EXHIBIT 99.6
SOUTHERN NATURAL GAS COMPANY
EL PASO BUILDING
0000 XXXXXXXXX XXXXXX
XXXXXXX, XXXXX 00000
EXCHANGE AGENT AGREEMENT
, 2003
Deutsche Bank Trust Company Americas
Corporate Trust and
Agency Group
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Market Services
Ladies and Gentlemen:
Southern Natural Gas Company, a Delaware corporation (the "Company"), is
offering to exchange (the "Exchange Offer") its 8 7/8% Notes due 2010 (the "Old
Notes") for an equal principal amount of its registered 8 7/8% Notes due 2010
(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 , 2003, 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: Xxxxx Xxxxxxx,
Esq., 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000.
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, Xxxxx Liddell &
Xxxx 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, Xxxxx Liddell & Xxxx 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 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, Xxxxx Liddell &
Xxxx LLP, 3400 JPMorgan Chase Tower, 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000,
Attention: Xxxxx X. Xxxxxx (Tel: (000) 000-0000, Fax: (000) 000-0000), 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.
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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 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;
(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.
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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 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.
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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 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: Southern Natural Gas Company
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopier No: (000) 000-0000
Attn: Xxxxx Xxxxxxx, Esq.
and a copy to: Xxxxx Liddell & Xxxx LLP
3400 JPMorgan Chase Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopier No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx
If to the Exchange Agent: Deutsche Bank Trust Company Americas
Corporate Trust and Agency Group
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxxxx Xxx Xxxxx, Vice
President
Telephone: 000-000-0000
Telecopier: 000-000-0000
and a copy to: Deutsche Bank Trust Company Americas
Corporate Trust and Agency Group
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxxxx Xxx Xxxxx, Vice
President
Telephone: 000-000-0000
Telecopier: 000-000-0000
or such other address or telecopy number as any of the above may have
furnished to the other parties in writing for such purposes.
20. This Letter Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Company.
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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,
SOUTHERN NATURAL GAS COMPANY
By:
------------------------------------
Name:
Title:
Agreed to this day of , 2003
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Exchange Agent
By:
------------------------------------
Name:
Title:
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