EXECUTION COPY
ISSUING AND PAYING AGENCY AGREEMENT
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This AGREEMENT is made as of June 14, 1994 between Shawmut Bank
Connecticut, National Association, a national banking association
maintaining its principal corporate office at 777 Main Street, Hartford,
Connecticut 06115 (the "Issuing and Paying Agent"), and Connecticut Natural
Gas Corporation, a corporation having its principal place of business at
100 Columbus Boulevard, Hartford, Connecticut 06103 (the "Company"). Except
as otherwise indicated, capitalized terms used herein will have the meanings
attributed to them in the form of Note attached hereto as Exhibit I.
In consideration of the mutual promises hereinafter contained, the
Issuing and Paying Agent and the Company hereby covenant and agree as
follows:
ARTICLE I
APPOINTMENT
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1. The Company hereby appoints the Issuing and Paying Agent to
perform the duties with respect to the Notes hereinafter and in the Notes
set forth.
2. The Issuing and Paying Agent hereby accepts such appointment and
agrees to perform the duties hereinafter and in the Notes set forth.
ARTICLE II
ISSUANCE OF NOTES
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1. The Company has authorized and may from time to time issue its
Medium-Term Notes, Series B, in an aggregate principal amount not exceeding
U.S. $75,000,000 (the "Notes"), pursuant to this Agreement, and proposes to
sell the same from time to time directly or indirectly in accordance with a
Placement Agency Agreement dated June 14, 1994 (the "Placement Agency
Agreement") between the Company and Smith Barney Inc. and A.G. Edwards &
Sons, Inc. (each an "Agent"; collectively, the "Agents"). Although the
Company has authorized the issuance of up to $75,000,000 aggregate principal
amount of Notes, the Company may, from time to time, without the consent of
any holder of Notes, increase the amount it may issue. The Company shall
give notice, promptly, in writing to the Issuing and Paying Agent upon any
such increase in the aggregate principal amount of the Notes issuable
hereunder.
2. The Notes are not being registered under the Securities Act of
1933, as amended (the "Securities Act"), in reliance upon the exemption from
registration provided by Section 4(2) thereof and Regulation D promulgated
thereunder ("Regulation D"), which exempts transactions by an issuer not
involving any public offering. The Notes are being offered only to
institutions that qualify as "accredited investors," as defined in Rule
501(a)(1),(2),(3) or (7) under Regulation D ("Accredited Investors"), or
"qualified institutional buyers," as defined in Rule 144A under the
Securities Act ("Qualified Institutional Buyers") in minimum amounts of
$100,000 for any single purchase. The $100,000 minimum purchase applies to
Notes of each maturity and may not be spread among Notes of different
maturities. If the purchaser is a non-United States bank fiduciary acting
for the account of one or more investors, the amount purchased for each
investor must be at least $100,000, each such investor must be a Qualified
Institutional Buyer or an Accredited Investor, and the purchaser must have
provided the Agents or the Company with a written statement to such effect.
3. The Company may also sell Notes to an Agent as principal for its
own account at a price to be agreed upon at the time of sale. Such Notes
may be resold at prevailing market prices, or at prices related thereto, at
the time of such resale, as determined by such Agent.
4. During the period this Agreement is in effect, there will be
delivered to the Issuing and Paying Agent executed Notes (signed and sealed
manually or by facsimile on behalf of the Company), to be held in
safekeeping by the Issuing and Paying Agent for the account of the Company.
If an officer of the Company whose signature is on a Note no longer holds
such office at the time the Issuing and Paying Agent delivers the Note in
accordance with this Agreement, the Note will be valid nevertheless. In
addition, the Company will advise the Issuing and Paying Agent in writing of
those persons handling administrative responsibilities with whom the Issuing
and Paying Agent is to communicate regarding offers to purchase Notes and
the details of their delivery and will promptly advise the Issuing and
Paying Agent in writing if any such person shall cease to handle such
responsibilities or of the authorization of any additional person to handle
such responsibilities.
5. The Notes will be in registered form, substantially in the form
attached hereto as Exhibit I and which is a part hereof. The Notes will
have maturities of from one (1) year to up to thirty (30) years and each
Note will contain (subject to paragraph 3 of Article V) the legend regarding
restrictions on transfer substantially as set forth on the form of Note
attached as Exhibit I.
6. When any Note is delivered to the Issuing and Paying Agent, the
Issuing and Paying Agent will acknowledge receipt by signing and returning a
receipt to the Company.
7. The Issuing and Paying Agent will authenticate Notes for original
issue in an aggregate principal amount not to exceed U.S. $75,000,000 upon
receipt of instructions therefor from officers and agents of the Company
subject to the terms of this Article II. A Note will not be valid until the
Issuing and Paying Agent manually signs the certificate of authentication on
the Note, which will be conclusive evidence that such Note has been duly
authenticated hereunder and is entitled to the benefits hereof.
8. From time to time the Company will provide issuance instructions
by telephone, telecopy or telex, promptly confirmed in writing, to the
Issuing and Paying Agent, and the Issuing and Paying Agent will withdraw the
necessary number of Notes for completion and authentication in accordance
with such instructions and will complete, countersign for authentication and
issue the Notes on or prior to the settlement dates included in the
instructions provided in the following paragraph.
9. The instructions from the Company to the Issuing and Paying Agent
will include (a) the exact name in which the Note is to be registered (the
person in whose name a Note is registered is hereinafter referred to as a
"Holder" and all such Holders as the "Holders"), (b) the exact address of
the Holder and address for delivery, notices and payments of principal and
interest, (c) the taxpayer identification number of the Holder
(collectively, subparagraphs a, b and c hereof are referred to herein as the
"Registration Instructions"), (d) the principal amount of the Note, which
will be $100,000 or an integral multiple of $1,000 in excess thereof (an
"authorized denomination") and the PPN Number, if any, of the Note, (e) the
sale date, (f) the settlement date, (g) the maturity date, (h) the interest
rate and interest payment dates, with any related information to be
indicated on the Note, (i) the proceeds net of the Agent's commission (if
any), (j) the name and address of the appropriate Agent's clearing
operation, if any, or other location where delivery is to be made (the
"Delivery Instructions") (collectively, subparagraphs d, e, f, g, h, i and j
hereof are referred to as the "Trade Instructions") and (k) such other
information as the Issuing and Paying Agent may reasonably request from time
to time (collectively, subparagraphs (a) through (k) hereof are referred to
as the "Instructions"). If delivery is to be made in Hartford, such
delivery will be at Shawmut Bank Connecticut, National Association, 777 Main
Street, Hartford, Connecticut 06115, Attention: Corporate Trust Operations.
10. The Settlement Date with respect to any offer to purchase Notes
accepted by the Company will be, subject to Section 6 of the Placement
Agency Agreement, the fifth Business Day next succeeding the date of
acceptance unless otherwise agreed by the purchaser and the Company and will
be specified upon acceptance of such offer. The Company will not accept any
offer to purchase a Note that will have a Settlement Date in less than three
Business Days without verifying by telephone, telecopy or telex, promptly
confirmed in writing, that the Issuing and Paying Agent will have adequate
time to prepare and authenticate such Note. As used herein, "Business Day"
means any day, other than a Saturday or Sunday, on which banks in Hartford,
Connecticut are not required or authorized by law to close.
11. The Company will provide the Issuing and Paying Agent with Trade
and Registration Instructions for each offer to purchase a Note solicited by
an Agent in time for the Issuing and Paying Agent to prepare and
authenticate the required Note, but not later than 10:00 a.m., Hartford
time, on the second Business Day preceding the Settlement Date. The Company
will, after receiving the details for each offer from an Agent and recording
the details and any necessary calculations, provide appropriate
documentation to the Issuing and Paying Agent, including the information
provided by such Agent necessary for the preparation and authentication of
each Note. The Issuing and Paying Agent will confirm the details of each
Note prior to preparing the Note for delivery (but in any case no later than
10:00 a.m. on the Business Day next preceding the Settlement Date therefor).
The Issuing and Paying Agent will effect delivery of each Note no later than
1:00 p.m., Hartford time, on the Settlement Date to the applicable Agent for
delivery to the purchaser.
12. The Issuing and Paying Agent will provide to the Company, within
five Business Days following each Record Date, a list of interest payments
to be made for each Note on the next succeeding Interest Payment Date and
the total amount of the interest payments. The Issuing and Paying Agent
will provide monthly to the Company a list of the principal and interest to
be paid on Notes maturing or being redeemed in the next succeeding month.
13. Each instruction given to the Issuing and Paying Agent in
accordance with this Article II will constitute a representation and
warranty to the Issuing and Paying Agent by the Company that the issuance
and delivery of the Notes have been duly and validly authorized by the
Company and that when completed, authenticated and delivered pursuant hereto
and payment has been received therefor by the Company, the Notes will
constitute the valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally or by general principles
of equity.
14. Whenever the Company and an Agent determine that the Company shall
sell Notes directly to the Agent, such sale will be made in accordance with
the Placement Agency Agreement and any supplemental agreement relating
thereto (the "Terms Agreement"). The Trade and Registration Instructions
for Notes sold to an Agent pursuant to any Terms Agreement will be agreed to
between the Company and the Agent in the respective Terms Agreement. Any
Terms Agreement entered into between the Company and any Agent will be
provided to the Issuing and Paying Agent as provided in paragraph 11 of this
Article II. If there is no such Terms Agreement, the Trade and Registration
Instructions specified in this Agreement shall apply. Notwithstanding the
above, the Trade and Registration Instructions and/or all time frames for
Notes sold to an Agent pursuant to a Terms Agreement shall be subject to the
limitations set forth in this Article II.
