EXHIBIT 99.5
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into effective as of , 2003 by and
among Wilmington Trust Company, a corporation organized under the laws of the
State of Delaware, as Exchange Agent (the "Exchange Agent") and El Paso
Production Holding Company, a corporation organized under the laws of the State
of Delaware (the "Company").
BACKGROUND
The Company proposes to offer to exchange (the "Offer") all of the
Company's outstanding 7 3/4% Senior Notes due 2013 that were issued and sold in
transactions exempt from registration under the Securities Act of 1933, as
amended (the "Securities Act") (the "Outstanding Notes") for new 7 3/4% Senior
Notes due 2013 of the Company which will be registered under the Securities Act
(the "Exchange Notes", as defined in the Prospectus (as defined below)). The
terms and conditions of the Offer as currently contemplated are set forth in a
prospectus, dated on or about , 2003 (the "Prospectus") proposed to be
distributed to all record holders of the Outstanding Notes and the Exchange
Notes.
NOW, THEREFORE, in consideration of the covenants hereinafter set forth,
the parties mutually agree as follows:
1. (a) Subject to the provisions hereof, the Company hereby appoints
Wilmington Trust Company, and Wilmington Trust Company hereby accepts such
appointment, as Exchange Agent for the purposes of receiving, accepting for
delivery and otherwise acting upon tenders of the Outstanding Notes (whether by
certificate or in book-entry form), in accordance with the form of Letter of
Transmittal (the "L/T") attached hereto as Exhibit A and the terms and
conditions of the Offer set forth in the Prospectus.
(b) The Offer is expected to be commenced by the Company on or about
, 2003 and concludes on the Expiration Date (as defined below) (the
"Tender Period"). The L/T accompanying the Prospectus (or in the case of
book-entry securities, the Automated Tender Offer Program ("ATOP") of The
Depository Trust Company ("DTC")) is to be used by the holders of the
Outstanding Notes to accept the Offer and, together with the Prospectus,
contains instructions with respect to the delivery of certificates for
Outstanding Notes tendered in connection therewith.
(c) The Exchange Offer shall expire at 5:00 p.m., New York time, on
, 2003 or on such subsequent date or time to which the Company may
extend the Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Offer from time to time and may extend the Offer by giving oral (promptly
confirmed in writing) or written notice to you before 9:00 a.m., New York City
time, on the business day following the previously scheduled Expiration Date.
(d) The Company expressly reserves the right to amend or terminate the
Offer, and not to accept for exchange any Outstanding Notes not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the Offer
specified in the Prospectus under the caption "The Exchange Offer -- Conditions
of the Exchange Offer". The Company will give oral (promptly confirmed in
writing) or written notice of any amendment, termination or non-acceptance to
the Exchange Agent as promptly as possible.
2. The Exchange Agent has received the following documents in connection
with its appointment:
(a) Prospectus
(b) L/T
(c) Notice of Guaranteed Delivery
(d) Letter to Institutions
(e) Letter to Clients.
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3. The Company shall deliver, or shall cause the Trustee to deliver, to the
Exchange Agent as promptly as practicable a list of all holders of Outstanding
Notes eligible to participate in the Offer, which list shall include the amount
owned of record by each such holder. The Company shall use commercially
reasonable efforts promptly to notify, or to cause the Trustee promptly to
notify, the Exchange Agent of any changes in the registered or beneficial
ownership of the Outstanding Notes during the Offer.
4. The Exchange Agent is authorized and hereby agrees to act as follows
(subject to the provisions of Section 5):
(a) to perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer"
or as specifically set forth herein;
(b) to establish an account with respect to the Outstanding Notes at
DTC for purposes of the Offer within two business days after the earlier of
(i) receiving the list of Outstanding Note holders described in Section 3
above and (ii) the date of the Prospectus, and to receive all Outstanding
Notes tendered pursuant to the Offer, xxxx each L/T received with the day,
month and approximate time of receipt, and maintain a log of such receipt
(it being understood that any financial institution that is a participant
in DTC may make book-entry delivery of the Outstanding Notes by causing DTC
to transfer such Outstanding Notes into the Exchange Agent's account in
accordance with DTC's procedure for such transfer);
(c) to examine each L/T and Outstanding Note (or confirmation of
book-entry transfer or blocking instructions, as applicable), if any,
received to determine that all requirements set forth in the Prospectus
necessary to constitute a valid tender of Outstanding Notes have been met.
