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EXHIBIT 4.4
FIRST AMENDMENT TO
TRUST CONVERTIBLE PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS FIRST AMENDMENT TO TRUST CONVERTIBLE PREFERRED SECURITIES GUARANTEE
AGREEMENT, dated as of August 1, 1998 (the "First Amendment"), is between EL
PASO ENERGY CORPORATION, a Delaware corporation ("El Paso Energy" and
hereinafter the "Guarantor") and THE CHASE MANHATTAN BANK, as trustee (the
"Trust Preferred Guarantee Trustee"), and amends to the extent specified below
the Trust Preferred Securities Guarantee (as defined herein).
W I T N E S S E T H :
WHEREAS, El Paso Natural Gas Company ("EPNG") and the Trust Preferred
Guarantee Trustee are parties to that certain Trust Convertible Securities
Guarantee Agreement dated as of March 17, 1998 (the "Trust Preferred Securities
Guarantee") for the benefit of the holders ("Holders") of the Trust Convertible
Preferred Securities (the "Trust Preferred Securities") of El Paso Energy
Capital Trust I; 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
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 10.3 of the Trust Preferred Securities Guarantee
requires El Paso Energy to expressly assume the obligations of EPNG under the
Trust Preferred Securities Guarantee in an instrument of assumption in form
satisfactory to the Trust Preferred Guarantee Trustee; and
WHEREAS, pursuant to and in compliance with Section 10.3 of the Trust
Preferred Securities Guarantee, El Paso Energy is entering into this First
Amendment to succeed to and to be substituted
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for EPNG under the Trust Preferred Securities Guarantee as "Guarantor," with the
same effect as if it had been named as Guarantor therein; and
WHEREAS, Section 10.2 of the Trust Preferred Securities Guarantee
provides that, without the consent of the Holders, the Trust Preferred
Securities Guarantee may be amended with respect to changes that do not
materially adversely effect the rights of Holders; and
WHEREAS, the entry into this First Amendment to the Trust Preferred
Securities Guarantee by the parties hereto is in all respects authorized by the
provisions of the Trust Preferred Securities Guarantee; 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
and the Trust Preferred Guarantee Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders from time to time of
the Trust Preferred Securities as follows:
ARTICLE 1
SECTION 1.01. Assumption of Obligations by El Paso Energy. Pursuant to
Section 10.3 of the Trust Preferred Securities Guarantee, El Paso Energy does
hereby: (i) expressly assume the due and punctual performance and observance of
all of the covenants and conditions of the Trust Preferred Securities Guarantee
to be performed by EPNG; (ii) agree to succeed to and be substituted for EPNG
under the Trust Preferred Securities Guarantee with the same effect as if it had
been named originally therein as the Guarantor; 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 Trust Preferred Guarantee 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
Trust Preferred Securities Guarantee 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 Trust
Preferred Securities Guarantee shall have the same meanings when used herein.
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SECTION 2.04. GOVERNING LAW. THIS FIRST AMENDMENT TO THE TRUST
PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
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 Trust
Preferred Guarantee Trustee assumes no responsibility for the correctness of the
same. The Trust Preferred Guarantee 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
Trust Preferred Securities Guarantee or the Trust Preferred 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 Trust Preferred Securities Guarantee or the Trust Preferred Securities.
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IN WITNESS WHEREOF, this First Amendment has been duly executed by El
Paso Energy and the Trust Preferred Guarantee Trustee as of the day and year
first written above.
EL PASO ENERGY CORPORATION,
as Guarantor
By: /s/ H. XXXXX XXXXXX
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Title: Executive Vice President & CFO
THE CHASE MANHATTAN
BANK, as Trust Preferred Guarantee Trustee
By: /s/ X. XXXXXXXX
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Title: Senior Trust Officer
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