15. Notwithstanding the foregoing, the Company and the Issuing and
Paying Agent may enter into an agreement with The Depository Trust Company,
New York, New York ("DTC") or other depository as may be subsequently
designated by the Company (the "Depository") whereby Notes will be issued in
book-entry form (the "Book-Entry Notes") represented by one or more global
Notes (the "Global Notes") that will be registered in the name of a nominee
of the Depository. The Global Notes will be deposited with or on behalf of
the Depository by the Company. Global Notes will be issued in substantially
the same form as Exhibit I and will not be exchangeable for Notes in the
name of beneficial owners except as provided for in this Agreement. In the
event that Global Notes are issued, the Issuing and Paying Agent will be
responsible for performing the obligations and duties set forth in this
Agreement with respect to the Global Notes as well as complying with the
Administrative Procedures attached as Exhibit A to the Placement Agency
Agreement. To the extent the Administrative Procedures conflict with the
provisions of this Agreement, the provisions of this Agreement shall
control.
16. Any Global Note authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Note is a Global Note within the meaning of the Issuing and
Paying Agency Agreement hereinafter referred to and is registered in the
name of the Depository or a nominee of the Depository. This Note is
exchangeable for Notes registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the
Issuing and Paying Agency Agreement, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or to
another nominee of the Depository) may be registered except in such limited
circumstances."
ARTICLE III
DEPOSIT OF FUNDS
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1. On or prior to 12:00 noon, Hartford time, on each payment date,
whether an interest payment date or a date on which principal is to be paid,
the Company will deposit, or cause to be deposited, with the Issuing and
Paying Agent immediately available funds in an amount equal to the aggregate
amount to be paid by the Issuing and Paying Agent on such payment date. In
the event the amount deposited with respect to a payment date is less than
the sum of the aggregate amounts specified in the statements provided to the
Company pursuant to Article II, the Issuing and Paying Agent will promptly
notify the Company, and will effect no payments with respect to such payment
date until such discrepancy has been resolved.
2. At the Company's option, subject to the execution of a trust
agreement satisfactory to the Company and the Issuing and Paying Agent,
either (i) the Company shall be deemed to have been Discharged (as defined
below) from its obligations with respect to any Note or Notes on the 124th
day after the applicable conditions set forth below have been satisfied, or
(ii) the Company shall cease to be under any obligation to comply with any
term, provision, covenant or condition set forth in Article VII hereof or in
connection with any Event of Default at any time after the applicable
conditions set forth below have been satisfied:
(a) the Company shall have deposited or caused to be deposited
irrevocably with the Issuing and Paying Agent as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holder or Holders, (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below), which through the payment of
interest, principal and premium, if any, in respect thereof in
accordance with its terms will provide (without any reinvestment of
such interest, principal or premium), not later than one day before the
due date of any payment, money in an amount, or (iii) a combination of
(i) and (ii), sufficient, in the opinion (with respect to (ii) and
(iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Issuing and Paying Agent at or prior to the time of such deposit,
to pay and discharge each installment of principal and interest on,
such Note or Notes on the dates such installments of interest or
principal are due or such Note or Notes are redeemable, if applicable,
pursuant to paragraph 2 of Article IV below;
(b) in case such Note or Notes are to be redeemed on any date
prior to the date such Notes mature (the "Maturity Date"), the Company
shall have given to the Issuing and Paying Agent an irrevocable notice
requiring redemption of such Note or Notes on such date (the
"Redemption Date") and the Company shall have given to the Issuing and
Paying Agent in form satisfactory to the Issuing and Paying Agent
irrevocable instructions to provide notice of redemption of such Note
or Notes prior to said date; and in the event such Note or Notes are
not to be redeemed within the 60 days next succeeding the date of such
deposit with the Issuing and Paying Agent, the Company shall have given
the Issuing and Paying Agent in form satisfactory to it irrevocable
instructions to provide, as soon as practicable, a notice to the Holder
or Holders of such Note or Notes that the deposit required by this
paragraph 2 has been made with the Issuing and Paying Agent and stating
such Maturity Date or Redemption Date upon which moneys are to be
available for the payment of the principal of, premium, if any, and
interest on such Note or Notes;
(c) no Event of Default or event (including such deposit) which,
with notice or lapse of time, or both, would become an Event of Default
with respect to such Note or Notes shall have occurred and be
continuing on the date of such deposit;
(d) the Company shall have paid or duly provided for payment of
all amounts then due to the Issuing and Paying Agent pursuant to this
Agreement; and
(e) the Company shall deliver to the Issuing and Paying Agent an
opinion of counsel to the effect that the deposit and related Discharge
will not cause the Holders to recognize income, gain, or loss for
federal income tax purposes.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under,
the Note or Notes and to have satisfied all the obligations relating to the
Note or Notes (and the Issuing and Paying Agent, at the expense of the
Company, shall execute proper instruments acknowledging the same), except
(A) the rights of the Holder to receive, from the trust fund described in
clause (a) above, payment of the principal of and the interest on such Note
or Notes when such payments are due and (B) the Company's obligations, if
any, with respect to the Note or Notes under paragraph 3 of this Article
III.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of an entity controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case under clauses (i) or (ii) are not callable or redeemable at the
option of the issuer thereof.
3. All moneys and U.S. Government Obligations deposited with the
Issuing and Paying Agent pursuant to paragraph 2 of this Article III in
respect of the Note or Notes shall be held in trust and applied by it, in
accordance with the provisions of the Note or Notes, to the payment, either
directly or through any paying agent (including the Company acting as its
own paying agent) as the Issuing and Paying Agent may determine, to the
Holder, of all sums due and to become due thereon for principal and
interest, if any, but such money need not be segregated from other funds
except to the extent required by law. The Issuing and Paying Agent shall be
under no liability for interest on any funds received by it hereunder except
as otherwise agreed with the Company. Any funds deposited with the Issuing
and Paying Agent for payment of principal, premium, if any, and interest in
respect of the Note or Notes and remaining unclaimed for two years after the
date upon which the last payment of principal or interest on any Note or
Notes to which such deposit relates shall have become due and payable (or,
if later, two years after the date of the last such deposit relating to such
Note or Notes), shall be repaid to the Company by the Issuing and Paying
Agent on demand, and the Holder to which such deposit related who is
entitled to receive payment shall thereafter look only to the Company for
the payment thereof, and all liability of the Issuing and Paying Agent with
respect to such money shall thereupon cease.
4. After the Maturity Date and payment of the principal of and
interest on the Note or Notes for which money or U.S. Government Obligations
have been deposited pursuant to paragraph 2 of this Article III, the Issuing
and Paying Agent shall promptly pay or return to the Company upon request
any money and U.S. Government obligations held by it that are not required
for the payment of the principal of and interest on the Note or Notes.
5. If the Issuing and Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with paragraph 2 of this Article
III by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under the Note or
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to paragraph 2 of this Article III until such time as the Issuing
and Paying Agent is permitted to apply all such money or U.S. Governmental
Obligations in accordance with paragraph 2 of this Article III.
ARTICLE IV
PAYMENTS
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1. The Issuing and Paying Agent will effect payment of interest to
the Holder on the Record Date on the respective interest payment dates
provided in the Notes. Interest payments will be made semiannually on
January 15 and July 15 (each an "Interest Payment Date") in each year
commencing on the first Interest Payment Date next succeeding the date the
Note is issued (the "Original Issue Date"), unless the Original Issue Date
occurs between a Record Date, and the next succeeding Interest Payment Date,
in which case payments will commence on the Second Interest Payment Date
succeeding the Original Issue Date. Interest payments will be computed and
paid on the basis of a 360-day year comprised of twelve 30-day months. If
an Interest Payment Date falls on a day which is not a Business Day,
interest payable with respect to such Interest Payment Date will be paid on
the next succeeding Business Day with the same force and effect as if made
on such Interest Payment Date and no interest will accrue with respect to
such payment for the period from and after such Interest Payment Date. The
Issuing and Paying Agent will make such payment by mailing a check, payable
to the Holder as of the Record Date, to the address of such Holder, in
accordance with the information shown on the register maintained by the
Issuing and Paying Agent or, at the option of the Holder, at such other
place in the United States of America as the Holder will designate to the
Issuing and Paying Agent in writing. Notwithstanding the foregoing, upon
receipt of instructions from the Holder of an aggregate principal amount of
at least $10,000,000 of Notes having the same Interest Payment Date, not
less than ten days prior to such Interest Payment Date, the Issuing and
Paying Agent will make such payment of interest by the wire transfer of
immediately available funds to such account at a bank in Hartford,
Connecticut or New York, New York (or other bank consented to by the
Company) as the Holder will have designated, provided that such bank has
appropriate facilities therefor. Once such wire transfer instructions have
been received by the Issuing and Paying Agent, they shall remain in effect
unless (i) the Issuing and Paying Agent is notified of a change thereof not
less than ten days prior to an Interest Payment Date; or (ii) the Holder no
longer holds an aggregate principal amount of at least $10,000,000 of Notes
having the same Interest Payment Dates.
2. The Issuing and Paying Agent will effect payment of principal,
premium, if any, and interest due on the Redemption Date or at the Maturity
Date in immediately available funds by wire transfer to such account at a
bank in Hartford, Connecticut or New York, New York, (or such other bank
consented to by the Company) as the Holder shall have designated, except for
payment to a Holder for which appropriate instructions for payment as
provided above have not been received by the Issuing and Paying Agent by not
later than ten (10) days prior to the date of payment, in which case such
payment will be made by check mailed by the Issuing and Paying Agent to the
address of the Holder appearing in the Register. In such cases where wire
transfer instructions have been received by the Issuing and Paying Agent,
they shall remain in effect unless (i) the Issuing and Paying Agent is
notified of a change thereof not less than ten days prior to an Interest
Payment Date; or (ii) the Holder no longer holds an aggregate principal
amount of at least $10,000,000 of Notes having the same Interest Payment
Dates. Payment of principal, premium, if any, and interest due on the
Redemption Date or the Maturity Date on the Note will only be made against
presentation of the Notes at the office of the Issuing and Paying Agent
maintained in accordance with paragraph 7 of this Article IV or at such
other office or agency of the Company as the Company shall designate.