Subject to receipt of a completed L/T in respect of all tenders of
Outstanding Notes, the Exchange Agent shall be entitled to rely on the
electronic messages sent by DTC regarding ATOP delivery of the Outstanding
Notes to the Exchange Agent's account at DTC;
(d) to take such actions as directed by the Company as are necessary
and appropriate to correct any irregularity or deficiency associated with
any tender of Outstanding Notes not in proper order, provided that the
Exchange Agent shall use reasonable efforts to advise the presenter of such
tender of any such irregularity or deficiency. The Exchange Agent is not
authorized to waive any irregularity or deficiency except as provided in
Section 4(h) below;
(e) to hold all valid tenders of Outstanding Notes subject to further
instructions from any officer of the Company listed on the attached
Schedule I (each an "Authorized Officer");
(f) to deliver, at the direction of the Company, to the Company or its
designee, all Outstanding Notes received pursuant to the Offer, together
with any related assignment forms and other documents;
(g) to determine that all endorsements, guarantees, signatures,
authorities, stock transfer taxes (if any) and such other requirements are
fulfilled in connection with any request for issuance of the consideration
in a name other than that of the registered owner of the Outstanding Notes
and, if any such requirements are not fulfilled, to notify the Company and
to take such actions as directed by an Authorized Officer with respect
thereto;
(h) to follow instructions of any Authorized Officer, with respect to
the waiver of any irregularities or deficiencies associated with any tender
of Outstanding Notes, provided to the Exchange Agent in writing from the
Company identifying any irregularities or deficiencies waived, it being
understood that the Exchange Agent shall have no responsibility and incur
no liability for any determination with respect to the waiver of any such
irregularities or deficiencies;
(i) to follow and act upon any reasonable written or oral (promptly
confirmed in writing) amendments, modifications or supplements to the
Company's instructions, any of which may be given to the Exchange Agent by
any Authorized Officer or such other person or persons as they shall
designate in writing;
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(j) unless corrected within five (5) business days following notice to
the presenter of the Outstanding Note tender as provided in Section 4(d)
above, to return to such presenter, upon the instructions of an Authorized
Officer, any Outstanding Notes, and any other documents received with such
Outstanding Notes, that were not received in proper order and as to which
the irregularities or deficiencies were not cured or waived in accordance
with Section 4(h) above;
(k) to accept tenders: (i) in cases where the Outstanding Notes are
registered in two or more names only if signed by all named holders; (ii)
in cases where the signing person (as indicated on the L/T) is acting in a
fiduciary or representative capacity only when proper evidence of his
authority, as requested by the Exchange Agent, so to act is submitted; and
(iii) from persons other than the registered holder of Outstanding Notes,
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled. The Exchange Agent shall accept
partial tenders of Outstanding Notes where so indicated and permitted in
the L/T and deliver certificates for Outstanding Notes to the registrar for
split-up and return any untendered Outstanding Securities to the holder (or
such other person as may be designated in the L/T) as promptly as
practicable after expiration or termination of the Offer.
(l) during the Tender Period, to render daily (or more frequently if
reasonably requested as to major tally figures) written reports to each of
the parties named below by email and by posting to a secure Internet site,
for which each recipient would be given a user ID and password, as to,
based upon the Exchange Agent's preliminary review (and at all times
subject to final determination by the Company), as of the close of business
or the most recent practicable time prior to such request, as the case may
be: (i) the principal amount of Outstanding Notes duly tendered on such
day; (ii) the principal amount of Outstanding Notes tendered represented by
Outstanding Notes physically held by the Exchange Agent on such day; (iii)
the principal amount of Outstanding Notes represented by Notices of
Guaranteed Delivery on such day; (iv) the principal amount of Outstanding
Notes withdrawn on such day; and (v) the cumulative totals of Outstanding
Notes in categories (i) through (iv) above through the close of business on
such day:
(1) Xxxxx Xxxxxxx (Xxxxx.Xxxxxxx@XxXxxx.xxx), and
(2) Xxxxxxx Xxxxxx (XXxxxxx@xxxxx.xxx).
In addition, the Exchange Agent will inform, and cooperate in making available
to, the Company or any Authorized Officer upon oral request made from time to
time prior to the Expiration Date of such other information as they may
reasonably request. Such cooperation shall include, without limitation, the
Exchange Agent granting to the Company access to those persons on the Exchange
Agent's 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
Offer.
