EXCHANGE AGENT AGREEMENT
EXHIBIT
99.F
,
0000
Xxx Xxxx xx Xxx Xxxx Trust Company, N.A.
x/x Xxx
Xxxx xx Xxx Xxxx
Corporate Trust Operations
Reorganization Xxxx
000 Xxxxxxx Xxxxxx — 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Reorganization Unit
Ladies and Gentlemen:
Southern National Gas Company, a Delaware corporation (the
“Company”), proposes to make an offer (the
“Exchange Offer”) to exchange an aggregate principal
amount of up to $500,000,000 of its registered 5.90% Notes
due 2017 (the “New Notes”) for a like principal amount
of its outstanding 5.90% Notes due 2017 (the “Old
Notes”). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus (the
“Prospectus” included in the Company’s
registration statement on
Form S-4
(Registration
No. 333-146158)
as amended (the “Registration Statement”)) filed with
the Securities and Exchange Commission (the “SEC”),
and proposed to be distributed to all record holders of the Old
Notes. The Old Notes and the New Notes are collectively referred
to in this Exchange Agent Agreement (this “Agreement”)
as the “Notes” or the “Securities.”
Capitalized terms used herein and not defined shall have the
respective meanings ascribed to them in the Registration
Statement or the accompanying letter of transmittal (the
“Letter of Transmittal”).
The Company hereby appoints The Bank of New York
Trust Company, N.A. to act as exchange agent (the
“Exchange Agent”) in connection with the Exchange
Offer. References hereinafter to “you” shall refer to
The Bank of New York Trust Company, N.A.
The Exchange Offer is expected to be commenced by the Company on
or
about ,
2007. The Letter of Transmittal accompanying the Registration
Statement is to be used by the holders of the Old Notes to
tender into the Exchange Offer, and contains instructions with
respect to the delivery of certificates for Old Notes tendered
in connection therewith. The Exchange Agent’s obligations
with respect to receipt and inspection of the Letter of
Transmittal in connection with the Exchange Offer shall be
satisfied for all purposes hereof by (1) inspection of the
electronic message transmitted to the Exchange Agent by Exchange
Offer participants in accordance with the Automated Tender Offer
Program (“ATOP”) of the Depositary Trust Company
(“DTC”), and by otherwise observing and complying with
all procedures established by DTC in connection with ATOP, to
the extent that ATOP is utilized by Exchange Offer participants,
or (2) by inspection of the Letter of Transmittal by each
respective holder of Old Notes.
The Exchange Offer shall expire at 5:00 p.m., New York City
time,
on ,
2007, or on such later date or time to which the Company may
extend the Exchange Offer (the “Expiration Date”).
Subject to the terms and conditions set forth in the
Registration Statement, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend
the Exchange Offer by giving oral (confirmed in writing) or
written notice to you at any time before 9:00 a.m., New
York City time, on the business day following the previously
scheduled Expiration Date, and in such case the term
“Expiration Date” shall mean the time and date on
which the Exchange Offer as so extended shall expire.
The Company expressly reserves the right, in its sole
discretion, to delay, amend or terminate the Exchange Offer, and
not to accept for exchange any Old Notes not theretofore
accepted for exchange, in among other cases upon the occurrence
of any of the conditions of the Exchange Offer specified in the
Registration Statement under the caption “The Exchange
Offer — Expiration Date; Extensions; Termination;
Amendments.” The Company will give to you as promptly as
practicable oral notice (confirmed in writing) or written notice
of any delay, amendment, termination or non-acceptance.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties
(i) as are specifically set forth (a) herein,
(b) in the section of the Registration Statement captioned
the “The Exchange Offer” and (c) in the Letter of
Transmittal accompanying the Registration Statement,
(ii) which are necessarily incidental thereto and
(iii) as may be subsequently agreed to in writing by you
and the Company; provided, however, that
notwithstanding any provision hereof to the contrary, in no way
will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish a book-entry account with respect to
the Old Notes at The Depository Trust Company (the
“Book-Entry Transfer Facility”) for purposes of the
Exchange Offer within two business days after the date of the
Registration Statement, and any financial institution that is a
participant in the Book-Entry Transfer Facility’s systems
may make book-entry delivery of the Old Notes by causing the
Book-Entry Transfer Facility to transfer such Old Notes into
your account in accordance with the Book-Entry Transfer
Facility’s procedure for such transfer.
