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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) FEBRUARY 14, 1994
ANR PIPELINE COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1-7320 38-1281775
(STATE OR OTHER (COMMISSION (I.R.S. EMPLOYER
JURISDICTION FILE NUMBER) IDENTIFICATION NO.)
OF INCORPORATION)
500 RENAISSANCE CENTER
DETROIT, MICHIGAN 48243-1902
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (313) 496-0200
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
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<C> <S>
(1) Underwriting agreement dated February 14, 1994, between the Company
and Citicorp Securities, Inc. as Representative of the Underwriters.
(12) Ratio of Earnings to Fixed Charges.
(28) Press release dated February 15, 1994.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANR Pipeline Company
(Registrant)
Austin M. O'Toole
Date: February 15, 1994 By: _________________________________
Austin M. O'Toole
Senior Vice President
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EXHIBIT 1
ANR PIPELINE COMPANY
UNDERWRITING AGREEMENT
February 14, 1994
Citicorp Securities, Inc.
399 Park Avenue,
New York, New York 10043
Dear Sirs:
ANR Pipeline 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"), to be dated as of
February 15, 1994, between the Company and Comerica Bank, 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. 33-50375), 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 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 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
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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, 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 shares of voting stock of each Subsidiary of
the Company have been duly authorized and validly issued, are fully paid
and nonassessable and are owned directly or indirectly by the Company, free
and clear of any claim, lien, encumbrance or security interest.
(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
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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 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.
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(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 in
Section 2(c) hereof) 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.
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(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 two business days 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 at least 24 hours 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.
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(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, 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 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
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any other condition of the Underwriters' obligations hereunder is not
fulfilled, the Company shall reimburse each of the Underwriters for all
reasonable out-of-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 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 voting stock of each of the Subsidiaries is owned by the
Company free and clear of any mortgage, pledge, security interest or
other restriction on transferability or voting;
(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;
(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;
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(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 and 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, 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
9
<PAGE>
this Agreement are true and correct, as if made at and as of the Closing
Date, and the Company 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, 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.
(j) Since the execution and delivery of the Terms Agreement, there shall
not have been any downgrading in the rating of any of the debt securities
of the Company or any action threatening such a downgrading or placing the
Company under special surveillance by either Standard & Poor's Corporation
or Moody's Investors Service or any notice given of, or any other action
threatening, any intended or potential downgrading in any such rating or of
a possible change in any such rating that does not indicate the direction
of the possible change or any action placing the Company under special
surveillance.
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
10
<PAGE>
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 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
11
<PAGE>
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 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.
12
<PAGE>
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 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.
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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 Company at The
Coastal Corporation, Coastal Tower, Nine Greenway Plaza, Houston, Texas 77046-
0995, Attention: Director--Financial Administration, with a copy to Austin M.
O'Toole, Esq.; 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,
ANR PIPELINE COMPANY
/s/ Jeffrey A. Connelly
By: _________________________________
Confirmed and accepted as of
the date first above mentioned:
CITICORP SECURITIES, INC.
/s/ James S. Hart
By: _________________________________
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EXHIBIT A
TERMS AGREEMENT
% SERIES SENIOR [TITLE OF DEBT SECURITIES] DUE
, 199
ANR Pipeline Company
c/o The Coastal Corporation
Coastal Tower
Nine Greenway Plaza
Houston, Texas 77046-0995
Dear Sirs:
ANR Pipeline Company (the "Company") and [ ] have entered into an
Underwriting Agreement (the "Underwriting Agreement"), dated , 199 ,
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
, 1993, as amended from time to time, between the Company and
Comerica Bank, 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.
[ ] [and the several other underwriters named in Schedule A
annexed hereto] (the "Underwriter[s]") understand[s] that the Company proposes
to issue and sell $ aggregate principal amount of % Series
Senior [Title of Debt Securities] Due (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 Underwriter[s] and the Underwriter[s] agree[s] [, 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 plus accrued interest from
, 199 , if any, to the Closing Date. The Prospectus Supplement with
respect to the Purchased Securities is dated , 199 and includes the
Prospectus dated October 5, 1993.