3. In the case of all Global Notes, the Issuing and Paying Agent will
make all interest payments and payments of principal, premium, if any, and
interest due on the Redemption or Maturity Date by wire transfer of
immediately available funds to such account at a bank in New York City (or
other bank consented to by the Company) as the Depository shall have
designated, provided that such bank has appropriate facilities therefor.
4. Notwithstanding any provision elsewhere contained herein, payments
by the Issuing and Paying Agent will be made only out of amounts deposited
pursuant to paragraph 1 of Article III hereof with the Issuing and Paying
Agent with respect to such payment.
5. If the Company defaults: (i) on a payment of principal on any Note
when due; or (ii) on a payment of interest on any Note for 10 days after the
date such payment is due; or (iii) under any other Event of Default defined
in the Note and such default continues without having been timely cured, the
Holder may, at its option, by written notice to the Company and the Issuing
and Paying Agent, declare the Note and accrued interest thereon to be
immediately due and payable.
6. The Issuing and Paying Agent will not charge, impose, collect or
receive, from the Holder of any Note, any fee or consideration for any
services performed in connection with any payment on such Note to such
Holder or owner, and any charge including postage, will be charged to, and
promptly paid by, the Company.
7. The Issuing and Paying Agent will at all times maintain an office
or agency where Notes may be presented for payment in Hartford, Connecticut
and New York, New York.
ARTICLE V
REGISTRATION, EXCHANGE AND TRANSFER
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1. As registrar and authenticating agent for the Notes, the Issuing
and Paying Agent will: (i) authenticate the Notes originally issued and the
Notes substituted for those Notes originally issued; (ii) at all times
maintain an office for the registration (and, subject to the restrictions
regarding transfers, for the transfer) of the Notes in Hartford,
Connecticut; (iii) keep and maintain a current register of the names and
addresses of Holders and such other records as reasonably required for the
performance of its duties hereunder and (iv) perform such related duties as
may be necessary. Such records and register will upon request be available
for inspection by authorized officers, employees, and agents of the Company
during the normal business hours of the Issuing and Paying Agent. Upon the
termination of this Agreement, the Issuing and Paying Agent will deliver to
the Company such records in the form and manner kept by the Issuing and
Paying Agent on such date.
2. In order to preserve the exemption from registration under the
Securities Act, the Notes will be issued and sold on the condition that no
resale or other transfer of a Note or any interest therein will be made
prior to the date that is three (3) years after the later of (a) the
Original Issue Date or (b) the last date the Company or any of its
affiliates was the beneficial owner of such Note unless the Note is
transferred: (i) to an Agent or the Company; or (ii) through an Agent or by
an Agent acting as principal to an institutional investor approved as an
Accredited Investor or a Qualified Institutional Buyer by such Agent; or
(iii) directly to an institutional investor approved as an Accredited
Investor or a Qualified Institutional Buyer by the Company in a transaction
approved by the Company; or (iv) through a dealer other than the Agents to
an institutional investor approved as an Accredited Investor or a Qualified
Institutional Buyer by the Company in a transaction approved by the Company;
or (v) directly to a Qualified Institutional Buyer in a transaction that
meets the requirements of Rule 144A under the Securities Act, subject in
each case to the disposition of the purchaser's property being at all times
within its control. Approval by an Agent or the Company of a transfer of a
Note, to the extent required as described above, will be granted only if the
transfer is made to a Qualified Institutional Buyer or an Accredited
Investor and is in accordance with the other requirements applicable to an
initial sale or the requirements of Rule 144A under the Securities Act. Any
transfer described in clause (iii), (iv) or (v) above including a
transaction effectuated by or through the Depository's book-entry system
requires the submission to the Issuing and Paying Agent of the certificate
of transfer on the Note duly completed or a duly completed transfer
instrument substantially in the form attached as Exhibit II to this
Agreement. Notwithstanding the preceding sentence, the Issuing and Paying
Agent shall not effect any transfer requested in such certificate of
transfer or transfer instrument unless first receiving approval from the
Company or the Company's counsel. The Issuing and Paying Agent shall
provide a copy of such certificate of transfer or transfer instrument to the
Company and to each Agent as soon as practicable following its receipt of
such certificate of transfer or transfer instrument. The Company or the
Company's counsel shall approve or disapprove (stating the reasons for any
disapproval) of such transfer within one (1) Business Day after receiving
such certificate of transfer or transfer instrument. In the event the
Issuing and Paying Agent shall not receive such approval or disapproval
within such one (1) Business Day, it shall as soon as practicable on the
next succeeding Business Day request such approval or disapproval from the
Company. In the further event that such approval or disapproval is not
received by the Issuing and Paying Agent within two (2) Business Days after
receiving such certificate of transfer or transfer instrument, then the
Issuing and Paying Agent shall return the certificate of transfer or
transfer instrument and any related Note or Notes for the reason that no
approval of the requested transfer was received and refer the person
submitting such request to the Company. If the requested transfer shall be
disapproved by the Company or its counsel, the Issuing and Paying Agent
shall return the certificate of transfer or transfer instrument and any
related Note or Notes to the person requesting such transfer for the reason
that the requested transfer has been disapproved and provide the reasons
therefor.
3. The Notes will bear legends stating that they have not been
registered under the Securities Act and are subject to the above
restrictions on transfer. By purchasing Notes, an investor shall be deemed
to have agreed to these restrictions on transfer and to have represented to
the Company and the Agents that it is an Accredited Investor or a Qualified
Institutional Buyer and that it is acquiring such Notes for its own account
(and not for the account of others) or as a fiduciary for others, for
investment, and not with a view to, or for sale in connection with, the
public distribution thereof in any transaction that would be in violation of
federal or state securities laws, subject, however, to its right to resell
or otherwise transfer such Note pursuant to the restrictions and procedures
set forth herein. Notwithstanding the foregoing, Notes no longer subject to
the restrictions on transfer set forth above may be freely resold and may be
surrendered to the Issuing and Paying Agent for new Notes not bearing the
legend setting forth the above restriction on transfer.
4. The Notes and related documentation may be amended or supplemented
from time to time by the Company and the Issuing and Paying Agent without
the consent of any Holder to modify the restrictions on and procedures for
resale and other transfers of the Notes to reflect any change in applicable
law or regulation (or the interpretation thereof) or provide alternative
procedures in compliance with applicable law and practices relating to the
resale or other transfer of restricted securities generally. Each Holder
will be deemed, by the acceptance of such Note, to have agreed to any such
amendment or supplement.
5. With respect to the resale or transfer of Notes in accordance with
paragraph 2 of this Article V, the Issuing and Paying Agent hereby agrees
that it will: (i) upon presentation of a Note, with a certificate of
transfer or duly completed transfer instrument described in paragraph 2 of
this Article V which has been approved by an Agent, the Company or its
counsel, transfer the title of such Note; (ii) enter the name of the
transferee on the books kept by the Issuing and Paying Agent for purposes of
listing registered owners of the Notes; (iii) cancel and retain each Note
surrendered for a payment of principal upon its making a payment which
reduces the unpaid principal amount of such Note to zero; (iv) maintain in
safekeeping any blank Note forms delivered to the Issuing and Paying Agent
by the Company; and (v) deliver any Notes cancelled hereunder to the Company
from time to time, and following any such delivery the Company will have the
sole responsibility for any failure thereafter to produce any such Note.
6. (a) Upon surrender of any Notes for exchange at the office of the
Issuing and Paying Agent, the Issuing and Paying Agent will
authenticate, deliver and register, in the name of the Holder such new
Notes for the same aggregate principal amount of any authorized
denomination as requested by the registered owner. All such exchanges
of Notes will be free of charge, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge in
connection therewith. The Issuing and Paying Agent will not be
required to register the transfer of any Note which has been called for
redemption (or any part of a Note which has been called for redemption)
during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of such redemption and ending at the
close of business on the day of such mailing.
(b) Upon receipt of evidence and indemnity satisfactory to it and
the Company, the Issuing and Paying Agent will authenticate, deliver
and register Notes, in exchange for or in lieu of Notes that have
become mutilated, defaced, destroyed, stolen or lost. Prior to the
issuance of any such new Note, the Company may require the payment from
the registered owner thereof of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith.
(c) All Notes issued in exchange for or in lieu of Notes that
have become mutilated, defaced, destroyed, stolen or lost or upon any
exchange or registration of transfer will be valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits,
and subject to the same terms and conditions, under this Agreement, as
the Notes in exchange for or in lieu of which they were issued or the
Notes surrendered upon any such exchange or registration of transfer,
as the case may be.
(d) The Company and Issuing and Paying Agent may treat the person
in whose name any Note is registered as the owner of such Note for all
purposes whatsoever, whether or not such Note will be overdue, and
neither the Company nor the Issuing and Paying Agent will be affected
by notice to the contrary.
(e) Notes outstanding at any time will be all Notes authenticated
by the Issuing and Paying Agent except for those cancelled by it and
those described in this paragraph. A Note ceases to be outstanding
when the Company or an affiliate of the Company holds the Note.
If a Note is replaced pursuant to (b) above, it ceases to be
outstanding unless the Issuing and Paying Agent and the Company receive
proof satisfactory to them that the replaced Note is held by a bona
fide purchaser.
