<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 1999
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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EL PASO ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 4922 76-0568816
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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EL PASO ENERGY CORPORATION BRITTON WHITE JR. ESQ.
EL PASO ENERGY BUILDING EXECUTIVE VICE PRESIDENT AND
1001 LOUISIANA STREET GENERAL COUNSEL
HOUSTON, TEXAS 77002 EL PASO ENERGY CORPORATION
(713) 420-2131 EL PASO ENERGY BUILDING
(Address, including zip code, and telephone 1001 LOUISIANA STREET
number, including area code, of registrant's HOUSTON, TEXAS 77002
principal executive officer) (713) 420-2131
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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COPIES TO:
G. MICHAEL O'LEARY
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after this registration statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective Amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) REGISTRATION FEE
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6 5/8% Series B Senior Notes due
2001.............................. $600,000,000 100% $600,000,000 $166,800(1)
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(1) Calculated in accordance with Rule 457(f)(2). For purposes of this
calculation, the Offering Price per Series B Note was assumed to be the
stated principal amount of each Series A Note that may be received by the
Registrant in the exchange transaction in which the Series B Notes will be
offered.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED AUGUST 11, 1999
PROSPECTUS
EL PASO ENERGY CORPORATION
OFFER TO EXCHANGE
$1,000 PRINCIPAL AMOUNT OF 6 5/8% SERIES B SENIOR NOTES DUE 2001
FOR EACH $1,000 PRINCIPAL AMOUNT OF OUTSTANDING
6 5/8% SERIES A SENIOR NOTES DUE 2001
($600,000,000 IN PRINCIPAL AMOUNT OUTSTANDING)
THE EXCHANGE OFFER
- Expires 5:00 p.m., New York City time, , 1999, unless
extended.
- Subject to certain customary conditions, which we may waive, the exchange
offer is not conditioned upon a minimum aggregate principal amount of
Series A Notes being tendered.
- All outstanding Series A Notes validly tendered and not withdrawn will be
exchanged.
- The exchange offer is not subject to any condition other than that the
exchange offer not violate applicable law or any applicable
interpretation of the staff of the Securities and Exchange Commission.
THE EXCHANGE NOTES
- The terms of the Series B Notes to be issued in the exchange offer are
substantially identical to the Series A Notes, except that we have
registered the Series B Notes with the Securities and Exchange
Commission. In addition, the Series B Notes will not be subject to
certain transfer restrictions, and certain provisions relating to an
increase in the stated interest rate on the Series A Notes will be
eliminated.
- Interest on the Series B Notes will accrue from July 12, 1999 at the rate
of 6 5/8% per annum, payable semi-annually in arrears on each January 15
and July 15, beginning January 15, 2000.
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YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS BEGINNING ON PAGE 8 OF THIS
PROSPECTUS BEFORE PARTICIPATING IN THE EXCHANGE OFFER.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS , 1999.
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TABLE OF CONTENTS
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PAGE
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Table of Contents........................................... i
Cautionary Statement Regarding Forward-looking Statements... ii
Where Can You Find More Information......................... iii
Prospectus Summary.......................................... 1
Risk Factors................................................ 8
Capitalization.............................................. 12
Use of Proceeds............................................. 13
The Exchange Offer.......................................... 13
Description of the Notes.................................... 25
Plan of Distribution........................................ 36
Legal Matters............................................... 36
Experts..................................................... 37
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We refer to the series B senior notes in this prospectus as "exchange
notes," and the series A senior notes as "senior notes." We sometimes refer to
the exchange notes and the senior notes together as the "notes." El Paso Energy
sold the senior notes on July 12, 1999, to Donaldson, Lufkin & Jenrette, ABN
AMRO Incorporated, Banc of America Securities LLC, and Chase Securities Inc (the
"initial purchasers"). The sale was not registered under the Securities Act in
reliance upon the exemption provided in Section 4(2) of the Securities Act. The
initial purchasers placed the senior notes with qualified institutional buyers
(as defined in Rule 144A under the Securities Act). The qualified institutional
buyers all agreed to comply with certain transfer restrictions and other
restrictions. One of the restrictions is that the senior notes cannot be
reoffered, resold or otherwise transferred in the United States unless the
transaction is registered under the Securities Act or there is an exemption
under the Securities Act which applies to the transaction. We are now offering
the exchange notes in order to satisfy our obligations under the registration
rights agreement between El Paso Energy and the initial purchasers.
NOTICE TO NEW HAMPSHIRE RESIDENTS: Neither the fact that a registration
statement or an application for a license has been filed under RSA 421-B with
the state of New Hampshire nor the fact that a security is effectively
registered or a person is licensed in the state of New Hampshire constitutes a
finding by the secretary of state that any document filed under RSA 421-B is
true, complete and not misleading. Neither any such fact nor the fact that any
exemption or exception is available for a security or a transaction means that
the Secretary of State of New Hampshire has passed in any way upon the merits or
qualifications of, or recommended or given approval to, any person, security or
transaction. It is unlawful to make, or cause to be made, to any prospective
purchaser, customer or client, any representation inconsistent with the
provisions of this paragraph.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
We have made statements in this prospectus and in documents that are
incorporated by reference into this prospectus that constitute forward-looking
statements, as that term is defined in the Private Securities Litigation Reform
Act of 1995. These statements are subject to risks and uncertainties.
Forward-looking statements include information concerning possible or assumed
future results of operations of El Paso Energy. These statements may relate to,
but are not limited to, information or assumptions about earnings per share,
capital and other expenditures, dividends, financing plans, capital structure,
cash flow, pending legal proceedings and claims, including environmental
matters, future economic performance, operating income, cost savings,
management's plans, goals and objectives for future operations and growth and
markets for the common stock of El Paso Energy. These forward-looking statements
generally are accompanied by words such as "intend," "anticipate," "believe,"
"estimate," "expect," "should" or similar expressions. You should understand
that these forward-looking statements are necessarily estimates reflecting the
best judgment of senior management of El Paso Energy, not guarantees of future
performance. They are subject to a number of assumptions, risks and
uncertainties that could cause actual results to differ materially from those
expressed or implied in the forward-looking statements.
Important factors that could cause actual results to differ materially from
estimates or projections contained in forward-looking statements include, among
others, those risks, uncertainties and factors discussed in El Paso Energy's
1998 Annual Report on Form 10-K. Other factors that could cause actual results
to differ materially from estimates and projections contained in forward-looking
statements are described in the documents that have been incorporated by
reference into this prospectus. You should not place undue reliance on forward-
looking statements, which speak only as of the date of this prospectus, or, in
the case of documents incorporated by reference, the date of those documents.
Important factors that could cause actual results to differ materially from
those in the forward-looking statements herein include:
- the risk that revenues may be affected by fluctuating energy prices;
- the risk that rates charged to customers may be reduced by governmental
authorities;
- the highly competitive nature of the natural gas transportation,
gathering, processing, storage and energy marketing industries;
- the risk of favorable customer contracts expiring or being renewed on
less attractive terms;
- the uncertainty concerning the future success of exploration and
production activities;
- the costs of environmental liabilities, regulations and litigation;
- the impact of operational hazards;
- the risk that required regulatory approvals for proposed pipeline,
storage and power generation projects may be delayed or may only be
granted on terms that are unacceptable or significantly less favorable
than anticipated;
- the risks associated with future weather conditions;
- the risk that the merger with Sonat will not occur;
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<PAGE> 5
- the risk that Sonat's businesses may not be successfully integrated with
El Paso Energy's businesses;
- the risk that the integration of Sonat's marketing activities may not be
successful;
- the risk that we may not fully realize the benefits expected to result
from the merger;
- the impact of the loss of key employees;
- the risk that other firms will further expand into markets in which El
Paso Energy or Sonat operate; and
- other risks, uncertainties and factors, including the effect of the year
2000 date change, discussed more completely in El Paso Energy's filings
with the Securities and Exchange Commission (SEC), including the 1998
Annual Report on Form 10-K.
Certain of these factors are more fully described in "Risk Factors." Other
factors that could cause actual results to differ materially from estimates and
projections contained in forward-looking statements are described in the
documents that we incorporated by reference into this prospectus. You should not
place undue reliance on forward-looking statements, which speak only as of the
date of this prospectus, or, in the case of documents incorporated by reference,
the date of those documents.
All subsequent written and oral forward-looking statements attributable to
us or any person acting on our behalf are expressly qualified in their entirety
by the cautionary statements contained or referred to in this section. We do not
undertake any obligation to release publicly any revisions to these
forward-looking statements to reflect events or circumstances after the date of
this prospectus or to reflect the occurrence of unanticipated events.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC under
the Securities Exchange Act of 1934. You may read and copy this information at
the following locations of the SEC:
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Public Reference Room Room New York Regional Office Chicago Regional Office
1024 450 Fifth Street, Suite 100 7 World Trade Citicorp Center Suite 1400
N.W. Washington, D.C. Center New York, New York 500 West Madison Street
20549 10048 Chicago, Illinois
60661-2511
</TABLE>
You may also obtain copies of this information by mail from the public
reference section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. The SEC also maintains an
Internet world wide web site that contains reports, proxy statements and other
information about issuers, including El Paso Energy, who file electronically
with the SEC. The address of that site is http://www.sec.gov. You can also
inspect reports, proxy statements and other information about each of us at the
offices of The New York Stock Exchange, Inc., located at 20 Broad Street, New
York, New York 10005.
We are incorporating by reference in this prospectus some information we
file with the SEC, which means that we are disclosing important information to
you by referring you to those
iii
<PAGE> 6
documents. Specifically, we incorporate by reference the documents set forth
below that we have previously filed with the SEC:
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SEC FILINGS (FILE NO. 1-14365) DESCRIPTION OR PERIOD/AS OF DATE
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Annual Report on Form 10-K Year ended December 31, 1998
Quarterly Report on Form 10-Q Quarter ended March 31, 1999
Current Report on Form 8-K, dated March Discloses the entering into the merger
15, 1999 agreement between El Paso Energy and
Sonat Inc. and related matters
Current Report on Form 8-K, dated April Discloses preliminary unaudited pro forma
23, 1999 financial information of El Paso Energy
and Sonat Inc. giving effect to the
proposed merger
Current Report on Form 8-K, dated April Discloses first quarter operating results
23, 1999 of El Paso Energy
Current Report on Form 8-K/A, dated April Amends our Current Report on Form 8-K
30, 1999 dated April 23, 1999 disclosing pro forma
financial information, and includes the
audited consolidated financial statements
of Sonat Inc. as of December 31, 1998 and
1997 and for the years ended December 31,
1998, 1997 and 1996
Current Report on Form 8-K, dated May 10, Contains exhibits related to our issuance
1999 of $500 million of 6 3/4% senior notes
due 2009
Current Report on Form 8-K dated June 11, Discloses approval by El Paso Energy's
1999 stockholders of the proposed merger with
Sonat Inc.
Current Report on Form 8-K, dated July 2, Discloses preliminary unaudited pro forma
1999 condensed financial information of El
Paso Energy and Sonat Inc. giving effect
to the proposed merger, and includes the
unaudited consolidated financial
statements of Sonat Inc. as of March 31,
1999 and for the quarters ended March 31,
1999 and 1998
Current Report on Form 8-K, dated July Discloses second quarter and year to date
26, 1999 operating results of El Paso Energy
Registration Statement on Form 8-A, dated Contains a description of the El Paso
August 3, 1998 Energy common stock
Registration Statement on Form 8-A/A Contains a description of the El Paso
dated January 29, 1999 Energy preferred stock purchase rights
Definitive Proxy Statement on Schedule Definitive proxy statement relating to
14A the 1999 annual meeting of El Paso
Energy's stockholders (filed on March 11,
1999)
</TABLE>
We incorporate by reference additional documents that we may file with the
SEC until the consummation of the exchange offer discussed in this prospectus,
which information will be deemed to automatically update and supersede the
information in this prospectus. These
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documents include periodic reports, including Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements.
You can obtain any of the documents incorporated by reference in this
document through El Paso Energy or from the SEC through the SEC's web site at
the address provided above. Documents incorporated by reference are available
from El Paso Energy without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus. You can obtain documents incorporated by reference in this
prospectus by requesting them in writing or by telephone from El Paso Energy at
the following address:
El Paso Energy Corporation
Office of Investor Relations
El Paso Energy Building
1001 Louisiana Street
Houston, Texas 77002
Telephone No.: (713) 420-2131
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PROSPECTUS SUMMARY
This summary highlights information appearing in other sections of this
prospectus. It is not complete and may not contain all of the information that
you should consider before exchanging senior notes for exchange notes. You
should read this prospectus carefully, including the "Risk Factors" section and
the financial statements and the footnotes to those statements incorporated
herein by reference. For purposes of this prospectus, unless the context
otherwise indicates, when we refer to "us," "we," "our," "ours," or "El Paso
Energy," we are describing El Paso Energy Corporation and its subsidiaries.
OUR BUSINESS
Our principal operations include:
- the interstate and intrastate transportation, gathering and processing of
natural gas;
- the marketing of natural gas, power and other energy-related commodities;
- power generation; and
- the development and operation of energy infrastructure facilities
worldwide.
We own or have interests in over 28,000 miles of interstate and intrastate
pipeline connecting the nation's principal natural gas supply regions to four of
the largest consuming regions in the United States, namely the Gulf Coast,
California, the Northeast and the Midwest. Our interstate natural gas
transmission operations include one of the nation's largest and only
coast-to-coast mainline natural gas transmission systems which is comprised of
five interstate pipeline systems: the El Paso Natural Gas pipeline, the
Tennessee Gas pipeline, the Midwestern Gas Transmission pipeline, the East
Tennessee Natural Gas pipeline, and the Mojave pipeline.
In addition to our interstate transmission services, we provide related
services, including natural gas gathering, products extraction, dehydration,
purification, compression, and intrastate transmission. These services include
gathering of natural gas from more than 10,000 natural gas wells with
approximately 11,000 miles of gathering lines, and 23 natural gas processing and
treating facilities located in some of the most prolific and active production
areas of the United States, including the San Juan and Permian Basins and in
east Texas, south Texas, Louisiana and the Gulf of Mexico. We conduct intrastate
transmission operations through our interests in four Texas intrastate systems,
which include the Oasis pipeline running from west Texas to Katy, Texas, the
Channel pipeline extending from south Texas to the Houston Ship Channel, and the
Shoreline and Tomcat gathering systems which gather gas from offshore Texas. We
also provide intrastate transportation in north Louisiana through our Gulf
States pipeline that runs from the Texas border to Ruston, Louisiana. Our
marketing activities include the marketing and trading of natural gas, power,
and other energy-related commodities, as well as providing integrated price risk
management services associated with these commodities. We also participate in
the development and ownership of domestic power generation facilities, and other
power-related assets and joint ventures.
Our international activities focus on the development and operation of
international energy infrastructure projects and include ownership interests in
three major operating natural gas transmission systems in Australia and natural
gas transmission systems and power generation facilities currently in operation
or under construction in Argentina, Bolivia, Brazil, Chile, the
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Czech Republic, Hungary, Indonesia, Mexico, India, Pakistan, Peru, the United
Kingdom, Bangladesh, the Philippines and China.
Our principal executive offices are located in the El Paso Energy Building,
located at 1001 Louisiana Street, Houston, Texas 77002, and our telephone number
at that address is (713) 420-2131.
OUR BUSINESS STRATEGY
We seek to be a leader in the North American energy industry and an active
participant in the development of energy infrastructure internationally. To
achieve our business and financial objectives, our strategy is to:
- generate stable earnings and significant free cash flow from our
interstate system through long-term customer relationships, cost
reengineering, and throughput maximization;
- reinvest our free cash flow in projects that complement and expand our
non-regulated businesses, as well as in selected projects in regulated
businesses that are capable of generating incremental returns; and
- develop new areas for expansion in the energy industry, including
strategic acquisitions and joint ventures. We are pursuing this strategy
to capitalize on emerging trends in the energy industry, including the
growing worldwide demand for energy infrastructure, the deregulation of
the natural gas and electricity industries in the United States, and the
active oil and gas development in those domestic basins where we have
significant existing assets and operations.
RECENT DEVELOPMENTS
MERGER WITH SONAT INC.
On June 10, 1999, El Paso Energy's stockholders approved the second amended
and restated agreement and plan of merger with Sonat Inc. pursuant to which,
among other things, Sonat will merge with and into El Paso Energy, and El Paso
Energy will issue to Sonat stockholders one share of El Paso Energy common stock
for each share of Sonat common stock owned by them (approximately 110 million
shares), and El Paso Energy's certificate of incorporation will be amended to
authorize El Paso Energy to issue up to 750 million shares of common stock and
up to 50 million shares of preferred stock. The approval of the merger resulted
in a defined change in control for El Paso Energy. As a result, El Paso Energy
incurred a charge of $126 million in the second quarter of 1999. These charges
included $120 million for the accelerated vesting of certain employee benefits.
Approximately $8 million of this amount was paid in the second quarter of 1999,
and approximately $50 million will be paid in the third quarter of 1999. Also
included in the charge was $6 million of various legal, accounting and financial
advisory costs. El Paso Energy and Sonat will complete the merger only if a
number of conditions are satisfied or waived including:
- no law or court order prohibits the transaction;
- the waiting period under federal antitrust laws applicable to the merger
expires or terminates;
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- all other regulatory approvals are received without conditions that would
be materially adverse to El Paso Energy's and Sonat's combined
businesses, financial condition or results of operations; and
- attorneys for El Paso Energy and Sonat issue opinions that the merger is
expected to be tax free.
However, we cannot assure you that we will complete the merger even if such
conditions are satisfied.
Sonat Inc. is a diversified energy holding company engaged in domestic oil
and natural gas exploration and production, the transmission and storage of
natural gas, and natural gas and power marketing. Sonat owns interests in
approximately 14,000 miles of natural gas pipelines extending across the
southeastern United States from Texas to South Carolina and Florida. Also, Sonat
has interests in oil and gas producing properties in Louisiana, Texas, Oklahoma,
Arkansas, Alabama, New Mexico and the Gulf of Mexico. As of December 31, 1998,
Sonat owned approximately 1.6 trillion cubic feet equivalent of proved reserves.
FORMATION OF TRINITY RIVER ASSOCIATES
We formed Sabine River Investors, L.L.C., a wholly owned limited liability
company, and other separate legal entities, for the purpose of raising funds for
investments in projects and other assets. Through our ownership in Sabine, we
contributed $125 million of equity capital to Trinity River Associates, L.L.C.,
in exchange for the managing member interest in Trinity. A third-party investor
contributed $500 million of equity capital to Trinity for a non-controlling
preferred member interest. The third-party investor is entitled to an adjustable
preferred return derived from Trinity's net income. Proceeds from the equity
contributions were used to invest in a note receivable from Sabine. Absent
certain specified events, we have the option to acquire the third-party
investor's interest in Trinity at any time prior to June 2004. If we do not
acquire the third-party investor's interest in Trinity before June 2004 and if
we do not reach an agreement with the third-party investor to extend the
maturity of the transaction, the note receivable from Sabine will mature and a
portion of the proceeds therefrom will be used by Trinity to redeem the
third-party investor's interest in Trinity. The assets, liabilities and
operations of Sabine, Trinity and other entities involved in this transaction
are included in our consolidated financial statements.
ACQUISITION OF COGENERATION FACILITIES
We agreed to acquire ownership interests in the Newark Bay Cogeneration
Facility and East Coast Power for approximately $280 million. The Newark Bay
facility is a 137 megawatt natural gas-fired cogeneration plant located in New
Jersey which sells power to a large utility and steam to various local
customers. East Coast Power has three natural gas-fired plants located in New
Jersey with a combined capacity of 1037 megawatts and long-term power purchase
agreements with three utilities. We anticipate closing these transactions in the
third quarter of 1999.
PRELIMINARY RESULTS OF OPERATIONS FOR THE SECOND QUARTER AND SIX MONTHS ENDED
JUNE 30, 1999.
On July 22, 1999, we announced our preliminary results of operations for
the second quarter and the six months ended June 30, 1999. We reported
consolidated diluted earnings per share of $0.74 before merger charges, compared
to second quarter 1998 diluted earnings per share of
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<PAGE> 11
$0.45. Charges in the second quarter related to the merger with Sonat were
approximately $126 million pretax, $83 million aftertax, or $0.70 per share.
These charges included $120 million for the accelerated amortization of certain
employee benefit plans when our stockholders approved the merger with Sonat, as
well as $6 million of various merger-related legal, accounting, and financial
advisory costs.
Also included in our second quarter results for 1999 was a gain of $19
million pretax, $13 aftertax, or $0.11 per share, from the sale of El Paso Field
Services Company's interest in the Viosca Knoll Gathering System to Leviathan
Gas Pipeline Partners, L.P., and a benefit of $30 million pretax, $20 million
aftertax, or $0.17 per share, related to the resolution of regulatory issues
including our gas imbalance mechanism. After including the impact of the merger
charges, the gain, and the resolution of regulatory issues, diluted earnings per
share for the second quarter of 1999 was $0.04. Consolidated earnings before
interest expense and income taxes (EBIT) for the second quarter, excluding the
merger charges, the gain, and the resolution of regulatory issues, totaled $175
million. Comparable EBIT in the year-ago quarter totaled $149 million.
For the first six months of 1999, diluted earnings per share totaled $1.06,
adjusted for the merger charges, the gain, and the resolution of regulatory
issues recorded in the second quarter, as well as the cumulative effect of an
accounting change implemented in the first quarter. Diluted earnings per share
for the first six months of 1998 totaled $0.92. After giving effect to the
merger charges, the gain, the resolution of regulatory issues, and the
cumulative effect of the accounting change, diluted earnings per share for the
first six months of 1999 was $0.53. Adjusted consolidated EBIT for the six
months ended June 30, 1999 totaled $365 million compared to $312 million in the
year-ago period.
THE EXCHANGE OFFER
Registration Rights
Agreement................ We sold the senior notes on July 12, 1999 to the
initial purchasers under a purchase agreement dated
July 7, 1999. Pursuant to the purchase agreement,
El Paso Energy and the initial purchasers entered
into a registration rights agreement which granted
the holders of the senior notes certain exchange
and registration rights. This exchange offer is
intended to satisfy certain of our obligations
under the registration rights agreement.
The Exchange Offer......... We are offering to exchange up to $600,000,000 of
the exchange notes for up to $600,000,000 of the
senior notes. Senior notes may be exchanged only in
$1,000 increments.
The terms of the exchange notes are identical in
all material respects to the senior notes except
for certain transfer restrictions and registration
rights relating to the senior notes and certain
provisions relating to an increase in the stated
interest rate on the senior notes.
Resale..................... We believe that you will be able to freely transfer
the exchange notes without registration or any
prospectus delivery requirement; however, certain
broker-dealers and certain of our affiliates may be
required to deliver copies of this prospectus if
they resell any exchange notes.
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Expiration Date............ 5:00 p.m., New York City time, on
, 1999, unless the exchange
offer is extended. You may withdraw senior notes
you tender pursuant to the exchange offer at any
time prior to , 1999. See "The Exchange
Offer -- Expiration Date; Extensions; Termination;
Amendments."
Conditions to the Exchange
Offer.................... The exchange offer is subject only to the following
conditions:
- the compliance of the exchange offer with
securities laws;
- the tender of the senior notes;
- the representation by the holders of the senior
notes that the exchange notes they will receive
are being acquired by them in the ordinary course
of their business and that at the time the
exchange offer is completed the holder had no
plan to participate in the distribution of the
exchange notes; and
- no judicial or administrative proceedings shall
have been threatened that would limit us from
proceeding with the exchange offer.
Procedures for Tendering
Senior Notes............. If you wish to accept the exchange offer, sign and
date the letter of transmittal in accordance with
the instructions, and deliver the letter of
transmittal, along with the senior notes and any
other required documentation, to the exchange
agent. By executing the letter of transmittal, you
will represent to us that, among other things:
- the exchange notes you receive will be acquired
in the ordinary course of your business,
- you have no arrangement with any person to
participate in the distribution of the exchange
notes, and
- you are not an affiliate of El Paso Energy or, if
you are an affiliate, you will comply with the
registration and prospectus delivery requirements
of the Securities Act to the extent applicable.
Special Procedures for
Beneficial Owners........ If you are a beneficial owner whose senior notes
are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee and
wish to tender such senior notes in the exchange
offer, please contact the registered holder as soon
as possible and instruct them to tender on your
behalf and comply with our instructions set forth
elsewhere in this prospectus.
Guaranteed Delivery
Procedures............... If you wish to tender your senior notes, you may,
in certain instances, do so according to the
guaranteed delivery procedures
5
<PAGE> 13
set forth elsewhere in this prospectus under "The
Exchange Offer -- Guaranteed Delivery Procedures."
Withdrawal Rights.......... You may withdraw senior notes you tender pursuant
to the exchange offer by furnishing a written or
facsimile transmission notice of withdrawal to the
exchange agent containing the information set forth
in "The Exchange Offer -- Withdrawal of Tenders" at
any time before 5:00 p.m. New York City time on
, 1999.
Acceptance of Senior Notes
and Delivery of Exchange
Notes.................... We will accept for exchange any and all senior
notes that are properly tendered in the exchange
offer prior to the expiration date. See "The
Exchange Offer -- Procedures for Tendering." The
conditions described in "The Exchange
Offer -- Conditions of the Exchange Offer" will
apply. The exchange notes issued pursuant to the
exchange offer will be delivered promptly following
the expiration date.
SUMMARY OF TERMS OF EXCHANGE NOTES
Issuer..................... El Paso Energy Corporation
Exchange Notes............. $600,000,000 aggregate principal amount of 6 5/8%
Series B Senior Notes due 2001.
Maturity Date.............. July 15, 2001.
Interest Payment Dates..... January 15 and July 15 of each year, beginning
January 15, 2000.
Optional Redemption........ None.
Sinking Fund............... None.
Ranking.................... The exchange notes rank equally with any other
unsecured indebtedness of El Paso Energy that is
not specifically subordinated to the notes.
Certain Covenants.......... The indenture governing the exchange notes contains
certain covenants, including, but not limited to,
covenants limiting (i) the creation of liens
securing indebtedness, and (ii) sale and leaseback
transactions.
Use of Proceeds............ We will not receive any proceeds from the exchange
of the exchange notes for the outstanding senior
notes.
Risk Factors............... You should read the "Risk Factors" section on page
8, as well as the other cautionary statements
throughout this prospectus, to ensure you
understand the risks involved with the exchange of
the exchange notes for the outstanding senior
notes.
6
<PAGE> 14
SUMMARY HISTORICAL FINANCIAL DATA
We have derived the summary historical consolidated financial data set
forth below for each of the three fiscal years ended December 31, 1998 and for
the three months ended March 31, 1998 and 1999 from our financial statements.
Our financial statements for each of the three fiscal years ended December 31,
1998, have been audited by PricewaterhouseCoopers LLP, independent public
accountants. You should read the following information together with the
historical financial statements of El Paso Energy and related notes contained in
our 1998 Annual Report on Form 10-K and our Quarterly Report on Form 10-Q for
the first quarter of 1999, which are incorporated herein by reference.
<TABLE>
<CAPTION>
FOR THE THREE
FOR THE YEAR ENDED MONTHS ENDED
DECEMBER 31, MARCH 31,
------------------------------- -------------------
1996(A) 1997 1998 1998 1999
--------- -------- -------- -------- --------
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS AND RATIOS)
<S> <C> <C> <C> <C> <C>
OPERATING RESULTS DATA (UNAUDITED)
Operating revenues........................................ $3,012 $5,638 $5,782 $1,619 $1,494
Depreciation, depletion and amortization.................. 101 236 269 65 71
Employee separation and asset impairment charge(b)........ 99 -- -- -- --
Operating income.......................................... 170 521 506 141 145
Income before income taxes, minority interest, and
cumulative effect of accounting change.................. 65 340 377 99 117
Income tax expense........................................ 25 129 127 35 40
Minority interest......................................... 2 25 25 6 6
Income before cumulative effect of accounting change...... 38 186 225 58 71
Cumulative effect of accounting change, net of income
tax(c).................................................. -- -- -- -- (13)
Net income................................................ 38 186 225 58 58
Basic earnings per common share
Income before cumulative effect of accounting
change(d)............................................. 0.53 1.64 1.94 0.50 0.62
Cumulative effect of accounting change, net of income
tax................................................... -- -- -- -- (0.12)
------ ------ ------ ------ ------
Net income(d)........................................... 0.53 1.64 1.94 0.50 0.50
Diluted earnings per common share
Income before cumulative effect of accounting
change(d)............................................. 0.52 1.59 1.85 0.48 0.58
Cumulative effect of accounting change, net of income
tax................................................... -- -- -- -- (0.10)
------ ------ ------ ------ ------
Net income(b)(d)........................................ 0.52 1.59 1.85 0.48 0.48
Basic average common shares outstanding(d)................ 72 114 116 116 116
Diluted average common shares outstanding(d).............. 73 117 126 122 128
Ratio of earnings to combined fixed charges and preferred
stock dividend requirements(e).......................... 1.59 2.26 2.01 2.36 2.17
</TABLE>
<TABLE>
<CAPTION>
AS OF
----------------------------
DECEMBER 31, MARCH 31,
1998 1999
------------- ------------
(IN MILLIONS)
<S> <C> <C>
FINANCIAL POSITION DATA (UNAUDITED)
Total assets.............................................. $10,038 $10,466
Total current liabilities................................. 2,131 1,935
Long-term debt, less current maturities................... 2,552 3,082
Company obligated mandatorily redeemable convertible
preferred securities of El Paso Energy Capital Trust
I....................................................... 325 325
Minority interest......................................... 365 365
Stockholders' equity...................................... 2,108 2,162
</TABLE>
- ---------------------------------------------
(a) Reflects the acquisitions in June 1996 of Cornerstone Natural Gas, Inc., and
in December 1996 of El Paso Tennessee Pipeline Co.
(b) Includes a charge in 1996 of $99 million pre-tax ($60 million after tax) to
reflect costs associated with the implementation of a workforce reduction
plan and the impairment of certain long-lived assets. Net income per share
of common stock for the year ended December 31, 1996 before giving effect to
this charge and an $8 million pre-tax ($5 million after tax) charge taken in
the fourth quarter for relocating the corporate headquarters from El Paso,
Texas to Houston, Texas in connection with the acquisition of El Paso
Tennessee Pipeline Co., would have been $1.41 (compared to the reported
$0.52).
(c) We adopted the American Institute of Certified Public Accountant's Statement
of Position 98-5, Reporting on the Cost of Start-Up Activities, effective
January 1, 1999, and recorded a charge of $13 million, net of income taxes,
in the first quarter of 1999.
(d) We adjusted all common share and per share amounts to give retroactive
effect to a two-for-one stock split in the form of a 100% stock dividend
that occurred on April 1, 1998.
(e) The ratios for the year ended December 31, 1994 and 1995 were 2.87 and 2.51,
respectively.
7
<PAGE> 15
RISK FACTORS
OPERATIONAL RISKS
EL PASO ENERGY IS A HOLDING COMPANY THAT DEPENDS ON ITS SUBSIDIARIES TO
MEET ITS DEBT SERVICE OBLIGATIONS.
As a holding company, El Paso Energy conducts all of its operations
exclusively through its subsidiaries. El Paso Energy's only significant assets
are the capital stock of its subsidiaries. This means that El Paso Energy is
dependent on dividends or other distributions of funds from its subsidiaries to
meet its debt service and other obligations, including the payment of principal
and interest on the senior notes. The indenture governing the senior notes,
subject to certain restrictions, permits El Paso Energy to incur additional
secured indebtedness and its subsidiaries to incur additional secured and
unsecured indebtedness, which would in effect be senior to the senior notes. The
indenture will also permit certain subsidiaries to pledge assets in order to
secure indebtedness of El Paso Energy and to agree with lenders under any
secured indebtedness to restrictions on repurchases of the senior notes and on
the ability of such subsidiaries to make distributions, loans, other payments or
asset transfers to El Paso Energy. The total long-term indebtedness of El Paso
Energy's subsidiaries as of March 31, 1999, was approximately $2.6 billion on a
historical basis and approximately $3.7 billion on a pro forma combined basis
giving effect to the merger.
THE RATES WE ARE ABLE TO CHARGE OUR CUSTOMERS MAY BE REDUCED BY
GOVERNMENTAL AUTHORITIES.
The pipeline businesses of El Paso Energy and Sonat are regulated by the
FERC and various state and local regulatory agencies. In particular, the FERC
limits the rates we are permitted to charge our customers for interstate
transportation and, in some cases, sales of natural gas. If the rates we are
permitted to charge our customers for use of our regulated pipelines are
lowered, the profitability of our pipeline businesses may be reduced. Under the
terms of a settlement approved by the FERC, Sonat's subsidiary, Southern Natural
Gas Company, is required to file a new rate case no later than September 1,
1999, to become effective by March 1, 2000. We cannot predict the outcome of
that rate case.
MANY OF OUR FAVORABLE CONTRACTS FOR NATURAL GAS TRANSMISSION WILL EXPIRE
WITHIN THE NEXT FEW YEARS.
Substantially all of the revenues of El Paso Energy's subsidiary, Tennessee
Gas Pipeline Company, are generated under long-term natural gas transmission
contracts. Contracts representing approximately 70% of the subsidiary's firm
transportation capacity will expire by November 2000. Although the subsidiary is
actively pursuing the renegotiation, extension and/or replacement of these
contracts, we cannot give any assurance that it will be able to extend or
replace all or most of these contracts or that the terms of any renegotiated
contracts will be as favorable to the subsidiary as the existing contracts.
Substantially all of the revenues of Sonat's subsidiary, Southern Natural
Gas Company, are generated under long-term natural gas transportation contracts.
Contracts representing approximately 58% of Southern Natural Gas Company's firm
transportation capacity will expire by their terms by September 1, 2003.
Contracts with one gas distribution customer account for 46% of these expiring
contracts. Although they expect to negotiate to extend these contracts, there
can be no assurance that they will be able to extend or replace these contracts
or that the terms of any renegotiated contracts will be as favorable as the
existing contracts. If we merge
8
<PAGE> 16
with Sonat and Sonat is unable to renew these contracts or if they are renewed
on less favorable terms, we may suffer a material reduction in our revenues and
earnings.
