EXHIBIT 99.6
EL PASO NATURAL GAS COMPANY
El Paso Building
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EXCHANGE AGENT AGREEMENT
July _____, 2002
Deutsche Bank Trust Company Americas
Corporate Trust and
Agency Group
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Market Services
Ladies and Gentlemen:
El Paso Natural Gas Company, a Delaware corporation (the "Company"), is
offering to exchange (the "Exchange Offer") its 8 3/8% Notes due June 15, 2032
(the "Old Notes") for an equal principal amount of its registered 8 3/8% Notes
due June 15, 2032 (the "New Notes" and, together with the Old Notes, the
"Notes"), pursuant to a prospectus (the "Prospectus") included in the Company's
Registration Statement on Form S-4 (Reg. No. 333-_________) as amended (the
"Registration Statement"), filed with the Securities and Exchange Commission
(the "SEC") and attached hereto as Exhibit A. The Term "Expiration Date" shall
mean 5:00 p.m., New York City time, on ________________, 2002, unless the
Exchange Offer is extended as provided in the Prospectus, in which case the term
"Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended. Upon execution of this Agreement, Deutsche Bank Trust Company
Americas (the "Exchange Agent") will act as the Exchange Agent for the Exchange
Offer. Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to holders of Old Notes (each, a
"Holder" and, collectively, the "Holders") and the form of letter to clients
(collectively, the "Tender Documents") to be used by Holders of Old Notes in
order to receive New Notes pursuant to the Exchange Offer are attached hereto as
Exhibit B.
The Company hereby appoints you to act as Exchange Agent in connection
with the Exchange Offer. In carrying out your duties as Exchange Agent, you are
to act in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of
the Holders and participants on the day that you are notified by the Company
that the Registration Statement has become effective under the Securities Act of
1933, as amended, or as soon as practicable thereafter, and to make subsequent
mailings thereof as soon as practicable after the date of any amendment thereof
and to any persons who become Holders prior to the Expiration Date and to any
persons as may from time to time be requested by the Company. All mailings
pursuant to this Section 1 shall be by first class mail, postage prepaid, unless
otherwise specified by the Company. You shall also accept and comply with
telephone requests for information relating to the Exchange Offer, provided that
such information shall relate only to the procedures for tendering Old Notes in
(or withdrawing tenders of Old Notes from) the Exchange Offer and provided that
such information shall relate only to the procedures for tendering Old Notes in
(or withdrawing tenders of Old Notes from) the Exchange Offer. All other
requests for information relating to the Exchange Offer shall be directed to the
Company, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇.
2. You are to examine Letters of Transmittal and the Old Notes and
other documents delivered or mailed to you, by or for the Holders, prior to the
Expiration Date, to ascertain whether (i) the Letters of Transmittal are
properly executed and completed in accordance with the instructions set forth
therein, (ii) the Old Notes are in proper form for transfer and (iii) all other
documents submitted to you are in proper form. In each case where a Letter of
Transmittal or other document has been improperly executed or completed or, for
any other reason, is not in proper form, or some other irregularity exists, you
are authorized to endeavor to take such action as you consider appropriate to
notify the tendering Holder of such irregularity and as to the appropriate means
of resolving the same. Determination of questions as to the proper completion or
execution of the Letters of Transmittal, or as to the proper form for transfer
of the Old Notes or as to any other irregularity in connection with the
submission of Letters of Transmittal and/or Old Notes and other documents in
connection with the Exchange Offer, shall be made by the officers of, or counsel
for, the Company at their written instructions or oral direction confirmed by
facsimile. Any determination made by the Company on such questions shall be
final and binding.
3. At the written request of the Company or its counsel, ▇▇▇▇▇ Liddell
& ▇▇▇▇ LLP, you shall notify tendering Holders of Old Notes of the termination
of the Exchange Offer and, in the event of any such termination, you will return
all tendered Old Notes to the persons entitled thereto, at the request of the
Company or its counsel, ▇▇▇▇▇ Liddell & ▇▇▇▇ LLP, at the expense of the Company.
