EXCHANGE AGENT AGREEMENT April , 2006
EXHIBIT 99.6
April , 0000
Xxx Xxxx xx Xxx Xxxx Trust Company, N.A.
Corporate Trust
000 X. Xxxxx Xxxxxx, #000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Corporate Trust
000 X. Xxxxx Xxxxxx, #000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Ladies and Gentlemen:
Colorado Interstate Gas Company, a Delaware corporation (the “Company”), proposes to
make an offer (the “Exchange Offer”) to exchange an aggregate principal amount of up to
$400,000,000 of its issued and outstanding 6.80% Senior Notes due 2015 (the “Old Notes”)
for its 6.80% Senior Notes due 2015, which have been registered under the Securities Act of 1933,
as amended (the “New Notes”). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in the Company’s prospectus, dated , 2006 (the
“Prospectus”), proposed to be distributed to all record holders of the Old Notes. The Old
Notes and the New Notes are collectively referred to herein as the “Notes.”
The Company hereby appoints The Bank of New York Trust Company, N.A. to act as exchange agent
(the “Exchange Agent”) in connection with the Exchange Offer. References hereinafter to
“you” shall refer to The Bank of New York Trust Company, N.A.
The Exchange Offer is expected to be commenced by the Company on or about , 2006. The
Letter of Transmittal (the “Letter of Transmittal”) accompanying the Prospectus (or in the
case of book entry securities, the ATOP system) is to be used by the holders of the Old Notes to
accept the Exchange Offer and contains instructions with respect to the delivery of certificates
for Old Notes tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on ___, 2006 or on
such later date or time to which the Company may extend the Exchange Offer (the “Expiration
Date”). Subject to the terms and conditions set forth in the Prospectus and the accompanying
Letter of Transmittal, the Company expressly reserves the right to extend the Exchange Offer from
time to time and may extend the Exchange Offer by giving oral (confirmed in writing) or written
notice to you before 9:00 a.m. New York City time, on the business day following the previously
scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the Exchange Offer, and not to
accept for exchange any Old Notes not theretofore accepted for exchange, upon the occurrence of any
of the conditions of the Exchange Offer specified in the Prospectus under the caption “The Exchange
Offer – Conditions of the Exchange Offer.” The Company will give oral notice (confirmed in
writing) or written notice of any amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance with the following
instructions:
1. You will perform such duties and only such duties (a) as are specifically set forth in (i)
the section of the Prospectus captioned “The Exchange Offer,” (ii) the Letter of Transmittal, or
(iii) this agreement or (b) as may be subsequently agreed to in writing by you and the Company;
provided, however, that, notwithstanding any provision hereof to the contrary, in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Notes at The Depository Trust Company
(the “Book-Entry Transfer Facility”) for purposes of the Exchange Offer within two business
days after the date of the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility’s systems may make book-entry delivery of the Old Notes by causing the
Book-Entry Transfer Facility to transfer such Old Notes into your account in accordance with the
Book-Entry Transfer Facility’s procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates for Old Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer Facility) and any
other documents delivered or mailed to you by or for holders of the Old Notes to ascertain whether:
(i) the Letters of Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and (ii) the Old Notes have otherwise
been properly tendered. In each case where the Letter of Transmittal or any other document has
been improperly completed or executed or any of the certificates for Old Notes are not in proper
form for transfer or some other defect or irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the presenters of the need for fulfillment of
all requirements and to take any other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Chief Executive Officer, Senior Vice President, Executive Vice
President, or any Vice President of the Company (such approval, if given orally, to be confirmed in
writing) or any other party designated by such an officer in writing (each a “Designated
Officer”), you are authorized to waive any defects or irregularities in connection with any
tender of Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of Transmittal and in the
section of the Prospectus captioned “The Exchange Offer – Procedures for Tendering Old Notes,” and
Old Notes shall be considered properly tendered to you only when tendered in accordance with the
procedures set forth therein. Notwithstanding the provisions of this Section 5, Old Notes which
any Designated Officer shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Notes received subsequent to the
Expiration Date and accept its instructions with respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more names only if signed by
all named holders;
(b) in cases where the signing person (as indicated on the Letter of Transmittal) is
acting in a fiduciary or a representative capacity only when proper evidence of his or her
authority so to act is submitted; and
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(c) from persons other than the registered holder of Old Notes, provided that customary
transfer requirements, including the payment by such persons or the registered holder of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as permitted in the Letter of
Transmittal and deliver certificates for Old Notes to the transfer agent for split-up and return
any untendered Old Notes to the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Company
will notify you (such notice, if given orally, to be confirmed in writing) of its acceptance,
promptly after the Expiration Date, of all Old Notes properly tendered and you, on behalf of the
Company, will exchange such Old Notes for New Notes and cause such Old Notes to be cancelled.