THE SUCCESS OF SONAT'S EXPLORATION AND PRODUCTION BUSINESS IS DEPENDENT ON
FACTORS WHICH CANNOT BE PREDICTED WITH CERTAINTY.
The performance of Sonat's exploration and production business is dependent
upon a number of factors that cannot be predicted with certainty. These factors
include:
- the effect of oil and natural gas prices on revenues;
- the results of future drilling activity;
- Sonat's ability to identify and precisely locate prospective geologic
structures and to drill and successfully complete wells in those
structures; and
- Sonat's ability to expand their leased land positions in desirable areas,
which often are subject to intensely competitive leasing conditions.
KEY PERSONNEL COULD TERMINATE THEIR EMPLOYMENT WITH THE COMBINED COMPANY.
El Paso Energy's senior management has limited experience in the oil and
gas exploration and production business. Although we expect Sonat personnel who
currently operate Sonat's exploration and production business to remain with the
combined company, we cannot assure you that any of these personnel will remain
with the combined company after we complete the merger.
All of the executive officers and other key employees of Sonat are parties
to severance agreements and have the right to receive substantial payments if
their employment is terminated by the combined company, if they terminate their
employment for good reason after the merger or, in the case of its executive
officers and two other key executives, if they terminate employment for any
reason during the 30-day period immediately following the first anniversary of
the merger. Executive officers and certain other key employees of El Paso Energy
have similar rights under applicable plans. In addition, several Sonat executive
officers are eligible to participate in a voluntary reduction-in-force window
program if they (1) give notice of intent to terminate their employment within a
45-day period currently expected to end on December 31, 1999 and (2) terminate
their employment during a 6-month period currently expected to end on June 30,
2000. These individuals will be entitled to severance payments under their
severance agreements if they elect to take early retirement. Accordingly, El
Paso Energy expects that a substantial number of Sonat executive officers and
other employees will likely terminate their employment within the year following
completion of the merger.
We cannot assure you that, if executive officers and other key employees of
either El Paso Energy or Sonat leave the combined company, we will be able to
find adequate replacements.
WE CANNOT BE SURE THE INTEGRATION OF EL PASO ENERGY'S AND SONAT'S MARKETING
ACTIVITIES WILL BE SUCCESSFUL.
El Paso Energy's and Sonat's marketing activities involve complicated
transactions and valuation approaches that require daily monitoring using
sophisticated financial systems to manage market risks effectively. Some of
these financial systems and other activities used by the
9
<PAGE> 17
two operations are different and will have to be successfully integrated.
Successful integration will involve risks, including:
- the selection and integration of financial systems and personnel;
- the possibility that information contained in the systems may be lost
during the transition;
- volatility in the market place which may occur during the transition of
systems and procedures that may result in a loss of control for a period
of time;
If we cannot successfully manage the integration, we may experience a
material adverse effect on our business, financial condition or results of
operations.
WE CANNOT ASSURE YOU THAT EL PASO ENERGY AND SONAT WILL BE SUCCESSFULLY
COMBINED INTO A SINGLE ENTITY.
If we cannot successfully combine our operations we may experience a
material adverse effect on our business, financial condition or results of
operations. The merger involves the combining of two companies that have
previously operated separately. The combining of companies such as Sonat and El
Paso Energy involves a number of risks, including:
- the diversion of management's attention to the combining of operations;
- difficulties in the combining of operations and systems, including plans
to update and test systems for "Year 2000" compliance;
- difficulties in the assimilation and retention of employees;
- challenges in keeping customers; and
- potential adverse short-term effects on operating results.
Among the factors considered by the boards of directors of each company in
approving the merger agreement were the opportunities for economies of scale and
scope and operating efficiencies that could result from the merger. Although we
expect the combined company to achieve significant annual savings in operating
costs as a result of the merger, we may not be able to maintain the levels of
operating efficiency that we each previously achieved or might achieve if we
remain separate. Because of difficulties in combining operations, we may not be
able to achieve the cost savings and other size related benefits that we hope to
achieve after the merger.
In addition, because Sonat's 50% interest in the Florida pipeline is held
through a joint venture operated by a subsidiary of Enron Corp., the combined
company may not be able to effectively integrate these operations with similar
operations of El Paso Energy to achieve cost savings in these operations.
TRANSACTION RISKS
THE COMPANIES COULD BE REQUIRED TO EFFECT SIGNIFICANT DIVESTITURES OR
COMPLY WITH OTHER REGULATORY REQUIREMENTS.
We cannot complete the merger until the waiting period under the HSR Act
has expired or terminated. We are obligated to use our "reasonable best efforts"
to take all action to ensure that the waiting period under the HSR Act and all
extensions of that period expire or are terminated and other required approvals
are obtained.
10
<PAGE> 18
In addition, although we are not obligated to take actions that would
reasonably be likely to have a materially adverse affect on the combined company
or on El Paso Energy's subsidiary, Tennessee Gas Pipeline Company, governmental
authorities could require the companies to effect significant divestitures as a
condition to approving the transaction or impose other conditions that would
affect subsequent operations of the combined company.
We are also required to obtain the approval of the FERC in connection with
the merger. We cannot assure you that these and any other required regulatory
approvals will be obtained, or if they are obtained, as to the terms, conditions
and timing of these approvals. These requirements for regulatory approvals could
significantly delay completion of the merger.
Other risks, uncertainties and factors which may adversely affect El Paso
Energy are discussed more completely under the caption "Risk
Factors -- Cautionary Statement For Purposes of the Safe Harbor Provisions of
the Private Securities Litigation Reform Act of 1995" in El Paso Energy's 1998
Annual Report on Form 10-K.
11
<PAGE> 19
CAPITALIZATION
The following table sets forth the historical capitalization of El Paso
Energy at March 31, 1999, and such capitalization (i) as adjusted to reflect the
private placement on July 12, 1999 of $600 million of the senior notes and $100
million of floating rate senior notes due 2001, and El Paso Energy's application
of the proceeds it received from both placements and (ii) as further adjusted to
give effect to the merger of El Paso Energy and Sonat (accounted for as a
pooling of interests) and to our formation of Trinity. This table should be read
in conjunction with the consolidated financial statements of El Paso Energy and
related notes thereto contained in its 1998 Annual Report on Form 10-K and its
Quarterly Report on Form 10-Q for the first quarter of 1999 and with the
unaudited pro forma condensed combined financial information contained in its
Current Report on Form 8-K dated July 2, 1999, each of which is incorporated
herein by reference.
<TABLE>
<CAPTION>
MARCH 31, 1999
-----------------------------------------
(IN MILLIONS)
(UNAUDITED)
AS ADJUSTED
FOR THE AS FURTHER
HISTORICAL OFFERING(A) ADJUSTED(B)
---------- -------------- -----------
<S> <C> <C> <C>
Short-term debt:
Short-term debt(c).................................. $ 674 $ -- $ 347
Current maturities of long-term debt................ 62 62 167
------ ------ ------
Total short-term debt............................ 736 62 514
------ ------ ------
Long-term debt, less current maturities:.............. 3,082 3,782 4,880
------ ------ ------
Company-obligated mandatorily redeemable convertible
preferred securities of El Paso Energy Capital Trust
I................................................... 325 325 325
------ ------ ------
Minority interest..................................... 365 365 876
------ ------ ------
Stockholders' equity:
Common stock, par value $3.00 per share; 275,000,000
shares authorized; 125,529,432 shares
issued(d)........................................ 377 377 707
Additional paid-in capital.......................... 1,465 1,465 1,261
Retained earnings................................... 494 494 1,343
Other............................................... (174) (174) (122)
------ ------ ------
Total stockholders' equity.................. 2,162 2,162 3,189
------ ------ ------
Total capitalization........................ $6,670 $6,696 $9,784
====== ====== ======
</TABLE>
- ------------------------------------------------------
(a) Adjusted to reflect the application of the proceeds from the private
placement on July 12, 1999 of $600 million of senior notes and $100
million of floating rate senior notes due 2001.
(b) Gives effect to (i) the merger of El Paso Energy and Sonat (accounted for
as a pooling of interests) as if it occurred on March 31, 1999, (ii) the
formation of Trinity and (iii) the application of the proceeds from the
private placement on July 12, 1999 of $600 million of senior notes and
$100 million of floating rate senior notes due 2001.
(c) As of July 1, 1999, the outstanding balance of our short-term debt was
approximately $432 million.
(d) In June 1999, El Paso Energy's stockholders authorized an increase of an
additional 475,000,000 shares. If the merger is effected, El Paso Energy
would issue an additional 110,032,551 shares. Shares to be issued exclude
9,491,009 shares (14,927,964 shares after giving effect to the merger) of
El Paso Energy common stock issuable upon the exercise of outstanding
stock options.
12
<PAGE> 20
USE OF PROCEEDS
El Paso Energy will not receive any cash proceeds from the issuance of the
exchange notes. El Paso Energy will exchange existing senior notes for exchange
notes in like principal amount as contemplated in this prospectus. The terms of
the exchange notes are identical in all material respects to the existing senior
notes except that the exchange notes will be issued in a transaction registered
under the Securities Act and will not bear legends restricting transfer thereof.
The existing senior notes surrendered in exchange for exchange notes will be
retired and canceled and cannot be reissued. Accordingly, issuance of the
exchange notes will not result in a change in the indebtedness of El Paso
Energy.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
We sold the senior notes on July 12, 1999 to the initial purchasers,
pursuant to a purchase agreement dated July 7, 1999, a copy of which is filed as
an exhibit to the registration statement of which this prospectus is a part. As
a condition to the purchase of the senior notes by the initial purchasers, we
entered into a registration rights agreement with the initial purchasers, which
requires, among other things, that promptly following the issuance and sale of
the senior notes, we file with the SEC the registration statement with respect
to the exchange notes, use our reasonable best commercial efforts to cause the
registration statement to become effective under the Securities Act and, upon
the effectiveness of the registration statement, offer to the holders of the
senior notes the opportunity to exchange their senior notes for a like principal
amount of exchange notes, which will be issued without a restrictive legend and
may be reoffered and resold by the holder without restrictions or limitations
under the Securities Act. A copy of the registration rights agreement has been
filed as an exhibit to the registration statement of which this prospectus is a
part. The term "holder" with respect to the exchange offer means any person in
whose name senior notes are registered on our books.
Based on existing interpretations of the Securities Act by the staff of the
SEC set forth in several no-action letters to third parties, and subject to the
immediately following sentence, we believe that the exchange notes issued
pursuant to the exchange offer may be offered for resale, resold and otherwise
transferred by the holders thereof (other than holders who are broker-dealers or
a person that is an "affiliate" (within the meaning of Rule 405 of the
Securities Act) of El Paso Energy) without further compliance with the
registration and prospectus delivery provisions of the Securities Act. However,
any purchaser of notes who is an affiliate of El Paso Energy or who intends to
participate in the exchange offer for the purpose of distributing the exchange
notes, or any broker-dealer who purchased the notes from El Paso Energy to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act (1) will not be able to rely on the interpretations by the staff
of the SEC set forth in the above-mentioned no-action letters; (2) will not be
able to tender its notes in the exchange offer; and (3) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or transfer of the notes unless such sale or transfer
is made pursuant to an exemption from such requirements. We do not intend to
seek our own no-action letter, and there is no assurance that the staff of the
SEC would make a similar determination with respect to the exchange notes as it
has in such no-action letters to third parties. See "Plan of Distribution."
13
<PAGE> 21
Following the consummation of the exchange offer, holders of senior notes
not tendered will not have any further registration rights except in certain
limited circumstances requiring the filing of a shelf registration statement,
and the senior notes will continue to be subject to certain restrictions on
transfer. Accordingly, the liquidity of the market for the senior notes could be
adversely affected.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this prospectus
and in the letter of transmittal, we will accept all senior notes properly
tendered and not withdrawn prior to 5:00 p.m. New York City time on the
expiration date. After authentication of the exchange notes by the trustee or an
authenticating agent, we will issue $1,000 principal amount of exchange notes in
exchange for each $1,000 principal amount of outstanding senior notes accepted
in the exchange offer. Holders may tender some or all of their senior notes
pursuant to the exchange offer in denominations of $1,000 and integral multiples
thereof.
Each holder of senior notes (other than certain specified holders) who
wishes to exchange senior notes for exchange notes in the exchange offer will be
required to represent that (1) it is not an affiliate of El Paso Energy, (2) any
exchange notes to be received by it were acquired in the ordinary course of its
business and (3) it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the exchange notes.
Each broker-dealer that receives exchange notes for its own account
pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange notes. The letter of
transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. The staff of the SEC has taken the position that
participating broker-dealers may fulfill their prospectus delivery requirements
with respect to the exchange notes (other than a resale of an unsold allotment
from the original sale of the notes) with the prospectus contained in the
exchange offer registration statement. We will be required to allow
participating broker-dealers to use the prospectus contained in the exchange
offer registration statement (subject to certain "black out" periods) following
the exchange offer, in connection with the resale of exchange notes received in
exchange for notes acquired by such participating broker-dealers for their own
account as a result of market-making or other trading activities. See "Plan of
Distribution."
The form and terms of the exchange notes are identical in all material
respects to the form and terms of the senior notes except that (1) the exchange
notes will be issued in a transaction registered under the Securities Act, (2)
the exchange notes will not be subject to transfer restrictions and (3) certain
provisions relating to an increase in the stated interest rate on the senior
notes provided for in certain circumstances will be eliminated. The exchange
notes will evidence the same debt as the senior notes. The exchange notes will
be issued under and entitled to the benefits of the indenture.
As of the date of this prospectus, $600,000,000 aggregate principal amount
of the senior notes is outstanding. In connection with the issuance of the
senior notes, we arranged for the senior notes, which were initially purchased
by qualified institutional buyers as defined pursuant to Rule 144A under the
Securities Act, to be issued and transferable in book-entry form through the
facilities of the depositary, acting as depositary. The exchange notes will also
be issuable and transferable in book-entry form through the depositary.
14
<PAGE> 22
This prospectus, together with the accompanying letter of transmittal, is
initially being sent to all registered holders as of the close of business on
, 1999. We intend to conduct the exchange offer in accordance with
the applicable requirements of the Exchange Act, and the rules and regulations
of the SEC thereunder, including Rule 14e-1, to the extent applicable. The
exchange offer is not conditioned upon any minimum aggregate principal amount of
senior notes being tendered, and holders of the senior notes do not have any
appraisal or dissenters' rights under the General Corporation Law of the State
of Delaware or under the indenture in connection with the exchange offer. We
will be deemed to have accepted validly tendered senior notes when, as and if we
have given oral or written notice thereof to the exchange agent. See
"-- Exchange Agent." The exchange agent will act as agent for the tendering
holders for the purpose of receiving exchange notes from El Paso Energy and
delivering exchange notes to such holders.
If any tendered senior notes are not accepted for exchange because of an
invalid tender or the occurrence of certain other events set forth herein,
certificates for any such unaccepted senior notes will be returned, at our cost,
to the tendering holder thereof as promptly as practicable after the expiration
date.
Holders who tender senior notes in the exchange offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
letter of transmittal, transfer taxes with respect to the exchange of senior
notes pursuant to the exchange offer. We will pay all charges and expenses,
other than certain applicable taxes, in connection with the exchange offer. See
"-- Solicitation of Tenders; Fees and Expenses."
NEITHER THE BOARD OF DIRECTORS OF EL PASO ENERGY NOR EL PASO ENERGY MAKES
ANY RECOMMENDATION TO HOLDERS OF SENIOR NOTES AS TO WHETHER TO TENDER OR REFRAIN
FROM TENDERING ALL OR ANY PORTION OF THEIR SENIOR NOTES PURSUANT TO THE EXCHANGE
OFFER. MOREOVER, NO ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION.
HOLDERS OF SENIOR NOTES MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT
TO THE EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF SENIOR NOTES TO TENDER
AFTER READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH
THEIR ADVISORS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; TERMINATION; AMENDMENTS
The exchange offer will expire at 5:00 p.m., New York City time, on
, 1999, unless extended by us (the "expiration date"). We expressly
reserve the right to extend the exchange offer on a daily basis or for such
period or periods as we may determine in our sole discretion from time to time
by giving oral, confirmed in writing, or written notice to the exchange agent
and by making a public announcement by press release to the Dow Jones News
Service prior to 9:00 a.m., New York City time, on the first business day
following the previously scheduled expiration date. During any extension of the
exchange offer, all senior notes previously tendered, not validly withdrawn and
not accepted for exchange will remain subject to the exchange offer and may be
accepted for exchange by us.
15
<PAGE> 23
To the extent we are legally permitted to do so, we expressly reserve the
absolute right, in our sole discretion, to:
- waive any condition to the exchange offer and
- amend any of the terms of the exchange offer.
Any waiver or amendment to the exchange offer will apply to all senior
notes tendered, regardless of when or in what order the senior notes were
tendered. If we make a material change in the terms of the exchange offer or if
we waive a material condition of the exchange offer, we will disseminate
additional exchange offer materials, and we will extend the exchange offer to
the extent required by law.
We expressly reserve the right, in our sole discretion, to terminate the
exchange offer if any of the conditions set forth under "-- Conditions of the
Exchange Offer" cease to exist. Any such termination will be followed promptly
by a public announcement. In the event we terminate the exchange offer, we will
give immediate notice to the exchange agent, and all senior notes previously
tendered and not accepted for payment will be returned promptly to the tendering
holders.
In the event that the exchange offer is withdrawn or otherwise not
completed, exchange notes will not be given to holders of senior notes who have
validly tendered their senior notes.
INTEREST ON THE EXCHANGE NOTES
The exchange notes will bear interest from the date of issuance of the
senior notes that are tendered in exchange for the exchange notes (or the most
recent date on which interest was paid or duly provided for on the senior notes
surrendered in exchange for the exchange notes). Accordingly, holders of senior
notes that are accepted for exchange will not receive interest that is accrued
but unpaid on such senior notes at the time of tender. Interest on the exchange
notes will be payable semi-annually on each January 15 and July 15, commencing
on January 15, 2000.
PROCEDURES FOR TENDERING
Only a holder may tender its senior notes in the exchange offer. To tender
in the exchange offer, a holder must complete, sign and date the letter of
transmittal or a facsimile thereof, have the signatures thereof guaranteed if
required by the letter of transmittal, and mail or otherwise deliver such letter
of transmittal or such facsimile, together with the senior notes (unless such
tender is being effected pursuant to the procedure for book-entry transfer
described below) and any other required documents, to the exchange agent, prior
to 5:00 p.m. New York City time, on the expiration date.
Any financial institution that is a participant in the depositary's
book-entry transfer facility system may make book-entry delivery of the senior
notes by causing the depositary to transfer such senior notes into the exchange
agent's account in accordance with the depositary's procedure for such transfer.
Although delivery of senior notes may be effected through book-entry transfer
into the exchange agent's account at the depositary, the letter of transmittal
(or facsimile thereof), with any required signature guarantees and any other
required documents, must, in any case, be transmitted to and received by the
exchange agent at its address set forth herein under "-- Exchange Agent" prior
to 5:00 p.m., New York City time, on the expiration
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date. DELIVERY OF DOCUMENTS TO THE DEPOSITARY IN ACCORDANCE WITH ITS PROCEDURES
DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The tender by a holder will constitute an agreement between such holder, El
Paso Energy and the exchange agent in accordance with the terms and subject to
the conditions set forth herein and in the letter of transmittal.
THE LETTER OF TRANSMITTAL WILL INCLUDE REPRESENTATIONS TO EL PASO ENERGY
THAT, AMONG OTHER THINGS, (1) THE EXCHANGE NOTES RECEIVED PURSUANT TO THE
EXCHANGE OFFER ARE BEING ACQUIRED IN THE ORDINARY COURSE OF BUSINESS OF THE
PERSON RECEIVING SUCH EXCHANGE NOTES (WHETHER OR NOT SUCH PERSON IS THE HOLDER),
(2) NEITHER THE HOLDER NOR ANY SUCH OTHER PERSON HAS AN ARRANGEMENT OR
UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN THE DISTRIBUTION OF SUCH
EXCHANGE NOTES, (3) NEITHER THE HOLDER NOR ANY SUCH OTHER PERSON IS AN
"AFFILIATE, " AS DEFINED IN RULE 405 UNDER THE SECURITIES ACT, OF EL PASO
ENERGY, (4) THE HOLDER IS NOT ENGAGED IN, AND DOES NOT INTEND TO ENGAGE IN, A
DISTRIBUTION OF THE EXCHANGE NOTES, AND (5) IF THE TENDERING HOLDER IS A BROKER
OR DEALER (AS DEFINED IN THE EXCHANGE ACT) ( A) IT ACQUIRED THE SENIOR NOTES FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING
ACTIVITIES AND (B) IT HAS NOT ENTERED INTO ANY ARRANGEMENT OR UNDERSTANDING WITH
EL PASO ENERGY, OR ANY "AFFILIATE" OF EL PASO ENERGY (WITHIN THE MEANING OF RULE
405 UNDER THE SECURITIES ACT) TO DISTRIBUTE THE EXCHANGE NOTES TO BE RECEIVED IN
THE EXCHANGE OFFER. In the case of a broker-dealer that receives exchange notes
for its own account in exchange for senior notes which were acquired by it as a
result of market-making or other trading activities, the letter of transmittal
will also include an acknowledgment that the broker-dealer will deliver a copy
of this prospectus in connection with the resale by it of exchange notes
received pursuant to the exchange offer. See "Plan of Distribution."
THE METHOD OF DELIVERY OF SENIOR NOTES AND THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK
OF THE HOLDERS. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE
AN OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
NO LETTER OF TRANSMITTAL OR SENIOR NOTES SHOULD BE SENT TO EL PASO ENERGY.
HOLDERS MAY ALSO REQUEST THAT THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL
BANKS, TRUST COMPANIES OR NOMINEES EFFECT SUCH TENDER FOR HOLDERS IN EACH CASE
AS SET FORTH HEREIN AND IN THE LETTER OF TRANSMITTAL.
Any beneficial owner whose senior notes are registered in the name of such
owner's broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender should contact such registered holder promptly and instruct
such registered holder to tender on his behalf. If such beneficial owner wishes
to tender on his own behalf, such beneficial owner must, prior to completing and
executing the letter of transmittal and delivering his senior notes, either make
appropriate arrangements to register ownership of the senior notes in such
owner's name or obtain a properly completed bond power from the registered
holder. The transfer of record ownership may take considerable time.
Signatures on a letter of transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.
or a commercial bank or trust company having an office or correspondent in the
United States or an "eligible guarantor institution" within the meaning of Rule
17Ad-15 under the Exchange Act unless the senior notes tendered pursuant thereto
are tendered (1) by a registered holder who has not completed the box entitled
"Special Registration Instructions" or "Special Delivery Instructions" of the
letter of transmittal or
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(2) for the account of an eligible institution. If the letter of transmittal is
signed by a person other than the registered holder listed therein, such senior
notes must be endorsed or accompanied by appropriate bond powers which authorize
such person to tender the senior notes on behalf of the registered holder, in
either case signed as the name of the registered holder
or holders appears on the senior notes. If the letter of transmittal or any
senior notes or bond powers are signed or endorsed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and unless waived by us, evidence satisfactory to us of
their authority to so act must be submitted with such letter of transmittal.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of the tendered senior notes will be
determined by us in our sole discretion, which determination will be final and
binding. We reserve the absolute right to reject any and all senior notes not
properly tendered or any senior notes our acceptance of which would, in the
opinion of our counsel, be unlawful. We also reserve the absolute right to waive
any irregularities or conditions of tender as to particular senior notes. Our
interpretation of the terms and conditions of the exchange offer (including the
instructions in the letter of transmittal) will be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of senior notes must be cured within such time as we determine. Although we
intend to notify holders of defects or irregularities with respect to tenders of
senior notes, neither El Paso Energy, the exchange agent nor any other person
shall be under any duty to give notification of defects or irregularities with
respect to tenders of senior notes nor shall any of them incur any liability for
failure to give such notification. Tenders of senior notes will not be deemed to
have been made until such irregularities have been cured or waived. Any senior
notes received by the exchange agent that we determine are not properly tendered
or the tender of which is otherwise rejected by us and as to which the defects
or irregularities have not been cured or waived by us will be returned by the
exchange agent to the tendering holder unless otherwise provided in the letter
of transmittal, as soon as practicable following the expiration date.
In addition, we reserve the right in our sole discretion to (a) purchase or
make offers for any senior notes that remain outstanding subsequent to the
expiration date, or, as set forth under "-- Expiration Date; Extensions;
Termination; Amendments," to terminate the exchange offer and (b) to the extent
permitted by applicable law, purchase senior notes in the open market, in
privately negotiated transactions or otherwise. The terms of any such purchases
or offers may differ from the terms of the exchange offer.
CONDITIONS OF THE EXCHANGE OFFER
The exchange offer is subject only to the following conditions:
- the compliance of the exchange offer with securities laws;
- the tender of the existing notes;
- the representation by the holders of the existing notes that the exchange
notes they will receive are being acquired by them in the ordinary course
of their business and that at the time the exchange offer is completed
the holder had no plan to participate in the distribution of the exchange
notes; and
- no judicial or administration proceeding shall have been threatened that
would limit us from proceeding with the exchange offer.
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The conditions to the exchange offer are for our sole benefit and may be
asserted by us in our sole discretion or may be waived by us, in whole or in
part, in our sole discretion, whether or not any other condition of the exchange
offer also is waived. We have not made a decision as to what circumstances would
lead us to waive any condition, and any waiver would depend on circumstances
prevailing at the time of that waiver. Any determination by us concerning the
events described in this section shall be final and binding upon all persons.
BOOK-ENTRY TRANSFER
We understand that the exchange agent will make a request promptly after
the date of this prospectus to establish accounts with respect to the senior
notes at the DTC for the purpose of facilitating the exchange offer, and subject
to the establishment thereof, any financial institution that is a participant in
the book-entry transfer facility's system may make book-entry delivery of senior
notes by causing such book-entry transfer facility to transfer such senior notes
into the exchange agent's account with respect to the senior notes in accordance
with the book-entry transfer facility's procedures for such transfer. Although
delivery of senior notes may be effected through book-entry transfer into the
exchange agent's account at the book-entry transfer facility, an appropriate
letter of transmittal properly completed and duly executed with any required
signature guarantee and all other required documents must in each case be
transmitted to and received or confirmed by the exchange agent at its address
set forth below on or prior to the expiration date, or, if the guaranteed
delivery procedures described below are complied with, within the time period
provided under such procedures. Delivery of documents to the book-entry transfer
facility does not constitute delivery to the exchange agent. See "Description of
the Notes -- Book Entry; Delivery and Form."
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their senior notes and (1) whose senior notes
are not immediately available, or (2) who cannot deliver their senior notes, the
letter of transmittal or any other required documents to the exchange agent
prior to the expiration date, or if such holder cannot complete the procedure
for book-entry transfer on a timely basis, may effect a tender if:
(a) the tender is made through an eligible institution;
(b) prior to the expiration date, the exchange agent receives from
such eligible institution a properly completed and duly executed notice of
guaranteed delivery (by facsimile transmittal, mail or hand delivery)
setting forth the name and address of the holder, the certificate number or
numbers of such holder's senior notes and the principal amount of such
senior notes tendered, stating that the tender is being made thereby, and
guaranteeing that, within five business days after the expiration date, the
letter of transmittal (or facsimile thereof), together with the
certificate(s) representing the senior notes to be tendered in proper form
for transfer and any other documents required by the letter of transmittal
will be deposited by the eligible institution with the exchange agent; and
(c) such properly completed and executed letter of transmittal (or
facsimile thereof), together with the certificate(s) representing all
tendered senior notes in proper form for transfer (or confirmation of a
book-entry transfer into the exchange agent's account at the depositary of
senior notes delivered electronically) and all other documents required by
the letter of transmittal are received by the exchange agent within five
business days after the expiration date.
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Upon request to the exchange agent, a notice of guaranteed delivery will be
sent to holders who wish to tender their senior notes according to the
guaranteed delivery procedures set forth above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of senior notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the expiration
date.
To withdraw a tender of senior notes in the exchange offer, a written or
facsimile transmission notice of withdrawal must be received by the exchange
agent at its address set forth herein prior to 5:00 p.m., New York City time, on
the expiration date. Any such notice of withdrawal must (1) specify the name of
the person having deposited the senior notes to be withdrawn (the "depositor"),
(2) identify the senior notes to be withdrawn (including the certificate number
or numbers and principal amount of such senior notes or, in the case of senior
notes transferred by book-entry transfer, the name and number of the account at
the depositary to be credited), (3) be signed by the depositor in the same
manner as the original signature on the letter of transmittal by which such
senior notes were tendered (including any required signature guarantee) or be
accompanied by documents of transfer sufficient to permit the trustee with
respect to the senior notes to register the transfer of such senior notes into
the name of the depositor withdrawing the tender and (4) specify the name in
which any such senior notes are to be registered, if different from that of the
depositor. All questions as to the validity, form and eligibility (including
time of receipt) of such withdrawal notices will be determined by El Paso
Energy, whose determination shall be final and binding on all parties. Any
senior notes so withdrawn will be deemed not to have been validly tendered for
purposes of the exchange offer, and no exchange notes will be issued with
respect thereto unless the senior notes so withdrawn are validly retendered. Any
senior notes that have been tendered but are not accepted for exchange will be
returned to the holder thereof without cost to such holder as soon as
practicable after withdrawal, rejection of tender or termination of the exchange
offer. Properly withdrawn senior notes may be retendered by following one of the
procedures described above under "-- Procedures for Tendering" at any time prior
to the expiration date.
EXCHANGE AGENT
The Chase Manhattan Bank, the trustee under the indenture, has been
appointed as exchange agent for the exchange offer. In such capacity, the
exchange agent has no fiduciary duties and will be acting solely on the basis of
our directions of El Paso Energy. Requests for assistance and requests for
additional copies of this prospectus or of the letter of transmittal should be
directed to the exchange agent addressed as follows:
By Mail, Hand Delivery or
Overnight Courier:....... The Chase Manhattan Bank
55 Water Street, Second Floor
Room 234 -- North Building
New York, New York 10041
Facsimile Transmission:.... (212) 638-7380 or (212) 638-7381
Confirm by Telephone:...... Carlos Esteves (212) 638-0828
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DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF SUCH LETTER OF TRANSMITTAL.
SOLICITATION OF TENDERS; FEES AND EXPENSES
The expenses of soliciting tenders pursuant to the exchange offer will be
borne by us. The principal solicitation pursuant to the exchange offer is being
made by mail. Additional solicitations may be made by our officers and regular
employees in person, by telegraph, telephone or telecopier.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. We, however, will pay the exchange
agent reasonable and customary fees for its services and will reimburse the
exchange agent for its reasonable out-of-pocket costs and expenses in connection
therewith and will indemnify the exchange agent for all losses and claims
incurred by it as a result of the exchange offer. We may also pay brokerage
houses and other custodians, nominees and fiduciaries the reasonable
out-of-pocket expenses incurred by them in forwarding copies of this prospectus,
letters of transmittal and related documents to the beneficial owners of the
senior notes and in handling or forwarding tenders for exchange.
We will pay the expenses to be incurred in connection with the exchange
offer, including fees and expenses of the exchange agent and trustee and
accounting and legal fees and printing costs.
We will pay all transfer taxes, if any, applicable to the exchange of
senior notes pursuant to the exchange offer. If, however, certificates
representing exchange notes or senior notes for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered holder of the senior
notes tendered, or if tendered senior notes are registered in the name of any
person other than the person signing the letter of transmittal, or if a transfer
tax is imposed for any reason other than the exchange of senior notes pursuant
to the exchange offer, then the amount of any such transfer taxes (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the letter of transmittal, the amount of such
transfer taxes will be billed by us directly to such tendering holder.
ACCOUNTING TREATMENT
The exchange notes will be recorded at the same carrying value as the
senior notes, as reflected in our accounting records on the date of the
exchange. Accordingly, we will not recognize any gain or loss for accounting
purposes upon the consummation of the exchange offer. We will amortize the
expenses of the exchange offer over the term of the exchange notes.
FEDERAL INCOME TAX CONSEQUENCES
The following general discussion is a summary of the material United States
federal income tax consequences of the ownership and disposition of notes and
applies to you if you are a United States holder, you acquired existing notes at
original issue for cash and you exchange those existing notes for exchange notes
in the exchange offer. This discussion only applies to you if you purchased
existing notes in the private placement for an amount equal to the "issue price"
of the notes and hold the exchange notes as a "capital asset," generally, for
investment, under
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Section 1221 of the Internal Revenue Code. This summary, however, does not
consider state, local or foreign tax laws. In addition, it does not include all
of the rules which may affect the United States federal tax treatment of your
investment in the exchange notes. For example, special rules not discussed here
may apply to you if you are, including without limitation:
- a broker-dealer, a dealer in securities or a financial institution;
- an insurance company;
- a tax-exempt organization;
- holding the exchange notes through partnerships or other pass-through
entities; or
- holding the exchange notes as part of a hedge, straddle or other risk
reduction or constructive sale transaction.
This discussion is based on current provisions of the Internal Revenue
Code, existing and proposed regulations and current administrative rulings and
court decisions, all of which are subject to change. Later changes in these
authorities may cause the tax consequences to vary substantially from the
consequences described below. Accordingly, you should consult, and should depend
on, your own tax advisor in analyzing the federal, state, local and foreign tax
consequences to you of the ownership and disposition of exchange notes.
UNITED STATES HOLDER
You are a United States holder if you hold notes and you are:
- a citizen or resident of the United States;
- a corporation or partnership created or organized in the United States or
under the laws of the United States or of any political subdivision;
- an estate the income of which is subject to United States federal income
tax regardless of its source; or
- a trust, if (1) a United States court can exercise primary supervision
over the administration of the trust and one or more United States
persons can control all substantial decisions of the trust, or (2) the
trust was in existence on August 20, 1996 and has properly elected to
continue to be treated as a United States person.
TAXATION OF INTEREST
Interest on the exchange notes generally will be taxable to you as ordinary
interest income at the time payments are accrued or received in accordance with
your regular method of accounting for federal income tax purposes.