4. Tender of the Old Notes may be made only as set forth in the Letter
of Transmittal. Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly delivered shall be considered to be
properly tendered. Letters of Transmittal and Notices of Guaranteed Delivery
shall be recorded by you as to the date and time of receipt and shall be
preserved and retained by you at the Company's expense for one year. New Notes
are to be issued in exchange for Old Notes pursuant to the Exchange Offer
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only (i) against deposit with you prior to the Expiration Date or, in the case
of a tender in accordance with the guaranteed delivery procedures outlined in
Instruction 2 of the Letter of Transmittal, within three New York Stock Exchange
trading days after the Expiration Date of the Exchange Offer, together with
executed Letters of Transmittal and other documents required by the Exchange
Offer or (ii) in the event that the Holder is a participant in the Depository
Trust Company ("DTC") system, by the utilization of DTC's Automated Tender Offer
Program ("ATOP") and any evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect to the
Notes at The Depositary Trust Company (the "Book Entry Transfer Facility")
within two days after the date hereof in accordance with SEC Regulation
240.17Ad. Any financial institution that is a participant in the Book Entry
Transfer Facility system may, until the Expiration Date, make book-entry
delivery of the Old Notes by causing the Book Entry Transfer Facility to
transfer such Notes into your account in accordance with the procedure for such
transfer established by the Book Entry Transfer Facility. In every case,
however, a Letter of Transmittal (or a manually executed facsimile thereof), or
an Agent's Message (as defined in the Prospectus), properly completed and duly
executed, with any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the Expiration
Date, or the guaranteed delivery procedures described in the Prospectus must be
complied with.
5. Upon oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
telephone, and promptly thereafter confirm in writing to the Company's counsel,
▇▇▇▇▇ Liddell & ▇▇▇▇ LLP, 3400 JPMorgan Chase Tower, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Tel: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (713)
▇▇▇-▇▇▇▇), or such other persons as the Company may reasonably request, the
aggregate number and principal amount of Old Notes tendered to you and the
number and principal amount of Old Notes properly tendered that day. In
addition, you will also inform the aforementioned persons, upon oral request
made from time to time (with written confirmation of such request thereafter)
prior to the Expiration Date, of such information as they or any of them may
reasonably request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of New Notes will be made by you promptly after acceptance of the
tendered Old Notes. You will hold all items which are deposited for tender with
you after 5:00 p.m. New York City time, on the Expiration Date, pending further
instructions from an officer of the Company.
7. If any Holder shall report to you that his or her failure to
surrender Old Notes registered in his or her name is due to the loss or
destruction of a certificate or certificates, you shall request such Holder (i)
to furnish to you an affidavit of loss and, if required by the Company, a bond
of indemnity in an amount, and evidenced by such certificate or certificates of
a surety, as may be satisfactory to you and the Company, and (ii) to execute and
deliver an agreement to indemnify the Company and you in such form as is
acceptable to you and the Company. The obligees to be named in each such
indemnity bond shall include the Company
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and you. You shall report to the Company the names of all Holders who claim that
their Old Notes have been lost or destroyed and the principal amount of such Old
Notes.
8. As soon as practicable after the Expiration Date, you shall mail or
deliver via the Book Entry Transfer Facility's applicable procedures, the New
Notes that such Holders may be entitled to receive and you shall arrange for
cancellation of the Old Notes submitted to you or returned by DTC in connection
with ATOP. Such Old Notes shall be forwarded to you for cancellation and
retirement as you are instructed by the Company (or a representative designated
by the Company) in writing.
9. For your services as the Exchange Agent hereunder, the Company shall
pay you in accordance with the schedule of fees attached hereto as Exhibit C.