7. Notwithstanding the foregoing and except as otherwise provided in
or pursuant to this Agreement, any Global Note shall be exchangeable for
Global Notes registered in the name of any person other than the Depository
or its nominee only if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for the Global Notes or if at
any time the Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and the Company within 90 days
after receiving such notice or becoming aware that the Depository is no
longer so registered, does not appoint a successor Depository, (ii) the
Company executes and delivers a written request to the Issuing and Paying
Agent to the effect that the Global Notes shall be so exchangeable and the
transfer thereof so registrable or (iii) there shall have occurred and be
continuing an Event of Default or an event which after notice or lapse of
time would be an Event of Default. Upon the occurrence in respect of any
Global Note of any one or more of the conditions specified in clauses (i),
(ii) or (iii) of the preceding sentence (A) such Global Note may be
exchanged, in accordance with the foregoing provisions of this paragraph 7
of this Article V, for a Note which is not a Global Note and (B) in
accordance with the foregoing provisions of this paragraph 7 of this Article
V, the transfer of such Global Note may be registered in the name of such
persons (including persons other than the Depository and its nominees) as
such Depository shall designate, and the new Note or Notes authenticated and
delivered upon such registration of transfer shall not bear the legend
specified in paragraph 16 of Article II. Notwithstanding any other
provision of this Agreement, except for any Note authenticated and delivered
in exchange for, or upon registration of transfer of, a Global Note pursuant
to the preceding sentence, any Note authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Note shall also be a Global Note and shall bear the legend specified in
paragraph 16 of Article II.
8. The Issuing and Paying Agent will make all Federal and state tax
filings concerning payments hereunder as will be required of it by
applicable law, and will be responsible for the collection or withholding of
taxes due on such payments to the extent required of it by applicable law.
ARTICLE VI
REDEMPTION
----------
1. The Company may, if provided for on the Note, after the Redemption
Date redeem, at par or at a premium expressed as a percentage of par as may
be provided for in the Note (the "Redemption Price"), such Note in whole or
in part in increments of $1,000 (provided that the remaining principal will
be at least $100,000). If the Company determines to redeem any such Notes
pursuant to the provisions thereof, it will notify the Issuing and Paying
Agent of the Redemption Date and the particular Notes or portions thereof to
be redeemed not more than 60 nor less than 30 days prior to the Redemption
Date. At the time and in the manner provided in the Notes to be redeemed,
the Company will cause the Issuing and Paying Agent to notify each Holder to
be redeemed, which notice will identify the Notes, or portions thereof, to
be redeemed and will state: the Redemption Date; the Redemption Price; the
name and address of the Issuing and Paying Agent; that Notes called for
redemption must be surrendered to the Issuing and Paying Agent to collect
the Redemption Price; that interest on Notes called for redemption ceases to
accrue on and after the Redemption Date; and any other information required
by such Notes.
2. Upon surrender of a Note that is redeemed in part, the Issuing and
Paying Agent will authenticate for the Holder a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
3. In the event that the Company determines to redeem any Global
Note, the Company will cause the Issuing and Paying Agent to notify the
Depository not more than 60 nor less than 30 days prior to the Redemption
Date. The notice to the Depository will identify the Notes or portions
thereof to be redeemed and will state: the Redemption Date; the Redemption
Price; that Global Notes called for redemption must be surrendered to the
Issuing and Paying Agent to collect the Redemption Price; the name and
address of the Issuing and Paying Agent; that interest on Notes called for
redemption ceases to accrue on and after the Redemption Date; and any other
information required by the Notes or by the letter of representations dated
June 14, 1994 (the "Letter of Representations") between the Company, the
Issuing and Paying Agent and the Depository.
ARTICLE VII
COVENANTS
---------
1. The Company will not consolidate or merge with or into another
corporation, or convey, transfer or lease its properties and assets
substantially as an entirety to any person unless (i) the surviving,
resulting or transferee corporation, as the case may be, is organized under
the laws of any domestic jurisdiction, (ii) if such surviving, resulting or
transferee corporation is not the Company, such corporation expressly
assumes, by an instrument in writing delivered to the Issuing and Paying
Agent prior to the effective date of such transaction, the Company's
obligations with respect to the Notes and in such instrument agrees to
perform the covenants associated therewith and (iii) after giving effect to
the transaction (and treating indebtedness which becomes an obligation of
the Company as a result of the transaction as having been incurred by the
Company at the time of the transaction and treating any Lien upon property
of the Company which arises as a result of the transaction as a Lien created
at the time of the transaction), no Event of Default and no event which
after notice or lapse of time or both would become an Event of Default shall
have occurred and be continuing.
2. The Company will not create or permit to continue in existence any
Lien or charge of any kind upon any Property or assets of the Company unless
the Notes then outstanding and the Medium-Term Notes, Series A, of the
Company then outstanding, shall be equally and ratably secured with (or
prior to) any other obligation or indebtedness so secured, except:
(a) leases or subleases of Property in the ordinary course of
business of the Company, or of Property which, in the opinion of the
Board of Directors of the Company, is not needed in the operation of
the Company's business;
(b) Liens created within 12 months after the acquisition or
construction of Property to secure or to provide for the payment of the
purchase or construction price of such Property and Liens existing on
any Property at the time of acquisition or certain pre-existing Liens
and conditional sales agreements and/or title retention agreements with
respect to any subsequently acquired Property, provided that the
aggregate principal amount of the indebtedness secured by all such
Liens on any particular Property may not exceed the cost (including
improvements thereon) of such Property to the Company, and that such
Lien(s) do not extend to other Property owned prior to such acquisition
or construction;
(c) Liens securing indebtedness incurred to finance or refinance
the acquisition of the Property subject to the Lien and in respect of
which the creditor has no recourse against the Company except recourse
to such Property, or to the proceeds of any sale or lease of such
Property or both;
(d) Liens on Property of the Company in favor of the United
States or any State thereof, or any department, governmental body,
agency or instrumentality or political subdivision of any such
jurisdiction, to secure partial, progress, advance, or other payments
pursuant to any contract or statute relating thereto;
(e) deposits with or security interests given to a governmental
agency as a condition to maintain self-insurance or participate in any
fund, or in connection with workmen's compensation, unemployment
insurance, old age pensions, or other social security, or to share in
any privileges or other benefits available to corporations
participating in any such arrangements, or for any other purpose
required by law or regulation promulgated by said governmental agency
as a condition to the transaction of any business or the exercise of
any privilege or license, or the deposit of assets of the Company with
any surety company or clerk of any court or in escrow, as collateral in
connection with, or in lieu of, any bond on appeal by the Company from
any judgment or in connection with any other judicial proceedings by or
against the Company;
(f) (i) Liens for taxes, assessments or other governmental
charges or levies which are not yet due or are payable without penalty
or are being contested in good faith and against which reserves deemed
adequate by the Company have been established, provided that
foreclosure or similar proceedings have not been commenced (unless
cured by payment), (ii) Liens of any judgment and other similar Liens
arising in connection with court proceedings, provided such Lien is
discharged or the execution or other enforcement of such Lien is
effectively stayed within six months of the creation of such Lien,
(iii) undetermined Liens or charges incident to construction, (iv)
mechanics' or other like Liens arising in the ordinary course of
business in respect of obligations which are not overdue or which are
being contested by the Company in good faith, or deposits to obtain the
release of such Liens, (v) immaterial encumbrances consisting of zoning
restrictions, licenses, easements and restrictions on the use of real
property and minor defects and irregularities in the title thereto;
(g) banker's liens and rights of offset in the holders of
indebtedness such as commercial paper or monies of the Company
deposited with such lender in the ordinary course of business;
(h) refundings, replacements or extensions of any permitted Liens
not exceeding the principal amount of indebtedness so refunded,
replaced, or extended at the time of such refunding, replacement, or
extension and covering the same Property theretofore securing the same;
(i) deposits or pledges as security for the performance of any
contract or undertaking in the ordinary course of business but
unrelated to the borrowing of money or to the securing of indebtedness;
(j) Liens existing on the date of this Agreement with respect to
indebtedness or other obligations of the Company on the date of this
Agreement;
(k) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or a Subsidiary
or at the time of acquisition of the assets of a Person as an entirety,
or substantially as an entirety, by the Company or a Subsidiary; and
(l) in addition to Liens permitted under clauses (a) through (k)
above, Liens with respect to an aggregate amount of indebtedness of the
Company not in excess of an amount equal to 10% of the Total
Capitalization of the Company.