3. You are to examine each of the Letters of Transmittal
and certificates for Old Notes (or confirmation of book-entry
transfers into your account at the Book-Entry Transfer Facility)
and any other documents delivered or mailed to you by or for
holders of the Old Notes to ascertain whether: (i) the
Letters of Transmittal, certificates and any such other
documents are duly executed and properly completed in accordance
with instructions set forth therein and in the Registration
Statement and that such book-entry confirmations are in due and
proper form and contain the information required to be set forth
therein, and (ii) the Old Notes have otherwise been
properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed
or where book-entry confirmations are not in due and proper form
or omit certain information or any of the certificates for Old
Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange
Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other
action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Chief Financial Officer,
Secretary or any Vice President of the Company (such approval,
if given orally, promptly to be confirmed in writing) or any
other party designated by such officer in writing (each a
“Designated Officer”), you are authorized to waive any
irregularities in connection with any tender of Old Notes
pursuant to the Exchange Offer. You are not otherwise authorized
to waive any such irregularities.
5. Tenders of Old Notes may be made only as set forth in
the Letter of Transmittal and in the section of the Registration
Statement captioned “The Exchange Offer —
Procedures for Tendering Old Notes” and Old Notes shall be
considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old
Notes that any Designated Officer shall approve as having been
properly tendered shall be considered to be properly tendered
(such approval, if given orally, shall be promptly confirmed in
writing).
6. You shall promptly advise the Company with respect to
any Old Notes delivered subsequent to the Expiration Date and
accept its instructions with respect to disposition of such Old
Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her
authority so to act is submitted; and
(c) from persons other than the registered holder of Old
Notes, provided that customary transfer requirements,
including any payment of applicable transfer taxes, are
fulfilled.
You shall accept partial tenders of Old Notes where so indicated
and as permitted in the Letter of Transmittal and return any
untendered Old Notes to the holder (or such other person as may
be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange
Offer. A new certificate for the remainder of the principal
amount of the Old Notes will be sent to the holders of Old Notes
unless otherwise indicated by partial tendering holders of Old
Notes.
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8. Upon satisfaction or waiver of all of the conditions to
the Exchange Offer, the Company will notify you (such notice if
given orally, promptly to be confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old Notes
properly tendered and you, on behalf of the Company, will cause
the exchange of such Old Notes for New Notes and cause such Old
Notes to be cancelled. Delivery of New Notes will be made on
behalf of the Company by you (or series trustee) at the rate of
$1,000 principal amount of New Notes (subject to adjustment) for
each $1,000 principal amount of the Old Notes tendered, and, in
the case of Old Notes tendered, promptly after notice (such
notice if given orally, promptly to be confirmed in writing) of
acceptance of said Old Notes by the Company; provided,
however, that in all cases, Old Notes tendered pursuant
to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Old Notes (or
confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly
executed Letter of Transmittal or facsimile thereof (or an
agent’s message (as defined in the Registration Statement))
with any required signature guarantees and any other required
document. Unless otherwise instructed in writing by the Company,
you shall issue New Notes only in denominations of $1,000 or any
integral multiple thereof. The amount of New Notes issued to a
tendering holder will be rounded down to the nearest $1,000 with
any fractional amount refunded to such tendering holder in cash.
9. Tenders pursuant to the Exchange Offer are irrevocable
after the Expiration Date. Subject to the terms and upon the
conditions set forth in the Registration Statement and the
Letter of Transmittal, Old Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date in accordance with the terms of the Exchange
Offer.
10. The Company shall not be required to exchange any Old
Notes tendered if any of the conditions set forth in the
Registration Statement are not met. Notice of any decision by
the Company not to exchange any Old Notes tendered shall be
given (such notices if given orally, promptly shall be confirmed
in writing) by the Company to you.
11. If, pursuant to the Registration Statement, the Company
does not accept for exchange all or part of the Old Notes
tendered because of an invalid tender, the occurrence of certain
other events set forth in the Registration Statement or
otherwise, you shall as soon as practicable after the expiration
or termination of the Exchange Offer return those certificates
for unaccepted Old Notes (or effect appropriate book-entry
transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such
book-entry transfer).