(m) to exchange on behalf of the Company, upon notification of the
Company (such notice, if given orally, to be promptly confirmed in
handwriting) of its acceptance, promptly after the Expiration Date, of all
Outstanding Notes properly tendered, such Outstanding Notes for Exchange
Notes and cause such Outstanding Notes to be cancelled. Delivery of
Exchange Notes will be made on behalf of the Company by the Exchange Agent
at the rate of $1,000 principal amount of Exchange Notes for each $1,000
principal amount of the corresponding series of Outstanding Securities
tendered promptly after notice (such notice, if given orally, to be
promptly confirmed in writing) of acceptance of said Outstanding Securities
by the Company; provided, however, that in all cases, Outstanding Notes
tendered pursuant to the Offer will be exchanged only after timely receipt
by the Exchange Agent of certificates for such Outstanding Notes (or
confirmation of book-entry transfer or blocking instructions, as
applicable), a properly completed and duly executed L/T (or manually signed
facsimile thereof) with any required signature guarantees and any other
required documents. The Exchange Agent shall issue Exchange Notes only in
denominations of $1,000 or any integral multiple thereof;
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(n) to file the appropriate reports (including on Form 1099, with the
Internal Revenue Service ("IRS")) and to comply in all respects with
regulations with regard to due diligence in obtaining a certified Tax
Identification Number ("TIN"). For purposes of this Agreement, an L/T
tendered without a certification of Taxpayer Identification Number (Form
W-9 or its equivalent) may be deemed an incomplete L/T. The Exchange Agent
will deduct 30%, or such amount required by IRS regulations, on payments
(a) to certain holders who have not supplied the required certification and
(b) to holders in respect of whom the Exchange Agent has been instructed by
the IRS to deduct. Any such funds so deducted will be delivered to the IRS
by any applicable deadline. The Exchange Agent may consult with, and rely
on, its counsel or the Company (including the Company's counsel), before
making the required deduction, if the Exchange Agent deems it necessary,
for any clarification or interpretation;
(o) to advise the Company with respect to any Outstanding Notes
received subsequent to the Tender Period and to accept the Company's
instructions with respect to the disposition of such Outstanding Notes; and
(p) to take such action as may from time to time be requested by the
Company (and such other action as the Exchange Agent may deem appropriate)
to furnish copies of the Prospectus, L/T, the Notice of Guaranteed Delivery
or such other forms as may be approved from time to time by the Company, to
all persons requesting such documents and to accept and comply with
telephone requests for information relating to the Offer, provided that
such information shall relate only to the procedures for accepting (or
withdrawing from) the Offer. The Company will furnish the Exchange Agent
with copies of such documents on the Exchange Agent's request. All other
requests for information relating to the Offer shall be directed to the
Company, Attention: Xxxxx Xxxxxxx, Esq., El Paso Production Holding
Company, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000.
5. The Exchange Agent shall:
(a) have no duties or obligations other than those specifically set
forth herein or as may be subsequently agreed to in writing between the
Exchange Agent and the Company;
(b) not be liable for any improper (or lack of) delivery of Exchange
Notes or any other consideration made by it in accordance with the
information or instructions provided by the Trustee or the Company pursuant
to this Agreement to the extent relied upon in good faith by the Exchange
Agent, or for any failure to make any delivery of Exchange Notes or other
consideration unless such Exchange Notes or other consideration has
previously been delivered to the Exchange Agent in an amount sufficient to
distribute to all persons entitled, in accordance with the instructions of
the Company, to receive the same;
(c) not be required to and shall make no representations and have no
responsibilities as to the validity, accuracy, value or genuineness of (i)
the Offer, (ii) any Outstanding Notes, (iii) any L/Ts, (iv) the Prospectus
or (v) any other document prepared by or for the Company in connection with
any of the foregoing, (vi) any signatures or endorsements, other than its
own, or (vii) any representations or other information provided by a holder
in a L/T, Notice of Guaranteed Delivery or other document delivered in
connection with the Offer except to the extent it knows that such
representation or information is not accurate;
(d) not be obligated to take any legal action hereunder that might, in
its judgment, involve any expense or liability, unless it has been
furnished with reasonable indemnity or security by the Company;
(e) with respect to any matter relating to its actions as Exchange
Agent specifically covered by this Agreement, be able to rely on and shall
be protected in acting on the written or oral (whether or not confirmed in