The Company also will reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorneys' fees not previously paid
to you as set forth in Exhibit C) in connection with your services promptly
after submission to the Company of itemized statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and
agreed to by you in writing with respect to the Exchange Offer;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Notes deposited with you hereunder, any New
Notes, and Tender Documents or other documents prepared by the Company
in connection with the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability unless
you shall have been furnished with an indemnity reasonably satisfactory
to you;
(d) may rely on, and shall be fully protected and indemnified
as provided in Section 12 hereof in acting upon, the written or oral
instructions with respect to any matter relating to your acting as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such action of any officer or agent of the Company or
of such other person or persons as may be designated or whom you
reasonably believe have been designated by the Company;
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(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice of such counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by you in good faith and in accordance with
such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom
of the Exchange Offer or as to the market value or decline or
appreciation in market value of any Old Notes or New Notes; and
(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for your
gross negligence, willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold harmless the
Exchange Agent and its officers, directors, employees, agents and affiliates
(collectively, the "Indemnified Parties" and each an "Indemnified Party")
against any loss, liability or reasonable expense of any nature (including
reasonable attorneys' and other fees and expenses) incurred in connection with
the administration of the duties of the Indemnified Parties hereunder in
accordance with this Agreement; provided, however, such Indemnified Party shall
use its best efforts to notify the Company by letter, or by cable, telex or
telecopier confirmed by letter, of the written assertion of a claim against such
Indemnified Party, or of any action commenced against such Indemnified Party,
promptly after but, in any event, within 10 business days of the date such
Indemnified Party shall have received any such written assertion of a claim or
shall have been served with a summons or other legal process, giving information
as to the nature and basis of the claim; provided, however, that failure to so
notify the Company shall not relieve the Company of any liability which it may
otherwise have hereunder, except such liability that is a direct result of such
Indemnified Party's failure to so notify the Company. The Company shall be
entitled to participate, at its own expense, in the defense of any such claim or
legal action and, if the Company so elects or if the Indemnified Party in such
notice to the Company so directs, the Company may assume the defense of any
pending or threatened action against such Indemnified Party in respect of which
indemnification may be sought hereunder, in which case the Company shall not
thereafter be responsible for the subsequently-incurred fees and disbursements
of legal counsel for such Indemnified Party under this paragraph so long as the
Company shall retain counsel satisfactory to such Indemnified Party to defend
such suit; provided, that the Company shall not be entitled to assume the
defense of any such action if the named parties to such action include both an
Indemnified Party and the Company and the representation of both parties by the
same legal counsel would, in the written opinion of counsel for the Indemnified
Party, be inappropriate due to actual or potential conflicting interests between
the Indemnified Party and the Company. You understand and agree that the Company
shall not be liable under this paragraph for the fees and expenses of more than
one legal counsel for all Indemnified Parties; provided, that, in the event (i)
the Company does not retain counsel reasonably satisfactory to the Indemnified
Party to defend such suit or, (ii) upon the advice of
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counsel, there exists a defense available to the Indemnified Party that is not
otherwise available to the Company and the Indemnified Party has determined, in
its reasonable judgment, that a conflict of interest exists between the
Indemnified Party and the Company, the Company shall pay the reasonable legal
fees for no more than one separate legal counsel for the Indemnified Party.
Except as set forth herein, you shall be entitled to retain counsel of your
choice in any suit and the Company shall pay the fees, expenses and
disbursements of such counsel. You shall not enter into a settlement or other
compromise with respect to any indemnified loss, liability or expense without
the prior written consent of the Company, which shall not be unreasonably
withheld or delayed if not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York and
shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating to
this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented without
an express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Tender Documents, as they may from time to time
be supplemented or amended, shall be resolved in favor of the latter, except
with respect to the duties, liabilities and indemnification of you as Exchange
Agent.
16. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which, taken together, shall
constitute one and the same agreement.
17. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
18. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall
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promptly deliver to the Trustee any certificates for Old Notes or New Notes,
funds or property then held by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if delivered or mailed first class certified or
registered mail, postage prepaid, or telecopied as follows:
If to the Company: El Paso Natural Gas Company
El Paso Building
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
and a copy to: ▇▇▇▇▇ Liddell & ▇▇▇▇ LLP
3400 JPMorgan Chase Tower
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Exchange
Agent: Deutsche Bank Trust Company Americas
Corporate Trust and Agency Group
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to: Deutsche Bank Trust Company Americas
Corporate Trust and Agency Group
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purposes.
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20. This Letter Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing is in accordance with your understanding, would you
please indicate your agreement by signing and returning the enclosed copy of
this Agreement to the Company.
Very truly yours,
EL PASO NATURAL GAS COMPANY
By:
-----------------------------
Name:
Title:
Agreed to this _____ day of July, 2002
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Exchange Agent
By:
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Name:
Title:
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EXHIBIT A
REGISTRATION STATEMENT
[To be inserted]
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EXHIBIT B
FORM OF LETTER OF TRANSMITTAL, FORM OF NOTICE OF GUARANTEED
DELIVERY, FORM OF LETTER TO HOLDERS, FORM OF LETTER TO CLIENTS
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EXHIBIT C
SCHEDULE OF FEES
[To be inserted]
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