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EXHIBIT 4.3
FIRST AMENDMENT TO AMENDED AND RESTATED
DECLARATION OF TRUST
THIS FIRST AMENDMENT TO AMENDED AND RESTATED DECLARATION OF TRUST, dated
as of August 1, 1998 (the "First Amendment"), is among EL PASO ENERGY
CORPORATION, a Delaware corporation ("El Paso Energy" and hereinafter the
"Sponsor"), THE CHASE MANHATTAN BANK, as property trustee (the "Property
Trustee"), Chase Manhattan Bank Delaware, as Delaware trustee (the "Delaware
Trustee"), and the administrative trustees named on the signature page hereto
(the "Administrative Trustees"), and amends to the extent specified below the
Declaration (as defined herein),
W I T N E S S E T H :
WHEREAS, El Paso Natural Gas Company ("EPNG"), the Property Trustee, the
Delaware Trustee and the Administrative Trustees are parties to that certain
Amended and Restated Declaration of Trust of El Paso Energy Capital Trust I
dated as of March 16, 1998 (the "Declaration"); and
WHEREAS, EPNG recently caused El Paso Energy to be formed as a wholly
owned subsidiary of EPNG and then caused El Paso Energy to form El Paso Energy
Merger Company as a Delaware corporation and wholly owned subsidiary of El Paso
Energy ("Merger Sub"); and
WHEREAS, in accordance with that certain Reorganization Agreement, dated
as of July 16, 1998, among EPNG, El Paso Energy and Merger Sub, and pursuant to
that certain Agreement and Plan of Merger, dated as of July 16, 1998, among
EPNG, El Paso Energy and Merger Sub, effective as of 12:01 a.m., Eastern
Standard Daylight Time, on August 1, 1998 EPNG merged (the "Merger") with Merger
Sub, with EPNG continuing as the surviving corporation of the Merger and each
outstanding share (or fraction thereof) of the common stock, par value $3.00 per
share, of EPNG being converted into a share (or equal fraction thereof) of
common stock, par value $3.00 per share, of El Paso Energy; and
WHEREAS, as a result of the Merger, El Paso Energy has become the
holding company of EPNG, and such holding company reorganization was effected in
accordance with Section 251(g) of the Delaware General Corporation Law; and
WHEREAS, Section 15.9 of the Declaration requires El Paso Energy to
expressly assume the obligations of EPNG under the Declaration in an instrument
of assumption in form satisfactory to the Property Trustee; and
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WHEREAS, pursuant to and in compliance with Section 15.9 of the
Declaration, El Paso Energy is entering into this First Amendment to succeed to
and to be substituted for EPNG under the Declaration as "Sponsor," with the same
effect as if it had been named as Sponsor therein; and
WHEREAS, Section 13.1(h) of the Declaration provides that, without the
consent of the Holders, the Declaration may be amended by written instrument, in
form satisfactory to the Property Trustee, for the purpose of, among other
things, modifying, eliminating and adding to any provision of the Declaration to
such extent as may be necessary, provided that such amendment does not have a
material adverse effect on the rights, preferences or privileges of the Holders;
and
WHEREAS, the entry into this First Amendment to the Declaration by the
parties hereto is in all respects authorized by the provisions of the
Declaration; and
WHEREAS, all things necessary to make this First Amendment a valid
agreement according to its terms have been done;
NOW, THEREFORE, for and in consideration of the premises, El Paso
Energy, the Property Trustee and the Administrative Trustees mutually covenant
and agree for the equal and proportionate benefit of the respective Holders from
time to time of the Trust Securities as follows:
ARTICLE 1
SECTION 1.01. Assumption of Obligations by El Paso Energy. Pursuant to
Section 15.9 of the Declaration, El Paso Energy does hereby: (i) expressly
assume the due and punctual performance and observance of all of the covenants
and conditions of the Declaration to be performed by EPNG; (ii) agree to succeed
to and be substituted for EPNG under the Declaration with the same effect as if
it had been named originally therein as the Sponsor; and (iii) represent that it
is not in default in the performance of any such covenant and condition.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. Further Assurances. El Paso Energy will, upon request by
the Property Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectively the purposes of this First Amendment.
SECTION 2.02. Other Terms of Declaration. Except insofar as herein
otherwise expressly provided, all the provisions, terms and conditions of the
Declaration are in all respects ratified and confirmed and shall remain in full
force and effect.
SECTION 2.03. Terms Defined. All terms defined elsewhere in the
Declaration shall have the same meanings when used herein.
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SECTION 2.04. GOVERNING LAW. THIS FIRST AMENDMENT TO THE DECLARATION
SHALL BE GOVERNED BY SUCH LAWS AS ARE PROVIDED IN SECTION 15.2 OF THE
DECLARATION.
SECTION 2.05. Multiple Counterparts. This First Amendment may be
executed in any number of counterparts, each of which shall be deemed to be an
original for all purposes, but such counterparts shall together be deemed to
constitute but one and the same instrument.
SECTION 2.06. Responsibility of Property Trustee. The recitals contained
herein shall be taken as the statements of El Paso Energy, and the Property
Trustee assumes no responsibility for the correctness of the same. The Property
Trustee makes no representations as to the validity or sufficiency of this First
Amendment.
SECTION 2.07. Agency Appointments. El Paso Energy hereby confirms and
agrees to all agency appointments made by EPNG under or with respect to the
Declaration or the Trust Securities and hereby expressly assumes the due and
punctual performance and observance of all the covenants and conditions to have
been performed or observed by EPNG contained in any agency agreement entered
into by EPNG under or with respect to the Declaration or the Trust Securities.
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IN WITNESS WHEREOF, this First Amendment has been duly executed by El
Paso Energy, the Property Trustee, the Delaware Trustee and the Administrative
Trustees as of the day and year first written above.
EL PASO ENERGY CORPORATION,
as sponsor of EL PASO ENERGY CAPITAL TRUST I
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Executive Vice President and CFO
THE CHASE MANHATTAN
BANK, as Property Trustee
By: /s/ ▇. ▇▇▇▇▇▇▇▇
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Title: Senior Trust Officer
CHASE MANHATTAN BANK
DELAWARE, as Delaware Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
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/s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇
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H. ▇▇▇▇▇ ▇▇▇▇▇▇, as Administrative Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Administrative Trustee
/s/ C. ▇▇▇▇ ▇▇▇▇
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C. ▇▇▇▇ ▇▇▇▇, as Administrative Trustee
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