writing) instructions of any Authorized Officer or other person authorized
to give instructions under Section 4(h) or Section 4(i) above;
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(f) be able to rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter or any other document or
security delivered to it by the Company or any of its representatives and
believed by it reasonably and in good faith to be genuine and to have been
signed by the proper party or parties;
(g) not be responsible for or liable in any respect on account of the
identity, authority or rights of any person executing or delivering or
purporting to execute or deliver any document or property under this
Agreement, and shall have no responsibility with respect to the use or
application of any property delivered by it pursuant to the provisions
hereof;
(h) be able to consult with counsel satisfactory to it (including
counsel for the Company) and the advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance
with the advice or opinion of such counsel;
(i) not be called on at any time to advise, and shall not advise, any
person delivering an L/T pursuant to the Offer or otherwise as to the value
of any consideration to be received;
(j) not be liable for anything which it may do or refrain from doing
in connection with this Agreement except for its own gross negligence,
willful misconduct or bad faith;
(k) not be bound by any notice or demand, or any waiver or
modification of this Agreement or any of the terms hereof, unless evidenced
by a writing delivered to the Exchange Agent signed by the proper authority
or authorities and, if the Exchange Agent's duties or rights are affected,
unless the Exchange Agent shall give its prior written consent thereto;
(l) have no duty to enforce any obligation of any person to make
delivery, or to direct or cause any delivery to be made, or to enforce any
obligation of any person to perform any other act;
(m) except as otherwise set forth in Section 5(j), not be liable for
any action taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(n) have no liability whatsoever in connection with Outstanding Notes
tendered or delivered to it which may have stops placed against them or in
connection with any payments made against stopped Outstanding Notes unless
it is furnished with a stop list from the Trustee;
(o) act solely as agent of the Company, and shall not (by virtue of
this Agreement or the performance of its duties hereunder) be held to any
obligations or relationship of agency or trust for or with the Company or
any owners or presenters of Outstanding Notes; and
(p) have no obligation with respect to the final determination of
valid tenders of Outstanding Notes, or with respect to the final
determination to accept or not to accept any such tenders or deliveries,
which determinations shall be made by the Company, and the Company shall
provide written notice thereof to the Exchange Agent.
6. Tenders pursuant to the Offer are irrevocable, except that, subject to
the terms and upon the conditions set forth in the Prospectus and the L/T,
Outstanding Notes tendered pursuant to the Offer may be withdrawn at any time
prior to the Expiration Date.
7. The Company shall not be required to exchange any Outstanding Notes
tendered delivered if any of the conditions set forth in the Prospectus are not
met. Notice of any decision by the Company not to exchange any Outstanding Notes
tendered shall be given by the Company to the Exchange Agent.
8. If the Company does not accept for exchange all or part of the
Outstanding Notes tendered, and the Company so notifies the Exchange Agent in
writing, the Exchange Agent shall as soon as practicable return those
Outstanding Notes (or effect appropriate book-entry transfer, as applicable),
together with any related required documents and the L/T relating thereto that
are in its possession, to the persons who deposited them.
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9. All certificates for unpurchased Outstanding Notes, reissued Outstanding
Notes or Exchange Notes shall be forwarded by (a) first-class mail under a
blanket surety bond protecting the Company from loss or liability arising out of
the non-receipt or non-delivery of such Outstanding Notes, (b) by registered
mail insured separately for the replacement value of each of such Outstanding
Notes or (c) appropriate book-entry transfer.
10. L/Ts and the Notices of Guaranteed Delivery submitted in lieu thereof
pursuant to the Prospectus shall be preserved by the Exchange Agent for a period
of time at least equal to the period of time the Exchange Agent preserves other
records pertaining to the transfer of securities. The Exchange Agent shall
dispose of unused L/Ts and other surplus materials by returning them to the
Company.
11. The Exchange Agent hereby acknowledges receipt of the documents listed
in Section 2 above and further acknowledges that it has examined each of them.
Any inconsistency between this Agreement, on the one hand, and such documents
(as they may be amended from time to time), on the other hand, shall be resolved
in favor of such documents, except with respect to the duties, liabilities and
indemnification of the Exchange Agent in which case any inconsistency shall be
resolved in favor of this Agreement.