12. All certificates for reissued Old Notes, unaccepted Old
Notes or New Notes, as the case may be (other than those
effected by book-entry transfer), shall be forwarded by
(a) first-class mail, postage pre-paid under a blanket
surety bond protecting you and the Company from loss or
liability arising out of the non-receipt or non-delivery of such
certificates or (b) by registered mail insured separately
for the replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, bank or other persons or to engage or utilize any
persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the Old Notes deposited with you
pursuant to the Exchange Offer, and will not be required to and
will make no representation as to the validity, value or
genuineness of the Registration Statement;
(b) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any
expense or liability, unless you shall have been furnished with
reasonable indemnity;
(c) shall not be liable to the Company for any action taken
or omitted by you, or any action suffered by you to be taken or
omitted, without gross negligence, willful misconduct or bad
faith on your part, by reason of or as a result of the
administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your
compliance with the instructions set forth herein or with any
written or oral instructions delivered to you pursuant hereto,
and may reasonably rely on and shall be protected in acting in
good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or
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security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, written agreement or other instrument whatsoever not
only as to its due execution and validity and effectiveness of
its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon
written notice or oral instructions from any Designated Officer;
(f) shall not advise any person tendering Old Notes
pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of Old Notes or as to
the market value, decline or appreciation in market value of any
Old Notes that may or may not occur as a result of the Exchange
Offer or as to the market value of the New Notes;
(g) may consult with counsel with respect to any questions
relating to your duties and responsibilities, and the written
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by you hereunder in good faith and in
reliance thereon; and
(h) shall act solely as agent of the Company and shall not
assume any obligation, or relationship of agency or trust for
or, with any of the owners or holders of the Old Notes.
15. You shall send to all holders of Old Notes a copy of
the Registration Statement, the Letter of Transmittal, the
Notice of Guaranteed Delivery accompanying the Registration
Statement and such other documents (collectively, the
“Exchange Offer Documents”) as may be furnished by the
Company to commence the Exchange Offer and take such other
action as may from time to time be requested by the Company or
its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Exchange Offer Documents
or such other forms as may be approved from time to time by the
Company, to all holders of Old Notes and to all persons
requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange
Offer , provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the
Exchange Offer . The Company will furnish you with copies of
such documents at your request. All other requests for
information relating to the Exchange Offer shall be directed to
the Company, Attention: Corporate Secretary, at the
Company’s offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
00000, telephone number:
(000) 000-0000.
16. You shall advise by facsimile transmission, email or
telephone, and promptly thereafter confirm in writing to the
Corporate Secretary of the Company, and such other person or
persons as the Company may request in writing, daily, and more
frequently during the week immediately preceding the Expiration
Date and if otherwise requested, up to and including the
Expiration Date, as to the aggregate principal amount of Old
Notes which have been tendered pursuant to the Registration
Statement and the items received by you pursuant to the Exchange
Offer and this Agreement, separately reporting and giving
cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and
cooperate in making available to, the Company, its counsel or
any such other person or persons as the Company requests in
writing from time to time prior to the Expiration Date of such
other information as it or he or she reasonably requests. Such
cooperation shall include, without limitation, the granting by
you to the Company, its counsel and such person as the Company
may request of access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate
principal amount of Old Notes tendered, the aggregate principal
amount of Old Notes accepted and the identity of any
participating broker-dealers and the aggregate principal amount
of New Notes delivered to each, and deliver said list to the
Company.
17. Letters of Transmittal and Notices of Guaranteed
Delivery shall be stamped by you as to the date and, after the
expiration of the Exchange Offer, the time of receipt thereof
shall be preserved by you for a period of time at least equal to
the period of time you customarily preserve other records
pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by you to the
Company. You shall dispose of unused Letters of Transmittal and
other surplus materials in accordance with your customary
procedures.
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18. You hereby expressly waive any lien, encumbrance or
right of set-off whatsoever that you may have with respect to
funds deposited with you for the payment of transfer taxes by
reasons of amounts, if any, borrowed by the Company, or any of
its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder you
shall be entitled to such compensation and reimbursement of
out-of-pocket expenses as agreed.
20. You hereby acknowledge receipt of the Registration
Statement, the Letter of Transmittal and the other documents
associated with the Exchange Offer attached hereto and further
acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the
Registration Statement, the Letter of Transmittal and such other
forms (as they may be amended from time to time), on the other
hand, shall be resolved in favor of the Registration Statement,
the Letter of Transmittal and such other forms, except with
respect to the duties, liabilities and indemnification of you as
Exchange Agent which shall be controlled by this Agreement.