RECEIPT OF EXCHANGE NOTES
Because the economic terms of the exchange notes and the existing notes are
identical, your exchange of existing notes for exchange notes under the exchange
offer will not constitute a taxable exchange of the existing notes. As a result:
- you will not recognize taxable gain or loss when you receive exchange
notes in exchange for existing notes;
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- your holding period in the exchange notes will include your holding
period in the existing notes; and
- your basis in the exchange notes will equal your basis in the existing
notes.
SALE OR OTHER TAXABLE DISPOSITION OF EXCHANGE NOTES
You must recognize taxable gain or loss on the sale, exchange, redemption,
retirement or other taxable disposition of an exchange note. The amount of your
gain or loss equals the difference between the amount you receive for the
exchange note in cash or other property, valued at fair market value, minus the
amount attributable to accrued qualified stated interest on the exchange note,
minus your adjusted tax basis in the exchange note. Your initial tax basis in an
exchange note equals the price you paid for the existing note which you
exchanged for the exchange note increased by any amounts previously includable
in income as original issue discount and reduced by any payments other than
payments of qualified stated interest made on the notes.
Your gain or loss will generally be a long-term capital gain or loss if
your holding period in the exchange note is more than one year. Otherwise, it
will be a short-term capital gain or loss. Payments attributable to accrued
qualified stated interest which you have not yet included in income will be
taxed as ordinary interest income.
BACKUP WITHHOLDING
You may be subject to a 31% backup withholding tax on payments of interest,
principal and premium on, and any proceeds upon the sale or disposition of, an
exchange note. Some holders, including, among others, corporations and some
tax-exempt organizations, are generally not subject to backup withholding. In
addition, the 31% backup withholding tax will not apply to you if you provide
your taxpayer identification number in the prescribed manner unless:
- the IRS notifies us or our agent that the taxpayer identification number
you provided is incorrect;
- you fail to report interest and dividend payments that you receive on
your tax return and the IRS notifies us or our agent that withholding is
required; or
- you fail to certify under penalties of perjury that you are not subject
to backup withholding.
You should consult your tax advisor as to your qualification for exemption
from backup withholding and the procedure for obtaining an exemption. If the 31%
backup withholding tax does apply to you, you may use the amounts withheld as a
refund or credit against your federal income tax liability as long as you
provide necessary information to the IRS.
OTHER
Participation in the exchange offer is voluntary. Holders of the senior
notes are urged to consult their financial and tax advisors in making their own
decisions on what action to take.
As a result of the making of, and upon acceptance for exchange of all
validly tendered senior notes pursuant to the terms of, this exchange offer, we
will have fulfilled a covenant contained in the terms of the registration rights
agreement. Holders of the senior notes who do not tender their certificates in
the exchange offer will continue to hold such certificates and will be entitled
to all the rights, and subject to the limitations applicable thereto, under the
indenture
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governing the notes, except for any such rights under the registration rights
agreement that by their term terminate or cease to have further effect as a
result of the making of this exchange offer. All untendered senior notes will
continue to be subject to the restrictions on transfer set forth in the
indenture. To the extent that senior notes are tendered and accepted in the
exchange offer, the trading market for untendered senior notes could be
adversely affected.
We may in the future seek to acquire untendered senior notes in the open
market or through privately negotiated transactions, through subsequent exchange
offers or otherwise. We intend to make any such acquisitions of senior notes in
accordance with the applicable requirements of the Exchange Act, and the rules
and regulations of the SEC thereunder, including Rule 14e-1, to the extent
applicable. We have no present plan to acquire any senior notes that are not
tendered in the exchange offer or to file a registration statement to permit
resales of any senior notes that may be but are not tendered pursuant to the
exchange offer.
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DESCRIPTION OF THE NOTES
The exchange notes will be issued, and the senior notes were issued, under
an indenture (the "indenture") between El Paso Energy and The Chase Manhattan
Bank, as trustee, dated as of May 10, 1999, copies of which may be obtained from
the trustee at its corporate trust office in New York, New York. The terms of
the notes include those stated in the indenture and made a part thereof by
reference to the Trust Indenture Act in effect on the date of the indenture.
This summary of certain terms of the notes and the indenture does not purport to
be complete and is subject to, and are qualified in their entirety by reference
to, the indenture, including the definitions of certain terms therein, and the
Trust Indenture Act. Terms used in this section and not otherwise defined in
this section have the respective meanings assigned to them in the indenture.
GENERAL
The notes are unsecured and rank senior in right of payment to all
subordinated debt of El Paso Energy. The notes are limited to an aggregate
principal amount of $600,000,000. The indenture does not limit the incurrence or
issuance of other secured or unsecured debt of El Paso Energy, whether under the
indenture or any existing or other indenture that we may enter into in the
future or otherwise.
The senior notes were originally represented by a single, global senior
note in registered form. The global note was registered in the name of Cede &
Co. Cede & Co. was the nominee for the depositary. The depositary was The
Depositary Trust Company. When the senior notes are exchanged for the exchange
notes, they will initially be represented by a single, global exchange note in
registered form. The global exchange note will be registered in the name of The
Depositary Trust Company.
The notes are not subject to any sinking fund provision. The entire
principal amount of the notes will mature, and become due and payable, together
with any accrued and unpaid interest thereon, on July 15, 2001.
INTEREST
The notes will bear interest at the annual rate of 6 5/8% per annum,
payable semi-annually in arrears on January 15 and July 15 of each year,
commencing on January 15, 2000 (each, an "interest payment date"), to the person
in whose name each note is registered at the close of business on the first day
(whether or not a business day) of the month of such interest payment date (the
"regular record date"), subject to certain exceptions. The amount of interest
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on the
notes is not a business day, then payment of the interest payable on such date
will be made on the next succeeding day that is a business day (and without any
interest or other payment in respect of any such delay), except that if such
business day is in the next succeeding calendar year, then such payment shall be
made on the immediately preceding business day, in each case with the same force
and effect as if made on such interest payment date.
Although the notes are not redeemable, we may purchase notes in the open
market, by tender or otherwise.
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CONSOLIDATION, MERGER OR SALE
The indenture generally permits a consolidation or merger between us and
another corporation. It also permits the sale by us of all or substantially all
of our property and assets. If this occurs, the remaining or acquiring
corporation will assume all of our responsibilities and liabilities under the
indentures, including the payment of all amounts due on the notes and
performance of the covenants in the indenture. However, we will only consolidate
or merge with or into any other corporation or sell all or substantially all of
our assets according to the terms and conditions of the indenture. The remaining
or acquiring corporation will be substituted for us in the indenture with the
same effect as if it had been an original party to the indenture. Thereafter,
the successor corporation may exercise our rights and powers under the
indenture, in our name or in its own name. Any act or proceeding required or
permitted to be done by our board or any of our officers may be done by the
board or officers of the successor corporation. If we sell all or substantially
all of our assets, we will be released from all our liabilities and obligations
under the indenture and under the senior notes.
MODIFICATION OF INDENTURE
Under the indenture, our rights and obligations and the rights of the
holders of notes may be modified with the consent of the holders of a majority
in aggregate principal amount of the outstanding notes affected by the
modification. No modification of the principal or interest payment terms, and no
modification reducing the percentage required for modifications, is effective
against any holder without its consent.
EVENTS OF DEFAULT
"Event of default" when used in the indenture will mean any of the
following:
- failure to pay the principal of or any premium on any note when due;
- failure to pay interest on any note for 30 days;
- failure to perform any other covenant in the indenture that continues for
60 days after being given written notice;
- certain events in bankruptcy, insolvency or reorganization of El Paso
Energy; or
- any other event of default included in the indenture.
An event of default for the notes does not necessarily constitute an event
of default for any other series of debt securities issued under the indenture.
The trustee may withhold notice to the holders of the notes of any default,
except in the payment of principal or interest, if it considers such withholding
of notice to be in the best interests of the holders.
If an event of default for the notes occurs and continues, the trustee or
the holders of at least 25% in aggregate principal amount of the notes of the
series may declare the entire principal of the notes to be due and payable
immediately. If this happens, subject to certain conditions, the holders of a
majority of the aggregate principal amount of the notes can void the
declaration.
Other than its duties in case of a default, a trustee is not obligated to
exercise any of its rights or powers under the indenture at the request, order
or direction of any holders, unless the holders offer the trustee reasonable
indemnity. If they provide this reasonable indemnification, the holders of a
majority in principal amount of the notes may direct the time, method and place
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of conducting any proceeding or any remedy available to the trustee, or
exercising any power conferred upon the trustee, for the notes.
COVENANTS
Under the indenture, we will:
- pay the principal of, and interest and any premium on, the notes when
due;
- maintain a place of payment;
- deliver a report to the trustee at the end of each fiscal year reviewing
our obligations under the indenture; and
- deposit sufficient funds with any paying agent on or before the due date
for any principal, interest or premium.
The indenture provides that we will not, nor will we permit any restricted
subsidiary to, create, assume, incur or suffer to exist any lien upon any
principal property, whether owned or leased on the date of the indenture or
thereafter acquired, to secure any debt of El Paso Energy or any other person
(other than the debt securities issued under the indenture), without causing all
of the debt securities outstanding under the indenture to be secured equally and
ratably with, or prior to, the new debt so long the new debt is so secured. This
restriction does not, however, prohibit us from creating the following:
(i) any lien upon any property or assets of El Paso Energy or any
restricted subsidiary in existence on the date of the indenture or created
pursuant to an "after-acquired property" clause or similar term in
existence on the date of the indenture or any mortgage, pledge agreement,
security agreement or other similar instrument in existence on the date of
the indenture;
(ii) any lien upon any property or assets created at the time of
acquisition of such property or assets by El Paso Energy or any restricted
subsidiary or within one year after such time to secure all or a portion of
the purchase price for such property or assets or debt incurred to finance
such purchase price, whether such debt was incurred prior to, at the time
of or within one year of such acquisition;
(iii) any lien upon any property or assets existing thereon at the
time of the acquisition thereof by El Paso Energy or any restricted
subsidiary (whether or not the obligations secured thereby are assumed by
El Paso Energy or any restricted subsidiary);
(iv) any lien upon any property or assets of a person existing thereon
at the time such person becomes a restricted subsidiary by acquisition,
merger or otherwise;
(v) the assumption by El Paso Energy or any restricted subsidiary of
obligations secured by any lien existing at the time of the acquisition by
El Paso Energy or any restricted subsidiary of the property or assets
subject to such lien or at the time of the acquisition of the person which
owns such property or assets;
(vi) any lien on property to secure all or part of the cost of
construction or improvements thereon or to secure debt incurred prior to,
at the time of, or within one year after completion of such construction or
making of such improvements, to provide funds for any such purpose;
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(vii) any lien on any oil, gas, mineral and processing and other plant
properties to secure the payment of costs, expenses or liabilities incurred
under any lease or grant or operating or other similar agreement in
connection with or incident to the exploration, development, maintenance or
operation of such properties;
(viii) any lien arising from or in connection with a conveyance by El
Paso Energy or any restricted subsidiary of any production payment with
respect to oil, gas, natural gas, carbon dioxide, sulphur, helium, coal,
metals, minerals, steam, timber or other natural resources;
(ix) any lien in favor of El Paso Energy or any restricted subsidiary;
(x) any lien created or assumed by El Paso Energy or any restricted
subsidiary in connection with the issuance of debt the interest on which is
excludable from gross income of the holder of such debt pursuant to the
Internal Revenue Code of 1986, as amended, or any successor statute, for
the purpose of financing, in whole or in part, the acquisition or
construction of property or assets to be used by El Paso Energy or any
subsidiary;
(xi) any lien upon property or assets of any foreign restricted
subsidiary to secure debt of that foreign restricted subsidiary;
(xii) permitted liens (as defined below);
(xiii) any lien upon any additions, improvements, replacements,
repairs, fixtures, appurtenances or component parts thereof attaching to or
required to be attached to property or assets pursuant to the terms of any
mortgage, pledge agreement, security agreement or other similar instrument,
creating a lien upon such property or assets permitted by clauses (i)
through (xii), inclusive, above; or
(xiv) any extension, renewal, refinancing, refunding or replacement
(or successive extensions, renewals, refinancing, refundings or
replacements) of any lien, in whole or in part, that is referred to in
clauses (i) through (xiii), inclusive, above, or of any debt secured
thereby; provided, however, that the principal amount of debt secured
thereby shall not exceed the greater of the principal amount of debt so
secured at the time of such extension, renewal, refinancing, refunding or
replacement and the original principal amount of debt so secured (plus in
each case the aggregate amount of premiums, other payments, costs and
expenses required to be paid or incurred in connection with such extension,
renewal, refinancing, refunding or replacement); provided further, however,
that such extension, renewal, refinancing, refunding or replacement shall
be limited to all or a part of the property (including improvements,
alterations and repairs on such property) subject to the encumbrance so
extended, renewed, refinanced, refunded or replaced (plus improvements,
alterations and repairs on such property).
Notwithstanding the foregoing, under the indenture, El Paso Energy may, and
may permit any restricted subsidiary to, create, assume, incur, or suffer to
exist any lien upon any principal property to secure debt of El Paso Energy or
any person (other than the senior debt securities) that is not excepted by
clauses (i) through (xiv), inclusive, above without securing the debt securities
issued under the indenture, provided that the aggregate principal amount of all
debt then outstanding secured by such lien and all similar liens, together with
all net sale proceeds from sale-leaseback transactions (excluding sale-leaseback
transactions permitted by clauses (i) through (iv), inclusive, of the first
paragraph of the restriction on sale-leasebacks covenant described below) does
not exceed 15% of consolidated net tangible assets.
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The indenture also provides that we will not, nor will we permit any
restricted subsidiary to, engage in a sale-leaseback transaction, unless: (i)
such sale-leaseback transaction occurs within one year from the date of
acquisition of the principal property subject thereto or the date of the
completion of construction or commencement of full operations on such principal
property, whichever is later; (ii) the sale-leaseback transaction involves a
lease for a period, including renewals, of not more than three years; (iii) El
Paso Energy or such restricted subsidiary would be entitled to incur debt
secured by a lien on the principal property subject thereto in a principal
amount equal to or exceeding the net sale proceeds from such sale-leaseback
transaction without securing the senior debt securities; or (iv) El Paso Energy
or such restricted subsidiary, within a one-year period after such
sale-leaseback transaction, applies or causes to be applied an amount not less
than the net sale proceeds from such sale-leaseback transaction to (A) the
repayment, redemption or retirement of funded debt of El Paso Energy or any such
restricted subsidiary, or (B) investment in another principal property.
Notwithstanding the foregoing, under the indenture we may, and may permit
any restricted subsidiary to, effect any sale-leaseback transaction that is not
excepted by clauses (i) through (iv), inclusive, of the above paragraph,
provided that the net sale proceeds from such sale-leaseback transaction,
together with the aggregate principal amount of outstanding debt (other than the
debt securities) secured by liens upon principal properties not excepted by
clauses (i) through (xiv), inclusive, of the first paragraph of the limitation
on liens covenant described above, do not exceed 15% of the consolidated net
tangible assets.
CERTAIN DEFINITIONS
The following are definitions of some terms used in the above covenant
descriptions:
"Consolidated net tangible assets" means, at any date of determination, the
total amount of assets after deducting therefrom (i) all current liabilities
(excluding (A) any current liabilities that by their terms are extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed, and (B) current
maturities of long-term debt), and (ii) the value (net of any applicable
reserves) of all goodwill, trade names, trademarks, patents and other like
intangible assets, all as set forth on the consolidated balance sheet of El Paso
Energy and its consolidated subsidiaries for El Paso Energy's most recently
completed fiscal quarter, prepared in accordance with generally accepted
accounting principles.
"Debt" means any obligation created or assumed by any person for the
repayment of money borrowed and any purchase money obligation created or assumed
by such person.
"Funded debt" means all debt maturing one year or more from the date of the
creation thereof, all debt directly or indirectly renewable or extendible, at
the option of the debtor, by its terms or by the terms of any instrument or
agreement relating thereto, to a date one year or more from the date of the
creation thereof, and all debt under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period of one year or
more.
"Lien" means any mortgage, pledge, security interest, charge, lien or other
encumbrance of any kind, whether or not filed, recorded or perfected under
applicable law.
"Permitted liens" means (i) liens upon rights-of-way for pipeline purposes;
(ii) any governmental lien, mechanics', materialmen's, carriers' or similar lien
incurred in the ordinary course of business which is not yet due or which is
being contested in good faith by appropriate proceedings and any undetermined
lien which is incidental to construction; (iii) the right
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reserved to, or vested in, any municipality or public authority by the terms of
any right, power, franchise, grant, license, permit or by any provision of law,
to purchase or recapture or to designate a purchaser of, any property; (iv)
liens of taxes and assessments which are (a) for the then current year, (b) not
at the time delinquent, or (c) delinquent but the validity of which is being
contested at the time by El Paso Energy or any subsidiary in good faith; (v)
liens of, or to secure performance of, leases; (vi) any lien upon, or deposits
of, any assets in favor of any surety company or clerk of court for the purpose
of obtaining indemnity or stay of judicial proceedings; (vii) any lien upon
property or assets acquired or sold by El Paso Energy or any restricted
subsidiary resulting from the exercise of any rights arising out of defaults on
receivables; (viii) any lien incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance, temporary
disability, social security, retiree health or similar laws or regulations or to
secure obligations imposed by statute or governmental regulations; (ix) any lien
upon any property or assets in accordance with customary banking practice to
secure any debt incurred by El Paso Energy or any restricted subsidiary in
connection with the exporting of goods to, or between, or the marketing of goods
in, or the importing of goods from, foreign countries; or (x) any lien in favor
of the United States or any state thereof, or any other country, or any
political subdivision of any of the foregoing, to secure partial, progress,
advance, or other payments pursuant to any contract or statute, or any lien
securing industrial development, pollution control, or similar revenue bonds.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust, other
entity, unincorporated organization, or government or any agency or political
subdivision thereof.
"Principal property" means (i) any pipeline assets of El Paso Energy or any
subsidiary, including any related facilities employed in the transportation,
distribution or marketing of natural gas, that are located in the United States
or Canada, and (ii) any processing or manufacturing plant owned or leased by El
Paso Energy or any subsidiary that is located within the United States or
Canada, except, in the case of either clause (i) or (ii), any such assets or
plant which, in the opinion of El Paso Energy's board of directors, is not
material in relation to the activities of El Paso Energy and its subsidiaries as
a whole.
"Restricted subsidiary" means any subsidiary of El Paso Energy owning or
leasing any principal property.
"Sale-leaseback transaction" means the sale or transfer by El Paso Energy
or any restricted subsidiary of any principal property to a person (other than
El Paso Energy or a subsidiary) and the taking back by El Paso Energy or any
restricted subsidiary, as the case may be, of a lease of such principal
property.
DEFEASANCE
We will be discharged from our obligations on the notes at any time if we
deposit with the trustee sufficient cash or government securities to pay the
principal, interest, any premium and any other sums due to the stated maturity
date or a redemption date of the notes. If this happens, the holders of the
notes will not be entitled to the benefits of the indenture except for
registration of transfer and exchange of senior notes and replacement of lost,
stolen or mutilated notes.
The indenture also provides that El Paso Energy and any other obligor, if
any, will be discharged from any and all obligations in respect of the notes
(excluding, however, certain obligations, such as the obligation to register the
transfer or exchange of such outstanding senior
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notes, to replace stolen, lost, mutilated or destroyed certificates, to pay
principal and interest on the original stated due dates or specified redemption
date, and to maintain paying agencies) on the 91st day following the deposit
referred to in the first bullet point below, subject to the following
conditions:
- the irrevocable deposit, in trust, of cash or U.S. Government obligations
(or a combination thereof) which through the payment of interest and
principal thereof in accordance with their terms will provide cash in an
amount sufficient to pay the principal and interest and premium, if any,
on the outstanding notes, on the stated maturity of such payments in
accordance with the terms of the indenture and the outstanding senior
notes or on any redemption date established pursuant to the third bullet
point below;
- El Paso Energy's receipt of an opinion of counsel based on the fact that
(A) El Paso Energy has received from, or there has been published by, the
Internal Revenue Service a ruling, or (B) since the date of the
indenture, there has been a change in the applicable federal income tax
law, in either case, to the effect that, and confirming that, the holders
of the notes will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance and will be
subject to federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such deposit and
defeasance had not occurred;
- if the notes are to be redeemed prior to stated maturity, notice of such
redemption shall have been duly given pursuant to the indenture or
provision therefor satisfactory to the senior debt trustee shall have
been made;
- no event of default or event which with notice or lapse of time or both
would become an event of default will have occurred and be continuing on
the date of such deposit; and
- El Paso Energy's delivery to the trustee of an officer's certificate and
an opinion of counsel, each stating that the conditions precedent under
the indenture have been complied with.
Under the indenture, we also may discharge our obligations referred to
above under the captions "-- Certain Covenants" and "-- Consolidation, Merger
and Sale of Assets" included in this prospectus, as well as certain of its
obligations relating to reporting obligations under the indenture, in respect of
the notes on the 91st day following the deposit referred to in the first bullet
point in the immediately preceding paragraph, subject to satisfaction of the
conditions described in the first, third, fourth and fifth bullet points in the
immediately preceding paragraph with respect to the notes and the delivery of an
opinion of counsel confirming that the holders of the notes will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have been the case
if such deposit and covenant defeasance had not occurred.
GOVERNING LAW
The indenture and the notes will be governed by and construed in accordance
with the laws of the State of New York.
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NOTICES
Notices to holders of notes will be given by mail to the addresses of such
holders as they appear in the security register.
METHODS OF RECEIVING PAYMENTS ON THE NOTES
If a holder has given wire transfer instructions to us, we will make all
payments of principal of, premium, if any, and interest and liquidated damages,
if any, on the notes in accordance with those instructions. All other payments
on these notes will be made at the office or agency of the paying agent and
registrar within the City and State of New York unless we elect to make interest
payments by check mailed to the holders at their address set forth in the
security register.
PAYING AGENT AND REGISTRAR FOR THE NOTES
The trustee will initially act as paying agent and registrar. We may change
the paying agent or registrar without prior notice to the holders of the notes,
and we may act as paying agent or registrar.
TRANSFER AND EXCHANGE
Subject to the restrictions set forth in "Notice to Investors," a holder
may transfer or exchange notes in accordance with the indenture. The registrar
and the trustee may require a holder, among other things, to furnish appropriate
endorsements and transfer documents and we may require a holder to pay any taxes
and fees required by law or permitted by the indenture. Also, we are not
required to transfer or exchange any note between a record date and the next
succeeding interest payment date.
The registered holder of a note will be treated as the owner of it for all
purposes.
NO PERSONAL LIABILITY OF OFFICERS, DIRECTORS, EMPLOYEES OR STOCKHOLDERS
No director, officer, employee or stockholder, as such, of El Paso Energy
or any of its affiliates shall have any personal liability in respect of the
obligations of El Paso Energy under the indenture or the notes by reason of his,
her or its status as such.
BOOK-ENTRY; DELIVERY AND FORM
The notes will initially be represented by one or more permanent global
notes in definitive, fully registered book-entry form (the "global securities")
which will be registered in the name of a nominee of DTC or its nominee and
deposited on behalf of purchasers of the notes represented thereby with a
custodian for DTC for credit to the respective accounts of the purchasers (or to
such other accounts as they may direct) at DTC.
The global securities. We expect that pursuant to procedures established
by DTC (a) upon deposit of the global securities, DTC or its custodian will
credit on its internal system portions of the global securities which will
contain the corresponding respective amount of the global securities to the
respective accounts of persons who have accounts with such depositary and (b)
ownership of the notes will be shown on, and the transfer of ownership thereof
will be affected only through, records maintained by DTC or its nominee (with
respect to interests of participants (as defined below) and the records of
participants (with respect to interests of persons other than participants).
Such accounts initially will be designated by or on behalf of the
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initial purchasers and ownership of beneficial interests in the global
securities will be limited to persons who have accounts with DTC (the
"participants") or persons who hold interests through participants. Noteholders
may hold their interests in a global security directly through DTC if they are
participants in such system, or indirectly through organizations which are
participants in such system.
So long as DTC or its nominee is the registered owner or holder of any of
the notes, DTC or such nominee will be considered the sole owner or holder of
such notes represented by such global securities for all purposes under the
indenture and under the notes represented thereby. No beneficial owner of an
interest in the global securities will be able to transfer such interest except
in accordance with the applicable procedures of DTC in addition to those
provided for under the indenture.
Payments of the principal, premium, interest and other amounts on the notes
represented by the global securities will be made to DTC or its nominee, as the
case may be, as the registered owner thereof. None of El Paso Energy, the
trustee or any paying agent under the indenture will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in the global securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interest.
We expect that DTC or its nominee, upon receipt of any payment of the
principal, premium, interest or other amounts on the notes represented by the
global securities, will credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the global securities
as shown on the records of DTC or its nominee. El Paso Energy also expects that
payments by participants to owners of beneficial interests in the global
securities held through such participants will be governed by standing
instructions and customary practice as is now the case with securities held for
the accounts of customers registered in the names of nominees for such
customers. Such payment will be the responsibility of such participants.
Transfers between participants in DTC will be affected in accordance with DTC
rules and will be settled in immediately available funds.
DTC has advised us that DTC will take any action permitted to be taken by a
holder of notes (including the presentation of notes for exchange as described
below) only at the direction of one or more participants to whose account the
DTC interests in the global securities are credited and only in respect of the
aggregate principal amount of as to which such participant or participants has
or have given such direction.
DTC has advised us as follows: DTC is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC was created to hold securities for its
participants and facilitate the clearance and settlement of securities
transactions between participants through electronic book-entry changes in
accounts of its participants, thereby eliminating the need for physical movement
of certificates. Participants include securities brokers and dealers, banks,
trust companies and clearing corporations and certain other organizations.
Indirect access to the DTC system is available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
Although DTC is expected to follow the foregoing procedures in order to
facilitate transfers of interests in the global securities among participants of
DTC, DTC is under no obligation to perform such procedures, and such procedures
may be discontinued at any time. None of
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El Paso Energy, the trustee or the paying agent will have any responsibility for
the performance by DTC or its direct or indirect participants of their
respective obligations under the rules and procedures governing their
operations.
Certificated securities. Interests in the global securities will be
exchanged for physical delivery of certificates (the "certificated securities")
only if (i) DTC is at any time unwilling or unable to continue as depositary for
the global securities, or DTC ceases to be a "clearing agency" registered under
the Exchange Act, and a successor depositary is not appointed by El Paso Energy
within 90 days or (ii) an event of default under the indenture has occurred and
is continuing with respect to the notes. Upon the occurrence of either of the
events described in the preceding sentence, we will cause the appropriate
certificated securities to be delivered.
REGISTRATION RIGHTS; LIQUIDATED DAMAGES
We and the initial purchasers entered into a registration rights agreement
on the closing date of the private placement of the senior notes. In the
registration rights agreement, we agreed to file this exchange offer
registration statement with the SEC within 90 days after the closing date, and
use our best efforts to have it declared effective at the earliest possible
time. We also agreed to use our best commercial efforts to cause this exchange
offer registration statement to be effective continuously, to keep the exchange
offer open for a period of not less than 20 business days and cause the exchange
offer to be consummated no later than the 30th business day after it is declared
effective by the SEC. Pursuant to the exchange offer, certain holders of senior
notes which constitute transfer restricted securities may exchange their
transfer restricted securities for a new series of registered notes containing
terms substantially identical in all material respects to the senior notes. To
participate in the exchange offer, each holder must represent that it is not an
affiliate of El Paso Energy, that it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the exchange notes, and that it is acquiring
the exchange notes in the exchange offer in its ordinary course of business.
If (i) the exchange offer is not permitted by applicable law or SEC policy
or (ii) any holder of senior notes which are transfer restricted securities
notifies El Paso Energy prior to the 20th business day following the
consummation of the exchange offer that (a) it is prohibited by law or SEC
policy from participating in the exchange offer, (b) it may not resell the
exchange notes acquired by it in the exchange offer to the public without
delivering a prospectus, and this prospectus is not appropriate or available for
such resales by it, or (c) it is a broker-dealer and holds senior notes acquired
directly from El Paso Energy or any of El Paso Energy's affiliates, El Paso
Energy will file with the SEC a shelf registration statement to register for
public resale the transfer restricted securities held by any such holder who
provides El Paso Energy with certain information for inclusion in the shelf
registration statement.
For the purposes of the registration rights agreement, "transfer restricted
securities" means each senior note until the earliest of the date of which (i)
such senior note is exchanged in the exchange offer for a like principal amount
of exchange notes and entitled to be resold to the public by the holder thereof
without complying with the prospectus delivery requirements of the Securities
Act, (ii) such senior note has been disposed of in accordance with the shelf
registration statement or (iii) such senior note is distributed to the public
pursuant to Rule 144 under the Securities Act, and each exchange note until the
date on which such exchange note is disposed of by a broker-dealer pursuant to
the "Plan of Distribution" contemplated by this exchange offer registration
statement (including delivery of this prospectus).
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The registration rights agreement provides that (1) if we fail to file an
exchange offer registration statement with the SEC on or prior to the 90th day
after the closing date of the offering of the senior notes, (2) if the exchange
offer registration statement is not declared effective by the SEC on or prior to
the 180th day after the closing date, (3) if the exchange offer is not
consummated on or before the 30th business day after the exchange offer
registration statement is declared effective, (4) if obligated to file the shelf
registration statement and we fail to file the shelf registration statement with
the SEC on or prior to the 60th day after such filing obligation arises, (5) if
obligated to file a shelf registration statement and the shelf registration
statement is not declared effective on or prior to the 120th day after the
obligation to file a shelf registration statement arises, or (6) subject to
certain conditions, if the exchange offer registration statement or the shelf
registration statement, as the case may be, is declared effective but thereafter
ceases to be effective or useable in connection with resales of the transfer
restricted securities, for such time of non-effectiveness or non-usability
(each, a "registration default"), we agree to pay to each holder of transfer
restricted securities affected thereby liquidated damages ("liquidated damages")
at a rate per annum equal to 0.25% of the original principal amount of transfer
restricted securities held by such holder for the first 90 day period
immediately following the occurrence of such registration default, or portion of
such 90 day period, that the registration default continues. The rate of the
liquidated damages shall increase by an additional 0.25% per annum of the
original principal amount of transfer restricted securities with respect to each
subsequent 90 day period until all registration defaults have been cured, up to
a maximum rate of liquidated damages of 0.75% per annum of the principal amount
of transfer restricted securities. We will not be required to pay liquidated
damages for more than one registration default at any given time. Upon curing
all registration defaults, liquidated damages will cease to accrue.
We will pay all accrued liquidated damages to holders entitled thereto by
wire transfer to the accounts specified by them or by mailing checks to their
registered address if no such accounts have been specified.
Holders of the senior notes who wish to exchange senior notes for exchange
notes will be required to make certain representations to El Paso Energy (as
described in the registration rights agreement) in order to participate in the
exchange offer and will be required to deliver information to be used in
connection with the shelf registration statement and to provide comments on the
shelf registration statement within the time periods set forth in the
registration rights agreement in order to have their senior notes included in
the shelf registration statement.
We will be entitled to close the registered exchange offer 20 business days
after the commencement thereof; provided that we have accepted all senior notes
validly tendered in accordance with the terms of the exchange offer and no
brokers/dealers continue to hold any senior notes.
This summary of certain provisions of the registration rights agreement is
not complete and is subject to, and is qualified in its entirety by reference
to, all the provisions of the registration rights agreement, a copy of which is
filed as an exhibit to the registration statement of which this prospectus is a
part.
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PLAN OF DISTRIBUTION
Any broker-dealer who holds senior notes that were acquired for the account
of such broker-dealer as a result of market-making activities or other trading
activities (other than senior notes acquired directly from El Paso Energy or its
affiliates) may exchange such senior notes pursuant to the exchange offer. Each
broker-dealer that receives exchange notes for its own account pursuant to the
exchange offer must acknowledge that it will deliver a prospectus in connection
with any resale of such exchange notes. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of exchange notes received in exchange for existing senior notes
where such existing senior notes were acquired as a result of market-making
activities or other trading activities.
El Paso Energy will not receive any proceeds from any sale of exchange
notes by broker-dealers. Exchange notes received by broker-dealers for their own
account pursuant to the exchange offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the exchange notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such exchange notes. Any
broker-dealer that resells exchange notes that were received by it for its own
account pursuant to the exchange offer and any broker or dealer that
participates in a distribution of such exchange notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of exchange notes and any commission or concessions received by any
such person may be deemed to be underwriting compensation under the Securities
Act. The letter of transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter," within the meaning of the Securities Act.
There has been no public market for the senior notes or the exchange notes
prior to the exchange offer. We do not intend to apply for listing of the
exchange notes on any securities exchange or for quotation through The Nasdaq
Stock Market. We cannot assure you that an active market for the exchange notes
will develop. To the extent that a market for the exchange notes does develop,
future trading prices of the exchange notes will depend on many factors,
including, among other things, prevailing interest rates, and the market for
similar securities as well as our results of operations and financial condition.
We have agreed to pay all expenses incident to the exchange offer
(including the expenses of one counsel for the holders of the notes), other than
commissions or concessions of any broker-dealers, and will indemnify the holders
of the notes (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the notes and certain United States federal income taxation
matters will be passed upon for El Paso Energy by Andrews & Kurth L.L.P.,
Houston, Texas.
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<PAGE> 44
EXPERTS
The consolidated financial statements and financial statement schedule of
El Paso Energy as of December 31, 1998 and 1997, and for the years ended
December 31, 1998, 1997 and 1996, incorporated by reference in this prospectus,
have been audited by PricewaterhouseCoopers LLP, independent accountants, given
on the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Sonat Inc. as of December 31, 1998
and 1997, and for the years ended December 31, 1998, 1997 and 1996 included in
El Paso Energy's Current Report on Form 8-K/A dated April 30, 1999, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference, which, as to the
year ended December 31, 1996, is based on the report of KPMG LLP, independent
auditors. The report of KPMG LLP refers to a change by Zilkha Energy Company in
accounting for oil and gas properties from the full cost method to the
successful efforts method. Such restated consolidated financial statements are
incorporated herein by reference in reliance upon such reports given upon the
authority of such firms as experts in accounting and auditing.