Delivery of New Notes will be made on behalf of the Company by you at the rate of $1,000 principal
amount of New Notes for each $1,000 principal amount of the corresponding series of Old Notes
tendered promptly after notice (such notice, if given orally, to be confirmed in writing) of
acceptance of said Old Notes by the Company; provided, however, that in all cases, Old Notes
tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof or delivery of an Agent’s Message (as defined in the Prospectus) in lieu thereof)
with any required signature guarantees and any other required documents. You shall issue New Notes
only in denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that, subject to the terms
and upon the conditions set forth in the Prospectus and the Letter of Transmittal, Old Notes
tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Notes tendered if any of the
conditions of the Exchange Offer set forth in the Prospectus under the caption “The Exchange Offer
– Conditions of the Exchange Offer” are not met. Notice of any decision by the Company not to
exchange any Old Notes tendered shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for exchange all or part
of the Old Notes tendered because of an invalid tender, the occurrence of certain other events set
forth in the Prospectus under the caption “The Exchange Offer – Conditions of the Exchange Offer”
or otherwise, you shall as soon as practicable after the expiration or termination of the Exchange
Offer return those certificates for unaccepted Old Notes (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of Transmittal relating
thereto that are in your possession, to the persons who deposited them.
12. All certificates for reissued Old Notes, unaccepted Old Notes or for New Notes shall be
forwarded by (a) first-class certified mail, return receipt requested, under a blanket
surety bond protecting you and the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates, (b) by registered mail insured separately for the
replacement value of each of such certificates, or (c) by appropriate book-entry transfer.
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13. You are not authorized to pay or offer to pay any concessions, commissions or solicitation
fees to any broker, dealer, bank or other persons or to engage or utilize any person to solicit
tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than (i) as specifically set forth in (A)
the section of the Prospectus captioned “The Exchange Offer,” (B) the Letter of Transmittal,
or (C) this agreement or (ii) as may be subsequently agreed to in writing by you and the
Company; provided, however, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(b) will be regarded as making no representations and having no responsibilities as to
the validity, sufficiency, value or genuineness of any of the certificates or the Old Notes
represented thereby deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value or genuineness of the
Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which might in your
reasonable judgment involve any expense or liability, unless you shall have been furnished
with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in reliance upon any
certificate, instrument, written opinion, written notice, letter, telegram or other written
document or security delivered to you and reasonably believed by you in good faith to be
genuine and to have been signed by the proper party or parties;
(e) may reasonably act upon any statement, written request, comment, written agreement
or other written instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any information
contained therein, which you shall in good faith believe to be genuine or to have been
signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written instructions from any
Designated Officer of the Company;
(g) may consult with your counsel with respect to any questions relating to your duties
and responsibilities and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted to be taken
by you hereunder in good faith and in accordance with the advice or opinion of such counsel;
and
(h) shall not advise any person tendering Old Notes pursuant to the Exchange Offer as
to the wisdom of making such tender or as to the market value or decline or appreciation in
market value of any Old Notes.
15. You shall take such action as may from time to time be requested by the Company or its
counsel (and such other action as you may reasonably deem appropriate) to furnish copies of the
Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery (as defined in the
Prospectus) or such other forms as may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone
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requests for information relating
to the Exchange Offer, provided that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Company will furnish you with copies of
such documents at your request. All other requests for information relating to the Exchange Offer
shall be directed to the Company, Attention: Corporate Secretary.
16. You shall advise by facsimile transmission, electronic mail or telephone, and promptly
thereafter confirm in writing to Xxxxx Xxxxxxx, Senior Counsel, and such other person or persons as
the Company may request, daily (and more frequently during the week immediately preceding the
Expiration Date and if otherwise requested) up to and including the Expiration Date, as to the
number of Old Notes which have been tendered pursuant to the Exchange Offer and the items received
by you pursuant to this Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition, you will also inform, and cooperate
in making available to, the Company, its counsel or any such other person or persons upon oral
request made from time to time prior to the Expiration Date of such other information as it or he
or she reasonably requests. Such cooperation shall include, without limitation, the granting by
you to the Company and such person as the Company may request of access to those persons on your
staff who are responsible for receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Company shall have received information in sufficient detail to enable it to
decide whether to extend the Exchange Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Notes tendered, the aggregate
principal amount of Old Notes accepted and deliver said list to the Company promptly after the
Expiration Date.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as to
the date and the time of receipt thereof and shall be preserved by you for a period of time at
least equal to the period of time you preserve other records pertaining to the transfer of
securities. You shall dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right of set-off whatsoever that you
may have with respect to funds deposited with you for the payment of transfer taxes by reasons of
amounts, if any, borrowed by the Company, or any of its subsidiaries or affiliates pursuant to any
loan or credit agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be entitled to such
reasonable compensation as set forth on Schedule I attached hereto, plus reasonable
out-of-pocket expenses and reasonable legal counsel fees.