For purposes of this paragraph 2 of Article VII the following
definitions shall apply: (i) "Lien" shall mean any interest in property
securing an obligation owed to, or a claim by, a Person other than the owner
of the Property, whether such interest is based on the common law, statute
or contract, and including but not limited to the security interest or lien
arising from a mortgage, encumbrance, pledge, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes. The term
"Lien" shall include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases and other title
exceptions and encumbrances affecting Property and, in the case of any
Security, warrants or options to acquire such Security. For the purposes of
this provision, the Company or a Subsidiary shall be deemed to be the owner
of any Property which it has acquired or holds subject to a conditional sale
agreement, a Capitalized Lease or other arrangement pursuant to which title
to the Property has been retained or vested in some other Person for
security purposes; (ii) "Person" shall mean an individual, partnership,
corporation, trust, unincorporated organization, or government or agency or
political subdivision thereof; (iii) "Property" shall mean any interest in
any kind of property or asset whether real, personal or mixed, or tangible
or intangible; (iv) "Security" shall have the meaning as in Section 2(1) of
the Securities Act; (v) "Total Capitalization" shall mean the sum of Funded
Debt, Net Worth, and, as recorded in the Company's most recent consolidated
financial statements prepared in accordance with generally accepted
accounting principles, preferred and preference stock; (vi) "Capitalized
Lease" shall mean any lease of Property which in accordance with generally
accepted accounting principles (after eliminating all intercompany
obligations among the Company and its Subsidiaries) should be capitalized on
the Company's balance sheet or for which the amount of the asset and
liability thereunder, as if so capitalized, should be disclosed in a note to
such balance sheet; (vii) "Funded Debt" shall mean that portion of Total
Debt of the Company which matures more than one year after its creation,
excluding payments due on such portion of Total Debt within one year of any
date of determination; (viii) "Net Worth" shall mean consolidated
shareholder's equity of the Company as recorded in its most recent
consolidated financial statements prepared in accordance with generally
accepted accounting principals; (ix) "Subsidiary" shall mean a corporation
or other Person of which the Company owns or controls, directly or
indirectly, more than 50% of the Voting Stock or equivalent interest; (x)
"Voting Stock" shall mean securities of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors (or
Persons performing similar functions); (xi) "Total Debt" shall mean the sum
of (exclusive of Subsidiary indebtedness and after eliminating all
obligations of the Company to any Subsidiary) (a) all indebtedness of the
Company for borrowed money or indebtedness which has been incurred in
connection with the acquisition of assets, including all payments in respect
thereof that are required to be made from the date of any determination of
Total Debt, (b) all Capitalized Rentals, and (c) the amount by which the
aggregate value of all Guarantees of Total Debt of others exceeds 25% of Net
Worth; (xii) "Capitalized Rentals" shall mean, as of the date of any
determination, the amount at which the aggregate Net Rental Payments due and
to become due under all Capitalized Leases under which the Company is a
lessee would be reflected as a liability on the balance sheet of the
Company; (xiii) "Net Rental Payments" shall mean the sum of the rental and
other payments required to be paid in such period by the Company, as lessee
under any Capitalized Leases, not including, however, any amounts required
to be paid by such lessee (whether or not designated as rental or additional
rental) on account of maintenance and repairs, insurance, taxes assessments,
water rates or similar charges required to be paid by such lessee thereunder
or any amounts required to be paid by such lessee thereunder contingent upon
the amount of sales, maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges; (xiv) "Guarantees" shall mean all
obligations of the Company (after eliminating all intercompany obligations
among the Company and its Subsidiaries), guaranteeing or in effect
guaranteeing any indebtedness, dividend or other obligation of any other
Person (the "primary obligor") in any manner (other than an endorsement for
collection or deposit in the ordinary course of business), whether directly
or indirectly, including, with respect to any note or lease receivable or
account receivable sold with recourse, the amount for which the Company may
be liable, and obligations incurred through an agreement, contingent or
otherwise, by the Company (a) to purchase such indebtedness or obligation or
any Property or assets constituting security therefor, (b) to advance or
supply funds (1) for the purchase or payment of such indebtedness or
obligation, or (2) to maintain working capital or other balance sheet
condition or any income statement condition or otherwise to advance or make
available funds for the purchase or payment of such indebtedness or
obligation, (c) to lease Property or to purchase Securities or other
Property or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the primary obligor to make
payment of the indebtedness or obligation, or (d) otherwise to protect the
owner of the indebtedness or obligation of the primary obligor against loss
in respect thereof. A guarantee in respect of any indebtedness for money
borrowed shall be deemed to be indebtedness equal to the principal amount of
such indebtedness for money borrowed which has been guaranteed, and a
guarantee in respect of any other obligation or liability or any dividend
shall be deemed to be indebtedness equal to the maximum aggregate amount of
such liability or dividend.
ARTICLE VIII
REPORTS
-------
1. Upon the occurrence of any Event of Default described in the Notes
or any event which with notice or lapse of time or both, would become such
an Event of Default, the Company will promptly deliver to the Issuing and
Paying Agent an officer's certificate signed by the President, any Senior
Vice President, the Secretary or the Treasurer setting forth the details
thereof and the action the Company has taken or proposed to be taken with
respect thereto.
2. Upon receipt of a certificate indicating the existence of an Event
of Default described in the Notes (or any event which, with notice or lapse
of time would become such an Event of Default) or upon receipt of a notice
from a Holder or the Company that an Event of Default exists, the Issuing
and Paying Agent will promptly notify the Holders of the existence thereof
with a description thereof in reasonable detail and indicating that a list
of names and addresses of each other Holder and the principal amount of
Notes held by such Holder (to the extent the Issuing and Paying Agent has
such information) may be obtained from the Issuing and Paying Agent upon
request. Upon receiving such a request, the Issuing and Paying Agent will
promptly transmit such a list to the Holder requesting the same.
3. The Issuing and Paying Agent will render to the Company, upon a
request in writing, a statement of all money received and disbursed by the
Issuing and Paying Agent pursuant to this Agreement for payment of
principal, premium if any, and interest on the Notes. The Issuing and
Paying Agent will also provide such other information about the performance
of its duties under this Agreement as the Company may reasonably request in
writing.
4. For so long as any of the Notes are outstanding, the Company will
provide to the Issuing and Paying Agent and any Holder and to any
prospective purchaser of such Notes designated by a holder thereof, upon the
request of such Holder or prospective purchaser in connection with a
transfer or proposed transfer pursuant to Rule 144A, any information
required to be provided to such Holder or prospective purchaser to comply
with the conditions set forth in Rule 144A as in effect as of the date such
Notes shall have been first issued (together with any such information added
by an amendment to Rule 144A after such date, to the extent such information
can be provided without unreasonable additional expense to the Company).
ARTICLE IX
CONCERNING THE ISSUING AND PAYING AGENT
---------------------------------------
1. The Issuing and Paying Agent will have no duties or
responsibilities whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or obligation will
be implied in this Agreement against the Issuing and Paying Agent. Without
limiting the foregoing, the Issuing and Paying Agent shall have no
responsibility to monitor or enforce the Company's compliance with Article
VII of this Agreement.
2. The Issuing and Paying Agent makes no representations with respect
to the validity or sufficiency of the Notes, or the use or application of
the proceeds of the sale or distribution thereof, and will incur no
liability with respect to the foregoing.
3. When acting under this Agreement, the Issuing and Paying Agent is
acting solely as an agent of the Company and does not assume any obligation
or relationship of agency or trust for any of the owners or Holders, except
that funds held by the Issuing and Paying Agent for payment on the Notes
will be held in trust as provided in this Agreement.
4. The Company will pay to the Issuing and Paying Agent for its
performance hereunder (i) its reasonable out-of-pocket expenses (including
counsel fees and expenses) incurred in connection with this Agreement,
including, without limitation, those described or referred to in paragraph 5
of Article IV hereof, and (ii) such compensation as may mutually be agreed
upon in writing by the Company and the Issuing and Paying Agent.
5. The Company will indemnify and hold harmless the Issuing and
Paying Agent and its duly authorized agents and each person who controls the
Issuing and Paying Agent within the meaning of either the Securities Act or
the Securities Exchange Act of 1934 from and against any and all claims,
demands, expenses (including reasonable counsel fees subject to the
restrictions below) and liabilities of any kind and every nature which the
Issuing and Paying Agent may sustain or incur or which may be asserted
against the Issuing and Paying Agent as a result of any action taken or
omitted by the Issuing and Paying Agent hereunder in connection with its
entering into this Agreement and carrying out its duties hereunder so long
as such action or omission is without negligence or willful misconduct. The
Issuing and Paying Agent shall, promptly after receipt of notice of any
claim or demand, notify the Company if a claim in respect thereof is to be
made against the Company under this paragraph 5 of Article IX. The
indemnities set forth above will survive delivery of and payment for the
Notes.
6. The Issuing and Paying Agent may resign its appointment as Issuing
and Paying Agent hereunder by providing the Company with not less than
thirty (30) days written notice, provided that the Issuing and Paying Agent
will continue to perform its duties hereunder until a successor is
appointed. The Company may remove the Issuing and Paying Agent upon not
less than thirty (30) days notice, in which case the Issuing and Paying
Agent will continue to perform its duties hereunder until a successor is
appointed.
7. If the Issuing and Paying Agent resigns or is removed or if a
vacancy exists in the office of the Issuing and Paying Agent for any reason,
then the Company will promptly appoint a successor Issuing and Paying Agent.
If a successor Issuing and Paying Agent has not been so appointed by the
Company within thirty (30) days of the delivery of a notice of resignation
or removal of the Issuing and Paying Agent, then the Issuing and Paying
Agent may petition any court of competent jurisdiction for the appointment
of a successor Issuing and Paying Agent.
A successor Issuing and Paying Agent will deliver a written acceptance
of its appointment to the retiring Issuing and Paying Agent and to the
Company. Immediately thereafter, the retiring Issuing and Paying Agent will
transfer all property held by it as Issuing and Paying Agent to the
successor Issuing and Paying Agent, the resignation or removal of the
retiring Issuing and Paying Agent will then become effective, and the
successor Issuing and Paying Agent will have all the rights, powers and
duties of the Issuing and Paying Agent under this Agreement. A successor
Issuing and Paying Agent will mail notice of its succession to each Holder.
ARTICLE X
GENERAL
-------
1. The Company and the Issuing and Paying Agent may modify, amend or
supplement this Agreement or the Notes without the consent of any Holder,
for the purpose of (i) adding to the covenants of the Company for the
benefit of the Holders, (ii) surrendering any right or power conferred upon
the Company, (iii) securing the Notes pursuant to the requirements of the
Notes or otherwise, (iv) evidencing the succession of another corporation to
the Company and the assumption by such successor of the covenants and any
obligations of the Company contained in this Agreement and in the Notes in
accordance with the terms of this Agreement and the Notes, (v) correcting or
supplementing any defective provision contained in the Notes or in this
Agreement in a manner which does not adversely affect the interests of any
Holder or (vi) making any modification of the terms and conditions of the
Notes or any other provision of this Agreement in any manner which the
Company and the Issuing and Paying Agent may determine and which does not
adversely affect the interests of any Holder. All other modifications,
amendments or supplements of this Agreement and the terms of the Notes may
be made by the Company and the Issuing and Paying Agent, and the observance
of any of the terms of Notes may be waived, with (and only with) the written
consent of the holders of 66-2/3% in principal amount of all the Notes at
the time outstanding (exclusive of Notes then owned by the Company, any
Subsidiaries and any Affiliates) provided that no such modification or
amendment of the Notes or the Agreement, without the consent of 100% of the
Holders of the Notes then outstanding, may change the maturity of any Note
or any installment of interest thereon or reduce the principal amount
thereof or the interest thereon or reduce said percentage of the Holders of
the Notes then outstanding required for consents, amendments or waivers.