37
<PAGE> 45
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
, 1999
EL PASO ENERGY CORPORATION
OFFER TO EXCHANGE
$600,000,000
6 5/8% SENIOR NOTES DUE 2001
--------------------
PROSPECTUS
--------------------
- --------------------------------------------------------------------------------
WE HAVE NOT AUTHORIZED ANY DEALER, SALES PERSON OR OTHER PERSON TO GIVE YOU
WRITTEN INFORMATION OTHER THAN THIS PROSPECTUS OR TO MAKE REPRESENTATIONS AS TO
MATTERS NOT STATED IN THIS PROSPECTUS. YOU MUST NOT RELY ON UNAUTHORIZED
INFORMATION. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES OR OUR
SOLICITATION OF YOUR OFFER TO BUY THE SECURITIES IN ANY JURISDICTION WHERE THAT
WOULD NOT BE PERMITTED OR LEGAL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALES MADE HEREUNDER AFTER THE DATE OF THIS PROSPECTUS SHALL CREATE AN
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR THE AFFAIRS OF EL PASO
ENERGY HAVE NOT CHANGED SINCE THE DATE HEREOF.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 46
PART II
ITEM 20. INDEMNIFICATION DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement in connection with specified
actions, suits, proceedings whether civil, criminal, administrative, or
investigative (other than action by or in the right of the corporation -- a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote, agreement, or
otherwise.
Article X of the by-laws of El Paso Energy requires indemnification to the
full extent permitted under Delaware law as from time to time in effect. Subject
to any restrictions imposed by Delaware law, the by-laws of El Paso Energy
provide an unconditional right to indemnification for all expense, liability,
and loss (including attorneys' fees, judgments, fines, ERISA excise taxes, or
penalties and amounts paid in settlement) actually and reasonably incurred or
suffered by any person in connection with any actual or threatened proceeding
(including, to the extent permitted by law, any derivative action) by reason of
the fact that such person is or was serving as a director or officer or employee
of El Paso Energy , such person or is or was serving at the request of El Paso
Energy as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to an employee benefit plan. The by-laws of El Paso Energy also provide
that El Paso Energy may, by action of its board of directors, provide
indemnification to its agents with the same scope and effect as the foregoing
indemnification of directors and officers.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts of omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) payment of unlawful dividends or unlawful
stock purchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
Article 10 of El Paso Energy's restated certificate of incorporation, as
amended, provides that to the full extent that the DGCL, as it now exists or may
hereafter be amended, permits the limitation or elimination of the liability of
directors, a director of El Paso Energy shall not be liable to El Paso Energy or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Any amendment to or repeal of such Article 10 shall not adversely
affect any right or protection of a director of El Paso Energy for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
El Paso Energy maintains directors' and officers' liability insurance which
provides for payment, on behalf of the directors and officers of El Paso Energy
and its subsidiaries, of certain
II-1
<PAGE> 47
losses of such persons (other than matters uninsurable under law) arising from
claims, including claims arising under the Securities Act of 1933, as amended
("Securities Act") for acts or omissions by such persons while acting as
directors or officers of El Paso Energy and/or its subsidiaries, as the case may
be.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 -- Purchase Agreement dated as of July 7, 1999, by and among
El Paso Energy, Donaldson, Lufkin & Jenrette Securities
Corporation, ABN AMRO Incorporated, Banc of America
Securities LLC and Chase Securities Inc.
4.1 -- Indenture dated as of May 10, 1999, by and between
El Paso Energy and The Chase Manhattan Bank, as Trustee
(incorporated by reference to El Paso Energy's Current
Report on Form 8-K filed May 10, 1999).
4.2 -- Second Supplemental Indenture dated as of July 12, 1999,
by and between El Paso Energy and The Chase Manhattan
Bank, as Trustee, including the form of 6 5/8% Senior
Note Due 2001.
4.3 -- Registration Rights Agreement dated as of July 12, 1999,
by and among El Paso Energy, Donaldson, Lufkin & Jenrette
Securities Corporation, ABN AMRO Incorporated, Banc of
America Securities LLC and Chase Securities Inc.
5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the exchange notes.
12.1 -- Computation of ratio of earnings to combined fixed
charges and preferred stock dividends.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Ernst & Young LLP.
23.3 -- Consent of KPMG LLP.
23.4 -- Consent of Andrews & Kurth L.L.P. (include in Exhibit
5.1).
24.1 -- Power of Attorney (included on signature page).
25.1 -- Form T-1 Statement of Eligibility of Trustee.
99.1 -- Form of Letter of Transmittal
99.2 -- Form of Notice of Guaranteed Delivery
99.3 -- Form of Letter to Clients
99.4 -- Form of Letter to Nominees
99.5 -- Form of Instruction to Registered Holder from Beneficial
Owner
</TABLE>
All supporting schedules have been omitted because they are not required or
the information required to be set forth therein is included in the consolidated
financial statements or in the notes thereto.
II-2
<PAGE> 48
ITEM 22. UNDERTAKINGS.
(A) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b)
under the Securities Act, if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this Registration
Statement; provided, however, that the undertakings set forth in
paragraphs (1)(i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(B) The undersigned Registrant hereby undertakes, that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(C) The undersigned Registrant hereby undertakes:
(1) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not set
II-3
<PAGE> 49
forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide
such interim financial information.
(D) The undersigned Registrant hereby undertakes:
(1) That, prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items
of the applicable form.
(2) That every prospectus (i) that is filed pursuant to paragraph (1)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Securities Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the Registration Statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(E) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(G) The undersigned Registrant hereby undertakes:
(1) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11, 13 of this
Form S-4, within one business day of receipt of such request, and to send
the incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed subsequent to
the effective date of the Registration Statement through the date of
responding to the request.
(2) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the Registration Statement when
it became effective.
II-4
<PAGE> 50
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on August 11, 1999.
EL PASO ENERGY CORPORATION
By: /s/ WILLIAM A. WISE
----------------------------------
William A. Wise
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes H.
Brent Austin and Britton White Jr., and each of them as attorneys-in-fact with
full power of substitution, to execute in the name and on behalf of such person,
individually and in each capacity stated below, and to file any and all
amendments to this registration statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates as indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM A. WISE Chairman of the Board, President, August 11, 1999
- ----------------------------------------------------- Chief Executive Officer and
William A. Wise Director
/s/ H. BRENT AUSTIN Executive Vice President and Chief August 11, 1999
- ----------------------------------------------------- Financial Officer
H. Brent Austin
/s/ JEFFREY I. BEASON Vice President and Controller August 11, 1999
- ----------------------------------------------------- (Chief Accounting Officer)
Jeffrey I. Beason
/s/ BYRON ALLUMBAUGH Director August 11, 1999
- -----------------------------------------------------
Byron Allumbaugh
/s/ JUAN CARLOS BRANIFF Director August 11, 1999
- -----------------------------------------------------
Juan Carlos Braniff
/s/ PETER T. FLAWN Director August 11, 1999
- -----------------------------------------------------
Peter T. Flawn
/s/ JAMES F. GIBBONS Director August 11, 1999
- -----------------------------------------------------
James F. Gibbons
/s/ BEN F. LOVE Director August 11, 1999
- -----------------------------------------------------
Ben F. Love
</TABLE>
II-5
<PAGE> 51
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ KENNETH L. SMALLEY Director August 11, 1999
- -----------------------------------------------------
Kenneth L. Smalley
/s/ MALCOM WALLOP Director August 11, 1999
- -----------------------------------------------------
Malcom Wallop
</TABLE>
II-6
<PAGE> 52
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 -- Purchase Agreement dated as of July 7, 1999, by and among
El Paso Energy, Donaldson, Lufkin & Jenrette Securities
Corporation, ABN AMRO Incorporated, Banc of America
Securities LLC and Chase Securities Inc.
4.1 -- Indenture dated as of May 10, 1999, by and between
El Paso Energy and The Chase Manhattan Bank, as Trustee
(incorporated by reference to El Paso Energy's Current
Report on Form 8-K filed May 10, 1999).
4.2 -- Second Supplemental Indenture dated as of July 12, 1999,
by and between El Paso Energy and The Chase Manhattan
Bank, as Trustee, including the form of 6 5/8% Senior
Note Due 2001.
4.3 -- Registration Rights Agreement dated as of July 12, 1999,
by and among El Paso Energy, Donaldson, Lufkin & Jenrette
Securities Corporation, ABN AMRO Incorporated, Banc of
America Securities LLC and Chase Securities Inc.
5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of
the exchange notes.
12.1 -- Computation of ratio of earnings to combined fixed
charges and preferred stock dividends.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Ernst & Young LLP.
23.3 -- Consent of KPMG LLP.
23.4 -- Consent of Andrews & Kurth L.L.P. (include in Exhibit
5.1).
24.1 -- Power of Attorney (included on signature page).
25.1 -- Form T-1 Statement of Eligibility of Trustee.
99.1 -- Form of Letter of Transmittal
99.2 -- Form of Notice of Guaranteed Delivery
99.3 -- Form of Letter to Clients
99.4 -- Form of Letter to Nominees
99.5 -- Form of Instruction to Registered Holder from Beneficial
Owner
</TABLE>
II-7
<PAGE> 1
EXHIBIT 1.1
$700,000,000
EL PASO ENERGY CORPORATION
$600,000,000 6 5/8% Senior Notes Due 2001
$100,000,000 Floating Rate Notes Due 2001
PURCHASE AGREEMENT
July 7, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
El Paso Energy Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ") ABN AMRO Incorporated, Banc of America Securities LLC and
Chase Securities Inc. (each, an "Initial Purchaser" and, collectively, the
"Initial Purchasers") an aggregate of $600,000,000 in principal amount of its
6 5/8% Senior Notes Due 2001 (the "Series A Notes") and $100,000,000 in
principal amount of its Floating Rate Senior Notes Due 2001 (the "Floating Rate
Notes"), subject to the terms and conditions set forth herein. The Series A
Notes and the Floating Rate Notes are to be issued pursuant to the provisions of
an Indenture dated as of May 10, 1999 (as supplemented by a Second Supplemental
Indenture to be dated as of July 12, 1999, and a Third Supplemental Indenture to
be dated as of July 12, 1999 the "Indenture"), among the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"). The Series A Notes and the Floating
Rate Notes are collectively referred to herein as the "Senior Notes". The
Floating Rate Notes, the Series A Notes and the Series B Notes (as defined
below) issuable in exchange for the Series A Notes are collectively referred to
herein as the "Notes." Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Indenture.
<PAGE> 2
SECTION 1. Offering Memorandum. The Senior Notes will be offered and sold
to the Initial Purchasers pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company has prepared a final offering memorandum, dated July 7,
1999, relating to the Series A Notes and a final offering memorandum, dated July
7, 1999, relating to the Floating Rate Notes (individually, an "Offering
Memorandum," and collectively, the Offering Memoranda").
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Series A Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, THIS NOTE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS,
EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR
OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B)
IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT OR (c) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN
"IAI"),
(2) AGREES THAT IT WILL NOT RESELL, OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO EL PASO ENERGY OR ANY SUBSIDIARIES OF EL PASO
ENERGY, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904
OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING
TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL
2
<PAGE> 3
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO EL PASO ENERGY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO EL PASO ENERGY) OR
(G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING RESTRICTIONS."
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Floating Rate Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, THIS NOTE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS,
EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR
OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB") OR
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL, OR OTHERWISE TRANSFER
3
<PAGE> 4
THIS NOTE EXCEPT (A) TO EL PASO ENERGY OR ANY SUBSIDIARIES OF EL
PASO ENERGY, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (D) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO EL
PASO ENERGY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO EL PASO ENERGY) OR (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING RESTRICTIONS."
SECTION 2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, (i) the principal
amount of the Series A Notes set forth opposite the name of such Initial
Purchaser on Schedule I hereto at a purchase price equal to 99.495% of the
principal amount thereof and (ii) the principal amount of the Floating Rate
Notes set forth opposite the name of such Initial Purchaser on Schedule I hereto
at a purchase price of 99.60% of the principal amount thereof (collectively, the
"Purchase Price").
SECTION 3. Terms of Offering. The Initial Purchasers have advised the
Company that the Initial Purchasers will make offers (the "Exempt Resales") of
the Series A Notes and the Floating
4
<PAGE> 5
Rate Notes purchased hereunder on the terms set forth in the applicable Offering
Memorandum, as amended or supplemented, solely to (i) persons whom the Initial
Purchasers reasonably believe to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBs"), and (ii) in the case of the Series A Notes,
to persons permitted to purchase the Series A Notes in offshore transactions in
reliance upon Regulation S under the Act (each, a "Regulation S Purchaser")
(such persons specified in clauses (i) and (ii) being referred to herein as the
"Eligible Purchasers"). The Initial Purchasers will offer (x) the Series A Notes
to Eligible Purchasers initially at a price equal to 99.895% of the principal
amount thereof and (y) the Floating Rate Notes to Eligible Purchasers initially
at a price equal to 100% of the principal amount thereof. Such price may be
changed at any time without notice.
Holders (including subsequent transferees) of the Series A Notes will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Series A Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Securities and Exchange Commission (the "Commission")
under the circumstances set forth therein, (i) a registration statement under
the Act (the "Exchange Offer Registration Statement") relating to the Company's
6 5/8% Series B Senior Notes Due 2001 (the "Series B Notes"), to be offered in
exchange for the Series A Notes (such offer to exchange being referred to as the
"Exchange Offer") and (ii) a shelf registration statement pursuant to Rule 415
under the Act (the "Shelf Registration Statement" and, together with the
Exchange Offer Registration Statement, the "Registration Statements") relating
to the resale by certain holders of the Series A Notes and to use its best
commercial efforts to cause such Registration Statements to be declared and
remain effective and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer. This Agreement, the Indenture,
the Notes and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "Operative Documents."
SECTION 4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price for, the Senior
Notes shall be made at the offices of Locke Liddell & Sapp LLP, 3400 Chase
Tower, 600 Travis, Houston, Texas 77002. Such delivery and payment shall be made
at 9:00 a.m. New York City time, on July 12, 1999 or at such other time on the
same date or such other date as shall be agreed upon by the Initial Purchaser
and the Company in writing. The time and date of such delivery and the payment
for the Senior Notes are herein called the "Closing Date."
(b) One or more of the Senior Notes in definitive global form,
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"), having an aggregate principal amount corresponding to the aggregate
principal amount of the Senior Notes (collectively, the "Global Note"), shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct), in each case with any transfer taxes thereon duly paid by the Company,
against
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payment by the Initial Purchasers of the Purchase Price thereof by wire transfer
in same day funds to the order of the Company. The Global Note shall be made
available to the Initial Purchasers for inspection not later than 9:30 a.m., New
York City time, on the business day immediately preceding the Closing Date.
SECTION 5. Agreements of the Company. The Company hereby agrees with
the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the
Initial Purchasers, confirm such advice in writing, (i) of the issuance by any
state securities commission of any stop order suspending the qualification or
exemption from qualification of any Senior Notes for offering or sale in any
jurisdiction designated by the Initial Purchasers pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose that is
known to the Company and (ii) of the happening of any event during the period
referred to in Section 5(c) below that makes any statement of a material fact
made in an Offering Memorandum untrue or that requires any additions to or
changes in an Offering Memorandum in order to make the statements therein not
misleading. The Company shall use its best commercial efforts to prevent the
issuance of any stop order or order suspending the qualification or exemption of
any Senior Notes under any state securities or Blue Sky laws and, if at any time
any state securities commission or other federal or state regulatory authority
shall issue an order suspending the qualification or exemption of any Senior
Notes under any state securities or Blue Sky laws, the Company shall use its
best commercial efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by
the Initial Purchasers to the Company as many copies of the Offering Memoranda,
and any amendments or supplements thereto, as the Initial Purchasers may
reasonably request for the time period specified in Section 5(c). Subject to the
Initial Purchasers' compliance with their respective representations and
warranties and agreements set forth in Section 7 hereof, the Company consents to
the use of the Offering Memoranda, and any amendments and supplements thereto
required pursuant hereto, by the Initial Purchasers in connection with Exempt
Resales.
(c) During such period as in the opinion of counsel for the Initial
Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Senior
Notes are outstanding, (i) not to make any amendment or supplement to an
Offering Memorandum of which the Initial Purchasers shall not previously have
been advised or to which the Initial Purchasers shall reasonably object after
being so advised and (ii) to prepare promptly upon the Initial Purchasers'
reasonable request, any amendment or supplement to an Offering Memorandum which
may be necessary or advisable in connection with such Exempt Resales or such
market-making activities.
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<PAGE> 7
(d) If, during the period referred to in Section 5(c) above, any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel to the Initial Purchasers, it becomes necessary to amend or supplement
an Offering Memorandum in order to make the statements therein, in the light of
the circumstances when such Offering Memorandum is delivered to an Eligible
Purchaser, not misleading, or if, in the opinion of counsel to the Initial
Purchasers, it is necessary to amend or supplement an Offering Memorandum to
comply with any applicable law, forthwith to prepare an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein, as so
amended or supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Offering Memorandum will comply
with applicable law, and to furnish to the Initial Purchasers and such other
persons as the Initial Purchasers may designate such number of copies thereof as
the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Senior Notes pursuant to Exempt Resales as
contemplated hereby, to cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the registration or qualification of the
Senior Notes for offer and sale to the Initial Purchasers and pursuant to Exempt
Resales under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers may request and to continue such registration or
qualification in effect so long as required for Exempt Resales and to file such
consents to service of process or other documents as may be necessary in order
to effect such registration or qualification; provided, however, that the
Company shall not be required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Offering
Memoranda or Exempt Resales, in any jurisdiction in which it is not now so
subject.
(f) So long as the Notes are outstanding, (i) to mail and make
generally available as soon as practicable after the end of each fiscal year to
the record holders of the Notes a financial report of the Company and its
subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(g) So long as the Notes are outstanding, to furnish to the Initial
Purchasers as soon as available copies of all reports or other communications
furnished by the Company to its security
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<PAGE> 8
holders or furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed and such
other publicly available information concerning the Company and/or its
subsidiaries as the Initial Purchaser may reasonably request.
(h) So long as any of the Senior Notes remain outstanding and during
any period in which the Company is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make
available to any holder of Senior Notes in connection with any sale thereof and
any prospective purchaser of such Senior Notes from such holder, the information
("Rule 144A Information") required by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the obligations of the Company under
this Agreement, including: (i) the fees, disbursements and expenses of counsel
to the Company and accountants of the Company in connection with the sale and
delivery of the Senior Notes to the Initial Purchasers and pursuant to Exempt
Resales, and all other fees and expenses (other than fees and expenses of
counsel to the Initial Purchasers) in connection with the preparation, printing,
filing and distribution of the Offering Memoranda and all amendments and
supplements to any of the foregoing (including financial statements), including
the mailing and delivering of copies thereof to the Initial Purchasers and
persons designated by it in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Senior Notes to the Initial
Purchasers and pursuant to Exempt Resales, including any transfer or other taxes
payable thereon, (iii) all costs of printing or producing this Agreement, the
other Operative Documents and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Senior Notes, (iv) all
expenses in connection with the registration or qualification of the Senior
Notes for offer and sale under the securities or Blue Sky laws of the several
states and all costs of printing or producing any preliminary and supplemental
Blue Sky memoranda in connection therewith (including the filing fees and fees
and disbursements of counsel for the Initial Purchasers in connection with such
registration or qualification and memoranda relating thereto), (v) the cost of
printing certificates representing the Senior Notes, (vi) the fees and expenses
of the Trustee and the Trustee's counsel in connection with the Indenture and
the Notes, (vii) the costs and charges of any transfer agent, registrar and/or
depositary (including DTC), (viii) any fees charged by rating agencies for the
rating of the Notes, (ix) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration Rights Agreement, and
(x) and all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section.
(j) To obtain the approval of DTC for "book-entry" transfer of the
Notes, and to comply with all of its agreements set forth in the representation
letters of the Company to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer.
(k) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities
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<PAGE> 9
of the Company or any warrants, rights or options to purchase or otherwise
acquire debt securities of the Company substantially similar to the Notes (other
than (i) the Notes and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Initial Purchasers.
(l) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Senior Notes to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Senior Notes under the Act.
(m) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
(n) To cause the Exchange Offer to be made in the appropriate form to
permit Series B Notes registered pursuant to the Act to be offered in exchange
for the Series A Notes and to comply with all applicable federal and state
securities laws in connection with the Exchange Offer.
(o) To comply with all of its agreements set forth in the Registration
Rights Agreement.
(p) To use its best commercial efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Senior Notes.
SECTION 6. Representations, Warranties and Agreements of the Company.
As of the date hereof, the Company represents and warrants to, and agrees with,
the Initial Purchasers that:
(a) The Offering Memoranda do not, and any supplement or amendment to
either of them will not, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties contained
in this paragraph (a) shall not apply to statements in or omissions from an
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of an Offering Memorandum, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated by
this Agreement are subject to the registration requirements of the Act, has been
issued.
(b) Each of the Company and its significant subsidiaries within the
meaning of Regulation S-X (each hereinafter referred to as a "Subsidiary") has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the Offering Memoranda
and to own, lease and operate its properties, and each is duly qualified and is
in good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business
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<PAGE> 10
or its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(c) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights.
(d) All of the outstanding shares of capital stock of each of the
Company's Subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and (other than the shares of Series A Preferred
Stock of El Paso Tennessee Pipeline Co. that are listed for trading on the New
York Stock Exchange, Inc.) are owned by the Company, directly or indirectly
through one or more subsidiaries, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature (each, a "Lien").
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Indenture has been duly executed and delivered by the Company, the Indenture
will be a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended (the
"TIA" or "Trust Indenture Act"), and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
(g) The Senior Notes have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by the Company. When the
Senior Notes have been issued, executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Senior Notes will
be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the Senior
Notes will conform in all material respects as to legal matters to the
description thereof contained in the applicable Offering Memorandum.
(h) On the Closing Date, the Series B Notes will have been duly
authorized by the Company. When the Series B Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Notes will be entitled to the benefits of
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<PAGE> 11
the Indenture and will be the valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The Registration Rights Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and delivered by
the Company. When the Registration Rights Agreement has been duly executed and
delivered, the Registration Rights Agreement will be a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the
Registration Rights Agreement will conform as to legal matters to the
description thereof in the Offering Memorandum relating to the Series A Notes.
(j) Neither the Company nor any Subsidiary is (i) in violation of its
respective charter or by-laws or (ii) in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or their
respective property is bound.
(k) The execution, delivery and performance of this Agreement and the
other Operative Documents by the Company, compliance by the Company with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with the charter or
by-laws of the Company or any Subsidiary or constitute a breach of any of the
terms or provisions of, or a default under, any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or their respective
property is bound, (iii) violate any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any Subsidiary or their respective property, (iv)
result in the imposition or creation of (or the obligation to create or impose)
a Lien under, any agreement or instrument to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or their respective
property is bound, or (v) result in the termination, suspension or revocation of
any permit, license, covenant, exemption, franchise, authorization or other
approval (each, an "Authorization") of the Company or any Subsidiary or result
in any other impairment of the rights of the holder of any such Authorization.
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(l) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any Subsidiary is or is
threatened to be a party or to which any of their respective property is or is
threatened to be subject that would restrict the issuance and sale of the Senior
Notes as contemplated by the Offering Memoranda.
(m) PricewaterhouseCoopers LLP are independent public accountants with
respect to the Company and its subsidiaries and, to the Company's knowledge,
Ernst & Young LLP and KPMG LLP are independent public accountants with respect
to Sonat Inc., each as required by the Act and the Exchange Act.
(n) The consolidated financial statements included or incorporated by
reference in the Offering Memoranda (and any amendment or supplement thereto),
together with related schedules and notes, present fairly in accordance with
generally accepted accounting principles consistently applied the consolidated
financial position, results of operations and cash flows of the Company and its
subsidiaries on the basis stated in the Offering Memoranda at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; the supporting schedules, if any,
included in the Offering Memoranda present fairly in accordance with generally
accepted accounting principles the information required to be stated therein;
and the other financial and statistical information and data set forth in the
Offering Memoranda (and any amendment or supplement thereto) are, in all
material respects, accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company.
(o) The pro forma financial statements included or incorporated by
reference in the Offering Memoranda are, in all material respects, fairly
presented and prepared on a basis consistent with the historical financial
statements of the Company and its subsidiaries, give effect to assumptions used
in the preparation thereof which have been made on a reasonable basis and in
good faith, and present fairly the effects of the proposed merger with Sonat
Inc. based on the assumptions set forth therein.
(p) The Company is not and, after giving effect to the offering and
sale of the Senior Notes and the application of the proceeds thereof as
described in the Offering Memoranda, will not be (i) an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended, or (ii)
a "holding company" within the meaning of, or subject to regulation under, the
Public Utility Holding Company Act of 1935, as amended, and the rules and
regulations promulgated by the Commission thereunder.
(q) [Intentionally Omitted.]
(r) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act has indicated to
the Company that it is considering (i) the
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downgrading, suspension or withdrawal of, or any review for a possible change
that does not indicate the direction of the possible change in, any rating
assigned to the Company or any securities of the Company or (ii) any adverse
change in the outlook for any rating of the Company or any securities of the
Company.
(s) Since the respective dates as of which information is given in an
Offering Memorandum other than as set forth in such Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the financial
condition, earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its subsidiaries
and (iii) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent.
(t) Each Offering Memorandum, as of its respective date, contains or
incorporates by reference all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Act.
(u) When the Senior Notes are issued and delivered pursuant to this
Agreement, neither the Series A Notes nor the Floating Rate Notes will be of the
same class (within the meaning of Rule 144A under the Act) as any security of
the Company that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(v) No form of general solicitation or general advertising (as defined
in Regulation D under the Act) was used by the Company or any of its respective
representatives (other than the Initial Purchasers, as to whom the Company makes
no representation) in connection with the offer and sale of the Senior Notes
contemplated hereby, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as any of the Senior Notes have been issued and
sold by the Company within the six-month period immediately prior to the date
hereof.
(w) [Intentionally Omitted.]
(x) None of the Company nor any of its respective affiliates or any
person acting on its or its behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S under the Act
("Regulation S") with respect to the Series A Notes.
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(y) The Series A Notes offered and sold in reliance on Regulation S
have been and will be offered and sold only in offshore transactions assuming
the accuracy of the Initial Purchasers' representations and warranties and
agreements set forth in Section 7 hereof.
(z) The Company and its affiliates and all persons acting on its behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the
Series A Notes outside the United States and, in connection therewith, the
Offering Memorandum relating to the Series A Notes will contain the disclosure
required by Rule 902(h).
(aa) The Company is a "reporting issuer," as defined in Rule 902 under
the Act.
(bb) No registration under the Act of the Senior Notes is required for
the sale of the Senior Notes to the Initial Purchasers as contemplated hereby or
for the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof.
(cc) The sale of the Series A Notes pursuant to Regulation S is not
part of a plan or scheme of the Company to evade the registration provisions of
the Act.
(dd) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers shall
be deemed to be a representation and warranty by the Company to the Initial
Purchasers as to the matters covered thereby.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
SECTION 7. Initial Purchasers' Representations and Warranties. Each of
the Initial Purchasers, severally and not jointly, represents and warrants to
the Company, and agrees that:
(a) Such Initial Purchaser is either a QIB or an institutional
accredited investor (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Act (an "Accredited Institution")), in either case, with such
knowledge and experience in financial and business matters as is necessary in
order to evaluate the merits and risks of an investment in the Senior Notes.
(b) Such Initial Purchaser (i) is not acquiring the Senior Notes with a
view to any distribution thereof or with any present intention of offering or
selling any of the Senior Notes in a transaction that would violate the Act or
the securities laws of any state of the United States or any other applicable
jurisdiction and (ii) will be reoffering and reselling the Senior Notes only to
(y) QIBs in reliance on the exemption from the registration requirements of the
Act provided by Rule 144A and
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(z) in the case of the Series A Notes, in offshore transactions in reliance upon
Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general solicitation
or general advertising (within the meaning of Regulation D under the Act) has
been or will be used by such Initial Purchaser or any of its representatives in
connection with the offer and sale of the Senior Notes pursuant hereto,
including, but not limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Senior Notes only
from, and will offer to sell the Senior Notes only to, Eligible Purchasers. Each
Initial Purchaser further agrees that it will offer to sell the Senior Notes
only to, and will solicit offers to buy the Senior Notes only from (i) Eligible
Purchasers that the Initial Purchaser reasonably believes are QIBs and (ii) in
the case of the Series A Notes, Regulation S Purchasers, in each case, that will
be deemed to have agreed that (x) the Senior Notes purchased by them may be
resold, pledged or otherwise transferred within the time period referred to
under Rule 144(k) (taking into account the provisions of Rule 144(d) under the
Act, if applicable) under the Act, as in effect on the date of the transfer of
such Senior Notes, only (I) to the Company or any of its subsidiaries, (II) to a
person whom the seller reasonably believes is a QIB purchasing for its own
account or for the account of a QIB in a transaction meeting the requirements of
Rule 144A under the Act, (III) in the case of the Series A Notes, in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 904 of the Act, (IV) in a transaction meeting the requirements of Rule 144
under the Act, (V) to an Accredited Institution that, prior to such transfer,
furnishes the Trustee a signed letter containing certain representations and
agreements relating to the registration of transfer of such Series A Note (the
form of which is substantially the same as Exhibit D to the Second Supplemental
Indenture to be dated as of July 12, 1999) and, if such transfer is in respect
of an aggregate principal amount of Senior Notes less than $250,000, an opinion
of counsel acceptable to the Company that such transfer is in compliance with
the Act, (VI) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel acceptable to the
Company) or (VII) pursuant to an effective registration statement and, in each
case, in accordance with the applicable securities laws of any state of the
United States or any other applicable jurisdiction and (y) they will deliver to
each person to whom such Senior Notes or an interest therein is transferred a
notice substantially to the effect of the foregoing (such as that contained in
the applicable Offering Memorandum.)
(e) Such Initial Purchaser and its affiliates or any person acting on
its or their behalf have not engaged or will not engage in any directed selling
efforts within the meaning of Regulation S with respect to the Series A Notes.
(f) The Series A Notes offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
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<PAGE> 16
(g) The sale of the Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme of such Initial Purchaser to evade the registration provisions of the
Act.
(h) Such Initial Purchaser agrees that it has not offered or sold and
will not offer or sell the Series A Notes in the United States or to, or for the
benefit or account of, a U.S. Person (other than a distributor), in each case,
as defined in Rule 902 under the Act (i) as part of its distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering of the Series A Notes pursuant hereto and the Closing Date, other than
in accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act. Such Initial Purchaser agrees that, during
such 40-day restricted period, it will not cause any advertisement with respect
to the Series A Notes (including any "tombstone" advertisement) to be published
in any newspaper or periodical or posted in any public place and will not issue
any circular relating to the Series A Notes, except such advertisements as are
permitted by and include the statements required by Regulation S.
(i) Such Initial Purchaser agrees that, at or prior to confirmation of
a sale of Series A Notes by it pursuant to Regulation S to any distributor,
dealer or person receiving a selling concession, fee or other remuneration
during the 40-day restricted period referred to in Rule 903(c)(2) under the Act,
it will send to such distributor, dealer or person receiving a selling
concession, fee or other remuneration a confirmation or notice to substantially
the following effect:
"THE NOTES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT
BE OFFERED AND SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS (I) AS PART OF YOUR DISTRIBUTION AT ANY
TIME OR (II) OTHERWISE UNTIL 40 DAYS AFTER THE LATER OF THE
COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, EXCEPT IN EITHER
CASE IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (OR RULE
144A OR TO ACCREDITED INSTITUTIONS IN TRANSACTIONS THAT ARE EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT), AND IN CONNECTION
WITH ANY SUBSEQUENT SALE BY YOU OF THE NOTES COVERED HEREBY IN RELIANCE
ON REGULATION S DURING THE PERIOD REFERRED TO ABOVE TO ANY DISTRIBUTOR,
DEALER OR PERSON RECEIVING A SELLING CONCESSION, FEE OR OTHER
REMUNERATION, YOU MUST DELIVER A NOTICE TO SUBSTANTIALLY THE FOREGOING
EFFECT. TERMS USED ABOVE HAVE THE MEANINGS ASSIGNED TO THEM IN
REGULATION S."
Such Initial Purchaser acknowledges that the Company and, for purposes
of the opinions to be delivered to each Initial Purchaser pursuant to Section 9
hereof, counsel to the Company and counsel
16
<PAGE> 17
to the Initial Purchasers will rely upon the accuracy and truth of the foregoing
representations and such Initial Purchaser hereby consents to such reliance.
SECTION 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, its directors, its officers and each person, if any, who controls
such Initial Purchaser within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Offering Memorandum (or any
amendment or supplement thereto), any Rule 144A Information provided by the
Company to any holder or prospective purchaser of Senior Notes pursuant to
Section 5(h) or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to such
Initial Purchaser furnished in writing to the Company by such Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company, and its directors and officers and each
person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, to the same extent as the foregoing
indemnity from the Company to such Initial Purchaser but only with reference to
information relating to such Initial Purchaser furnished in writing to the
Company by such Initial Purchaser expressly for use in the Offering Memoranda
(or any amendment or supplement thereto).
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), the Initial Purchasers shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Initial Purchasers). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action
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<PAGE> 18
(including any impleaded parties) include both the indemnified party and the
indemnifying party, and the indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party (in
which case the indemnifying party shall not have the right to assume the defense
of such action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Donaldson, Lufkin & Jenrette Securities Corporation, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Initial Purchasers on the other hand from the
offering of the Senior Notes or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company, on the one hand, and
the Initial Purchasers, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand and the Initial Purchasers, on
the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Senior Notes (after underwriting discounts and
commissions, but before deducting expenses) received by the Company, and the
total discounts and commissions received by the Initial Purchasers bear to
18
<PAGE> 19
the total price to investors of the Senior Notes, as set forth in the tables on
the cover pages of the Offering Memoranda. The relative fault of the Company, on
the one hand, and the Initial Purchasers, on the other hand, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, on the one hand,
or the Initial Purchasers, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 8, an Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total discounts and commissions received by such Initial Purchaser
exceeds the amount of any damages which the Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 8(d) are several
in proportion to the respective principal amount of Senior Notes purchased by
each of the Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 9. Conditions of Initial Purchaser's Obligations. The several
obligations of the Initial Purchasers to purchase the Senior Notes under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects on the Closing
Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the
19
<PAGE> 20
Company or any securities of the Company (including, without limitation, the
placing of any of the foregoing ratings on credit watch with negative or
developing implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is defined
for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred
any change, nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any securities of the
Company by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Notes than that on which the Notes were marketed.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by an officer of the Company, confirming the matters set
forth in Sections 6(s), 9(a) and 9(b) and stating that the Company has complied
in all material respects with all the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied on or
prior to the Closing Date.
