September 6, 1996