The Underwriter[s] will pay for such Purchased Securities upon delivery
thereof in New York City at 10:00 A.M. (New York time) on , 199 (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 Underwriter[s].
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) Currency (if other
than United States
dollars):
% of the principal amount of the Purchased
(d) Initial Public Securities plus accrued interest from , 199 ,
Offering Price: if any.
(e) Interest Payment and of each year, commencing
Dates: , 199 .
(f) Mandatory Redemp- On or prior to in each year, commencing in 199
tion: and ending in 199 , the Company will pay to the Trustee
an amount sufficient to redeem $ principal amount
of the Purchased Securities. [Insert if appropriate.]
</TABLE>
1
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<TABLE>
<S> <C>
(g) Optional Redemption: Redeemable at the option of the Company at a redemption
price equal to % of principal amount if redeemed
during the twelve-month period beginning ,
199 , plus accrued interest to the date of redemption
and thereafter at 100% of principal amount plus accrued
interest to the date of redemption. [Insert if
appropriate.]
</TABLE>
[Describe other provisions]
Name[s] and Address[es] of Representative[s]:
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.
We represent that we are authorized to act for the several Underwriters named
in Schedule A hereto in connection with this financing and any action under
this Agreement by any of us will be binding upon all the Underwriters.
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,
[ ]
[as Representative]
By: _________________________________
Accepted and Agreed to
as of the date first
above written
ANR Pipeline Company
By: _________________________________
2
<PAGE>
SCHEDULE A
TO
TERMS AGREEMENT
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
NAME OF SECURITIES
---- ----------------
<S> <C>
$
------------
Total................................................ $
============
</TABLE>
<PAGE>
SCHEDULE 1
DELAYED DELIVERY CONTRACT
, 199
ANR Pipeline Company
c/o The Coastal Corporation
Coastal Tower
Nine Greenway Plaza
Houston, Texas 77046-0995
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from ANR Pipeline Company (the
"Company"), and the Company agrees to sell to the undersigned,
$
----------------
principal amount of the Company's (state title of issue) (the "Contract
Securities") offered by the Company's Prospectus dated October 5, 1993 and a
Prospectus Supplement dated , 199 , receipt of copies of which is
hereby acknowledged, at a purchase price of % of the principal amount thereof
plus accrued interest and on the further terms and conditions set forth in this
contract.
The undersigned agrees to purchase such Securities in the principal amounts
and on the delivery dates (the Delivery Dates) set forth below.
<TABLE>
<CAPTION>
DELIVERY PRINCIPAL PLUS ACCRUED
DATE AMOUNT INTEREST FROM:
-------- --------- --------------
<S> <C> <C>
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
- -------------------------- -------------------------- --------------------------
</TABLE>
Payment for the Contract Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the
Corporate Trust Office of Comerica Bank (or at such other place as the
undersigned and the Company shall agree) at 10:00 A.M., New York City Time, on
such Delivery Date upon issuance and delivery to the undersigned of the
Contract Securities to be purchased by the undersigned on such Delivery Date in
such authorized denominations and registered in such names as the undersigned
may designate by written or telegraphic communications addressed to the Company
not less than two full business days prior to such Delivery Date.
The obligation of the Company to sell and deliver, and of the undersigned to
take delivery of and make payment for, Contract Securities on each Delivery
Date shall be subject to the conditions that (1) the purchase of Contract
Securities to be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the undersigned is
subject and (2) the Company shall have sold, and delivery shall have taken
place, to Underwriters of such principal amount of the Contract Securities as
is to be sold and delivered to them.
Promptly after completion of the sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Underwriters.
1
<PAGE>
Failure to take delivery of and make payment for Contract Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the law of the jurisdictions
to which the undersigned is subject from purchasing the Contract Securities
hereby agreed to be purchased and (b) the undersigned does not contemplate
selling the Contract Securities which it has agreed to purchase hereunder prior
to the Delivery Date therefore.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to the choice of law or conflict of laws principles
thereof. This contract may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
It is understood that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so signed.