(d) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of Andrews & Kurth L.L.P., counsel for the Company, addressing the matters
set forth on Exhibit B attached hereto, and (ii) an opinion (satisfactory to you
and counsel for the Initial Purchasers), dated the Closing Date, of the general
counsel of the Company, addressing the matters set forth on Exhibit C attached
hereto.
(e) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Locke Liddell & Sapp LLP, counsel for the
Initial Purchasers, with respect to all such matters as the Initial Purchasers
may reasonably request.
(f) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from PricewaterhouseCoopers LLP, independent public
accountants, containing the information and statements of the type ordinarily
included in accountants' "comfort letters" to Initial Purchasers with respect to
the financial statements and certain financial information contained in the
Offering Memoranda.
(g) The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from Ernst & Young LLP, independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to Initial Purchasers with respect to the
financial statements and certain financial information contained in the Offering
Memoranda.
(h) The Initial Purchasers shall have received a counterpart, conformed
as executed, of the Indenture which shall have been entered into by the Company
and the Trustee.
20
<PAGE> 21
(i) The Company shall have executed the Registration Rights Agreement
and the Initial Purchasers shall have received an original copy thereof, duly
executed by the Company.
(j) The Company shall not have failed at or prior to the Closing Date
to perform or comply in all material respects with any of the agreements herein
contained and required to be performed or complied with by the Company at or
prior to the Closing Date.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Initial Purchasers by written notice to the Company if any of the
following has occurred during the period commencing on the execution of this
Agreement and ending at the Closing: (i) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in the Initial Purchasers' judgment, is material and adverse
and, in the Initial Purchasers' judgment, makes it impracticable to market the
Senior Notes on the terms and in the manner contemplated in the Offering
Memoranda, (ii) the suspension or material limitation of trading in securities
or other instruments on the New York Stock Exchange, the American Stock
Exchange, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade or the Nasdaq National Market or limitation
on prices for securities or other instruments on any such exchange or the Nasdaq
National Market, (iii) the suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in the Initial Purchasers'
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date any one or more of the Initial Purchasers shall
fail or refuse to purchase the Senior Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of the Senior
Notes which such defaulting Initial Purchaser or Initial Purchasers, as the case
may be, agreed but failed or refused to purchase is not more than one-tenth of
the aggregate principal amount of the Senior Notes to be purchased on such date
by all Initial Purchasers, each non-defaulting Initial Purchaser shall be
obligated severally, in the proportion which the principal amount of the Senior
Notes set forth opposite its name in Schedule I bears to the aggregate principal
amount of the Senior Notes which all the non-defaulting Initial Purchasers, as
the case may be, have agreed to purchase, or in such other proportion as you may
specify, to purchase the Senior Notes which such defaulting Initial Purchaser or
Initial Purchasers, as the case may be, agreed but failed or refused to purchase
on such date; provided that in no event shall the aggregate principal amount of
the Senior
21
<PAGE> 22
Notes which any Initial Purchaser has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such principal amount of the Senior Notes without the written
consent of such Initial Purchaser. If on the Closing Date any Initial Purchaser
or Initial Purchasers shall fail or refuse to purchase the Senior Notes and the
aggregate principal amount of the Senior Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Senior Notes to be purchased by all Initial Purchasers and arrangements
satisfactory to the Initial Purchasers and the Company for purchase of such the
Senior Notes are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Initial
Purchaser and the Company. In any such case which does not result in termination
of this Agreement, either you or the Company shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Offering Memoranda or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of any such Initial Purchaser under this Agreement.
SECTION 11. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to El Paso
Energy Corporation, El Paso Energy Building, 1001 Louisiana, Houston, Texas
77002, Attention: Britton White Jr. and (ii) if to any Initial Purchasers to
Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York,
New York 10172, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the Initial Purchasers set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Senior Notes,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of the Initial Purchaser, the officers or directors of any
Initial Purchaser, any person controlling any Initial Purchaser, the Company,
the officers or directors of the Company, or any person controlling the Company,
(ii) acceptance of the Senior Notes and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Senior Notes are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10), the Company agrees to reimburse the
several Initial Purchasers for all out-of-pocket expenses (including the fees
and disbursements of counsel) incurred by them. Notwithstanding any termination
of this Agreement, the Company shall be liable for all expenses which it has
agreed to pay pursuant to Section 5(h) hereof. The Company also agrees to
reimburse the several Initial Purchasers and their officers, directors and each
person, if any, who controls any Initial Purchaser within the meaning of Section
15 of the Act or Section 20 of the Exchange Act for any and all fees and
expenses (including without limitation the fees and expenses of counsel)
incurred by them in connection with enforcing their rights under this Agreement
(including without limitation its rights under Section 8).
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<PAGE> 23
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Initial
Purchasers, the Initial Purchasers' directors and officers, any controlling
persons referred to herein, the directors of the Company and its successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Senior
Notes from the Initial Purchaser merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
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<PAGE> 24
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Initial Purchasers.
Very truly yours,
EL PASO ENERGY CORPORATION
By: /s/ H. BRENT AUSTIN
----------------------------
Name: H. Brent Austin
--------------------------
Title: Executive Vice President
and Chief Financial
Officer
-------------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ PAUL DAVIS
----------------------------
Name: Paul Davis
--------------------------
Title: Vice President
-------------------------
<PAGE> 25
SCHEDULE I
<TABLE>
Principal Amount
----------------------------------------
Initial Purchaser Series A Notes Floating Rate Notes
----------------- -------------- -------------------
<S> <C> <C>
Donaldson, Lufkin & Jenrette $301,200,000 $ 50,200,000
Securities Corporation
ABN AMRO Incorporated $ 99,600,000 $ 16,600,000
Banc of America Securities LLC $ 99,600,000 $ 16,600,000
Chase Securities Inc. $ 99,600,000 $ 16,600,000
Total $600,000,000 $100,000,000
============ ============
</TABLE>
25
<PAGE> 26
EXHIBIT A
Form of Registration Rights Agreement
1
<PAGE> 27
EXHIBIT B
OPINION OF ANDREWS & KURTH L.L.P.
Counsel for the Company
The opinion of counsel for the Company pursuant to Section 9(d) of the
Purchase Agreement shall be to the effect that:
1. No registration under the Act of the Senior Notes or qualification of
the Indenture under the TIA is required for the sale of the Senior
Notes to the Initial Purchasers as contemplated by the Purchase
Agreement or for the Exempt Resales assuming (i) that each Initial
Purchaser is a QIB or, in the case of the Series A Notes, a Regulation
S Purchaser, (ii) the accuracy of, and compliance with, the Initial
Purchasers' representations and agreements contained in Section 7 of
the Purchase Agreement, and (iii) the accuracy of, and compliance with,
the representations and agreements of the Company set forth in Sections
5(h) and 6(v), (x), (y), (z), (aa) and (cc) of the Purchase Agreement.
2. (A) Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in an Offering Memorandum (except for
financial statements and schedules and other financial or statistical
data included or incorporated by reference therein or omitted therefrom
as to which such counsel need not express any opinion) appeared on its
face to be appropriately responsive in all material respects with the
requirements of the Exchange Act and (B) each Offering Memorandum
(except for financial statements and schedules and other financial or
statistical data included or incorporated by reference therein or
omitted therefrom as to which such counsel need not express any
opinion) appeared on its respective face to be appropriately responsive
in all material respects to Rule 144A(d)(4) under the Act.
3. The Purchase Agreement has been duly authorized, executed and delivered
by the Company.
4. The Company is not and, after giving effect to the offering and sale of
the Senior Notes and the application of the net proceeds thereof as
described in the Offering Memoranda, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended or (ii) a "holding company" within the meaning of, or
subject to regulations under the Public Utility Holding Company Act of
1935, as amended, and the rules and regulations promulgated by the
commission thereunder.
5. The Indenture has been authorized, executed and delivered by the
Company and constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except as (a) the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other
similar laws relating
1
<PAGE> 28
to or affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
6. It is not necessary in connection with the offer, sale and delivery of
the Senior Notes to the Initial Purchasers in the manner contemplated
by the Purchase Agreement or in connection with the Exempt Resales to
qualify the Indenture under the TIA.
7. The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
8. The Series B Senior Notes have been duly authorized.
9. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Purchase Agreement will not
violate any provision of applicable United States federal law, New York
law, or the Delaware General Corporation Law, or the Certificate of
Incorporation, as amended, or By-Laws, as amended, of the Company or
any Subsidiary.
10. The Notes have been duly authorized, and when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of the Purchase Agreement, will be entitled to the benefits
of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as (a) the
enforcement thereof may be limited by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
11. No consent, approval, authorization or order of or qualification with
any United States federal, New York or (with respect to matters arising
under the Delaware General Corporation Law) Delaware governmental body
or agency is required for the performance by the Company of its
obligations under the Purchase Agreement, except such (i) as may be
required under the Act, (ii) which have been obtained, or (iii) as may
be required under the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Notes, as to which such
counsel need not express any opinion, or except where failure to obtain
such consent, approval, authorization, order or qualification would not
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole.
2
<PAGE> 29
12. The statements under the captions "Certain United States Federal Income
Tax Consequences for Non-United States Holders," "ERISA
Considerations," "Description of the Senior Notes" and "Plan of
Distribution" in the Offering Memoranda, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects such legal
matters, documents and proceedings.
In addition, such counsel shall state that, in the course of the preparation by
the Company of the Offering Memoranda (including the documents incorporated by
reference therein), such counsel participated in conferences with certain of the
officers and representatives of the Company, the Company's independent
accountants, the Initial Purchasers and counsel for the Initial Purchasers at
which the Offering Memoranda were discussed. Such counsel shall state that,
between the respective dates of the Offering Memoranda and the time of delivery
of such counsel's opinion letter, such counsel participated in additional
conferences with certain officers and representatives of the Company and the
Company's independent accountants at which portions of the Offering Memoranda
were discussed. Given the limitations inherent in the independent verification
of factual matters and the character of determinations involved in the
registration process, such counsel does not pass upon and need not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Offering Memoranda except as specifically described in the
opinion in paragraphs 2 and 12 above. Subject to the foregoing and on the basis
of the information such counsel gained in the performance of the services
referred to above, including information obtained from officers and other
representatives of the Company and the Company's independent accountants, such
counsel shall state that no facts have come to such counsel's attention that
have caused it to believe that either Offering Memorandum as of the respective
date thereof contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. Also, subject to the foregoing, such
counsel shall state that no facts have come to its attention in the course of
the proceedings described in the first and second sentences of this paragraph
that caused such counsel to believe that either Offering Memorandum, as amended
or supplemented, as of the date and time of delivery of such counsel's opinion
letter contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
With respect to the preceding paragraph, counsel may state that (A) their
opinion and belief is based upon their participation in the preparation of the
Offering Memoranda and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
certification, except as specified and (B) for purposes of paragraphs 7 and 8,
such counsel may state (i) that it has reviewed only those statutes, rules and
regulations that in its experience are applicable to transactions of the type
contemplated by the Purchase Agreement and (ii) that it does not hold itself out
as experts in the regulation of the generation, transportation, distribution or
delivery of electricity or electrical services, or the import or export of
electricity or electrical services.
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Such counsel need express no view, opinion or belief, however, with respect to
financial statements, schedules or notes thereto or other financial or
statistical data included or incorporated by reference in or omitted from either
Offering Memorandum.
Such counsel may state that the opinions expressed above are limited to the
federal laws of the United States, the laws of the State of New York, and the
General Corporation Law of the State of Delaware.
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<PAGE> 31
EXHIBIT C
OPINION OF BRITTON WHITE JR.
General Counsel for the Company
The opinion of the General Counsel for the Company pursuant to Section 9(d) of
the Purchase Agreement shall be to the effect that:
1. Each of the Company and its Subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus, and each is duly qualified as
a foreign corporation to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified or to be in good standing would not have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as
a whole.
2. The execution, delivery and performance of the Purchase Agreement, the
Indenture and the Notes by the Company, the compliance by the Company
with all the provisions thereof and the consummation of the
transactions contemplated thereby will not, to such counsel's
knowledge, (i) violate any indenture, loan agreement, mortgage, lease
or other agreement or instrument to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or their
respective property is bound or (ii) violate or conflict with any
judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any Subsidiary or their
respective property, except in each case, for such violations as would
not have a material adverse effect on the business, prospects,
financial condition or results of operation of the Company and its
subsidiaries, taken as a whole.
3. To such counsel's knowledge after due inquiry, there are no legal or
governmental proceedings pending or threatened to which the Company or
any Subsidiary is or is threatened to be a party or to which any of
their respective property is or is threatened to be subject that are
required to be described in the Offering Memoranda and are not so
described; nor does such counsel know of any statutes, regulations,
contracts or other documents that are required to be described in the
Offering Memoranda that are not so described.
4. (A) Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in an Offering Memorandum (except for
financial statements and schedules and other financial or statistical
data included or incorporated by reference therein or omitted therefrom
as to which such counsel need not express any opinion) appeared on its
face to be appropriately
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<PAGE> 32
responsive in all material respects as to form with the requirements of
the Exchange Act and (B) each Offering Memorandum (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein or omitted therefrom as
to which such counsel need not express any opinion) appeared on its
respective face to be appropriately responsive in all material respects
as to form with the requirements of Rule 144A(d)(4) under the Act.
5. The statements under (A) the caption "Item 3 - Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by
reference into each Offering Memorandum and (B) the caption "Item 1 -
Legal Proceedings" of Part II of the Company's quarterly reports on
Form 10-Q filed since such annual report, if any, in each case insofar
as such statements constitute summaries of the legal matters, documents
or proceeding referred to therein, fairly present as of the date of the
applicable report the information disclosed therein in all material
respects.
6. The execution, delivery and performance of the Purchase Agreement and
the other Operative Documents by the Company, the compliance by the
Company with all provisions thereof and the consummation of the
transactions contemplated thereby will not (i) conflict with the
charter or by-laws of the Company or any Subsidiary or constitute a
breach of any of the terms or provisions of, or a default under, or any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its Subsidiaries, taken
as a whole, to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary or its respective property is
bound, (ii) violate any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any Subsidiary or their
respective property, (iii) result in the imposition or creation of (or
the obligation to create or impose) a Lien under, any agreement or
instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary or its respective property is
bound, or (iv) result in the termination, suspension or revocation of
any Authorization of the Company or any Subsidiary or result in any
other impairment of the rights of the holder of any such Authorization.
7. (A) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Purchase Agreement will
not violate any provisions of any applicable laws and regulations
specifically governing the generation, transportation, distribution or
delivery of natural gas, oil, electricity or other related commodities
or services, including pipelines, transmission lines, storage
facilities and related facilities and equipment, or the import or
export of such commodities or services (collectively, the "Energy
Industry") and (B) no consent, approval, authorization or order of or
qualification with any United States federal body or agency
specifically regulating the Energy Industry is required for the
performance by the Company of its obligations under the Purchase
Agreement, except in each of the foregoing cases for such violations or
failures to obtain such consent, approval, authorization, order or
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<PAGE> 33
qualification as would not have a material adverse effect on the
business, prospects, financial condition or results of operation of the
Company and its subsidiaries, taken as a whole.
In addition, such counsel shall state that in the course of the preparation by
the Company of the Offering Memoranda, such counsel participated in conferences
with certain of the officers and representatives of the Company, counsel to the
Company, the Company's independent accountants, the Initial Purchasers and
counsel for the Initial Purchasers at which the Offering Memoranda were
discussed. Such counsel shall state that, between the respective dates of the
Offering Memoranda and the time of delivery of such counsel's letter, such
counsel participated in additional conferences with certain officers and
representatives of the Company, counsel to the Company and the Company's
independent accountants at which portions of the Offering Memoranda were
discussed. Given the limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process, such counsel does not pass upon and need not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Offering Memoranda, except as specifically described in paragraphs 4 and 5
above. Subject to the foregoing and on the basis of the information such counsel
gained in the performance of the services referred to above and in the
performance of his duties as General Counsel of the Company, as well as
information obtained from officers and other representatives of the Company and
the Company's independent accountants, such counsel shall state that no facts
have come to such counsel's attention that have caused him to believe that
either Offering Memorandum, as of the respective date thereof, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading. Also, subject to the foregoing, no facts have come to such counsel's
attention in the course of the proceedings described in the first and second
sentences of this paragraph that caused him to believe that either Offering
Memorandum, as amended or supplemented, as of the date and time of delivery of
such counsel's letter contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
Such counsel need express no view, opinion or belief, however, with respect to
financial statements, schedules or notes thereto or other financial or
statistical data included or incorporated by reference in or omitted from either
Offering Memorandum.
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<PAGE> 1
EXHIBIT 4.2
================================================================================
EL PASO ENERGY CORPORATION
ISSUER
AND
THE CHASE MANHATTAN BANK
TRUSTEE
------------------
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JULY 12, 1999
TO
INDENTURE
DATED AS OF MAY 10, 1999
------------------
6 5/8% SENIOR NOTES DUE 2001
------------------
================================================================================
<PAGE> 2
SECOND SUPPLEMENTAL INDENTURE, dated as of July 12, 1999 (herein called
the "Second Supplemental Indenture"), between EL PASO ENERGY CORPORATION, a
Delaware corporation (herein called the "Company"), having its principal office
at 1001 Louisiana Street, Houston, Texas 77002 and THE CHASE MANHATTAN BANK, a
banking corporation duly organized and existing under the laws of the State of
New York, as trustee under the Indenture referred to below (herein called the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Indenture, dated as of May 10, 1999 (herein called the "Original
Indenture"), providing for the issuance from time to time of one or more series
of the Company's unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), the terms of which are to be determined as set
forth in Section 301 of the Original Indenture; and
WHEREAS, Section 901 of the Original Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Original Indenture for, among other things, the purpose of establishing
the form or terms of Securities of any series as permitted by Sections 201 and
301 of the Original Indenture; and
WHEREAS, the Company desires to create a series of the Securities in an
aggregate principal amount of $600,000,000, which series shall be designated the
6 5/8% Senior Notes Due 2001 (the "Notes"), and all action on the part of the
Company necessary to authorize the issuance of the Notes under the Original
Indenture and this Second Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the Notes, when executed
by the Company and completed, authenticated and delivered by the Trustee as
provided in the Original Indenture and this Second Supplemental Indenture, the
valid and binding obligations of the Company and to constitute these presents a
valid and binding supplemental indenture and agreement according to its terms,
have been done and performed;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises and the issuance of the Notes,
the Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
TERMS AND ISSUANCE OF 6 5/8% SENIOR NOTES DUE 2001
SECTION 1.01 Issue of Notes. A series of Securities which shall be
designated the "6 5/8% Senior Notes Due 2001" (and which shall consist of the
Series A Notes and the Exchange Notes) shall be executed, authenticated and
delivered in accordance with the provisions of, and shall in all respects be
subject to, the terms, conditions and covenants of the Original Indenture,
including without limitation the terms set forth in this Second Supplemental
Indenture (including the form of
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<PAGE> 3
Notes referred to in Section 2.02 hereof). The aggregate principal amount of
Notes which may be authenticated and delivered under the Original Indenture
shall not, except as permitted by the provisions of the Original Indenture,
exceed $600,000,000. The entire amount of Notes may forthwith be executed by the
Company and delivered to the Trustee and shall be authenticated by the Trustee
and delivered to or upon the order of the Company pursuant to Section 303 of the
Original Indenture.
ARTICLE II
FORMS; TRANSFER AND EXCHANGE
SECTION 2.01 Definitions. For purposes of this Second Supplemental
Indenture and the Notes, the following terms shall have the meanings indicated
below. Terms used herein but not defined shall have the meaning assigned to them
in the Original Indenture.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Cedel Bank that apply to such transfer or
exchange.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Cedel Bank" means Cedel Bank, societe anonyme.
"Certificated Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.04 hereof, in the
form of Exhibit A-1 hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Second Supplemental Indenture.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Notes" means the 6 5/8% Series B Senior Notes Due 2001,
having terms substantially identical to the Series A Notes, offered to the
Holders of the Series A Notes under the Exchange Offer Registration Statement.
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<PAGE> 4
"Exchange Offer" means the offer that may be made by the Company
pursuant to the Registration Rights Agreement to the Holders of the Series A
Notes to exchange their Series A Notes for the Exchange Notes.
"Exchange Offer Registration Statement" means that certain registration
statement to be filed by the Company with the Commission to register the
Exchange Notes for issuance in the Exchange Offer.
"Global Note Legend" means the legend set forth in Section 2.04(g)(ii),
which is required to be placed on all Global Notes issued under this Second
Supplemental Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A-1 hereto issued in accordance with Sections 2.02, 2.04(b), 2.04(d) or
2.04(f) hereof.
"Holder" means a Person in whose name a Note is registered on the
Registrar's books; and "Holders" means the Persons in whose names the Notes are
registered on the Registrar's books.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Purchasers" means Donaldson, Lufkin & Jenrette Securities
Corporation, ABN AMRO Incorporated, Banc of America Securities LLC and Chase
Securities Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of the rules
and regulations promulgated under the Securities Act.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Series A Notes for use by such
Holders in connection with the Exchange Offer.
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"Non-U.S. Person" means a person who is not a U.S. Person.
"Note Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Notes" means the Series A Notes and the Exchange Notes.
"Offering" means the offering of the Series A Notes by the Company.
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<PAGE> 5
"Participant" means, with respect to DTC, Euroclear or Cedel Bank, a
Person who has an account with DTC, Euroclear or Cedel Bank, respectively (and,
with respect to DTC, shall include Euroclear and Cedel Bank).
"Private Placement Legend" means the legend set forth in Section
2.04(g)(i) to be placed on all Notes except where otherwise permitted by the
provisions of this Second Supplemental Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
of the rules and regulations promulgated by the Commission under the Securities
Act.
"Registrar" means the Security Registrar.
"Registration Rights Agreement" means that certain agreement among the
Company and the Initial Purchasers requiring the Company to file the Exchange
Offer Registration Statement and the Shelf Registration Statement.
"Regulation S" means Regulation S promulgated by the Commission under
the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and that has the "Schedule of Exchange of Interests in the
Global Note" attached thereto and deposited with or on behalf of and registered
in the name of the Depositary or its nominee, issued in a denomination equal to
the principal amount of the Regulation S Temporary Global Note upon expiration
of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary Global Note in
the form of Exhibit A-2 hereto bearing the Global Note Legend, the Private
Placement Legend and the Regulation S Temporary Global Legend set forth in
Section 2.04(g)(iii) and that has the "Schedule of Exchange of Interests in the
Global Note" attached thereto and deposited with or on behalf of and registered
in the name of the Depositary or its nominee, issued in a denomination equal to
the outstanding principal amount of the Notes initially sold in reliance on Rule
903 of Regulation S.
"Restricted Certificated Note" means a Certificated Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend and that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto and
that is deposited with or on behalf, and registered in the name, of the
Depositary or its nominee.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act.
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<PAGE> 6
"Rule 144A" means Rule 144A promulgated by the Commission under the
Securities Act.
"Rule 144A Global Note" means the Global Note in the form of Exhibit
A-1 hereto bearing the Global Note Legend and the Private Placement Legend and
that has the "Schedule of Exchange of Interests in the Global Note" attached
thereto and deposited with and registered in the name of the Depositary or its
nominee that will be issued in a denomination equal to the outstanding principal
amount of the Notes sold in reliance on Rule 144A.
"Rule 903" means Rule 903 of Regulation S promulgated by the Commission
under the Securities Act.
"Rule 904" means Rule 904 of Regulation S promulgated by the Commission
under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Notes" means the $600,000,000 principal amount of 6 5/8%
Senior Notes Due 2001 issued in the Offering.
"Shelf Registration Statement" means that certain shelf registration
statement filed by the Company in accordance with the Registration Rights
Agreement with the Commission to register resales of the Series A Notes or the
Exchange Notes.
"Unrestricted Certificated Note" means one or more Certificated Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Note in the form of
Exhibit A-1 attached hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary or its nominee, representing Notes that do not bear the Private
Placement Legend.
"U.S. Person" means a U.S. person as defined in Rule 902(k) of
Regulation S promulgated by the SEC under the Securities Act.
SECTION 2.02 Form of Notes and Trustee's Certificate of Authentication.
Notes issued in global form shall be substantially in the form of
Exhibit A-1 or A-2 (as applicable) attached hereto (including the Global Note
Legend and the "Schedule of Exchanges in the Global Note" attached thereto).
Notes issued in definitive form shall be substantially in the form of Exhibit
A-1 attached hereto (but without the Global Note Legend and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). The
form of the Trustee's certificate of authentication shall be substantially as
set forth on Exhibit A-1 and Exhibit A-2 attached hereto. Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented
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<PAGE> 7
thereby may from time to time be reduced or increased, as appropriate, to
reflect transfers and exchanges. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.04 hereof. The terms of the
Notes as set forth in Exhibits A-1 and A-2 are incorporated herein by reference.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of a Rule 144A Global Note, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, at
its Corporate Trust Office, as custodian for the Depositary, and registered in
the name of the Depositary or the nominee of the Depositary for the accounts of
such purchasers, duly executed by the Company and authenticated by the Trustee
as provided in the Original Indenture. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its Corporate Trust Office, as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Cedel Bank, duly executed by the Company and
authenticated by the Trustee as provided in the Original Indenture. The
Distribution Compliance Period shall be terminated upon the receipt by the
Trustee of (i) written certificates from Euroclear and Cedel Bank substantially
in the form of Exhibit D hereto, together with copies of certificates from the
account holders thereof substantially in the form of Exhibit E hereto certifying
that they have received certification of non-United States beneficial ownership
of 100% of the aggregate principal amount of the Regulation S Temporary Global
Note (except to the extent of any beneficial owners thereof who acquired an
interest therein during the Distribution Compliance Period pursuant to another
exemption from registration under the Securities Act and who will take delivery
of a beneficial ownership interest in a Rule 144A Global Note bearing a Private
Placement Legend, all as contemplated by Section 2.04(b)(iii) hereof), and (ii)
an Officers' Certificate from the Company to the effect that the Distribution
Compliance Period has terminated. Following the termination of the Distribution
Compliance Period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent
Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Permanent Global Notes that are held by the
members of or participants in the Depositary through Euroclear or Cedel Bank.
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<PAGE> 8
SECTION 2.03 Depository and Note Custodian.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.04 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes may be exchanged by
the Company for Certificated Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary or (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Certificated Notes and delivers a
written notice to such effect to the Trustee; provided that in no event shall
the Regulation S Temporary Global Note be exchanged by the Company for
Certificated Notes prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of the certificates from the
Depositary, Euroclear and Cedel Bank referred to in clause (i) of the second
paragraph of Section 2.02. If a Default or an Event of Default with respect to a
Note occurs and is continuing, the Company shall, at the request of the Holder
thereof, exchange all or part of a Global Note that is a Restricted Global Note
or an Unrestricted Global Note, as the case may be, for one or more Certificated
Notes representing Series A Notes or Exchange Notes, as the case may be;
provided that the principal amount of each of such Certificated Notes, and such
Global Note, after such exchange, shall be $1,000 or an integral multiple
thereof. Whenever a Global Note is exchanged as a whole for one or more
Certificated Notes, it shall be surrendered by the Holder thereof to the Trustee
for cancellation. Whenever a Global Note is exchanged in part for one or more
Certificated Notes, it shall be surrendered by the Holder thereof to the Trustee
and the Trustee shall make the appropriate notations to the Schedule of
Exchanges of Interests in the Global Note attached thereto pursuant to Section
2.02 hereof. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.04(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.04(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Second Supplemental Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Notes also shall
require compliance with either subparagraph (i) or (ii) below, as applicable, as
well as one or more of the other following subparagraphs as applicable:
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<PAGE> 9
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Distribution
Compliance Period transfers of beneficial interests in the Regulation S
Temporary Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.04(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests (other than a transfer of a beneficial interest in
a Global Note to a Person who takes delivery thereof in the form of a
beneficial interest in the same Global Note), the transferor of such
beneficial interest must deliver to the Registrar either (A) (i) a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest
in another Global Note in an amount equal to the beneficial interest to
be transferred or exchanged and (ii) instructions given in accordance
with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (i) a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Certificated Note in an amount
equal to the beneficial interest to be transferred or exchanged and
(ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Certificated Note
shall be registered to effect the transfer or exchange referred to in
(i) above; provided that in no event shall Certificated Notes be issued
upon the transfer or exchange of beneficial interests in the Regulation
S Temporary Global Note prior to (x) the expiration of the Distribution
Compliance Period and (y) the receipt by the Registrar of the
certificates from the Depositary, Euroclear and Cedel Bank referred to
in clause (i) of the second paragraph of Section 2.02. Upon an Exchange
Offer by the Company in accordance with Section 2.04(f) hereof, the
requirements of this Section 2.04(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal or an agent's message in lieu thereof in
accordance with the Applicable Procedures delivered by the holder of
such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Second
Supplemental Indenture, the Notes and otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.04(a) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the
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<PAGE> 10
transfer complies with the requirements of clause (ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the Rule 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
clause (ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes
or (iii) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof;
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof; and
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(iii) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with the Original Indenture, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of beneficial interests
transferred pursuant to subparagraph (A), (B), (C) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Certificated
Notes.
(i) If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Certificated Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Certificated Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Certificated Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certification in item (3)(a)
thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above,
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<PAGE> 12
a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3)(d) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Company, a certificate to the effect set forth in
Exhibit B hereto, including the certification in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certification in item (3)(c)
thereof;
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.04(a) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Certificated Note in the appropriate principal amount. Any Certificated
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.04(c) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Certificated Notes
to the Persons in whose names such Notes are so registered. Any
Certificated Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.04(c)(i) (other than
subparagraph (G)) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.04(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Note may not
be (A) exchanged for a Certificated Note prior to (x) the expiration of
the Distribution Compliance Period and (y) the receipt by the Registrar
of the certificates from the Depositary, Euroclear and Cedel Bank
referred to in clause (i) of the second paragraph of Section 2.02 or
(B) transferred to a Person who takes delivery thereof in the form of a
Certificated Note prior to compliance with the conditions set forth in
clause (A) above or unless the transfer is pursuant to an exemption
from the registration requirements of the Securities Act other than
Rule 903 or Rule 904.
(iii) Notwithstanding 2.04(c)(i) hereof, a holder of a
beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Certificated Note or may
transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Certificated Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144) of
the Company;
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<PAGE> 13
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Certificated
Note that does not bear the Private Placement Legend,
a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(b)
thereof;
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Certificated Note that does not bear the Private
Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
(iii) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act.
(iv) If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a
Certificated Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Certificated Note, then,
upon satisfaction of the conditions set forth in Section 2.04(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.04(a) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Certificated Note in the appropriate principal amount. Any Certificated
Note issued in exchange for a beneficial interest pursuant to this
Section 2.04(c)(iv) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Certificated Notes to the Persons in whose
names such Notes are so registered. Any Certificated Note issued in
exchange for a beneficial interest pursuant to this Section 2.04(c)(iv)
shall not bear the Private Placement Legend. A beneficial interest in
an Unrestricted Global Note cannot be exchanged for a Certificated Note
bearing the Private Placement Legend or transferred to a Person who
takes delivery thereof in the form of a Certificated Note bearing the
Private Placement Legend.
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<PAGE> 14
(d) Transfer and Exchange of Certificated Notes for Beneficial
Interests.
(i) If any Holder of a Restricted Certificated Note proposes
to (a) exchange such Note for a beneficial interest in a Restricted
Global Note, (b) transfer such Note to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global
Note, (c) transfer such Note to the Company, or (d) transfer such Note
pursuant to an effective registration statement under the Securities
Act, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Certificated
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Certificated Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Certificated Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Certificated Note is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certification in item (3)(a)
thereof;
(E) if such Certificated Note is being transferred to
an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3)(d) thereof, if applicable;
(F) if such Certificated Note is being transferred to
the Company, a certificate to the effect set forth in Exhibit
B hereto, including the certification in item (3)(b) thereof;
or
(G) if such Certificated Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certification in item (3)(c)
thereof;
the Trustee shall cancel the Certificated Note, increase or cause to be
increased the aggregate principal amount of, in the case of clauses
(A), (D), (E) and (F) above, the appropriate Restricted Global Note, in
the case of clause (B) above, the Rule 144A Global Note, in the
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<PAGE> 15
case of clause (C) above, the Regulation S Global Note, and in the case
of clause (G) above, the Unrestricted Global Note.
(ii) A Holder of a Restricted Certificated Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Certificated Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Certificated Note proposes to exchange such Note for
a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in
item (1)(c) thereof;
(ii) if the Holder of such Restricted
Certificated Note proposes to transfer such Note to a
Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in
item (4) thereof; and
(iii) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.04(d)(ii), the Trustee shall cancel the Certificated Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
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<PAGE> 16
(iii) A Holder of an Unrestricted Certificated Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Certificated Notes to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted
Certificated Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Certificated Note to a
beneficial interest is effected at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with the Original Indenture, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of beneficial interests
transferred pursuant to this Section 2.04(d).
(e) Transfer and Exchange of Certificated Notes for Certificated Notes.
Upon request by a Holder of Certificated Notes and such Holder's compliance with
the provisions of this Section 2.04(e), the Registrar shall register the
transfer or exchange of Certificated Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Certificated Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, pursuant to the provisions of this Section 2.04(e).
(i) Restricted Certificated Notes may be transferred to and
registered in the name of Persons who take delivery thereof if the
Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d)
thereof, if applicable.
(ii) Any Restricted Certificated Note may be exchanged by the
Holder thereof for an Unrestricted Certificated Note or transferred to
a Person or Persons who take delivery thereof in the form of an
Unrestricted Certificated Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, is not (i) a
Broker-Dealer,
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<PAGE> 17
(ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Certificated Note proposes to exchange such Note for
an Unrestricted Certificated Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
(ii) if the Holder of such Restricted
Certificated Note proposes to transfer such Note to a
Person who shall take delivery thereof in the form of
an Unrestricted Certificated Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(iii) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act.