Notwithstanding the foregoing, the Company will not propose or agree to any
modification, amendment, or supplement of this Agreement without receiving
prior written consent of the Agents.
2. None of the Company, the Agents, the Issuing and Paying Agent or
any other agent of the Issuing and Paying Agent or the Company will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Note
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests, and they shall be fully protected in acting
or refraining from acting on any information provided by the Depository.
3. Notwithstanding the foregoing, with respect to any Global Note,
nothing herein shall prevent the Company, the Issuing and Paying Agent, the
Agents or any agent of the Company or the Issuing and Paying Agent from
giving effect to any written certification, proxy or other authorization
furnished by a Depository or impair, as between the Depository and holders
of beneficial interests in any Global Note, the operation of customary
practices governing the exercise of the rights of the Depository (or its
nominee) as Holder of such Global Note.
4. The Holders are intended third-party beneficiaries of this
Agreement. The Holders will have the right, except as provided in Article
IX, to demand that the Issuing and Paying Agent or the Company enforce the
terms of this Agreement and, upon the failure of either party to enforce its
rights under this Agreement, the Holders may proceed directly against the
remaining party to enforce such rights.
5. Any notice, request for instructions, or other instrument in
writing authorized or required by this Agreement to be given to either party
will be in writing, and effective only on receipt, or (but only where
specifically provided) by telephone and will be mailed, delivered,
telecopied and confirmed at:
For the Company: Connecticut Natural Gas Corporation, 100 Columbus
Boulevard, P.O Box 1500, Hartford, Connecticut 06144-1500, Attention: James
P. Bolduc, Senior Vice President -Financial Services and Chief Financial
Officer, telephone (203) 727-3424.
For the Issuing and Paying Agent: Shawmut Bank Connecticut, National
Association, 777 Main Street, Hartford, Connecticut 06115, Attention:
Corporate Trust Administration, telephone (203) 986-4424; facsimile (203)
986-7920.
6. This Agreement: (a) may not be amended or modified, subject to
paragraph 1 of this Article X, in any manner except by a written agreement
executed by both parties; (b) will extend to and be binding upon the parties
hereto and their respective successors; and (c) will be governed by and
construed in accordance with the laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized,
as of the day and the year first above written.
CONNECTICUT NATURAL GAS CORPORATION
By: _______________________________
Title: ____________________________
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION
By: _______________________________
Title: ____________________________
THIS MEDIUM-TERM NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND SALES OR OTHER TRANSFERS HEREOF
MAY BE MADE ONLY TO ACCREDITED INVESTORS AS DEFINED IN RULE
501(a)(1),(2),(3) or (7) UNDER THE SECURITIES ACT ("ACCREDITED INVESTORS")
OR QUALIFIED INSTITUTIONAL BUYERS AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("QUALIFIED INSTITUTIONAL BUYERS"), APPROVED BY SMITH BARNEY
INC. AND A.G. EDWARDS & SONS, INC. (EACH AN "AGENT" AND TOGETHER, THE
"AGENTS") OR BY CONNECTICUT NATURAL GAS CORPORATION (THE "COMPANY") IN
TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT. BY ITS
ACCEPTANCE OF THIS NOTE, THE PURCHASER REPRESENTS AND AGREES THAT IT IS AN
ACCREDITED INVESTOR OR A QUALIFIED INSTITUTIONAL BUYER AND THAT THIS NOTE IS
BEING ACQUIRED FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS
A FIDUCIARY FOR OTHERS FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR SALE IN
CONNECTION WITH, THE PUBLIC DISTRIBUTION HEREOF IN ANY TRANSACTION THAT
WOULD BE IN VIOLATION OF FEDERAL OR STATE SECURITIES LAWS, AND THAT ANY
RESALE OR OTHER TRANSFER HEREOF OR ANY INTEREST HEREIN PRIOR TO THE DATE
THAT IS THREE YEARS AFTER THE LATER OF (A) ITS ORIGINAL DATE OF ISSUE OR (B)
THE LAST DATE ON WHICH THE COMPANY OR ANY OF ITS AFFILIATES WAS THE
BENEFICIAL OWNER HEREOF WILL BE MADE ONLY (1) TO AN AGENT OR THE COMPANY,
(2) THROUGH AN AGENT OR BY AN AGENT ACTING AS PRINCIPAL TO AN INSTITUTIONAL
INVESTOR APPROVED AS AN ACCREDITED INVESTOR OR QUALIFIED INSTITUTIONAL BUYER
BY SUCH AGENT, (3) DIRECTLY TO AN INSTITUTIONAL INVESTOR APPROVED AS AN
ACCREDITED INVESTOR OR A QUALIFIED INSTITUTIONAL BUYER APPROVED BY THE
COMPANY IN A TRANSACTION APPROVED BY THE COMPANY, (4) THROUGH A DEALER OTHER
THAN AN AGENT TO AN INSTITUTIONAL INVESTOR APPROVED AS AN ACCREDITED
INVESTOR OR A QUALIFIED INSTITUTIONAL BUYER BY THE COMPANY IN A TRANSACTION
APPROVED BY THE COMPANY, OR (5) DIRECTLY TO A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, SUBJECT TO IN EACH CASE THE DISPOSITION OF THE PURCHASER'S
PROPERTY BEING AT ALL TIMES WITHIN ITS CONTROL. APPROVAL BY AN AGENT OR THE
COMPANY OF A TRANSFER OF A NOTE, TO THE EXTENT REQUIRED AS DESCRIBED ABOVE,
WILL BE GRANTED ONLY IF THE TRANSFER IS MADE TO A QUALIFIED INSTITUTIONAL
BUYER OR AN ACCREDITED INVESTOR AND IN ACCORDANCE WITH THE OTHER
REQUIREMENTS APPLICABLE TO AN INITIAL SALE OF NOTES OR THE REQUIREMENTS OF
RULE 144A UNDER THE SECURITIES ACT. ANY TRANSFER DESCRIBED IN CLAUSE (3),
(4) OR (5) ABOVE INCLUDING A TRANSACTION EFFECTUATED BY OR THROUGH THE
DEPOSITORY'S BOOK-ENTRY SYSTEM REQUIRES THE SUBMISSION TO THE ISSUING AND
PAYING AGENT (AS DEFINED HEREIN) OF THE CERTIFICATE OF TRANSFER CONTAINED
HEREIN DULY COMPLETED OR A DULY COMPLETED TRANSFER INSTRUMENT SUBSTANTIALLY
IN THE FORM OF THE CERTIFICATE OF TRANSFER. THE COMPANY SHALL NOT RECOGNIZE
ANY RESALE OR OTHER TRANSFER, OR ATTEMPTED RESALE OR OTHER TRANSFER, OF THIS
NOTE NOT MADE IN COMPLIANCE WITH THE FOREGOING PROVISIONS. THIS NOTE AND
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RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO
MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF
THIS NOTE TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE
INTERPRETATION THEREOF) OR PROVIDE ALTERNATIVE PROCEDURES IN COMPLIANCE WITH
APPLICABLE LAW AND PRACTICES RELATING TO THE RESALE OR OTHER TRANSFER OF
RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE SHALL BE DEEMED,
BY THE ACCEPTANCE OF THIS NOTE, TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE ISSUING AND PAYING
AGENCY AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY OR A NOMINEE OF THE DEPOSITORY. THIS NOTE IS EXCHANGEABLE
FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE ISSUING AND
PAYING AGENCY AGREEMENT, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER
OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR
BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR TO ANOTHER NOMINEE OF
THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
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REGISTERED CONNECTICUT NATURAL GAS CORPORATION PRINCIPAL AMOUNT
No. FX- $
Medium-Term Note, Series B
ORIGINAL ISSUE DATE: INTEREST RATE: MATURITY DATE:
REDEMPTION DATE:
REDEMPTION PRICE:
OTHER TERMS:
CONNECTICUT NATURAL GAS CORPORATION, a Connecticut corporation, for
value received, hereby promises to pay to
________________________________________________________________________
________________________________________________________________________
or registered assigns, the principal sum of ___________________________
_________________________________________________________________DOLLARS
on the date the note matures (the "Maturity Date") specified above (except
to the extent redeemed prior to the Maturity Date), and to pay interest
thereon at the Interest Rate per annum specified above, until the principal
hereof is paid or duly made available for payment, semiannually on January
15 and July 15 (each an "Interest Payment Date") in each year commencing on
the first Interest Payment Date next succeeding the Original Issue Date
specified above, unless the Original Issue Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date, in
which case commencing on the second Interest Payment Date succeeding the
Original Issue Date, to the registered holder of this Note (the "Holder") on
the Record Date with respect to such Interest Payment Date, and on the
Maturity Date (or any Redemption Date as provided herein). Interest on this
Note will accrue from the most recent Interest Payment Date to which
interest has been paid or duly provided for or, if no interest has been
paid, from the Original Issue Date specified above, until the principal
hereof has been paid or duly made available for payment. If the Maturity
Date (or any Redemption Date) or an Interest Payment Date falls on a day
which is not a Business Day, as defined below, principal (and premium, if
any) or interest payable with respect to such Maturity Date (or Redemption
Date) or Interest Payment Date will be paid on the next succeeding Business
Day with the same force and effect as if made on such Maturity Date (or
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Redemption Date) or Interest Payment Date, as the case may be, and no
interest shall accrue with respect to such payment for the period from and
after such Maturity Date (or Redemption Date) or Interest Payment Date. The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions, be paid to the
Holder at the close of business on the Record Date for such interest, which
shall be the first day of the month (whether or not a Business Day), of such
Interest Payment Date; provided, however, that interest payable on the
Maturity Date (or any Redemption Date) will be payable to the Person to whom
the principal hereof shall be payable. As used herein, "Business Day" means
any day, other than a Saturday or Sunday, on which banks in Hartford,
Connecticut are not required or authorized by law to close.