21. The Company agrees to indemnify and hold you harmless
in your capacity as Exchange Agent hereunder against any
liability, cost or expense, including reasonable attorneys’
fees and expenses, arising out of or in connection with your
appointment as Exchange Agent and the performance of your duties
hereunder, including, without limitation, any act, omission,
delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request,
notice, instruction or other instrument or document reasonably
believed by you to be valid, genuine and sufficient and in
accepting any tender or effecting any transfer of Old Notes
reasonably believed by you in good faith to be authorized, and
in delaying or refusing in good faith to accept any tenders or
effect any transfer of Old Notes; provided,
however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your gross negligence,
willful misconduct or bad faith. You shall provide notice to the
Company (by letter or by facsimile confirmed by letter) of the
written assertion of a claim against you, promptly after you
shall have received such written assertion, provided,
however, that failure to so notify the Company shall not
relieve the Company of any liability which it may otherwise have
hereunder. The Company shall be entitled to participate at its
own expense in the defense of any such claim or other action,
and, if the Company so elects, the Company shall assume the
defense of any suit brought to enforce any such claim. In the
event that the Company shall assume the defense of any such
suit, the Company shall not thereafter be liable for the fees
and expenses of any counsel retained by you so long as you
consent to the Company’s retention of counsel, which
consent may not be unreasonably withheld, and so long as you
have not determined, which determination shall be based on the
written opinion of your outside counsel, that a conflict of
interest exists between you and the Company. It is understood
that the Company shall not be liable under this
paragraph 21 for the fees and expenses of more than one
legal counsel for you at any one particular time. You agree
that, without the prior written consent of the Company (which
consent shall not be unreasonably withheld), you will not
settle, compromise or consent to the entry of any pending or
threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the
indemnification provisions of this Agreement (whether or not you
or the Company is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the Company from
all liability arising out of such claim, action or proceeding.
The Company’s obligations under this paragraph 21
shall survive the termination of this Agreement and the
discharge of your obligation hereunder and any other termination
of this Agreement under any federal or state bankruptcy law.
22. You shall arrange to comply with all requirements under
the tax laws of the United States of America, including those
relating to missing Tax Identification Numbers, and shall file
any appropriate reports with the Internal Revenue Service. The
Company understands that you are required, in certain instances,
to deduct twenty eight percent (28%) with respect to interest
paid on the New Notes and proceeds from the sale, exchange,
redemption or retirement of the New Notes from holders who have
not supplied their correct Taxpayer Identification Numbers or
required certification. Such funds will be turned over to the
Internal Revenue Service in accordance with applicable
regulations.
23. You shall notify the Company of the amount of any
transfer taxes payable in respect of the exchange of Old Notes
and shall deliver or cause to be delivered, in a timely manner,
to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Old Notes your check in
the amount of all transfer taxes so
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payable, and the Company shall reimburse you promptly for the
amount of any and all transfer taxes payable in respect of the
exchange of Old Notes; provided, however, that you
shall reimburse the Company for amounts refunded to you in
respect of your payment of any such transfer taxes, at such time
as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the
laws of the State of New York applicable to agreements made and
to be performed entirely within such state, and without regard
to conflicts of law principles, and shall inure to the benefit
of, and the obligations created hereby shall be binding upon,
the successors and assigns of each of the parties hereto and
nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Old Notes or New Notes shall
have any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
25. This Agreement may be executed in two 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.
26. 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.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized
representative of the party to be charged.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including facsimile) and shall be given to such party,
addressed to it, as its address or telecopy number set forth
below:
If to the Company:
Southern Natural Gas Company
El Paso Building
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx, 00000
Facsimile:
(000) 000-0000
Attention: Xxxxxxxxxx Xxxxx-Xxxxxxx, Corporate Secretary
If to the Exchange Agent:
The Bank of New York Trust Company, N.A.
Corporate Trust
x/x Xxx
Xxxx xx Xxx Xxxx
Corporate Trust Operations
Reorganization Xxxx
000 Xxxxxxx Xxxxxx — 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention: Corporate Reorganization Unit
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, paragraphs 18, 19, 21
and 22 shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the
Company any certificates for notes, funds or property
(including, without limitation, Letters of Transmittal and any
other documents relating to the Exchange Offer) then held by you
as Exchange Agent under this Agreement.
30. Upon due execution and delivery by the parties hereto,
this Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the
enclosed copy.
SOUTHERN NATURAL GAS COMPANY
| By: |
|
Name:
| Title: |
Accepted and agreed as the date
first above written:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Exchange Agent
as Exchange Agent
| By: |
Name:
| Title: |
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