(iii) A Holder of Unrestricted Certificated Notes may transfer
such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Certificated Note at any time. Upon receipt of a request
for such a transfer, the Registrar shall register the Unrestricted
Certificated Notes pursuant to the instructions from the Holder
thereof. Unrestricted Certificated Notes cannot be exchanged for or
transferred to Persons who take delivery thereof in the form of a
Restricted Certificated Note.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an authentication order in accordance with the Original
Indenture, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that are not (x) broker-dealers, (y) Persons participating in the
distribution of the Exchange Notes or (z) Persons who are affiliates (as defined
in Rule 144) of the Company and accepted for exchange in the Exchange Offer and
(ii) Certificated Notes in an aggregate principal amount equal to the principal
amount of the Restricted Certificated Notes accepted for exchange in the
Exchange Offer. Concurrent with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable
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<PAGE> 18
Restricted Global Notes to be reduced accordingly, and the Company shall execute
and the Trustee shall authenticate and deliver to the Persons designated by the
Holders of Certificated Notes so accepted Certificated Notes in the appropriate
principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Certificated Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Certificated Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear a legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, THIS NOTE
MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT
OF U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL, OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARIES OF THE
COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(E) TO AN IAI
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<PAGE> 19
THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE WITH A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note or
Certificated Note issued pursuant to subparagraphs (b)(iv),
(c)(i)(G), (c)(iii), (c)(iv), (d)(i)(G), (d)(ii), (d)(iii),
(e)(ii), (e)(iii) or (f) to this Section 2.04 (and all Notes
issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR
SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
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<PAGE> 20
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, TRANSFER OF,
OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A
GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN."
(iii) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE SUPPLEMENT TO
THE INDENTURE (AS DEFINED HEREIN) RELATING TO THIS GLOBAL
NOTE. NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF INTEREST HEREON."
ARTICLE III
MISCELLANEOUS
SECTION 3.01 Execution as Supplemental Indenture. This Second
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture and, as provided in the Original
Indenture, this Second Supplemental Indenture forms a part thereof. Except
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as herein expressly otherwise defined, the use of the terms and expressions
herein is in accordance with the definitions, uses and constructions contained
in the Original Indenture.
SECTION 3.02 Responsibility for Recitals, Etc. The recitals herein and
in the Notes (except in the Trustee's certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this Second Supplemental Indenture or of
the Notes. The Trustee shall not be accountable for the use or application by
the Company of the Notes or of the proceeds thereof.
SECTION 3.03 Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Second Supplemental
Indenture contained by the Company shall bind its successors and assigns whether
so expressed or not.
SECTION 3.04 New York Contract. THIS SECOND SUPPLEMENTAL INDENTURE
AND EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.05 Execution and Counterparts. This Second Supplemental
Indenture may be executed with counterpart signature pages or in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument.
SECTION 3.06 Capitalized Terms. Capitalized terms not otherwise defined
in this Second Supplemental Indenture shall have the respective meanings
assigned to them in the Original Indenture.
-20-
<PAGE> 22
IN WITNESS WHEREOF, said EL PASO ENERGY CORPORATION has caused this
Second Supplemental Indenture to be executed in its corporate name by its
Chairman of the Board or its President or one of its Vice Presidents, and said
THE CHASE MANHATTAN BANK has caused this Second Supplemental Indenture to be
executed in its corporate name by one of its Assistant Vice Presidents as of
July 12, 1999.
EL PASO ENERGY CORPORATION
By: /s/ H. BRENT AUSTIN
-------------------------------------------
Name: H. Brent Austin
Title: Executive Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK
By: /s/ R. LORENZEN
-------------------------------------------
Name: Richard Lorenzen
Title: Assistant Vice President
-21-
<PAGE> 23
EXHIBIT A-1
(Face of Note)
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE
FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
EL PASO ENERGY CORPORATION
6 5/8% [SERIES B] SENIOR NOTE DUE 2001
NO. U.S.$
CUSIP No. 283905AB3
EL PASO ENERGY CORPORATION, a corporation duly incorporated and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________________________________,
or registered assigns, the principal sum of ___________________________ United
States Dollars [or such other principal sum as shall be set forth on the
Schedule of Exchanges of Interests in the Global Note annexed hereto]* on July
15, 2001, and to pay interest thereon from July 12, 1999, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on January 15 and July 15 in each year, commencing January
15, 2000, at the rate of 6 5/8% per annum, until the principal hereof is paid or
made available for payment. The interest so
- ------------------------
* Insert in Global Notes only.
A1-1
<PAGE> 24
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
January 1 or July 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and shall either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at such time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
[Payment of the principal of and premium, if any, and interest on this
Security will be made by transfer of immediately available funds to a bank
account in New York, New York designated by the Holder in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.]*
[Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, or at such other offices or
agencies as the Company may designate; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the
addresses of the Persons entitled thereto as such addresses shall appear in the
Security Register.]**
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
- ------------------------
* Insert in Global Notes only.
** Insert in Certificated Notes only.
A1-2
<PAGE> 25
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
EL PASO ENERGY CORPORATION
By:
--------------------------------------
Name:
Title:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
AS TRUSTEE
By:
--------------------------------------
Authorized Officer
A1-3
<PAGE> 26
(Back of Note)
EL PASO ENERGY CORPORATION
6 5/8% [Series B] Senior Note Due 2001
[THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED, SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO OR
FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS, EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL, OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARIES OF THE COMPANY, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE
WITH A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
A1-4
<PAGE> 27
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.]***
This Security is one of a duly authorized issue of Securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture dated as of May 10, 1999 (as supplemented through the date hereof,
the "Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(the "Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Company, the Trustee and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. As provided in the Indenture, the
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest, if any, at different rates, may be subject to different
redemption provisions, if any, may be subject to different sinking, purchase or
analogous funds, if any, may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided or permitted. This
Security is one of a series of Securities designated on the face hereof limited
in aggregate principal amount to U.S. $600,000,000.
The Securities of this series are not redeemable prior to maturity.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series to be affected (voting as one class). The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all affected series
(voting as one class), on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. The Indenture permits, with certain exceptions as therein provided,
the Holders of a majority in aggregate principal amount of Securities of any
series then Outstanding to waive past defaults under the Indenture with respect
to such series and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
- ------------------------
*** Insert only in Restricted Global Notes and Restricted Certificated Notes.
A1-5
<PAGE> 28
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
the Securities of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or interest hereon on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture 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 Security at the times, place(s) and rate, and in the coin or
currency, herein prescribed.
[This Global Security or portion hereof may not be exchanged for
Definitive Securities except in the limited circumstances provided in the
Indenture.
The holders of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders hereof for any
purpose under the Indenture.]*
[As provided in the Indenture and subject to certain limitations set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City of New York, or at
such other offices or agencies as the Company may designate, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for a like
aggregate principal amount, will be issued to the designated transferee or
transferees.]**
The Securities of this series are issuable only in registered form,
without coupons, in denominations of U.S. $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
- ------------------------
* Insert in Global Notes only.
** Insert in Certificated Notes only.
A1-6
<PAGE> 29
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of or
contained in the Indenture or of or contained in any Security, or for any claim
based thereon or otherwise in respect thereof, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor Person, either directly or through
the Company or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment, penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released by the acceptance hereof and as a condition of,
and as part of the consideration for, the Securities and the execution of the
Indenture.
The Indenture provides that the Company (a) will be discharged from any
and all obligations in respect of the Securities (except for certain obligations
described in the Indenture), or (b) need not comply with certain restrictive
covenants of the Indenture, in each case if the Company deposits, in trust, with
the Trustee money or U.S. Government Obligations (or a combination thereof)
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money, in an amount sufficient to pay
all the principal of and interest of the Securities, but such money need not be
segregated from other funds except to the extent required by law.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A1-7
<PAGE> 30
[FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of EL PASO ENERGY CORPORATION and does hereby irrevocably
constitute and appoint ________________________ Attorney to transfer said
instrument on the books of the within-named Company, with full power of
substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
- ------------------------------------- --------------------------------------
Dated:
------------------------------- --------------------------------------
(Signature)
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.]**
[SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Certificated Note, or exchanges of a part of
another Global Note or Certificated Note for an interest in this Global Note,
have been made:
<TABLE>
<CAPTION>
Amount of Amount of Principal amount Signature of
decrease in increase in of this Global authorized
principal amount principal amount Note following signatory of
of this Global of this Global such decrease (or Trustee or Note
Date of Exchange Note Note increase) Custodian]*
- ------------------------- ------------------------ ------------------------ ------------------------ ------------------------
<S> <C> <C> <C> <C>
</TABLE>
- ------------------------
* Insert in Global Notes only.
** Insert in Certificated Notes only.
A1-8
<PAGE> 31
EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, TRANSFER OF, OR IN EXCHANGE
FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
EL PASO ENERGY CORPORATION
6 5/8% [SERIES B] SENIOR NOTE DUE 2001
NO. U.S.$
CUSIP No. U5324PAA7
EL PASO ENERGY CORPORATION, a corporation duly incorporated and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ____________________________________,
or registered assigns, the principal sum of ___________________________________
United States Dollars [or such other principal sum as shall be set forth on the
Schedule of Exchanges of Interests in the Global Note annexed hereto]* on July
15, 2001, and to pay interest thereon from July 12, 1999, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on January 15 and July 15 in each year, commencing January
15, 2000, at the rate of 6 5/8% per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
- ------------------------
* Insert in Global Notes only.
A2-1
<PAGE> 32
Record Date for such interest, which shall be the January 1 or July 1 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and
shall either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at such time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in such Indenture.
[Payment of the principal of and premium, if any, and interest on this
Security will be made by transfer of immediately available funds to a bank
account in New York, New York designated by the Holder in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.]*
[Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, or at such other offices or
agencies as the Company may designate; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the
addresses of the Persons entitled thereto as such addresses shall appear in the
Security Register.]**
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
- ------------------------
* Insert in Global Notes only.
** Insert in Certificated Notes only.
A2-2
<PAGE> 33
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
EL PASO ENERGY CORPORATION
By:
--------------------------------------
Name:
Title:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
AS TRUSTEE
By:
--------------------------------------
Authorized Officer
A2-3
<PAGE> 34
(Back of Regulation S Temporary Global Note)
EL PASO ENERGY CORPORATION
[Series B] Senior Note Due 2001
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE SUPPLEMENT TO THE INDENTURE (AS DEFINED HEREIN) RELATING TO
THIS GLOBAL NOTE. NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
INTEREST HEREON.
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF U.S.
PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL, OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARIES OF THE COMPANY, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE
WITH A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE
A2-4
<PAGE> 35
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
This Security is one of a duly authorized issue of Securities of the
Company (the "Securities"), issued and to be issued in one or more series under
an Indenture dated as of May 10, 1999 (as supplemented through the date hereof,
the "Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(the "Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Company, the Trustee and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. As provided in the Indenture, the
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest, if any, at different rates, may be subject to different
redemption provisions, if any, may be subject to different sinking, purchase or
analogous funds, if any, may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided or permitted. This
Security is one of a series of Securities designated on the face hereof limited
in aggregate principal amount to U.S. $600,000,000.
The Securities of this series are not redeemable prior to maturity.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series to be affected (voting as one class). The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all affected series
(voting as one class), on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture. The Indenture permits, with certain exceptions as therein provided,
the Holders of a majority in aggregate principal amount of Securities of any
series then Outstanding to waive past defaults under the Indenture with respect
to such series and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of
A2-5
<PAGE> 36
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
the Securities of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or interest hereon on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture 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 Security at the times, place(s) and rate, and in the coin or
currency, herein prescribed.
[This Global Security or portion hereof may not be exchanged for
Definitive Securities except in the limited circumstances provided in the
Indenture.
The holders of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Definitive Securities except as
described in the Indenture and will not be considered the Holders hereof for any
purpose under the Indenture.]*
[As provided in the Indenture and subject to certain limitations set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City of New York, or at
such other offices or agencies as the Company may designate, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for a like
aggregate principal amount, will be issued to the designated transferee or
transferees.]**
The Securities of this series are issuable only in registered form,
without coupons, in denominations of U.S. $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
- ------------------------
* Insert in Global Notes only.
** Insert in Certificated Notes only.
A2-6
<PAGE> 37
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of or
contained in the Indenture or of or contained in any Security, or for any claim
based thereon or otherwise in respect thereof, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor Person, either directly or through
the Company or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment, penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released by the acceptance hereof and as a condition of,
and as part of the consideration for, the Securities and the execution of the
Indenture.
The Indenture provides that the Company (a) will be discharged from any
and all obligations in respect of the Securities (except for certain obligations
described in the Indenture), or (b) need not comply with certain restrictive
covenants of the Indenture, in each case if the Company deposits, in trust, with
the Trustee money or U.S. Government Obligations (or a combination thereof)
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money, in an amount sufficient to pay
all the principal of and interest of the Securities, but such money need not be
segregated from other funds except to the extent required by law.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A2-7
<PAGE> 38
[FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of EL PASO ENERGY CORPORATION and does hereby irrevocably
constitute and appoint ________________________ Attorney to transfer said
instrument on the books of the within- named Company, with full power of
substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
- ------------------------------------- --------------------------------------
Dated:
------------------------------- --------------------------------------
(Signature)
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.]**
[SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Certificated Note, or exchanges of a part of
another Global Note or Certificated Note for an interest in this Global Note,
have been made:
<TABLE>
<CAPTION>
Amount of Amount of Principal amount Signature of
decrease in increase in of this Global authorized
principal amount principal amount Note following signatory of
of this Global of this Global such decrease (or Trustee or Note
Date of Exchange Note Note increase) Custodian]*
- ------------------------- ------------------------ ------------------------ ------------------------ ------------------------
<S> <C> <C> <C> <C>
</TABLE>
- ------------------------
* Insert in Global Notes only.
** Insert in Certificated Notes only.
A2-8
<PAGE> 39
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
The Chase Manhattan Bank
Corporate Trust Office
450 West 33rd Street
New York, NY 10001
Attention: Capital Markets Fiduciary Services
[Registrar address block]
Re: 6 5/8% Senior Notes Due 2001 of El Paso Energy Corporation
Reference is hereby made to the Indenture, dated as of May 10, 1999
(the "Indenture"), between El Paso Energy Corporation, as issuer (the "Issuer"),
and The Chase Manhattan Bank, as trustee, as supplemented by the Second
Supplemental Indenture thereto, dated as of July 12, 1999 (collectively, the
"Indenture"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
RULE 144A GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Certificated Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Certificated Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Certificated Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the
Certificated Note and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S TEMPORARY GLOBAL NOTE, THE REGULATION S PERMANENT GLOBAL NOTE OR A
CERTIFICATED NOTE PURSUANT
B-1
<PAGE> 40
TO REGULATION S. The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act, and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Regulation S Permanent Global Note,
the Regulation S Temporary Global Note and/or the Certificated Note and in the
Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE, UNRESTRICTED GLOBAL NOTE (IN THE CASE OF
CLAUSE (C)) OR A RESTRICTED CERTIFICATED NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Certificated Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a Subsidiary
of the Company;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or
Restricted Certificated Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the Transferee
in a form approved by the Issuer and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided
B-2
<PAGE> 41
by the Transferor or the Transferee (a copy of which the Transferor has attached
to this certification), to the effect that such Transfer is in compliance with
the Securities Act. Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Certificated Notes and in the
Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED CERTIFICATED NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Certificated
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Certificated Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Certificated Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Certificated Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and for the benefit of the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, ABN AMRO Incorporated, Banc of America Securities LLC
and Chase Securities Inc. (collectively, the "Initial Purchasers"), the Initial
Purchasers of the Notes being transferred. We acknowledge that you, the Company
and the Initial Purchasers will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our representations or warranties herein ceases to be accurate and
complete.
B-3
<PAGE> 42
----------------------------------------
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated: _____________________, ______
cc: Company
Initial Purchasers
B-4
<PAGE> 43
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] Rule 144A Global Note (CUSIP 283905AB3), or
(ii) [ ] Regulation S Global Note (CUSIP U5324PAA7), or
(b) [ ] a Restricted Certificated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] Rule 144A Global Note (CUSIP 283905AB3), or
(ii) [ ] Regulation S Global Note (CUSIP U5324PAA7), or
(iii) [ ] Unrestricted Global Note (CUSIP ); or
(b) [ ] a Restricted Certificated Note; or
(c) [ ] an Unrestricted Certificated Note,
in accordance with the terms of the Indenture.
B-5
<PAGE> 44
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
The Chase Manhattan Bank
Corporate Trust Office
450 W. 33rd Street
New York, NY 10001
Attention: Capital Markets Fiduciary Services
[Registrar address block]
Re: 6 5/8% Senior Notes Due 2001 of El Paso Energy Corporation
Reference is hereby made to the Indenture, dated as of May 10, 1999
(the "Indenture"), between El Paso Energy Corporation, as issuer (the "Issuer"),
and The Chase Manhattan Bank, as trustee, as supplemented by the Second
Supplemental Indenture thereto, dated as of July 12, 1999 (collectively, the
"Indenture"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Certificated Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Certificated Notes or Beneficial
Interests in an Unrestricted Global Note
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED CERTIFICATED NOTE. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Certificated Note, the Owner hereby certifies (i) the
C-1
<PAGE> 45
Certificated Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Certificated Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Certificated Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Certificated Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE TO
UNRESTRICTED CERTIFICATED NOTE. In connection with the Owner's Exchange of a
Restricted Certificated Note for an Unrestricted Certificated Note, the Owner
hereby certifies (i) the Unrestricted Certificated Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Certificated Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
2. EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED CERTIFICATED NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED CERTIFICATED NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Certificated Note with an equal principal amount, the Owner hereby certifies
that the Restricted Certificated Note is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Certificated Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Certificated Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Certificated Note for a beneficial interest in the
[CHECK ONE] o Rule 144A Global Note, o Regulation S Permanent Global Note, o
Regulation S Temporary Global Note, with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
C-2
<PAGE> 46
Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer and Donaldson, Lufkin & Jenrette
Securities Corporation, ABN AMRO Incorporated, Banc of America Securities LLC
and Chase Securities Inc. (collectively, the "Initial Purchasers"), the Initial
Purchasers of the Notes being exchanged. We acknowledge that you, the Issuers
and the Initial Purchasers will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our representations or warranties herein ceases to be accurate and
complete.
------------------------------------------
[Insert Name of Owner]
By:
--------------------------------------
Name:
Title:
Dated: _____________________, ______
cc: Issuer
Initial Purchasers
C-3
<PAGE> 47
EXHIBIT D
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
6 5/8% SENIOR NOTES DUE 2001 OF EL PASO ENERGY CORPORATION
REPRESENTED BY REGULATION S TEMPORARY GLOBAL NOTE NO. _____.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "MEMBER ORGANIZATIONS"), as of the
date hereof, _______________________ principal amount of the above-captioned
Securities (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("UNITED STATES PERSONS"), (ii) is owned by United
States persons that are (a) foreign branches of United States financial
institutions (as defined in the applicable U.S. Treasury Regulations Section)
("FINANCIAL INSTITUTIONS") purchasing for their own account or for resale, or
(b) United States persons who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise El Paso Energy Corporation (the
"ISSUER") or the Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and such United States or foreign financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "UNITED STATES" means the United States of America
(including the States and the District of Columbia); and its "POSSESSIONS"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange any portion of the temporary Global Note representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith are no longer true and cannot be relied upon as the date
hereof.
D-1
<PAGE> 48
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
D-2
<PAGE> 49
Dated: __________________, 19__
[To be dated no earlier than [insert Exchange Date]]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDELBANK]
[OTHER]
By:
---------------------------------------
Name:
Title:
D-3
<PAGE> 50
EXHIBIT E
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
6 5/8% SENIOR NOTES DUE 2001 OF EL PASO ENERGY CORPORATION
REPRESENTED BY REGULATION S TEMPORARY GLOBAL NOTE NO. _____.
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("UNITED STATES PERSON(S)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as defined in the
applicable U.S. Treasury Regulations Section) ("FINANCIAL INSTITUTIONS")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise El Paso Energy Corporation (the "ISSUER") or the
Issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) such financial institution has not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "UNITED STATES" means the United States of America
(including the States and the District of Columbia); and its "POSSESSIONS"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your Applicable Procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to $________________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand exchange for beneficial interests
in a permanent Global Note or exchange and delivery of definitive Securities
cannot be made until we do so certify.
E-1
<PAGE> 51
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
E-2
<PAGE> 52
Dated: ______________________, 19__
[To be dated no earlier than the 10th day before [insert Exchange Date]]
[NAME OF ACCOUNT HOLDER]
By:
-----------------------------------
(Authorized Signatory)
Name:
Title:
E-3
<PAGE> 1
EXHIBIT 4.3
A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
Dated as of July 12, 1999
by and among
EL PASO ENERGY CORPORATION
and
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
<PAGE> 2
This Registration Rights Agreement (this "Agreement") is made and
entered into as of July 12, 1999, by and among El Paso Energy Corporation, a
Delaware corporation (the "Company"), and Donaldson, Lufkin & Jenrette
Securities Corporation and ABN AMRO Incorporated, Banc of America Securities LLC
and Chase Securities Inc. (each an "Initial Purchaser") and, collectively, the
"Initial Purchasers"), each of whom has agreed to purchase the Company's 6 5/8%
Senior Notes Due 2001 (the "Series A Notes") pursuant to the Purchase Agreement
(as defined below).
This Agreement is made pursuant to the Purchase Agreement dated July 7,
1999 (the "Purchase Agreement") by and among the Company and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Series A
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 2 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture, dated May 10, 1999 (as
supplemented by a Second Supplemental Indenture dated July 12, 1999, the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee,
relating to the Series A Notes and the Series B Notes.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes validly
tendered and not withdrawn by Holders thereof pursuant to the Exchange Offer.
1
<PAGE> 3
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The exchange and issuance by the Company of a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Notes that are validly tendered and not withdrawn by such Holders in
connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Series A Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Act and pursuant to Regulation S
under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) that is filed pursuant to
the provisions of this Agreement and (ii) including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
2
<PAGE> 4
Rule 144A: Rule 144A promulgated under the Act.
Series B Notes: The Company's 6 5/8% Series B Senior Notes Due 2001 to
be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 777aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Series A Note, until the earliest
to occur of (a) the date on which such Series A Note is exchanged in the
Exchange Offer for a Series B Note which is entitled to be resold to the public
by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (b) the date on which such Series A Note has been
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Series B Notes), or (c) the date on which
such Series A Note is distributed to the public pursuant to Rule 144 under the
Act (and purchasers thereof have been issued Series B Notes) and each Series B
Note until the date on which such Series B Note is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including the delivery of the Prospectus
contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall (i) cause the Exchange Offer Registration
Statement to be filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 90 days after the Closing Date (such
90th day being the "Filing Deadline"), (ii) use its best commercial efforts to
cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the Closing
Date (such 180th day being the "Effectiveness Deadline"), (iii) in connection
with the foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to such Exchange
Offer Registration Statement pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit
3
<PAGE> 5
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Series B Notes to be offered in exchange for the Series A
Notes that are Transfer Restricted Securities and (ii) resales of Series B Notes
by Broker-Dealers that tendered into the Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any of its Affiliates) as contemplated by Section
3(c) below.
(b) The Company shall use its best commercial efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 Business Days. The Company shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities other than the
Series B Notes shall be included in the Exchange Offer Registration Statement.
The Company shall use its best commercial efforts to cause the Exchange Offer to
be Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
Business Days thereafter (such 30th day being the "Consummation Deadline").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement.
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Notes received by such Broker-Dealer in the Exchange Offer, the Company shall
permit the use of the Prospectus contained in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy such prospectus delivery requirement.
To the extent necessary to ensure that the prospectus contained in the Exchange
Offer Registration Statement is available for sales of Series B Notes by
Broker-Dealers, the Company agrees to use its best commercial efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the provisions of Section 6(a)
and (c) hereof and in conformity with the requirements of this Agreement, the
Act and the policies, rules
4
<PAGE> 6
and regulations of the Commission as announced from time to time, for a period
of one year from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold pursuant thereto. The Company shall provide sufficient
copies of the latest version of such Prospectus to such Broker-Dealers, promptly
upon request, and in no event later than one day after such request, at any time
during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law (after the Company has complied with the procedures set forth in
Section 6(a)(i) below) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company within 20 Business Days following the Consummation
Deadline that (A) such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not resell the Series
B Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series A Notes acquired directly from
the Company or any of its Affiliates, then the Company shall:
(x) cause to be filed, on or prior to 60 days after the
earlier of (i) the date on which the Company determines that the
Exchange Offer Registration Statement cannot be filed as a result of
clause (a)(i) above and (ii) the date on which the Company receives the
notice specified in clause (a)(ii) above, (such earlier date, the
"Filing Deadline"), a shelf registration statement pursuant to Rule 415
under the Act (which may be an amendment to the Exchange Offer
Registration Statement (the "Shelf Registration Statement")), relating
to all Transfer Restricted Securities, and
(y) shall use its best efforts to cause such Shelf
Registration Statement to become effective on or prior to 60 days after
the Filing Deadline for the Shelf Registration Statement (such 60th day
the "Effectiveness Deadline").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law (i.e.,
clause (a)(i) of this Section 4), then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause (x)
above; provided that, in such event, the Company shall remain obligated to meet
the Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement
is available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company shall
use its best commercial efforts to keep any Shelf Registration Statement
required by
5
<PAGE> 7
this Section 4(a) continuously effective, supplemented, amended and current as
required by and subject to the provisions of Sections 6(b) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the Closing Date, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information within the time period specified in the immediately preceding
sentence. Each selling Holder agrees to promptly furnish additional information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within 2 business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself declared effective within 2 business days after
filing such post-effective amendment to such Registration Statement (each such
event referred to in clauses (i) through (iv), a "Registration Default"), then
the Company hereby agrees to pay to each Holder of Transfer Restricted
Securities affected thereby liquidated damages at a rate per annum equal to
0.25% of the original principal amount of Transfer Restricted Securities held by
such Holder for the first 90-day period immediately following the occurrence of
such Registration Default or portion of such 90-day period that the Registration
Default continues. The rate of the liquidated damages shall increase by an
additional 0.25% per annum of the original principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum rate of liquidated
damages of 0.75% per annum of the principal amount of Transfer Restricted
Securities; provided that the Company shall in no event be required to pay
liquidated damages for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer
6
<PAGE> 8
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Company to pay liquidated damages with respect to securities shall survive until
such time as such obligations with respect to such securities shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use its best commercial efforts to effect such exchange
and to permit the resale of Series B Notes by Broker-Dealers that tendered in
the Exchange Offer Series A Notes that such Broker-Dealer acquired for its own
account as a result of its market making activities or other trading activities
(other than Series A Notes acquired directly from the Company or any of its
Affiliates) being sold in accordance with the intended method or methods of
distribution thereof, and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company hereby agrees to
seek a no-action letter or other favorable decision from the Commission
allowing the Company to Consummate an Exchange Offer for such Transfer
Restricted Securities. The Company hereby agrees to pursue the issuance
of such a decision to the Commission staff level. In connection with
the foregoing, the Company hereby agrees to take all such other actions
as may be requested by the Commission or otherwise required in
connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
7
<PAGE> 9
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker Dealer) shall furnish,
upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
Affiliate of the Company, (B) it is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with any person
to participate in, a distribution of the Series B Notes to be issued in
the Exchange Offer and (C) it is acquiring the Series B Notes in its
ordinary course of business. As a condition to its participation in the
Exchange Offer, each Holder using the Exchange Offer to participate in
a distribution of the Series B Notes shall acknowledge and agree that,
if the resales are of Series B Notes obtained by such Holder in
exchange for Series A Notes acquired directly from the Company or an
Affiliate thereof, it (1) could not, under Commission policy as in
effect on the date of this Agreement, rely on the position of the
Commission enunciated in Morgan Stanley and Co., Inc. (available June
5, 1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable,
of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a supplemental letter
to the Commission (A) stating that the Company is registering the
Exchange Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13, 1988), Morgan
Stanley and Co., Inc. (available June 5, 1991) as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that the Company has not entered into
any arrangement or understanding with any Person to distribute the
Series B Notes to be received in the Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating
in the Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Series B Notes
received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-
action letter obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall:
8
<PAGE> 10
(i) comply with all the provisions of Section 6(c) below and
use its best commercial efforts to effect such registration to permit
the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to
Section 4(b) hereof), and pursuant thereto the Company will prepare and
file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof, and
(ii) issue, upon the request of any Holder or purchaser of
Series A Notes covered by any Shelf Registration Statement contemplated
by this Agreement, Series B Notes having an aggregate principal amount
equal to the aggregate principal amount of Series A Notes sold pursuant
to the Shelf Registration Statement and surrendered to the Company for
cancellation; the Company shall register Series B Notes on the Shelf
Registration Statement for this purpose and issue the Series B Notes to
the purchaser(s) of securities subject to the Shelf Registration
Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement, the Company shall:
(i) use its best commercial efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use its best commercial efforts to cause such amendment to be
declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may
be; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with Rules 424, 430A and 462, as
applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement
to the Prospectus;
9
<PAGE> 11
(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes of which the
Company is aware, (D) of the existence of any fact or the happening of
any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its best commercial efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to each Holder in connection with any Shelf
Registration Statement before filing with the Commission, copies of
such Shelf Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Shelf Registration Statement
or Prospectus (including all documents incorporated by reference after
the initial filing of such Shelf Registration Statement), which
documents will be subject to the review and comment of such Holders in
connection with such sale, if any, for a period of at least five
Business Days, and the Company will not file any such Shelf
Registration Statement or Prospectus or any amendment or supplement to
any such Shelf Registration Statement or Prospectus (including all such
documents incorporated by reference) to which such Holders shall
reasonably object within five Business Days after the receipt thereof.
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<PAGE> 12
A Holder shall be deemed to have reasonably objected to such filing if
such Shelf Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue statement of
a material fact or omits to state any material fact necessary to make
the statements therein not misleading or fails to comply with the
applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to
be incorporated by reference into a Shelf Registration Statement or
Prospectus, provide copies of such document to each Holder in
connection with such exchange or sale, if any, make the Company's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders may reasonably
request;
(vii) make available, at reasonable times, for inspection by
each Holder and any attorney or accountant retained by such Holders,
all financial and other records, pertinent corporate documents of the
Company and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such Holder,
attorney or accountant in connection with any Shelf Registration
Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness;
(viii) if requested by any Holders in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(ix) furnish to each Holder in connection with such exchange
or sale, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
(x) deliver to each Holder without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Company hereby consents to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each selling
Holder in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
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<PAGE> 13
(xi) upon the request of any Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder in connection with any sale or
resale pursuant to any applicable Registration Statement. In such
connection, the Company shall:
(A) upon request of any Holder, furnish (or in the
case of paragraphs (2) and (3), use its best efforts to cause
to be furnished) to each Holder upon Consummation of the
Exchange Offer or upon the effectiveness of the Shelf
Registration Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf
of the Company by (x) the President or any Vice
President and (y) a principal financial or accounting
officer of the Company, confirming, as of the date
thereof, the matters set forth in Sections 6(s), 9(a)
and 9(b) of the Purchase Agreement and such other
similar matters as such Holders may reasonably
request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, of
counsel for the Company covering matters similar to
those set forth in paragraph (d) of Section 9 of the
Purchase Agreement and such other matters as such
Holder may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Company, representatives
of the independent public accountants for the Company
and have considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality
to the extent such counsel deems appropriate upon the
statements of officers and other representatives of
the Company and without independent check or
verification), no facts came to such counsel's
attention that caused such counsel to believe that
the applicable Registration Statement, at the time
such Registration Statement or any post-effective
amendment thereto became effective and, in the case
of the Exchange Offer Registration Statement as of
the date of Consummation of the Exchange Offer,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Registration Statement as of its
date and, in the case of the opinion dated the date
of Consummation of the
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<PAGE> 14
Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date
of effectiveness of the Shelf Registration Statement,
as the case may be, from the Company's independent
accountants, in the customary form and covering
matters of the type customarily covered in comfort
letters to underwriters in connection with
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
paragraphs (f) and (g) of Section 9 of the Purchase
Agreement; and
(B) deliver such other documents and certificates as
may be reasonably requested by the selling Holders to evidence
compliance with the matters covered in clause (A) above and
with any customary conditions contained in any agreement
entered into by the Company pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; provided, however, that the
Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may request at
least two Business Days prior to such sale of Transfer Restricted
Securities;
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<PAGE> 15
(xiv) use its best commercial efforts to cause the disposition
of the Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvi) otherwise use its best commercial efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xvii) cause the Indenture to be, or take such actions as are
required to cause it to continue to be, qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified, or to continue
to be so qualified, in accordance with the terms of the TIA; and
execute and use its best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner; and
(xviii) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"Suspension Notice"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "Recommencement
Date"). Each Holder receiving a
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<PAGE> 16
Suspension Notice hereby agrees that it will either (i) destroy any
Prospectuses, other than permanent file copies, then in such Holder's possession
which have been replaced by the Company with more recently dated Prospectuses or
(ii) deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of the Suspension Notice. The time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period
from and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Series B Notes
to be issued in the Exchange Offer and printing of Prospectuses whether for
exchanges, sales, market making or otherwise), messenger and delivery services
and telephone; (iv) all fees and disbursements of counsel for the Company and
the Holders of Transfer Restricted Securities; (v) all application and filing
fees in connection with listing the Series B Notes on a national securities
exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities who are
tendering Series A Notes in the Exchange Offer and/or selling or reselling
Series A Notes or Series B Notes pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Locke Liddell & Sapp LLP, unless another firm
shall be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
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<PAGE> 17
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, officers and each Person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all losses, claims, damages, liabilities, judgments,
(including without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus or Prospectus
(or any amendment or supplement thereto) provided by the Company to any Holder
or any prospective purchaser of Series B Notes or registered Series A Notes, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue
statement or omission that is based upon information relating to any of the
Holders furnished in writing to the Company by any of the Holders.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company to the same extent
as the foregoing indemnity from the Company set forth in section (a) above, but
only with reference to information relating to such Holder furnished in writing
to the Company by such Holder expressly for use in any Registration Statement.