Payments of principal, premium, if any, and interest shall be made in
such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts. Payments of
interest, other than interest payable at the Maturity Date, or any earlier
Redemption Date, will be made by check mailed to the Holder at the address
shown in the Register maintained by the Issuing and Paying Agent at its
office for such purpose, or at the option of the Holder, at such other place
in the United States of America as the Holder shall designate to the Issuing
and Paying Agent in writing. Notwithstanding the foregoing, upon receipt of
written instructions by the Issuing and Paying Agent from a Holder having an
aggregate principal amount of at least $10,000,000 with the same Interest
Payment Date not later than ten (10) days prior to such Interest Payment
Date, the Issuing and Paying Agent will make such payment of interest by
wire transfer of immediately available funds to such account at a bank in
Hartford, Connecticut or New York, New York (or other bank consented to by
the Company) as such Holder shall have designated for such purpose, provided
such bank shall have appropriate facilities therefor. Once such wire
transfer instructions have been received by the Issuing and Paying Agent,
they shall remain in effect unless (i) the Issuing and Paying Agent is
notified of a change thereof not less than ten days prior to an Interest
Payment Date; or (ii) the Holder no longer holds an aggregate principal
amount of at least $10,000,000 of Notes having the same Interest Payment
Date.
The principal amount hereof, premium, if any, and interest due on the
Redemption Date or at the Maturity Date will be paid on or after the
Redemption Date or at the Maturity Date in immediately available funds by
wire transfer to such account at a bank in Hartford, Connecticut or New
York, New York (or such other bank consented to by the Company) as such
Holder shall have designated, except for the payment to a Holder for which
appropriate instructions for payment as provided above have not been
received by the Issuing and Paying Agent by not later than ten (10) days
prior to the related date of payment, in which case such payment shall be
made by check mailed by the Issuing and Paying Agent to the Person entitled
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thereto at such Person's address appearing in the Register. Once such wire
transfer instructions have been received by the Issuing and Paying Agent,
they shall remain in effect unless (i) the Issuing and Paying Agent is
notified of a change thereof not less than ten days prior to an Interest
Payment Date; or (ii) the Holder no longer holds an aggregate principal
amount of at least $10,000,000 of Notes having the same Interest Payment
Date. Payment of principal, premium, if any, and interest due on the
Redemption Date or the Maturity Date on the Note shall only be made against
presentation and surrender of this Note at the office of the Issuing and
Paying Agent maintained for that purpose in Hartford, Connecticut or at such
other office or agency of the Company as the Company shall designate.
In the case of all Global Notes, the Issuing and Paying Agent will make
all interest payments and payments of principal, premium, if any, and
interest due on the Redemption or Maturity Date by wire transfer of
immediately available funds to such account at a bank in New York City (or
other bank consented to by the Company) as the Depository shall have
designated, provided that such bank has appropriate facilities therefor.
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Medium-Term Note
This Note is one of a duly authorized issue of Medium-Term Notes having
maturities from one year to 30 years from the date of issue (the "Notes") by
the Company. The Notes are issuable under an Issuing and Paying Agency
Agreement, dated as of June 14, 1994 (the "Issuing and Paying Agency
Agreement"), between the Company and Shawmut Bank Connecticut, National
Association, as Issuing and Paying Agent (the "Issuing and Paying Agent"),
which term includes any successor Issuing and Paying Agent under the Issuing
and Paying Agency Agreement. The Issuing and Paying Agency Agreement may be
amended from time to time in accordance with the terms thereof. In acting
under the Issuing and Paying Agency Agreement, the Issuing and Paying Agent
is acting solely as agent of the Company and does not assume any obligation
or relationship of agency or trust for any of the Holders, except that any
funds held by the Issuing and Paying Agent for payment on this Note shall be
held in trust as provided in the Issuing and Paying Agency Agreement. The
terms of individual Notes may vary with respect to interest rates, issue
dates, maturity dates, redemption dates and otherwise, all as provided in
the Issuing and Paying Agency Agreement.
Copies of the Issuing and Paying Agency Agreement and other related
documents are on file with the Issuing and Paying Agent at its principal
office in Hartford, Connecticut and are available for inspection at such
office.
The Notes will not be subject to any sinking fund and, unless otherwise
provided herein in accordance with the provisions of the following
paragraph, will not be redeemable prior to maturity.
If so provided herein, this Note may be redeemed by the Company on and
after any date prior to its maturity date (the "Redemption Date"), if any,
indicated herein. If no date on or after which this Note is redeemable is
set forth herein, this Note may not be redeemed prior to maturity. On and
after the Redemption Date, if any, this Note may be redeemed in whole or in
part in increments of $1,000 (provided that any remaining principal hereof
shall be at least $100,000) at the option of the Company, at par or at a
premium expressed as a percentage of par as may be provided herein (the
"Redemption Price"), together with interest thereon payable to the
Redemption Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the surrender hereof.
Interest payments on this Note will include interest accrued from and
including the Original Issue Date indicated herein, or from but excluding
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the most recent date to which interest has been paid or duly provided for,
to but excluding the related Interest Payment Date or the Maturity Date (or
any Redemption Date), as the case may be. Interest payments for this Note
will be computed and paid on the basis of a 360-day year comprised of twelve
30-day months.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, in
denominations of $100,000 and any integral multiple of $1,000 in excess
thereof. The Issuing and Paying Agent has been appointed registrar for the
Notes, and the Company will cause the Issuing and Paying Agent to maintain
at its office in Hartford, Connecticut a register for the registration and
transfer of Notes. Subject to certain restrictions set forth herein and in
the Issuing and Paying Agency Agreement,
this Note may be transferred at the aforesaid office of the Issuing and
Paying Agent by surrendering this Note for cancellation, accompanied by a
written instrument of transfer in form satisfactory to the Issuing and
Paying Agent and duly executed by the Holder hereof in person or by the
Holder's attorney duly authorized in writing, and thereupon the Issuing and
Paying Agent will issue in the name of the transferee or transferees, in
exchange herefor, a new Note or Notes having identical terms and provisions
and having a like aggregate principal amount in authorized denominations,
subject to the terms and conditions set forth herein; provided, however,
that the Issuing and Paying Agent will not be required to register the
transfer of any Note which has been called for redemption (or any part of a
Note which has been so called for redemption) during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
such redemption and ending at the close of business on the day of such
mailing. Notes are exchangeable at said office for other Notes of other
authorized denominations of equal aggregate principal amount and having
identical terms and provisions. All such exchanges of Notes will be free of
charge, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in the form attached hereto to the Issuing and Paying Agent and
executed by the Holder in person or by the Holder's attorney duly authorized
in writing.
In case any Note shall at any time become mutilated, defaced,
destroyed, stolen or lost and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Issuing and Paying Agent, a new Note of like tenor will be
issued by the Company in exchange for the Note so mutilated or defaced, or
in lieu of the Note so destroyed or stolen or lost, but, in the case of any
I - 7
destroyed or stolen or lost Note, only upon receipt of evidence satisfactory
to the Issuing and Paying Agent and the Company that such Note was destroyed
or stolen or lost, and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of the
Note mutilated, defaced, destroyed, stolen or lost.
On and after the date of initial issue of any of the Notes and so long
as any of the Notes are outstanding, the Company has agreed to comply with
certain financial covenants and reporting requirements for the benefit of
Holders as set forth in Article VII and Article VIII of the Issuing and
Paying Agency Agreement, a copy of which will be made available by the
Company upon the request of the Holder at the address set forth below for
notices to the Company. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed to them in such
Issuing and Paying Agency Agreement.
An Event of Default shall exist if any of the following occurs and is
continuing:
(a) there shall be a failure to pay when due the principal (or premium
if any) on any Note;
(b) there shall be a failure to pay an installment of interest on any
Note for 10 days after the date such installment is due;
(c) the Company shall fail to perform or observe any other term,
covenant or agreement contained in any Note for a period of 30 days after
the earlier of the date that written notice thereof shall have been given to
the Company by the Holders of not less than 25% in aggregate principal
amount of the Notes then outstanding or such failure shall first become
known to an officer of the Company;
(d) any representations or warranties made by the Company herein or in
any instrument furnished in compliance with or in reference to the Notes is
false or misleading in any material respect and such conditions shall have a
material adverse effect on the condition, financial or otherwise, or in the
earnings of the Company;
(e) the Company shall fail to make, when due and payable, any payment
on any indebtedness for borrowed money or any event shall occur (other than
the mere passage of time) or any condition shall exist in respect of any
such indebtedness, or under any agreement securing or relating to such
indebtedness, where the aggregate amount of such indebtedness is in excess
of $5,000,000 the effect of which is to cause (or permit any Holder of such
I - 8
indebtedness or a trustee with respect to such indebtedness to cause) such
indebtedness or any portion thereof, to become due and payable prior to its
maturity date or prior to its regularly scheduled dates of payments;
(f) an involuntary petition is filed against the Company under the
Bankruptcy Code or any other similar applicable Federal or State law, and
such petition is not dismissed within 60 days after each filing, or a
receiver, liquidator, custodian or trustee of the Company or any of its
Property is appointed by court order and such order shall have continued
undischarged or unstayed for a period of 60 days, or a decree or order by a
court having jurisdiction shall have been entered adjudging the Company
bankrupt or insolvent, and such decree or order shall have continued
undischarged and unstayed for a period of 60 days, or any of the Property of
the Company is sequestered by decree or order of a court having jurisdiction
and such decree or order shall have continued undischarged and unstayed for
a period of 60 days;
(g) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the Bankruptcy Code or any other similar applicable
Federal or State law, or shall consent to the filing of any such petition,
or shall consent to the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of it or its property, or shall make
an assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due; or
(h) a final judgment or judgments for the payment of money aggregating
in excess of 5% of Net Worth is or are outstanding against the Company and
such judgment or judgments has or have been outstanding for more than 60
days from the date of its or their entry and has or have not been discharged
in full or stayed.