Yours very truly,
_____________________________________
By:__________________________________
_____________________________________
_____________________________________
Address
Accepted as of the date first above written
ANR Pipeline Company
By:__________________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
<TABLE>
<CAPTION>
TELEPHONE NO.
NAME (INCLUDING AREA CODE) DEPARTMENT
- ---- --------------------- ----------
<S> <C> <C>
</TABLE>
2
<PAGE>
EXHIBIT 12
ANR PIPELINE COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
---------------------------------- -------------
1989 1990 1991 1992 1993 1992 1993
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS:
Pretax earnings from
continuing operations...... $238.9 $221.8 $224.7 $227.9 $237.2 $182.5 $179.4
Fixed charges, excluding
capitalized interest--see
below...................... 81.1 71.3 67.1 63.6 56.2 49.2 43.0
------ ------ ------ ------ ------ ------ ------
Earnings.................... $320.0 $293.1 $291.8 $291.5 $293.4 $231.7 $222.4
====== ====== ====== ====== ====== ====== ======
FIXED CHARGES:
Interest expense............ $ 75.6 $ 65.4 $ 61.0 $ 58.1 $ 50.8 $ 45.1 $ 39.0
Interest factor, included in
rentals.................... 5.5 5.9 6.1 5.5 5.4 4.1 4.0
------ ------ ------ ------ ------ ------ ------
Fixed charges, excluding
capitalized interest....... 81.1 71.3 67.1 63.6 56.2 49.2 43.0
Capitalized interest........ .7 4.3 4.5 3.9 1.5 2.6 1.2
------ ------ ------ ------ ------ ------ ------
Fixed charges............... $ 81.8 $ 75.6 $ 71.6 $ 67.5 $ 57.7 $ 51.8 $ 44.2
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed
charges...................... 3.91x 3.88x 4.08x 4.32x 5.08x 4.47x 5.03x
====== ====== ====== ====== ====== ====== ======
</TABLE>
<PAGE>
EXHIBIT 28
[LOGO] NEWS
RELEASE
- -------------------------------------------------------------------------------
Contact: Steven M. Eames
713/877-6733
COASTAL'S ANR PIPELINE COMMENCES $125 MILLION
PUBLIC OFFERING OF 30-YEAR DEBENTURES
HOUSTON, FEB. 15, 1994--ANR Pipeline Company, a Detroit-based subsidiary of
The Coastal Corporation, said today it has commenced a public offering through
underwriters of $125 million in principal amount of 7 3/8% 30-year Debentures
maturing February 15, 2024. Citicorp Securities, Inc. is the principal
underwriter. The underwriting syndicate also includes BT Securities
Corporation, Chase Securities, Inc., Chemical Securities Inc., NatWest
Securities Limited, and UBS Securities Inc. ANR said it intends to use the net
proceeds from the offering primarily for capital expenditures and for other
general corporate purposes, including the payment of dividends. The offering
is being made only by means of a Prospectus and Prospectus Supplement
available from any underwriter.
ANR Pipeline also reported net earnings for the year 1993 of $157.0 million
and fourth-quarter net earnings of $39.2 million, compared to 1992 net
earnings of $151.0 million and 1992 fourth-quarter earnings of $30.3 million.
The Coastal Corporation (NYSE:CGP) is a Houston-based energy holding
company. Coastal has consolidated assets of more than $10 billion and
subsidiary operations in natural gas marketing, transmission and storage,
petroleum refining and marketing, oil and gas exploration and production,
coal, chemicals, trucking and independent power production.
- -------------------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C>
Coastal Tower Media Inquiries Please Contact: Investor Relations Inquiries Please Contact: A.K. Turner, Conn.
Nine Greenway Plaza Steve Eames Stirling D. Pack, Jr. 203/622-6900
Houston TX 77046-0995 713/877-1400 (Texas) 713/877-6924 (Texas)
800-788-2500 (Outside Texas) 800-788-2500 (Outside Texas)
</TABLE>