In no event shall any Holder, its directors, officers or any Person who controls
such Holder be liable or responsible for any amount in excess of the amount by
which the total amount received by such Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds (i)
the amount paid by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages that such Holder, its directors, officers or any
Person who controls such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense
16
<PAGE> 18
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by a majority of the Holders, in the case of
the parties indemnified pursuant to Section 8(a), and by the Company, in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
Business Days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in this Section
8 is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Holders, on the other hand, from their sale of Transfer Restricted
Securities or (ii) if the allocation provided by clause 8(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
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<PAGE> 19
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holder, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
SECTION 9. RULE 144A and RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
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SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 3 and
4 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given, unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(e) Notice. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar
under the Indenture; and
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(ii) if to the Company:
El Paso Energy Corporation
El Paso Energy Building
1001 Louisiana Street
Houston, TX 77002
Telecopier No.:
Attention: Britton White Jr.
With a copy to:
Andrews & Kurth L.L.P.
600 Travis, Suite 4200
Houston, TX 77002
Telecopier No.: (713) 220-4285
Attention: G. Michael O'Leary
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to Donaldson, Lufkin &
Jenrette Securities Corporation, on behalf of the Initial Purchasers (in the
form attached hereto as Exhibit A), and shall be addressed to: Attention: Louise
Guarneri (Compliance Department), 277 Park Avenue, New York, New York 10172.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders; provided, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
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(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EL PASO ENERGY CORPORATION
By:
-------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT A
NOTICE OF FILING OF
EXCHANGE OFFER/SHELF REGISTRATION STATEMENT
To: Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Attention: Louise Guarneri (Compliance Department)
Fax: (212) 892-7272
From: El Paso Energy Corporation
____% Senior Notes Due 2001
Date: _____________, 1999
For your information only (NO ACTION REQUIRED):
Today, ________________, 1999, we filed [an Exchange Offer/a Shelf
Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within
____ Business Days of the date hereof.
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<PAGE> 1
EXHIBIT 5.1
[Andrews & Kurth L.L.P. Letterhead]
August 11, 1999
Board of Directors
El Paso Energy Corporation
El Paso Energy Building
1001 Louisiana Street
Houston, Texas 77002
Gentlemen:
We have acted as special counsel to El Paso Energy Corporation, a
Delaware corporation (the "Company"), in connection with (i) the preparation and
filing with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), of the Registration Statement on
Form S-4 filed by the Company with the Commission on August 11, 1999 (the
"Registration Statement"), relating to the registration of the offer by the
Company to exchange up to $600,000,000 aggregate principal amount of its 6 5/8%
Series B Senior Notes Due 2001 (the "Exchange Notes") for its existing 6 5/8%
Series A Senior Notes Due 2001 (the "Existing Notes"). The Exchange Notes are
proposed to be issued in accordance with the provisions of the Indenture
relating to the Company's senior debt securities dated as of May 10, 1999,
between the Company and The Chase Manhattan Bank, as Trustee, and the Second
Supplemental Indenture thereto (collectively, the "Indenture").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement, including the form of prospectus included therein and the documents
incorporated by reference therein, (ii) the Company's Certificate of
Incorporation and By-laws, each as amended to date, and (iii) the Indenture. We
have also examined originals or copies, certified, or otherwise identified to
our satisfaction, of such other documents, certificates, and records as we have
deemed necessary or appropriate, and we have made such investigations of law, as
we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed and have not
verified (i) the genuineness of the signatures on all documents that we have
examined, (ii) the conformity to the originals of all documents supplied to us
as certified or photostatic or faxed copies, (iii) the authenticity of the
originals of such documents and (iv) as to the forms of all documents in respect
of which forms were filed with the Commission or incorporated by reference as
exhibits to the Registration Statement, the conformity in all material respects
of such documents to the forms thereof that we have examined. In conducting our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and that such documents constitute valid and binding
obligations of such parties. As to any facts material to the opinions expressed
herein which were not independently established or verified, we have relied upon
oral or written statements and representations of officers, trustees, and other
representatives of the Company and others.
Based on the foregoing, and having due regard for such legal
considerations as we deem relevant, and subject to the qualifications and
limitations set forth herein, we are of the opinion that (a) when
<PAGE> 2
El Paso Energy Corporation
July 28, 1999
Page 2
the Exchange Notes have been exchanged for Existing Notes in the manner
described in the Registration Statement, (b) when the Exchange Notes have been
duly executed, authenticated, issued and delivered in accordance with the terms
of the Indenture, (c) when the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and (d) when any applicable provisions of
"blue sky" laws have been complied with:
1. The Exchange Notes will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
under the laws of the State of New York which are expressed to govern the same,
except as the enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium (including, without limitation, all laws relating to
fraudulent transfers), (ii) other similar laws relating to or affecting
enforcement of creditors' rights generally, (iii) general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) and (iv) limitations on the waiver of rights under usury laws, and
2. The Exchange Notes will be entitled to the benefits of the
Indenture.
We express no opinion other than as to the federal laws of the United
States of America to the extent specifically referred to herein, the laws of the
State of New York and the Delaware General Corporation Law. We hereby consent to
the to the use of this opinion as an exhibit to the Registration Statement. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or under the rules and regulations of the Commission relating
thereto.
Very truly yours,
/s/ ANDREWS & KURTH LLP
<PAGE> 1
EXHIBIT 12.1
EL PASO ENERGY CORPORATION
COMPUTATION OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31, FOR THE YEAR ENDED DECEMBER 31,
--------------------- ------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
HISTORICAL
-------------------------------------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings
Income from continuing operations............... $ 71 $ 58 $ 225 $ 186 $ 38 $ 85 $ 90
Income tax expense ............................. 40 35 127 129 25 48 58
Minority interest............................... 6 6 25 25 2 0 0
----- ----- ----- ----- ----- ----- -----
Income from continuing operations
before income taxes, minority interest, and
cumulative effect of accounting change, net
of income taxes ............................. 117 99 377 340 65 133 148
Interest and debt expense....................... 71 60 262 218 100 85 76
Interest component of rentals................... 2 2 9 7 5 3 3
Distributions in excess of earnings on equity
investments (undistributed earnings on
equity investments).......................... (11) -- (28) -- -- -- --
----- ----- ----- ----- ----- ----- -----
Total earnings available for
fixed charges......................... $ 179 $ 161 $ 620 $ 565 $ 170 $ 221 $ 227
===== ===== ===== ===== ===== ===== =====
Fixed charges
Interest and debt expense....................... $ 71 $ 60 $ 262 $ 218 $ 100 $ 85 $ 76
Interest components of rentals.................. 3 2 9 7 5 3 3
----- ----- ----- ----- ----- ----- -----
Fixed charges excluding preferred stock
dividend requirement......................... 74 62 271 225 105 88 79
Preferred stock dividend requirements........... 9 6 37 25 2 -- --
----- ----- ----- ----- ----- ----- -----
Total fixed charges................... $ 83 $ 68 $ 308 $ 250 $ 107 $ 88 $ 79
===== ===== ===== ===== ===== ===== =====
Ratio of Earnings to Fixed Charges(1)............. 2.17 2.36 2.01 2.26 1.59 2.51 2.87
===== ===== ===== ===== ===== ===== =====
</TABLE>
- ---------------
(1) The ratio of earnings to combined fixed charges and preferred and
preference stock dividend requirements for the periods presented is the
same as the ratio of earnings to fixed charges since El Paso Energy has no
outstanding preferred stock or preference stock and, therefore, no dividend
requirements.
For purposes of calculating these ratios: (i) "fixed charges" represent
interest cost (exclusive of interest on rate refunds), amortization of debt
costs, the estimated portion of rental expense representing the interest factor,
and pretax preferred stock dividend requirements; and (ii) "earnings" represent
the aggregate of income from continuing operations before income taxes, interest
expense (exclusive of interest on rate refunds), amortization of debt costs, the
portion of rental expense representing the interest factor, the actual amount of
any preferred stock dividend requirements, adjusted to reflect actual
distributions from equity investments, and, for the three months ended March 31,
1999, the cumulative effect of accounting change, net of income taxes.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 of El Paso Energy Corporation (the "Company") of our
report dated March 9, 1999 relating to the financial statements and financial
statement schedule, which appears in the Company's Annual Report on Form 10-K
for the year ended December 31, 1998. We also consent to the references to us
under the headings "Experts" and "Summary Historical Financial Data" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
Houston, Texas
August 10, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4 No. 333- ) and the related Prospectus of El
Paso Energy Corporation and to the incorporation by reference therein of our
report dated January 19, 1999, with respect to the consolidated financial
statements of Sonat Inc. for the year ended December 31, 1998 included in the
El Paso Energy Corporation Current Report on Form 8-K/A dated April 30, 1999
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Birmingham, Alabama
August 9, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Sonat Exploration GOM Inc.
(formerly Zilkha Energy Company):
We consent to the incorporation by reference in the registration statement on
Form S-4 of El Paso Energy Corporation anticipated to be filed on August 11,
1999, of our report dated December 8, 1997, with respect to the Statements of
Operations and Cash Flows of Zilkha Energy Company for the year ended December
31, 1996, which report appears in the Form 8-K of Sonat Inc. dated April 23,
1998 and is incorporated by reference in the Form 10-K of Sonat Inc. for the
year ended December 31, 1998.
Our report, dated December 8, 1997, refers to a change in accounting for oil
and gas properties from the full cost method to the successful efforts method.
We also consent to the reference to our firm under the heading "Experts" in the
prospectus.
/s/ KPMG LLP
Houston, Texas
August 9, 1999
<PAGE> 1
EXHIBIT 25.1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
EL PASO ENERGY CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 76-0568816
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1001 LOUISIANA
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
--------------------------------------------
6-5/8% SERIES B SENIOR NOTES DUE 2001
(Title of the indenture securities)
--------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 21st day of July, 1999.
THE CHASE MANHATTAN BANK
By /s/ R. Lorenzen
-----------------------------
R. Lorenzen
Assistant Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ......................................................... $ 15,364
Interest-bearing balances ................................................. 3,811
Securities:
Held to maturity
securities ..................................................................... 1,084
Available for sale securities .................................................. 49,894
Federal funds sold and securities purchased under
agreements to resell ...................................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income $ 131,839
Less: Allowance for loan and lease losses 2,642
Less: Allocated transfer risk reserve 0
---------
Loans and leases, net of unearned income,
allowance, and reserve .................................................... 129,197
Trading Assets ................................................................. 45,483
Premises and fixed assets (including capitalized
leases) ................................................................... 3,124
Other real estate owned ........................................................ 242
Investments in unconsolidated subsidiaries and
associated companies ...................................................... 171
Customers' liability to this bank on acceptances
outstanding ............................................................... 974
Intangible assets .............................................................. 2,017
Other assets ................................................................... 12,477
---------
TOTAL ASSETS ................................................................... $ 291,476
=========
</TABLE>
-4-
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ....................................................... $ 102,273
Noninterest-bearing ........................... $ 39,135
Interest-bearing .............................. 63,138
---------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's..................................................... 74,586
Noninterest-bearing ........................... $ 4,221
Interest-bearing .............................. 70,365
Federal funds purchased and securities sold under agreements to repurchase ..... 41,039
Demand notes issued to the U.S. Treasury ....................................... 1,000
Trading liabilities ............................................................ 32,929
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ............................. 4,353
With a remaining maturity of more than one year
through three years ................................................ 14
With a remaining maturity of more than three years ........................ 92
Bank's liability on acceptances executed and outstanding ....................... 974
Subordinated notes and debentures .............................................. 5,427
Other liabilities .............................................................. 9,684
TOTAL LIABILITIES .............................................................. 272,371
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................................. 0
Common stock ................................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ...................... 11,016
Undivided profits and capital reserves ......................................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ............................................... (179)
Accumulated net gains (losses) on cash flow hedges ............................. 0
Cumulative foreign currency translation adjustments ............................ 17
TOTAL EQUITY CAPITAL ........................................................... 19,105
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $ 291,476
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE> 1
EXHIBIT 99.1
EL PASO ENERGY CORPORATION
LETTER OF TRANSMITTAL
FOR TENDER OF ALL OUTSTANDING
6 5/8% SERIES A SENIOR NOTES DUE 2001
IN EXCHANGE FOR
6 5/8% SERIES B SENIOR NOTES DUE 2001
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE PROSPECTUS DATED _____________, 1999
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON __________________, 1999,
UNLESS THE EXCHANGE OFFER IS EXTENDED.
TO: THE CHASE MANHATTAN BANK (THE "EXCHANGE AGENT")
By Mail, Hand Delivery or Overnight Courier:
55 Water Street, Second Floor
Room 234 -- North Building
New York, New York 10041
By Facsimile Transmission:
(for Eligible Institutions only)
(212) 638-7380 or (212) 638-7381
For Information or Confirmation by Telephone:
Carlos Esteves (212) 638-0828
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION TO A
FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID
DELIVERY. THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES, IS
AT THE RISK OF THE HOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. THE INSTRUCTIONS
ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned acknowledges that he or she has received the Prospectus, dated
_____________, 1999 (the "Prospectus") of El Paso Energy Corporation., a
Delaware Corporation (the "Company") and this Letter of Transmittal and the
instructions hereto (the "Letter of Transmittal"), which together constitute
the Company's offer (the "Exchange Offer") to exchange $1,000 principal amount
of its 6 5/8% Series B Senior Notes Due 2001 (the "Exchange Notes") that have
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to a Registration Statement of which the Prospectus is a part,
for each $1,000 principal amount of its outstanding 6 5/8% Series A Senior Notes
Due 2001 (the "Old Notes"), of which $600,000,000 aggregate principal amount is
outstanding, upon the terms and subject to the conditions set forth in the
Prospectus. The term "Expiration Date" shall mean 5:00 p.m., New York City
time, on _____________, 1999, unless the Company, in its sole discretion,
extends the Exchange Offer, in which case the term shall mean the latest date
and time to which the Exchange Offer is extended by the Company.
<PAGE> 2
This Letter of Transmittal is to be used either if (i) certificates
representing Old Notes are to be physically delivered to the Exchange Agent
herewith by Holders, (ii) tender of Old Notes is to be made by book-entry
transfer to an account maintained by the Exchange Agent at The Depository Trust
Company ("DTC"), pursuant to the procedures set forth in "The Exchange Offer --
Procedures for Tendering" in the Prospectus by any financial institution that
is a participant in DTC and whose name appears on a security position listing
as the owner of Old Notes or (iii) tender of Old Notes is to be made according
to the guaranteed delivery procedures set forth in the Prospectus under "The
Exchange Offer -- Guaranteed Delivery Procedures." Delivery of this Letter of
Transmittal and any other required documents must be made to the Exchange
Agent. DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
The term "Holder" as used herein means any person in whose name Old
Notes are registered on the books of the Company or any other person who has
obtained a properly completed bond power from the registered holder.
All Holders of Old Notes who wish to tender their Old Notes must,
prior to the Expiration Date: (1) complete, sign, and deliver this Letter of
Transmittal, or a facsimile thereof, to the Exchange Agent, in person or to the
address set forth above; and (2) tender (and not withdraw) his or her Old Notes
or, if a tender of Old Notes is to be made by book-entry transfer to the
account maintained by the Exchange Agent at DTC, confirm such book-entry
transfer (a "Book-Entry Confirmation"), in each case in accordance with the
procedures for tendering described in the instructions to this Letter of
Transmittal. Holders of Old Notes whose certificates are not immediately
available, or who are unable to deliver their certificates or Book-Entry
Confirmation and all other documents required by this Letter of Transmittal to
be delivered to the Exchange Agent on or prior to the Expiration Date, must
tender their Old Notes according to the guaranteed delivery procedures set
forth under the caption "The Exchange Offer -- Guaranteed Delivery Procedures"
in the Prospectus. (See Instruction 2.)
Upon the terms and subject to the conditions of the Exchange Offer,
the acceptance for exchange of the Old Notes validly tendered and not withdrawn
and the issuance of the Exchange Notes will be made promptly following the
Expiration Date. For the purposes of the Exchange Offer, the Company shall be
deemed to have accepted for exchange validly tendered Old Notes when, as and if
the Company has given written notice thereof to the Exchange Agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to tender their Old Notes must complete
this Letter of Transmittal in its entirety.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS
CAREFULLY BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED IN THIS
LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE
OR FOR ADDITIONAL COPIES OF THE PROSPECTUS, THIS LETTER OF TRANSMITTAL AND THE
NOTICE OF GUARANTEED DELIVERY MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE
INSTRUCTION 12 HEREIN.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR OLD
NOTES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY AND COMPLY WITH
ALL OF ITS TERMS.
-2-
<PAGE> 3
List below the Old Notes to which this Letter of Transmittal relates.
If the space provided below is inadequate, the Certificate Numbers and
Principal Amounts should be listed on a separate signed schedule, attached
hereto. The minimum permitted tender is $1,000 in principal amount of 6 5/8%
Series A Senior Notes Due 2001. All other tenders must be in integral multiples
of $1,000.
DESCRIPTION OF 6 5/8% SERIES A SENIOR NOTES DUE 2001
<TABLE>
<CAPTION>
BOX I
======================================================================================================================
Name(s) and Address(es) of Registered Holder(s) *
(Please fill in, if blank)
- ------------------------------------------------------------------ ---------------------------------------------------
<S> <C>
(A) (B)
Aggregate Principal
Amount Tendered
Certificate Number(s)* (if less than all)**
-------------------------- -----------------------
-------------------------- -----------------------
-------------------------- -----------------------
-------------------------- -----------------------
-------------------------- -----------------------
Total Principal Amount
of Old Notes Tendered
=======================================================================================================================
</TABLE>
* Need not be completed by book-entry holders.
** Need not be completed by Holders who wish to tender with respect to all Old
Notes listed.
-3-
<PAGE> 4
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
BOX II
SPECIAL REGISTRATION INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5, 6 AND 7)
To be completed ONLY if certificates for Old Notes in a principal amount
not tendered, or Exchange Notes issued in exchange for Old Notes accepted for
exchange, are to be issued in the name of someone other than the undersigned.
Issue certificate(s) to:
Name
-------------------------------------------------------------------------
(PLEASE PRINT)
- -------------------------------------------------------------------------------
(PLEASE PRINT)
Address
-----------------------------------------------------------------------
- -------------------------------------------------------------------------------
(INCLUDING ZIP CODE)
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
BOX III
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5, 6 AND 7)
To be completed ONLY if certificates for Old Notes in a principal amount
not tendered, or Exchange Notes issued in exchange for Old Notes accepted for
exchange, are to be delivered to someone other than the undersigned.
Deliver certificate(s) to:
Name
-------------------------------------------------------------------------
(PLEASE PRINT)
- -------------------------------------------------------------------------------
(PLEASE PRINT)
Address
-----------------------------------------------------------------------
- -------------------------------------------------------------------------------
(INCLUDING ZIP CODE)
- -------------------------------------------------------------------------------
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBER)
-4-
<PAGE> 5
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER
WITH THE CERTIFICATE(S) FOR OLD NOTES OR A CONFIRMATION OF BOOK-ENTRY TRANSFER
OF SUCH OLD NOTES AND ALL OTHER REQUIRED DOCUMENTS) OR, IF GUARANTEED DELIVERY
PROCEDURES ARE TO BE COMPLIED WITH, A NOTICE OF GUARANTEED DELIVERY, MUST BE
RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
[ ] CHECK HERE IF OLD NOTES ARE BEING DELIVERED BY DTC TO AN ACCOUNT
MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution [ ] The Depository Trust Company
-----
Account Number
-------------------------------------------------------
Transaction Code Number
------------------------------------------------
Holders whose Old Notes are not immediately available or who cannot
deliver their Old Notes and all other documents required hereby to the Exchange
Agent on or prior to the Expiration Date may tender their Old Notes according
to the guaranteed delivery procedures set forth in the Prospectus under the
caption "The Exchange Offer -- Guaranteed Delivery Procedures." (See
Instruction 2.)
[ ] CHECK HERE IF OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name(s) of tendering Holder(s)
--------------------------------------
Date of Execution of Notice of Guaranteed Delivery
-------------------
Name of Institution which Guaranteed Delivery
-----------------------
Transaction Code Number
----------------------------------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
----------------------------------------------------------------
Address:
-------------------------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undesigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Old Notes that were acquired as a
result of market-making activities or other trading activities, it acknowledges
that it will deliver a prospectus in connection with any resale of such
Exchange Notes; however, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
-5-
<PAGE> 6
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to El Paso Energy Corporation (the "Company") the
principal amount of Old Notes indicated above.
Subject to and effective upon the acceptance for exchange of the
principal amount of Old Notes tendered hereby in accordance with this Letter of
Transmittal, the undersigned sells, assigns and transfers to, or upon the order
of, the Company all right, title and interest in and to the Old Notes tendered
hereby. The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent as its agent and attorney-in-fact (with full knowledge that the
Exchange Agent also acts as the agent of the Company and as Trustee and
Registrar under the Indenture for the Old Notes and the Exchange Notes) with
respect to the tendered Old Notes with full power of substitution (such power
of attorney being deemed an irrevocable power coupled with an interest),
subject only to the right of withdrawal described in the Prospectus, to (i)
deliver certificates for such Old Notes to the Company or transfer ownership of
such Old Notes on the account books maintained by DTC, together, in either such
case, with all accompanying evidences of transfer and authenticity to, or upon
the order of, the Company and (ii) present such Old Notes for transfer on the
books of the Company and receive all benefits and otherwise exercise all rights
of beneficial ownership of such Old Notes, all in accordance with the terms of
the Exchange Offer.
The undersigned acknowledges that the Exchange Offer is being made in
reliance upon interpretative advice given by the staff of the Securities and
Exchange Commission to third parties in connection with transactions similar to
the Exchange Offer, so that the Exchange Notes issued pursuant to the Exchange
Offer in exchange for the Old Notes may be offered for resale, resold and
otherwise transferred by holders thereof (other than a broker-dealer who
purchased such Old Notes directly from the Company for resale pursuant to Rule
144A or any other available exemption under the Securities Act or a person that
is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Exchange Notes
are acquired in the ordinary course of such holders' business and such holders
have no arrangement with any person to participate in the distribution of such
Exchange Notes.
The undersigned agrees that acceptance of any tendered Old Notes by
the Company and the issuance of Exchange Notes in exchange therefor shall
constitute performance in full by the Company of its obligations under the
registration rights agreement, (as referred to in the Prospectus) and that,
upon the issuance of the Exchange Notes, the Company will have no further
obligations or liabilities thereunder (except in certain limited
circumstances).
The undersigned represents and warrants that (i) the Exchange Notes
acquired pursuant to the Exchange Offer are being acquired in the ordinary
course of business of the person receiving Exchange Notes (which shall be the
undersigned unless otherwise indicated in the box entitled "Special Delivery
Instructions" above) (the "Recipient"), (ii) neither the undersigned nor the
Recipient (if different) is engaged in, intends to engage in or has any
arrangement or understanding with any person to participate in the distribution
of such Exchange Notes, and (iii) neither the undersigned nor the Recipient (if
different) is an "affiliate" of the Company as defined in Rule 405 under the
Securities Act. If the undersigned is not a broker-dealer, the undersigned
further represents that it is not engaged in, and does not intend to engage in,
a distribution of the Exchange Notes. If the undersigned is a broker-dealer,
the undersigned further (x) represents that it acquired Old Notes for the
undersigned's own account as a result of market-making activities or other
trading activities, (y) represents that it has not entered into any arrangement
or understanding with the Company or any "affiliate" of the Company (within the
meaning of Rule 405 under the Securities Act) to distribute the Exchange Notes
to be received in the Exchange Offer and (z) acknowledges that it will deliver
a prospectus meeting the requirements of the Securities Act (for which purposes
delivery of the Prospectus, as the same may be hereafter supplemented or
amended, shall be sufficient) in connection with any resale of Exchange Notes
received in the Exchange Offer. Such a broker-dealer will not be deemed, solely
by reason of such acknowledgment and prospectus delivery, to admit that it is
an "underwriter" within the meaning of the Securities Act.
-6-
<PAGE> 7
The undersigned understands and agrees that the Company reserves the
right not to accept tendered Old Notes from any tendering holder if the Company
determines, in its sole and absolute discretion, that such acceptance could
result in a violation of applicable securities laws.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to tender, exchange, assign and transfer the Old
Notes tendered hereby and to acquire Exchange Notes issuable upon the exchange
of such tendered Old Notes, and that, when the same are accepted for exchange,
the Company will acquire good and unencumbered title thereto, free and clear of
all liens, restrictions, charges and encumbrances and not subject to any
adverse claim. The undersigned also warrants that it will, upon request,
execute and deliver any additional documents deemed to be necessary or
desirable by the Exchange Agent or the Company in order to complete the
exchange, assignment and transfer of tendered Old Notes or transfer of
ownership of such Old Notes on the account books maintained by a book-entry
transfer facility.
The undersigned understands and acknowledges that the Company reserves
the right in its sole discretion to purchase or make offers for any Old Notes
that remain outstanding subsequent to the Expiration Date or, as set forth in
the Prospectus under the caption "The Exchange Offer -- Procedures for
Tendering," to terminate the Exchange Offer and, to the extent permitted by
applicable law, purchase Old Notes in the open market, in privately negotiated
transactions or otherwise. The terms of any such purchases or offers could
differ from the terms of the Exchange Offer.
The undersigned understands that the Company may accept the
undersigned's tender by delivering written notice of acceptance to the Exchange
Agent, at which time the undersigned's right to withdraw such tender will
terminate. For purposes of the Exchange Offer, the Company shall be deemed to
have accepted validly tendered Old Notes when, as and if the Company has given
oral (which shall be confirmed in writing) or written notice thereof to the
Exchange Agent.
The undersigned understands that the first interest payment following
the Expiration Date will include unpaid interest on the Old Notes accrued
through the date of issuance of the Exchange Notes.
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under the caption "The Exchange Offer -- Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer.
The undersigned acknowledges that the Exchange Offer is subject to the
more detailed terms set forth in the Prospectus and, in case of any conflict
between the terms of the Prospectus and this Letter of Transmittal, the
Prospectus shall prevail.
If any tendered Old Notes are not accepted for exchange pursuant to
the Exchange Offer for any reason, certificates for any such unaccepted Old
Notes will be returned (except as noted below with respect to tenders through
DTC), at the Company's cost and expense, to the undersigned at the address
shown below or at a different address as may be indicated herein under "Special
Delivery Instructions" as promptly as practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns. This tender may be withdrawn only in
accordance with the procedures set forth in this Letter of Transmittal.
By acceptance of the Exchange Offer, each broker-dealer that receives
Exchange Notes pursuant to the Exchange Offer hereby acknowledges and agrees
that upon the receipt of notice by the Company of the happening of any event
which makes any statement in the Prospectus untrue in any material respect or
which requires the making of any changes in the Prospectus in order to make the
statements therein not misleading (which notice the Company agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until the Company has
-7-
<PAGE> 8
amended or supplemented the Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented prospectus to such
broker-dealer.
Unless otherwise indicated under "Special Registration Instructions,"
please issue the certificates representing the Exchange Notes issued in
exchange for the Old Notes accepted for exchange and return any certificates
for Old Notes not tendered or not exchanged, in the name(s) of the undersigned
(or, in either such event in the case of Old Notes tendered by DTC, by credit
to the account at DTC). Similarly, unless otherwise indicated under "Special
Delivery Instructions," please send the certificates representing the Exchange
Notes issued in exchange for the Old Notes accepted for exchange and any
certificates for Old Notes not tendered or not exchanged (and accompanying
documents, as appropriate) to the undersigned at the address shown below the
undersigned's signature(s), unless, in either event, tender is being made
through DTC. In the event that both "Special Registration Instructions" and
"Special Delivery Instructions" are completed, please issue the certificates
representing the Exchange Notes issued in exchange for the Old Notes accepted
for exchange in the name(s) of, and return any certificates for Old Notes not
tendered or not exchanged to, the person(s) so indicated. The undersigned
understands that the Company has no obligations pursuant to the "Special
Registration Instructions" or "Special Delivery Instructions" to transfer any
Old Notes from the name of the registered Holder(s) thereof if the Company does
not accept for exchange any of the Old Notes so tendered.
Holders who wish to tender the Old Notes and (i) whose Old Notes are
not immediately available or (ii) who cannot deliver their Old Notes, this
Letter of Transmittal or any other documents required hereby to the Exchange
Agent prior to the Expiration Date, may tender their Old Notes according to the
guaranteed delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer -- Guaranteed Delivery Procedures." See Instruction 1
regarding the completion of the Letter of Transmittal.
PLEASE SIGN HERE WHETHER OR NOT
OLD NOTES ARE BEING PHYSICALLY TENDERED HEREBY
AND WHETHER OR NOT TENDER IS TO BE MADE
PURSUANT TO THE GUARANTEED DELIVERY PROCEDURES
This Letter of Transmittal must be signed by the registered holder(s)
as their name(s) appear on the Old Notes or, if tendered by a participant in
DTC, exactly as such participant's name appears on a security listing as the
owner of Old Notes, or by person(s) authorized to become registered holder(s)
by a properly completed bond power from the registered holder(s), a copy of
which must be transmitted with this Letter of Transmittal. If Old Notes to
which this Letter of Transmittal relate are held of record by two or more joint
holders, then all such holders must sign this Letter of Transmittal. If
signature is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, then such person must (i) set forth his or her full
title below and (ii) unless waived by the Company, submit evidence satisfactory
to the Company of such person's authority so to act. (See Instruction 4.)
X
-------------------------------- -----------------------------------------
Date
X
-------------------------------- -----------------------------------------
Date
Signature(s) of Holder(s) or
Authorized Signatory
Name(s): Address:
--------------------------- ---------------------------
--------------------------- ---------------------------
(Please Print) (including Zip Code)
Capacity: Area Code and Telephone Number:
------------------ -------------
Social Security No.
-------
-8-
<PAGE> 9
PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN
-9-
<PAGE> 10
BOX IV
SIGNATURE GUARANTEE (SEE INSTRUCTION 1)
CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION
(Name of Eligible Institution Guaranteeing Signatures)
(Address (including zip code)
and Telephone Number (including area code) of Firm)
(Authorized Signature)
(Printed Name)
(Title)
Date:
-------------
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Guarantee of Signatures. Signatures on this Letter of Transmittal
need not be guaranteed if (a) this Letter of Transmittal is signed by the
registered holder(s) of the Old Notes tendered herewith and such holder(s) have
not completed the box set forth herein entitled "Special Registration
Instructions" or the box entitled "Special Delivery Instructions" or (b) such
Old Notes are tendered for the account of an Eligible Institution. (See
Instruction 6.) Otherwise, all signatures on this Letter of Transmittal or a
notice of withdrawal, as the case may be, must be guaranteed by a member firm
of a registered national securities exchange or of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company having an office
or correspondent in the United States (an "Eligible Institution"). All
signatures on bond powers and endorsements on certificates must also be
guaranteed by an Eligible Institution.
2. Delivery of this Letter of Transmittal and Old Notes. Certificates
for all physically delivered Old Notes or confirmation of any book-entry
transfer to the Exchange Agent at DTC of Old Notes tendered by book-entry
transfer, as well as, in each case (including cases where tender is affected by
book-entry transfer), a properly completed and duly executed copy of this
Letter of Transmittal or facsimile hereof and any other documents required by
this Letter of Transmittal must be received by the Exchange Agent at its
address set forth herein prior to 5:00 p.m., New York City time, on the
Expiration Date.
The method of delivery of the tendered Old Notes, this Letter of
Transmittal and all other required documents to the Exchange Agent is at the
election and risk of the Holder and the delivery will be deemed made only when
actually received by the Exchange Agent. If Old Notes are sent by mail,
registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery. No Letter of Transmittal or Old Notes should be sent to the Company.
The Exchange Agent will make a request to establish an account with
respect to the Old Notes at the Depositary for purposes of the Exchange Offer
within two business days after receipt of this Prospectus, and any financial
institution that is a participant in the Depositary may make book-entry
delivery of Old Notes by causing the Depositary to transfer
-10-
<PAGE> 11
such Old Notes into the Exchange Agent's account at the Depositary in
accordance with the Depositary's procedures for transfer. However, although
delivery of Old Notes may be effected through book-entry transfer at the
Depositary, the Letter of Transmittal, with any required signature guarantees
or an Agent's Message (as defined below) in connection with a book-entry
transfer and any other required documents, must, in any case, be transmitted to
and received by the Exchange Agent at the address specified on the cover page
of the Letter of Transmittal on or prior to the Expiration Date or the
guaranteed delivery procedures described below must be complied with.
A Holder may tender Old Notes that are held through the Depositary by
transmitting its acceptance through the Depositary's Automatic Tender Offer
Program, for which the transaction will be eligible, and the Depositary will
then edit and verify the acceptance and send an Agent's Message to the Exchange
Agent for its acceptance. The term "Agent's Message" means a message
transmitted by the Depositary to, and received by, the Exchange Agent and
forming part of the Book-Entry Confirmation, which states that the Depositary
has received an express acknowledgment from each participant in the Depositary
tendering the Old Notes and that such participant has received the Letter of
Transmittal and agrees to be bound by the terms of the Letter of Transmittal
and the Company may enforce such agreement against such participant.
