EXCHANGE AGENT AGREEMENT
Exhibit 99.6
,
0000
Xxx Xxxx xx Xxx Xxxx Trust Company, N.A.
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 $200,000,000 of its issued and
outstanding 5.95% Senior Notes due 2015 (the “Old
Notes”) for its 5.95% 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 , 2005
(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 ,
2005. 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 ,
2005 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 (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 as are
specifically set forth in the section of the Prospectus
captioned “The Exchange Offer,” the Letter of
Transmittal, as specifically set forth herein or 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 | |
| (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
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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.
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 as specifically set forth in the section of the Prospectus captioned “The Exchange Offer,” the Letter of Transmittal, as specifically set forth herein or 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; |
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| (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 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
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any signature, endorsement, assignment, 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.
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.
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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: |
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
| 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
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.
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:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Exchange Agent
By:
Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT
[to come]
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