20. You hereby acknowledge receipt of the Prospectus and the Letter of Transmittal and further
acknowledge that you have examined each of them. Any inconsistency between this Agreement, on the
one hand, and the Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold you harmless in your capacity as
Exchange Agent hereunder against any loss, liability, cost or expense, including reasonable
attorneys’ fees and expenses, arising out of or in connection with any act, omission, delay or
refusal made by you in reliance upon any signature, endorsement, assignment,
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certificate, order,
request, notice, instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any transfer of Old Notes
reasonably believed by you in good faith to be authorized, and in delaying or refusing in good
faith to accept any tenders or effect any transfer of Old Notes; provided, however, that the
Company shall not be liable for indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your negligence or willful misconduct. In no case shall the
Company be liable under this indemnity with respect to any claim against you unless the Company
shall be notified by you, by letter or by facsimile confirmed by letter, of the written assertion
of a claim against you or of any other action commenced against you, promptly after you shall have
received any such written assertion or notice of commencement of action. The Company shall be
entitled to participate at its own expense in the defense of any such claim or other action, and,
if the Company so elects, the Company shall assume the defense of any suit brought to enforce any
such claim. In the event that the Company shall assume the defense of any such suit, the Company
shall not thereafter be liable for the fees and expenses of any counsel retained by you so long as
you consent to the Company’s retention of counsel, which consent may not be unreasonably withheld,
and so long as you have not determined, which determination shall be based on the written opinion
of your outside counsel, that a conflict of interest exists between you and the Company. It is
understood that the Company shall not be liable under this Section for the fees and expenses of
more than one legal counsel for you at any one particular time. You agree that, without the prior
written consent of the Company (which consent shall not be unreasonably withheld), you will not
settle, compromise or consent to the entry of any pending or threatened claim, action or proceeding
in respect of which indemnification could be sought in accordance with the indemnification
provisions of this Agreement (whether or not you or the Company is an actual or potential party to
such claim, action or proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Company from all liability arising out of such claim, action or
proceeding.
22. You shall comply with all requirements under the tax laws of the United States of America,
including those relating to missing Tax Identification Numbers, and shall file any appropriate
reports with the Internal Revenue Service. The Company understands that you are required, where
applicable, to deduct 28% on payments to holders who have not supplied their correct Taxpayer
Identification Number or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. This Agreement and your appointment as Exchange Agent hereunder shall be construed and
enforced in accordance with the laws of the State of New York applicable to agreements made and to
be performed entirely within such state, and without regard to conflicts of law principles, and
shall inure to the benefit of, and the obligations created hereby shall be binding upon, the
successors and permitted assigns of each of the parties hereto; provided, however, that no party
may assign or otherwise transfer any of its rights, interests or obligations hereunder without the
prior written consent of the other party hereto.
24. This Agreement may be executed in two or more counterparts, each of which shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
25. In case any provision or clause of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions or clauses
shall not in any way be affected or impaired thereby.
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26. This Agreement shall not be deemed or construed to be modified, amended, rescinded,
cancelled or waived, in whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other communications to any
party hereunder shall be in writing (including facsimile or similar writing) and shall be given to
such party, addressed to it, at its address or telecopy number set forth below:
If to the Company:
Colorado Interstate Gas Company
El Paso Building
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Email: Xxxxx.Xxxxxxx@xxxxxx.xxx
Attention: Xxxxx Xxxxxxx, Esq.
El Paso Building
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Email: Xxxxx.Xxxxxxx@xxxxxx.xxx
Attention: Xxxxx Xxxxxxx, Esq.
with a copy to:
Xxxxxxx Xxxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Email: XxxxxXxxxx@xxxxx.xxx
Attention: Xxxxx Havre
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Email: XxxxxXxxxx@xxxxx.xxx
Attention: Xxxxx Havre
If to the Exchange Agent:
The Bank of New York Trust Company, N.A.
Corporate Trust
000 X. Xxxxx Xxxxxx, #000
Xxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Email: Xxxxxxxxxx@xxxxxxxx.xxx
Attention: Xxxx X. Xxxxxxxxx
Corporate Trust
000 X. Xxxxx Xxxxxx, #000
Xxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Email: Xxxxxxxxxx@xxxxxxxx.xxx
Attention: Xxxx X. Xxxxxxxxx
28. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days
following the Expiration Date. Notwithstanding the foregoing, Sections 19 and 21 shall survive the
termination of this Agreement. Upon any termination of this Agreement, you shall
promptly deliver to the Company any certificates for Notes, funds or property then held by you
as Exchange Agent under this Agreement.
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29. Upon due execution and delivery by all parties hereto, this Agreement shall be binding and
effective as of the date hereof.
[SIGNATURE PAGE FOLLOWS]
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Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by
signing and returning the enclosed copy.
| COLORADO INTERSTATE GAS COMPANY | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted and agreed as of the
date first above written:
date first above written:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Exchange Agent
as Exchange Agent
By: |
||||
Name: |
||||
Title: |
||||
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