Holders who wish to tender their Old Notes and (i) whose Old Notes are
not immediately available, or (ii) who cannot deliver their Old Notes, this
Letter of Transmittal or any other documents required hereby to the Exchange
Agent prior to the Expiration Date or comply with book-entry transfer
procedures on a timely basis must tender their Old Notes according to the
guaranteed delivery procedures set forth in the Prospectus. See "Exchange Offer
- -- Guaranteed Delivery Procedures." Pursuant to such procedure: (i) such tender
must be made by or through an Eligible Institution; (ii) prior to the
Expiration Date, the Exchange Agent must have received from the Eligible
Institution a properly completed and duly executed Notice of Guaranteed
Delivery (by facsimile transmission, overnight courier, mail or hand delivery)
setting forth the name and address of the Holder of the Old Notes, the
certificate number or numbers of such Old Notes and the principal amount of Old
Notes tendered, stating that the tender is being made thereby and guaranteeing
that, within three New York Stock Exchange trading days after the Expiration
Date, this Letter of Transmittal (or facsimile hereof) together with the
certificate(s) representing the Old Notes and any other required documents will
be deposited by the Eligible Institution with the Exchange Agent; and (iii)
such properly completed and executed Letter of Transmittal (or facsimile
hereof), as well as all other documents required by this Letter of Transmittal
and the certificate(s) representing all tendered Old Notes in proper form for
transfer (or a confirmation of book-entry transfer of such Old Notes into the
Exchange Agent's account at DTC), must be received by the Exchange Agent within
three New York Stock Exchange trading days after the Expiration Date, all in
the manner provided in the Prospectus under the caption "The Exchange Offer --
Guaranteed Delivery Procedures." Any Holder who wishes to tender his Old Notes
pursuant to the guaranteed delivery procedures described above must ensure that
the Exchange Agent receives the Notice of Guaranteed Delivery prior to 5:00
p.m., New York City time, on the Expiration Date. Upon request to the Exchange
Agent, a Notice of Guaranteed Delivery will be sent to Holders who wish to
tender their Old Notes according to the guaranteed delivery procedures set
forth above.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Old Notes, and withdrawal of tendered Old
Notes will be determined by the Company in its sole discretion, which
determination will be final and binding. All tendering holders, by execution of
this Letter of Transmittal (or facsimile thereof), shall waive any right to
receive notice of the acceptance of the Old Notes for exchange. The Company
reserves the absolute right to reject any and all Old Notes not properly
tendered or any Old Notes the Company's acceptance of which would, in the
opinion of counsel for the Company, be unlawful. The Company also reserves the
right to waive any irregularities or conditions of tender as to particular Old
Notes. The Company's interpretation of the terms and conditions of the Exchange
Offer (including the instructions in this Letter of Transmittal) shall be final
and binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Old Notes must be cured within such time as the
Company shall determine. Neither the Company, the Exchange Agent nor any other
person shall be under any duty to give notification of defects or
irregularities with respect to tenders of Old Notes, nor shall any of them
incur any liability for failure to give such notification. Tenders of Old Notes
will not be deemed to have been made until such defects or irregularities have
been cured to the Company's satisfaction or waived. Any Old Notes received by
the Exchange Agent that are not properly tendered and as to which the defects
or irregularities have not been cured or waived will be returned by the
Exchange Agent to the tendering Holders pursuant to the Company's
determination, unless otherwise provided in this Letter of Transmittal as soon
as practicable following the Expiration Date. The Exchange Agent has no
fiduciary duties to the Holders with respect to the Exchange Offer and is
acting solely on the basis of directions of the Company.
-11-
<PAGE> 12
3. Inadequate Space. If the space provided is inadequate, the
certificate numbers and/or the number of Old Notes should be listed on a
separate signed schedule attached hereto.
4. Tender by Holder. Only a Holder of Old Notes may tender such Old
Notes in the Exchange Offer. Any beneficial owner of Old Notes who is not the
registered Holder and who wishes to tender should arrange with such registered
holder to execute and deliver this Letter of Transmittal on such beneficial
owner's behalf or must, prior to completing and executing this Letter of
Transmittal and delivering his Old Notes, either make appropriate arrangements
to register ownership of the Old Notes in such beneficial owner's name or
obtain a properly completed bond power from the registered holder or properly
endorsed certificates representing such Old Notes.
5. Partial Tenders; Withdrawals. Tenders of Old Notes will be accepted
only in integral multiples of $1,000. If less than the entire principal amount
of any Old Notes is tendered, the tendering Holder should fill in the principal
amount tendered in the third column of the box entitled "Description of 6 5/8%
Series A Senior Notes Due 2001" above. The entire principal amount of any Old
Notes delivered to the Exchange Agent will be deemed to have been tendered
unless otherwise indicated. If the entire principal amount of all Old Notes is
not tendered, then Old Notes for the principal amount of Old Notes not tendered
and a certificate or certificates representing Exchange Notes issued in
exchange for any Old Notes accepted will be sent to the Holder at his or her
registered address, unless a different address is provided in the "Special
Delivery Instructions" box above on this Letter of Transmittal or unless tender
is made through DTC, promptly after the Old Notes are accepted for exchange.
Except as otherwise provided herein, tenders of Old Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration
Date. To withdraw a tender of Old Notes in the Exchange Offer, a written or
facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to 5:00 p.m., New York City time,
on the Expiration Date. Any such notice of withdrawal must (i) specify the name
of the person having deposited the Old Notes to be withdrawn (the "Depositor"),
(ii) identify the Old Notes to be withdrawn (including the certificate number
or numbers and principal amount of such Old Notes, or, in the case of Old Notes
transferred by book-entry transfer the name and number of the account at DTC to
be credited), (iii) be signed by the Depositor in the same manner as the
original signature on the Letter of Transmittal by which such Old Notes were
tendered (including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the Registrar with respect to the Old
Notes register the transfer of such Old Notes into the name of the person
withdrawing the tender and (iv) specify the name in which any such Old Notes
are to be registered, if different from that of the Depositor. All questions as
to the validity, form and eligibility (including time of receipt) of such
notices will be determined by the Company, whose determination shall be final
and binding on all parties. Any Old Notes so withdrawn will be deemed not to
have been validly tendered for purposes of the Exchange Offer and no Exchange
Notes will be issued with respect thereto unless the Old Notes so withdrawn are
validly retendered. Any Old Notes which have been tendered but which are not
accepted for exchange by the Company will be returned to the Holder thereof
without cost to such Holder as soon as practicable after withdrawal, rejection
of tender or termination of the Exchange Offer. Properly withdrawn Old Notes
may be retendered by following one of the procedures described in the
Prospectus under "The Exchange Offer -- Procedures for Tendering" at any time
prior to the Expiration Date.
6. Signatures on the Letter of Transmittal; Bond Powers and
Endorsements. If this Letter of Transmittal (or facsimile hereof) is signed by
the registered holder(s) of the Old Notes tendered hereby, the signature must
correspond with the name(s) as written on the face of the Old Note without
alteration, enlargement or any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If a number of Old Notes registered in different names are tendered,
it will be necessary to complete, sign and submit as many copies of this Letter
of Transmittal as there are different registrations of Old Notes.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder or Holders (which term, for the Purposes described herein,
shall include a book-entry transfer facility whose name appears on a security
listing as the owner of the Old Notes) of Old Notes tendered and the
certificate or certificates for Exchange Notes issued in exchange
-12-
<PAGE> 13
therefor is to be issued (or any untendered principal amount of Old Notes to be
reissued) to the registered Holder, then such Holder need not and should not
endorse any tendered Old Notes, nor provide a separate bond power. In any other
case, such Holder must either properly endorse the Old Notes tendered or
transmit a properly completed separate bond power with this Letter of
Transmittal with the signatures on the endorsement or bond power guaranteed by
an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a
person other than the registered Holder or Holders of any Old Notes listed,
such Old Notes must be endorsed or accompanied by appropriate bond powers in
each case signed as the name of the registered Holder or Holders appears on the
Old Notes.
If this Letter of Transmittal (or facsimile hereof) or any Old Notes
or bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, or officers of corporations or others acting in a fiduciary
or representative capacity, such persons should so indicate when signing, and
unless waived by the Company, evidence satisfactory to the Company of their
authority so to act must be submitted with this Letter of Transmittal.
Endorsements on Old Notes or signatures on bond powers required by
this Instruction 6 must be guaranteed by an Eligible Institution.
7. Special Registration and Delivery Instructions. Tendering Holders
should indicate, in the applicable box or boxes, the name and address to which
Exchange Notes or substitute Old Notes for principal amounts not tendered or
not accepted for exchange are to be issued or sent, if different from the name
and address of the person signing this Letter of Transmittal. In the case of
issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated.
8. Backup Federal Income Tax Withholding and Substitute Form W-9.
Under the federal income tax laws, payments that may be made by the Company on
account of Exchange Notes issued pursuant to the Exchange Offer may be subject
to backup withholding at the rate of 31%. In order to avoid such backup
withholding, each tendering holder should complete and sign the Substitute Form
W-9 included in this Letter of Transmittal and either (a) provide the correct
taxpayer identification number ("TIN") and certify, under penalties of perjury,
that the TIN provided is correct and that (i) the holder has not been notified
by the Internal Revenue Service (the "IRS") that the holder is subject to
backup withholding as a result of failure to report all interest or dividends
or (ii) the IRS has notified the holder that the holder is no longer subject to
backup withholding; or (b) provide an adequate basis for exemption. If the
tendering holder has not been issued a TIN and has applied for one, or intends
to apply for one in the near future, such holder should write "Applied For" in
the space provided for the TIN in Part I of the Substitute Form W-9, sign and
date the Substitute Form W-9 and sign the Certificate of Payee Awaiting
Taxpayer Identification Number. If "Applied For" is written in Part I, the
Company (or the Paying Agent under the indenture governing the Exchange Notes)
shall retain 31% of payments made to the tendering holder during the sixty-day
period following the date of the Substitute Form W-9. If the Holder furnishes
the Exchange Agent or the Company with its TIN within sixty days after the date
of the Substitute Form W-9, the Company (or the Paying Agent) shall remit such
amounts retained during the sixty-day period to the Holder and no further
amounts shall be retained or withheld from payments made to the Holder
thereafter. If, however, the Holder has not provided the Exchange Agent or the
Company with its TIN within such sixty-day period, the Company (or the Paying
Agent) shall remit such previously retained amounts to the IRS as backup
withholding. In general, if a Holder is an individual, the TIN is the Social
Security number of such individual. If the Exchange Agent or the Company are
not provided with the correct TIN, the Holder may be subject to a $50 penalty
imposed by the IRS. Certain Holders (including, among others, certain
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. In order for a foreign individual to
qualify as an exempt recipient, such Holder must submit a statement (generally,
IRS Form W-8), signed under penalties of perjury, attesting to that
individual's exempt status. Such statements can be obtained from the Exchange
Agent. For further information concerning backup withholding and instructions
for completing the Substitute Form W-9 (including how to obtain a taxpayer
identification number if you do not have one and how to complete the Substitute
Form W-9 if Old Notes are registered in more than one name), consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
Failure to complete the Substitute Form W-9 will not, by itself, cause
Old Notes to be deemed invalidly tendered, but may require the Company (or the
Paying Agent) to withhold 31% of the amount of any payments made on account of
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<PAGE> 14
the Exchange Notes. Backup withholding is not an additional federal income tax.
Rather, the federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If backup
withholding results in an overpayment of taxes, a refund may be obtained from
the IRS.
9. Transfer Taxes. The Company will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer. If,
however, certificates representing Exchange Notes or Old Notes for principal
amounts not tendered or accepted for exchange are to be delivered to, or are to
be registered in the name of, any person other than the registered holder of
the Old Notes tendered hereby, or if tendered Old Notes are registered in the
name of a person other than the person signing this Letter of Transmittal, or
if a transfer tax is imposed for any reason other than the exchange of Old
Notes pursuant to the Exchange Offer, then the amount of any such transfer
taxes (whether imposed on the registered holder or on any other persons) will
be payable by the tendering Holder. If satisfactory evidence of payment of such
taxes or exemption therefrom is not submitted with this Letter of Transmittal,
the amount of such transfer taxes will be billed directly to such tendering
Holder. See the Prospectus under "The Exchange Offer -- Solicitation of
Tenders; Fees and Expenses."
Except as provided in this Instruction 9, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
10. Waiver of Conditions. The Company reserves the right, in their
sole discretion, to amend, waive or modify specified conditions in the Exchange
Offer in the case of any Old Notes tendered.
11. Mutilated, Lost, Stolen or Destroyed Old Notes. Any tendering
Holder whose Old Notes have been mutilated, lost, stolen or destroyed should
contact the Exchange Agent at the address indicated herein for further
instructions.
12. Requests for Assistance or Additional Copies. Requests for
assistance and requests for additional copies of the Prospectus or this Letter
of Transmittal may be directed to the Exchange Agent at the address specified
in the Prospectus. Holder may also contact their broker, dealer, commercial
bank, trust company or other nominee for assistance concerning the Exchange
Offer.
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<PAGE> 15
(DO NOT WRITE IN SPACE BELOW)
<TABLE>
<CAPTION>
<S> <C> <C>
CERTIFICATE SURRENDERED OLD NOTES TENDERED OLD NOTES ACCEPTED
----------------------- ------------------ -------------------
----------------------- ------------------ -------------------
----------------------- ------------------ -------------------
Date Received Accepted by Checked by
-------------- ------ --------
Delivery Prepared by Checked by Date
------- ------ --------------
</TABLE>
IMPORTANT TAX INFORMATION
Under federal income tax laws, a Holder whose tendered Old Notes are
accepted for payment is required to provide the Exchange Agent (as payer) with
such Holder's correct TIN on Substitute Form W-9 below or otherwise establish a
basis for exemption from backup withholding. If such Holder is an individual,
the TIN is his social security number. If the Exchange Agent is not provided
with the correct TIN, a $50 penalty may be imposed by the IRS, and payments
made pursuant to the Exchange Offer may be subject to backup withholding.
Certain Holders (including, among others, certain corporations and
certain foreign persons) are not subject to these backup withholding and
reporting requirements. Exempt Holders should indicate their exempt status on
Substitute Form W-9. A foreign person may qualify as an exempt recipient by
submitting to the Exchange Agent a properly completed IRS Form W- 8, signed
under penalties of perjury, attesting to that Holder's exempt status. A Form
W-8 can be obtained from the Exchange Agent. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional instructions.
If backup withholding applies, the Exchange Agent is required to
withhold 31% of any payments made to the Holder or other payee. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of persons subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the IRS.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to the
Exchange Offer, the Holder is required to provide the Exchange Agent with
either: (i) the Holder's correct TIN by completing the Substitute Form W-9
below, certifying that the TIN provided on Substitute Form W-9 is correct (or
that such Holder is awaiting a TIN) and that (A) the Holder has not been
notified by the IRS that the Holder is subject to backup withholding as a
result of failure to report all interest or dividends or (B) the IRS has
notified the Holder that the Holder is no longer subject to backup withholding
or (ii) an adequate basis for exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the registered
Holder of the Old Notes. If the Old Notes are held in more than one name or are
held not in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
-15-
<PAGE> 16
CERTIFICATION OF PAYEE AWAITING TAXPAYER INDEMNIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification
Number has not been issued to me, and that I mailed or delivered an application
to receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office (or I intend to mail or
deliver an application in the near future). I understand that if I do not
provide a Taxpayer Identification Number to the payer, 31% of all payments made
to me on account of the Exchange Notes shall be retained until I provide a
Taxpayer Identification Number to the payer and that, if I do not provide my
Taxpayer Identification Number within sixty days, such retained amounts shall
be remitted to the Internal Revenue Service as backup withholding and 31% of
all reportable payments made to me thereafter will be withheld and remitted to
the Internal Revenue Service until I provide a Taxpayer Identification Number.
SIGNATURE DATE
-------------------------------- -----------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE
EXCHANGE NOTES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9
FOR ADDITIONAL DETAILS.
-16-
<PAGE> 17
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 8)
PAYER'S NAME: EL PASO ENERGY CORPORATION
<TABLE>
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
SUBSTITUTE PART I - TAXPAYER IDENTIFICATION NUMBER (TIN) SOCIAL SECURITY NUMBER
FORM W-9 ENTER YOUR TIN IN THE APPROPRIATE BOX. FOR
INDIVIDUALS, THIS IS YOUR SOCIAL SECURITY NUMBER (SSN). ------------------------------
DEPARTMENT OF THE TREASURY FOR SOLE PROPRIETORS, SEE THE INSTRUCTIONS IN THE OR
INTERNAL REVENUE SERVICE ENCLOSED GUIDELINES. FOR OTHER ENTITIES, IT IS YOUR
EMPLOYER IDENTIFICATION NUMBER (EIN). IF YOU DO NOT EMPLOYER IDENTIFICATION NUMBER
REQUEST FOR TAXPAYER HAVE A NUMBER, SEE HOW TO GET A TIN IN THE ENCLOSED
IDENTIFICATION NUMBER GUIDELINES. ------------------------------
AND CERTIFICATION
NOTE: IF THE ACCOUNT IS IN MORE THAN ONE NAME, SEE THE
CHART ON PAGE 2 OF THE ENCLOSED GUIDELINES FOR
INSTRUCTIONS ON WHOSE NUMBER TO ENTER.
---------------------------------------------------------------------------------------
PART II - FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING
(See Part II instructions in the enclosed Guidelines.)
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
PART III - CERTIFICATION - UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
(1) The number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me), and
(2) I am not subject to backup withholding because: (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or (c) the IRS has notified me
that I am no longer subject to backup withholding.
Signature Date , 1999
---------------------------------- ----------------
- --------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS.-You must cross out item 2 above if you have
been notified by the IRS that you are currently subject to backup withholding
because you have failed to report all interest or dividends on your tax return.
For real estate transactions, item 2 does not apply. For mortgage interest
paid, the acquisition or abandonment of secured property, cancellation of debt,
contributions to an individual retirement arrangement (IRA), and generally
payments other than interest and dividends, you are not required to sign the
Certification, but you must provide your correct TIN.
-17-
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR 6 5/8% SERIES A SENIOR NOTES DUE 2001
OF EL PASO ENERGY CORPORATION
As set forth in the Prospectus dated _________, 1999 (the "Prospectus") of
El Paso Energy Corporation (the "Company") and in the Letter of Transmittal
(the "Letter of Transmittal"), this form or a form substantially equivalent to
this form must be used to accept the Exchange Offer (as defined below) if the
certificates for the outstanding 6 5/8% Series A Senior Notes due 2001 (the "Old
Notes") of the Company and all other documents required by the Letter of
Transmittal cannot be delivered to the Exchange Agent by the expiration of the
Exchange Offer or compliance with book-entry transfer procedures cannot be
effected on a timely basis. Such form may be delivered by hand or transmitted
by facsimile transmission, telex or mail to the Exchange Agent no later than
the Expiration Date, and must include a signature guarantee by an Eligible
Institution as set forth below.
TO:
The Chase Manhattan Bank
By Mail, Hand Delivery or Overnight Courier:
55 Water Street, Second Floor
Room 234 -- North Building
New York, New York 10041
By Facsimile Transmission:
(for Eligible Institutions only)
(212) 638-7380 or (212) 638-7381
For Information or Confirmation by Telephone:
Carlos Esteves (212) 638-0828
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE METHOD OF DELIVERY OF ALL
DOCUMENTS, INCLUDING CERTIFICATES, IS AT THE RISK OF THE HOLDER. IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. THE INSTRUCTIONS ACCOMPANYING THE LETTER OF TRANSMITTAL SHOULD BE
READ CAREFULLY BEFORE THIS NOTICE OF GUARANTEED DELIVERY IS COMPLETED.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution under the instructions thereto, such
signatures must appear in the applicable space provided on the Letter of
Transmittal for Guarantee of Signature(s).
<PAGE> 2
Ladies and Gentlemen:
The undersigned acknowledges receipt of the Prospectus and the related
Letter of Transmittal which describes the Company's offer (the "Exchange Offer")
to exchange $1,000 in principal amount of a new series of 6 5/8% Series B Senior
Notes due 2001 (the "Exchange Notes") for each $1,000 in principal amount of the
Old Notes.
The undersigned hereby tenders to the Company the aggregate principal
amount of Old Notes set forth below on the terms and conditions set forth in
the Prospectus and the related Letter of Transmittal pursuant to the guaranteed
delivery procedure set forth in the "The Exchange Offer -- Guaranteed Delivery
Procedures" section in the Prospectus and the accompanying Letter of
Transmittal.
The undersigned understands that no withdrawal of a tender of Old
Notes may be made on or after the expiration date of the Exchange Offer. The
undersigned understands that for a withdrawal of a tender of Old Notes to be
effective, a written notice of withdrawal that complies with the requirements
of the Exchange Offer must be timely received by the Exchange Agent at one of
its addresses specified on the cover of this Notice of Guaranteed Delivery
prior to the Expiration Date.
The undersigned understands that the exchange of Old Notes for
Exchange Notes pursuant to the Exchange Offer will be made only after timely
receipt by the Exchange Agent of (i) such Old Notes (or Book-Entry Confirmation
of the transfer of such Old Notes into the Exchange Agent's account at The
Depository Trust Company (the "Depositary" or "DTC")) and (ii) a Letter of
Transmittal (or facsimile thereof) with respect to such Old Notes, properly
completed and duly executed, with any required signature guarantees, this
Notice of Guaranteed Delivery and any other documents required by the Letter of
Transmittal or a properly transmitted Agent's Message. The term "Agent's
Message" means a message transmitted by the Depositary to, and received by, the
Exchange Agent and forming part of the confirmation of a book-entry transfer,
which states that the Depositary has received an express acknowledgment from
each participant in the Depositary tendering the Old Notes and that such
participant has received the Letter of Transmittal and agrees to be bound by
the terms of the Letter of Transmittal and the Company may enforce such
agreement against such participant.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and every obligation of the undersigned under
this Notice of Guaranteed Delivery shall be binding upon the heirs, executors,
administrators, trustees in bankruptcy, personal and legal representatives,
successors and assigns of the undersigned.
-2-
<PAGE> 3
PLEASE SIGN AND COMPLETE
Signature(s) of Registered Owner(s) or Authorized
Signatory:
----------------------------------
- ----------------------------------------------
- ----------------------------------------------
Principal Amount of Old Notes Tendered:
- ----------------------------------------------
Certificate No(s) of Old Notes (if available):
- ----------------------------------------------
- ----------------------------------------------
- ----------------------------------------------
Date:
----------------------------------------
Name(s) of Registered Holder(s)
- ----------------------------------------------
- ----------------------------------------------
- ----------------------------------------------
Address:
-------------------------------------
- ----------------------------------------------
Area Code and Telephone No.:
----------------
If Old Notes will be delivered by book-entry
transfer at The Depository Trust
Company, insert
Depository Account No.:
---------------------
This Notice of Guaranteed Delivery must be signed by the registered Holder(s)
of Old Notes exactly as its (their) name(s) appear on certificates for Old
Notes or on a security position listing as the owner of Old Notes, or by
person(s) authorized to become registered Holder(s) by endorsements and
documents transmitted with this Notice of Guaranteed Delivery. If signature is
by a trustee, executor, administrator, guardian, attorney-in-fact, officer or
other person acting in a fiduciary or representative capacity, such person must
provide the following information.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
-----------------------------------------------------------------
-----------------------------------------------------------------
Capacity: -----------------------------------------------------------------
Address(es):
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
DO NOT SEND OLD NOTES WITH THIS FORM. OLD NOTES SHOULD BE SENT TO THE EXCHANGE
AGENT TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL.
-3-
<PAGE> 4
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or a correspondent in the
United States, or otherwise an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended,
hereby (a) represents that each holder of Old Notes on whose behalf this tender
is being made "own(s)" the Old Notes covered hereby within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (b) represents that such tender of Old Notes complies with Rule 14e-4 of
the Exchange Act and (c) guarantees that, within three New York Stock Exchange
trading days from the expiration date of the Exchange Offer, a properly
completed and duly executed Letter of Transmittal (or a facsimile thereof),
together with certificates representing the Old Notes covered hereby in proper
form for transfer (or confirmation of the book-entry transfer of such Old Notes
into the Exchange Agent's account at The Depository Trust Company, pursuant to
the procedure for book-entry transfer set forth in the Prospectus) and required
documents will be deposited by the undersigned with the Exchange Agent.
The undersigned acknowledges that it must deliver the Letter of
Transmittal and Old Notes tendered hereby to the Exchange Agent within the time
period set forth above and that failure to do so could result in financial loss
to the undersigned.
Name of Firm:
----------------------------
Address:
---------------------------------
---------------------------------
Area Code and Telephone No.:
--------------
- -------------------------------------------
Authorized Signature
Name:
------------------------------------
Title:
------------------------------------
Date:
------------------------------------
-4-
<PAGE> 1
EXHIBIT 99.3
EL PASO ENERGY CORPORATION
OFFER TO EXCHANGE
its
6 5/8% Series B Senior Notes due 2001
for any and all of its
6 5/8% Series A Senior Notes due 2001
To Our Clients:
Enclosed for your consideration are the Prospectus dated ___________,
1999 (the "Prospectus") and the related Letter of Transmittal (which together
with the Prospectus constitute the "Exchange Offer") in connection with the
offer by El Paso Energy Corporation, a Delaware corporation (the "Company"), to
exchange its outstanding 6 5/8% Series B Senior Notes due 2001 (the "Exchange
Notes") for any and all of the outstanding 6 5/8% Series A Senior Notes due 2001
(the "Old Notes"), upon the terms and subject to the conditions set forth in
the Exchange Offer.
We are the Registered Holders of Old Notes held for your account. An
exchange of the Old Notes can be made only by us as the Registered Holders and
pursuant to your instructions. The Letter of Transmittal is furnished to you
for your information only and cannot be used by you to exchange the Old Notes
held by us for your account. The Exchange Offer provides a procedure for
holders to tender by means of guaranteed delivery.
We request information as to whether you wish us to exchange any or
all of the Old Notes held by us for your account upon the terms and subject to
the conditions of the Exchange Offer.
Your attention is directed to the following:
1. The Exchange Notes will be exchanged for the Old Notes at the
rate of $1,000 principal amount of Exchange Notes for each $1,000
principal amount of Old Notes. Interest on the Notes will accrue at
the rate of 6 5/8% per annum and will be payable semi-annually on each
January 15 and July 15, beginning January 15, 2000, to the holders of
record of Notes at the close of business on the January 1 and July 1,
respectively, immediately preceding such interest payment date.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the
original date of issuance. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months. The form and terms of
the Exchange Notes are identical in all material respects to the form
and terms of the Old Notes, except that (i) the offering of the
Exchange Notes has been registered under the Securities Act of 1933,
as amended (the "Securities Act"), (ii) the Exchange Notes will not be
subject to transfer restrictions and (iii) certain provisions relating
to an increase in the stated interest rate on the Old Notes provided
for under certain circumstances will be eliminated.
2. Based on an interpretation by the staff of the Securities and
Exchange Commission, Exchange Notes issued pursuant to the Exchange
Offer in exchange for Old Notes may be offered for resale, resold and
otherwise transferred by holders thereof (other than any such holder
which is an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act or a "broker" or "dealer" registered under
the Securities Exchange Act of 1934, as amended) without compliance
with the registration and prospectus delivery provisions of the
Securities Act, provided that such Exchange Notes are acquired in the
ordinary course of such holders' business and such holders have no
arrangement or understanding with any person to participate in the
distribution of such Exchange Notes. See the discussion in the
Prospectus under "The Exchange Offer -- Purpose and Effect of the
Exchange Offer."
<PAGE> 2
3. The Exchange Offer is not conditioned on any minimum principal
amount of Old Notes being tendered.
4. Notwithstanding any other term of the Exchange Offer, the
Company will not be required to accept for exchange, or exchange
Exchange Notes for, any Old Notes not theretofore accepted for
exchange, and may terminate or amend the Exchange Offer as provided
herein before the acceptance of such Old Notes, if any of the
conditions described in the Prospectus under "The Exchange Offer --
Conditions to the Exchange Offer" exist.
5. Tendered Old Notes may be withdrawn at any time prior to
5:00 p.m., New York City time, on ___________________ , 1999.
6. Any transfer taxes applicable to the exchange of the Old Notes
pursuant to the Offer will be paid by the Company, except as otherwise
provided in the Prospectus under "The Exchange Offer -- Solicitation
of Tenders; Fees and Expenses" and in Instruction 9 of the Letter of
Transmittal.
If you wish to have us tender any or all of your Old Notes, please so
instruct us by completing, detaching and returning to us the instruction form
attached hereto. An envelope to return your instructions is enclosed. If you
authorize a tender of your Old Notes, the entire principal amount of Old Notes
held for your account will be tendered unless otherwise specified on the
instruction form. Your instructions should be forwarded to us in ample time to
permit us to submit a tender on your behalf by the Expiration Date.
The Exchange Offer is not being made to, nor will tenders be accepted
from or on behalf of, holders of the Old Notes in any jurisdiction in which the
making of the Exchange Offer or acceptance thereof would not be in compliance
with the laws of such jurisdiction or would otherwise not be in compliance with
any provision of any applicable security law.
<PAGE> 1
EXHIBIT 99.4
EL PASO ENERGY CORPORATION
OFFER TO EXCHANGE
its
65/8% Series B Senior Notes due 2001
for any and all of its
65/8% Series A Senior Notes due 2001
To Brokers, Dealers, Commercial
Banks, Trust Companies and
Other Nominees:
We are enclosing herewith an offer by El Paso Energy Corporation
(the "Company"), to exchange its 65/8% Series B Senior Notes due 2001 (the
"Exchange Notes") for any and all of its outstanding 65/8% Series A Senior
Notes due 2001 (the "Old Notes"), upon the terms and subject to the conditions
set forth in the accompanying Prospectus dated __________________________, 1999
(the "Prospectus") and related Letter of Transmittal (which together with the
Prospectus constitutes the "Exchange Offer").
The Exchange Offer provides a procedure for holders to tender the
Old Notes by means of guaranteed delivery.
The Exchange Offer will expire at 5:00 p.m., New York City time, on
__________________, 1999, unless extended (the "Expiration Date"). Tendered
Old Notes may be withdrawn at any time prior to 5:00 p.m., New York City time,
on the Expiration Date.
Based on an interpretation by the staff of the Securities and
Exchange Commission, Exchange Notes issued pursuant to the Exchange Offer in
exchange for Old Notes may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder which is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act or a "broker" or "dealer" registered under the Securities Exchange Act of
1934, as amended) without compliance with the registration and prospectus
delivery provisions of the Securities Act provided that such Exchange Notes are
acquired in the ordinary course of such holders' business and such holders have
no arrangement with any person to participate in the distribution of such
Exchange Notes. See the discussion in the Prospectus under "The Exchange Offer
- -- Purpose and Effect of the Exchange Offer."
The Exchange Offer is not conditioned on any minimum principal
amount of Old Notes being tendered.
Notwithstanding any other term of the Exchange Offer, the Company
will not be required to accept for exchange, or exchange Exchange Notes for,
any Old Notes not theretofore accepted for exchange, and may terminate or amend
the Exchange Offer as provided herein before the acceptance of such Old Notes,
if any of the conditions described in the Prospectus under "The Exchange Offer
- -- Conditions of the Exchange Offer" exist.
The Company reserves the right not to accept tendered Old Notes from
any tendering holder if the Company determines, in its sole and absolute
discretion, that such acceptance could result in a violation of applicable
securities laws.
For your information and for forwarding to your clients for whom you
hold Old Notes registered in your name or in the name of your nominee, we are
enclosing the following documents:
1. A Prospectus dated ________________________, 1999.
2. A Letter of Transmittal for your use and for the information of
your clients.
<PAGE> 2
3. A printed form of letter which may be sent to your clients for
whose accounts you hold Old Notes registered in your name or in the name of
your nominee, with space provided for obtaining such clients' instructions with
regard to the Exchange Offer.
4. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 of the Internal Revenue Service (included in Letter of
Transmittal).
WE URGE YOU TO CONTACT YOUR
CLIENTS AS PROMPTLY AS POSSIBLE.
Any inquiries you may have with respect to the Exchange Offer may be
addressed to, and additional copies of the enclosed materials may be obtained
from, the Exchange Agent at the following telephone number: (212) 638- 0828,
attention Carlos Esteves.
Very truly yours,
EL PASO ENERGY CORPORATION
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU AS
THE AGENT OF THE COMPANY, THE EXCHANGE AGENT OR ANY OTHER PERSON OR AUTHORIZE
YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF
ANY OF THEM IN CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS
ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
-2-
<PAGE> 1
EXHIBIT 99.5
EL PASO ENERGY CORPORATION
OFFER TO EXCHANGE
ITS
6 5/8% SERIES B SENIOR NOTES DUE 2001
FOR ANY AND ALL OF ITS
6 5/8% SERIES A SENIOR NOTES DUE 2001
INSTRUCTION TO REGISTERED HOLDER FROM BENEFICIAL OWNER
The undersigned acknowledge(s) receipt of your letter and the enclosed
Prospectus and the related Letter of Transmittal, in connection with the offer
by El Paso Energy Corporation (the "Company") to exchange the 6 5/8% Series A
Senior Notes due 2001 (the "Old Notes").
This will instruct you to tender the principal amount of Old Notes
indicated below held by you for the account of the undersigned, upon the terms
and subject to the conditions set forth in the Prospectus and the related
Letter of Transmittal.
The undersigned represents that (i) the 6 5/8% Series B Senior Notes
due 2001 (the "Exchange Notes") to be acquired pursuant to the Exchange Offer
in exchange for the Old Notes designated below are being obtained in the
ordinary course of business of the person receiving such Exchange Notes, (ii)
neither the undersigned nor any other person receiving such Exchange Notes is
participating, intends to participate, or has any arrangement or understanding
with any person to participate, in the distribution of such Exchange Notes, and
(iii) it is not an "affiliate," as defined under Rule 405 of the Securities Act
of 1933 (the "Securities Act"), of the Company or, if it is an affiliate, that
it will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable.
If the undersigned is a "broker" or "dealer" registered under the
Securities Exchange Act of 1934 that acquired Old Notes for its own account
pursuant to its market-making or other trading activities (other than Old Notes
acquired directly from the Company), the undersigned understands and
acknowledges that it may be deemed to be an "underwriter" within the meaning of
the Securities Act and, therefore, must deliver a prospectus relating to the
Exchange Notes in connection with any resales by it of Exchange Notes acquired
for its own account in the Exchange Offer. Notwithstanding the foregoing, the
undersigned does not thereby admit that it is an "underwriter" within the
meaning of the Securities Act.
YOU ARE HEREBY INSTRUCTED TO TENDER ALL OLD NOTES HELD FOR THE ACCOUNT OF THE
UNDERSIGNED UNLESS OTHERWISE INDICATED BELOW.
[ ] DO NOT TENDER ANY OLD NOTES
[ ] TENDER OLD NOTES IN THE AGGREGATE PRINCIPAL AMOUNT OF $
------------
SIGNATURE:
-------------------------------------------------------------
NAME OF BENEFICIAL OWNER (PLEASE PRINT)
BY
---------------------------------------------------------------------
SIGNATURE
- -------------------------------------------------------------------------
ADDRESS
- -------------------------------------------------------------------------
AREA CODE AND TELEPHONE NUMBER
DATED: , 1999
------------