12. The Exchange Agent 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 Outstanding Notes the Exchange Agent's check in the
amount of all transfer taxes so payable, and the Company shall reimburse the
Exchange Agent for the amount of any and all transfer taxes payable in respect
of the Outstanding Notes to the Company; provided, however, that the Exchange
Agent shall reimburse the Company for amounts refunded to the Exchange Agent in
respect of the Exchange Agent's payment of any such transfer taxes, at such time
as such refund is received by the Exchange Agent.
13. The Exchange Agent is 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 person to solicit tenders.
14. For services rendered as exchange agent hereunder, the Exchange Agent
shall be entitled to compensation as set forth in Exhibit B attached hereto.
15. (a) The Company covenants and agrees to reimburse the Exchange Agent
and its employees, directors, officers and agents (together, the "Indemnified
Persons") for, indemnify them against, and hold them harmless from any and all
costs and expenses (including reasonable fees and reasonable expenses of counsel
and other professionals) that may be paid or incurred or suffered by an
Indemnified Person or to which an Indemnified Person may become subject without
gross negligence, willful misconduct or bad faith on its part by reason of or as
a result of its compliance with the terms and instructions set forth herein or
with any additional or supplemental written or oral instructions delivered to it
pursuant hereto, or which may arise out of or in connection with the
administration and performance of its duties under this Agreement.
(b) The Company shall be entitled under this indemnity with respect to any
claim against the Indemnified Person to be notified by the Indemnified Person of
the written assertion of a claim against the Indemnified Person or of any other
action commenced against the Indemnified Person, promptly after such Indemnified
Person shall have received any such written assertion or shall have been served
with a summons in connection therewith; provided, however, that failure to give
such notice (or to confirm in writing any such oral notice) shall not release,
waive or otherwise affect the Company's indemnification obligations hereunder
except to the extent that the Company can demonstrate actual loss or material
prejudice as a result of such failure.
(c) 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 be liable for the fees and expenses of the Indemnified
Person's counsel incurred after such assumption or the fees and expenses of any
additional counsel thereafter retained by the Indemnified
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Person for so long as the counsel retained by the Company shall be satisfactory
to such Indemnified Person.
(d) The Company need not pay for any settlement made by the Indemnified
Person without the Company's consent, such consent not be unreasonably withheld.
16. This Agreement 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 party hereto may assign this Agreement without the prior
written consent of the other parties. Unless otherwise expressly provided
herein, all instructions, notices, determinations, requests, demands and other
communications hereunder shall be in writing (and, where any such instruction,
notice, determination, request, demand or other communication may be oral, it
shall promptly be confirmed in writing), shall be delivered by hand, by
confirmed facsimile, by reliable overnight courier or by First Class Mail,
postage prepaid, shall be deemed given when received and shall be addressed to
the Exchange Agent and the Company at the respective addresses listed below or
to such other addresses as they shall designate from time to time in writing,
forwarded in like manner.
If to the Exchange Agent, to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to the Company, to:
El Paso Production Holding Company
El Paso Building
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx & Xxxxx L.L.P.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and when taken together shall constitute
one and the same agreement.
18. 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.
19. This Agreement shall not be deemed or construed to be modified,
amended, supplemented, rescinded, canceled or waived, in whole or in part,
except by a written instrument signed by the parties hereto.
20. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the foregoing,
Sections 14, 15, 16, 17, 18, 19 and 20 shall survive the termination of this
Agreement. Upon termination of this Agreement, the Exchange Agent shall
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promptly deliver to the Company any Outstanding Notes, Exchange Notes, funds or
property then held by the Exchange Agent under this Agreement.
21. This Agreement shall be binding and effective as of the date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by their officers thereunto duly authorized, all as of
the day and year first above written.
EXCHANGE AGENT
WILMINGTON TRUST COMPANY
By:
Name:
TITLE:
EL PASO PRODUCTION HOLDING COMPANY
BY:
NAME:
TITLE:
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SCHEDULE I
THE FOLLOWING IS A LIST OF THE AUTHORIZED OFFICERS FOR THE PURPOSE OF THE
EXCHANGE AGENCY AGREEMENT WITH WILMINGTON TRUST COMPANY.
Xxxxxx Xxxxxxxx
Xxxxxx Xxxx
EXHIBIT A
LETTER OF TRANSMITTAL
EXHIBIT B
EXCHANGE AGENT'S FEES