If an Event of Default shall occur and be continuing (the Event of
Default not having been cured), the Holder of this Note may, at its option,
by written notice to the Company and the Issuing and Paying Agent, declare
such Note together with accrued interest to be immediately due and payable.
Upon declaration by the Holder of this Note following the occurrence of and
during the continuance of an Event of Default, this Note together with
accrued interest shall be immediately due and payable.
All notices to the Company under this Note shall be in writing and
addressed to the Company at 100 Columbus Boulevard, P. O. Box 1500,
Hartford, Connecticut 06144-1500, Attention: Chief Financial Officer,
I - 9
or to such other address of the Company as the Company may notify the Holder
of this Note.
Any action by the Holder shall bind all future Holders of this Note,
and of any Note issued in exchange or substitution herefor or in place
hereof, in respect of anything done or permitted by the Company or by the
Issuing and Paying Agent in pursuance of such actions.
The Issuing and Paying Agency Agreement and the terms of the Notes may
be modified or amended by the Company and the Issuing and Paying Agent,
without the consent of any Holder, for the purpose of (i) adding to the
covenants of the Company for the benefit of the Holders, (ii) surrendering
any right or power conferred upon the Company, (iii) securing the Notes
pursuant to the requirements of the Notes or otherwise, (iv) evidencing the
succession of another corporation to the Company and the assumption by such
successor of the covenants and any obligations of the Company contained in
the Issuing and Paying Agency Agreement and in the Notes in accordance with
the terms of the Issuing and Paying Agency Agreement and the Notes, (v)
correcting or supplementing any defective provision contained in the Notes
or in the Issuing and Paying Agency Agreement in a manner which does not
adversely affect the interests of any Holder or (vi) making any modification
of the terms and conditions of the Notes or any other provision of the
Issuing and Paying Agency Agreement in any manner which the Company and the
Issuing and Paying Agent may determine and which does not adversely affect
the interests of any Holder, to all of which each Holder of this Note, by
acceptance hereof, consents. All other modifications, amendments or
supplements of the Issuing and Paying Agency Agreement and the terms of the
Notes may be made by the Company and the Issuing and Paying Agent, and the
observance of any term of this Note may be waived, with (and only with) the
written consent of the Holders of 66-2/3% in principal amount of all the
Notes at the time outstanding (exclusive of Notes then owned by the Company,
any Subsidiaries and any Affiliates) provided that no such modification or
amendment of the Notes or the Issuing and Paying Agency Agreement, without
the consent of 100% of the Holders of the Notes then outstanding, may change
the maturity of any Note or any installment of interest thereon or reduce
the principal amount thereof or the interest thereon or reduce said
percentage of the Holders of the Notes then outstanding required for
consents, amendments or waivers. Notwithstanding the foregoing, the Company
will not propose or agree to any modification, amendment, or supplement of
the Issuing and Paying Agency Agreement without receiving prior written
consent of the Agents.
Any moneys paid by the Company to the Issuing and Paying Agent for the
payment of the principal of or interest or premium, if any, on any Notes,
and remaining unclaimed at the end of two (2) years after such principal,
interest or premium shall have become due and payable (whether at
I - 10
maturity or upon call for redemption or otherwise), shall then be repaid to
the Company and upon such repayment all liability of the Issuing and Paying
Agent with respect to such moneys shall thereupon cease, without, however,
limiting in any way any obligations which the Company may have to pay the
principal of or interest or premium, if any, on this Note as the same shall
become due.
No provision of this Note or of the Issuing and Paying Agency Agreement
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on
this Note at the time, place, and rate, and in the coin or currency, herein
prescribed.
Prior to due presentment of this Note for registration of transfer, the
Company, the Issuing and Paying Agent and any agent of the Company or the
Issuing and Paying Agent may treat the Holder in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Issuing and Paying Agent nor any such
agent shall be affected by notice to the contrary.
The Issuing and Paying Agency Agreement and the Notes shall be governed
by and construed in accordance with the laws of the State of Connecticut
applicable to agreements made and to be performed in such State.
This Note is issued in Connecticut and is governed by the laws of the
State of Connecticut.
Unless the certificate of authentication hereon has been executed by
the Issuing and Paying Agent under the Issuing and Paying Agency Agreement
referred to herein by the manual signature of one of its authorized
officers, this Note shall not be entitled to any benefit under the Issuing
and Paying Agency Agreement or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and a facsimile of its corporate seal to
be imprinted hereon.
CONNECTICUT NATURAL GAS CORPORATION
By:________________________________
Title:_____________________________
Certificate of Authentication:
This is one of the Notes issued under
the Issuing and Paying Agency Agreement
described herein.
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION
as Issuing and Paying Agent
By:_______________________________
Authorized Officer
Date of Authentication: ____________________________________
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[Form of Certificate of Transfer]
(To be delivered with this Note to the Issuing and Paying Agent)
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto ___________________________________________
________________________________________________________________
________________________________________________________________ (please
print or typewrite name and address including postal zip code of assignee
and insert Taxpayer Identification No.) _______
________________________________________________________________ this Note
and all rights hereunder, hereby irrevocably constituting and appointing
____________________________________ attorney to transfer this Note on the
books of the Company with full power of substitution in the premises.
CERTIFICATE OF TRANSFER
(The following is not required for sales or other transfers of this
Note to or through the Company or an Agent).
In connection with any transfer of this Note occurring prior to the
date which is three years after the later of (a) the Original Issue Date of
this Note or (b) the last date the Company or any of its affiliates was the
beneficial owner of this Note, the undersigned confirms that:
[Check One]
[ ] (a) This Note is being transferred by the undersigned to a transferee
that is, or that the undersigned reasonably believes to be, a
qualified institutional buyer (as defined in Rule 144A under the
Securities Act of 1933) pursuant to the exemption from
registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
[ ] (b) This Note is being transferred by the undersigned to a transferee
that is, or that the undersigned reasonably believes to be, an
"accredited investor" (as defined in Rule 501(a)(1),(2),(3) or (7)
under the Securities Act of 1933) and that the undersigned has
been advised by the prospective purchaser that it intends to hold
this Note for investment and not for distribution or resale in any
transaction that would be in violation of federal or state
securities laws.
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If neither of the foregoing boxes is checked, the Issuing and Paying
Agent shall not be obligated to register this Note in the name of any person
other than the Holder.
Dated: ____________________ ______________________________
NOTICE: The signature of the Holder to this assignment must correspond
with the name as written upon this Note in every particular, without
alteration or enlargement or any change whatsoever.
TO BE COMPLETED BY PURCHASER
IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of
1933 and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
Holder is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date: ____________________ _____________________________
NOTICE: To be executed by an officer.
TO BE COMPLETED BY PURCHASER IF (b)
ABOVE IS CHECKED:
The undersigned represents and warrants that it is an "accredited
investor" (as defined in Rule 501(a)(1),(2),(3) or (7) under the Securities
Act of 1933). The undersigned undertakes to hold this Note for investment
and not for distribution or resale in any transaction that would be in
violation of federal or state securities laws.
Date: ____________________ _____________________________
NOTICE: To be executed by an officer.
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EXHIBIT II
Shawmut Bank Connecticut, National Association
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Administration
Dear Sirs:
This is to advise you of a proposal to resell $_________ aggregate
principal amount of Medium-Term Notes (due ________; Note No(s). _______)
(the "Notes") of Connecticut Natural Gas Corp. ("CNG" or the "Company").
The Notes were originally sold through Smith Barney Inc. and A.G. Edwards &
Sons, Inc. on __________, 19__ to __________(the "Holder") pursuant to the
Medium-Term Note program established for CNG.
The Notes are presently registered in the name of:
_____________________________________.
[We have been advised that due to a change in circumstances the Holder
wishes to dispose of the Notes and that the Holder has not itself or through
any other broker, dealer or agent publicly solicited purchases of such
Notes. In this regard, we have contacted the following institutional
investor (the "Prospective Purchaser") which desires to purchase the Notes:
The Notes should be registered as follows:
Name:
Address:
Taxpayer I.D. No.:
We represent and warrant that the Prospective Purchaser is an
institutional investor and either (i) an "Accredited Investor" (as defined
in Rule 501(a)(1),(2),(3) or (7) of Regulation D of the Securities Act of
1933, as amended) or (ii) a "Qualified Institutional Buyer" (as defined in
Rule 144A under the Securities Act of 1933, as amended). We have been
advised by the Prospective Purchaser that it intends to hold the Notes for
investment and not for distribution or resale.]
[The undersigned desires to purchase the Notes from the Holder. The
Holder has advised us that the Holder has not itself or through any broker,
dealer or agent publicly solicited purchases of the Notes. Our address is
as follows:
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The Notes should be registered as follows:
Name:
Address:
Taxpayer I.D. No.:
The undersigned represents and warrants to you that it is an
institutional investor and either (i) an "Accredited Investor" (as defined
in Rule 501(a)(1),(2),(3) or (7) of Regulation D of the Securities Act of
1933, as amended) or (ii) a "Qualified Institutional Buyer" (as defined in
Rule 144A under the Securities Act of 1933, as amended). The undersigned
undertakes to hold the Notes for investment not for distribution or resale.]
We hereby request that the approval of CNG be obtained to consummate
the sale that is contemplated herein.
Very truly yours,
[Signature]
Consented to this _______day
of ___________, 19__
By _________________________
Authorized Signatory
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