EL PASO CORPORATION as Issuer and HSBC BANK USA, NATIONAL ASSOCIATION as Trustee NINTH SUPPLEMENTAL INDENTURE Dated as of July 1, 2005 to INDENTURE Dated as of May 10, 1999 Remarketed Senior Notes Due August 16, 2007
EXHIBIT
4.A
EXECUTION
COPY
EL
PASO
CORPORATION
as
Issuer
and
HSBC
BANK
USA, NATIONAL ASSOCIATION
as
Trustee
Dated
as of
July 1, 2005
to
INDENTURE
Dated
as of
May 10, 1999
Remarketed
Senior Notes Due August 16, 2007
ARTICLE
1
Relation to Indenture; Definitions1
SECTION
1.01.
Relation to Indenture and Eighth Supplemental Indenture.1
SECTION
1.02.
Definitions.1
SECTION
1.03.
General References.2
ARTICLE
2
The
Remarketed Notes2
SECTION
2.01.
The Form of the Remarketed Notes.2
SECTION
2.02.
Amount.2
SECTION
2.03.
Global Securities; Restrictions on Transfer and Exchange.2
SECTION
2.04.
Transfer and Exchange.3
SECTION
2.05.
Legends.3
SECTION
2.06.
Denominations.5
SECTION
2.07.
Registration Rights Agreement.5
SECTION
2.08.
Additional Event of Default.5
ARTICLE
3
Miscellaneous5
SECTION
3.01.
Certain Trustee Matters.5
SECTION
3.02.
Continued Effect.5
SECTION
3.03.
Governing Law.6
SECTION
3.04.
Counterparts.6
EXHIBITS
Exhibit
A: Form
of Remarketed
Note
NINTH
SUPPLEMENTAL INDENTURE,
dated as of July
1, 2005 (this “Ninth
Supplemental Indenture”),
between
EL
PASO
CORPORATION,
a Delaware
corporation (the “Company”),
and
HSBC
BANK
USA,
NATIONAL
ASSOCIATION,
a national
banking association, as successor-in-interest to JPMorgan Chase Bank (formerly
The Chase Manhattan Bank), as trustee under the Indenture referred to below
(in
such capacity, the “Trustee”).
RECITALS
OF
THE COMPANY
WHEREAS,
the
Company and the Trustee are parties to an Indenture, dated as of May 10,
1999
(the “Original
Indenture”),
such Original
Indenture, as amended and supplemented from time to time (including without
limitation pursuant to the Eighth Supplemental Indenture thereto dated as
of
June 26, 2002 (the “Eighth
Supplemental Indenture”)
and pursuant to
this Ninth Supplemental Indenture), being referred to herein as the
“Indenture”;
and
WHEREAS,
in June
2002, the Company issued a new series of Securities under the Original Indenture
and the Eighth Supplemental Indenture designated as the Senior Notes Due
August
16, 2007 (the “Original
Notes”);
and
WHEREAS,
pursuant
to and in accordance with the terms and conditions set forth in (i) the Eighth
Supplemental Indenture, (ii) the Remarketing Agreement dated as of June 26,
2002
between the Company and Credit Suisse First Boston LLC (formerly Credit Suisse
First Boston Corporation) (the “Remarketing
Agent”),
and confirmed
and accepted by the Purchase Contract Agent named therein (the “Purchase
Contract Agent”)
and (iii) the
Supplemental Remarketing Agreement dated as of June 28, 2005 between the
Company
and the Remarketing Agent, and confirmed and accepted by the Purchase Contract
Agent, the Remarketing Agent agreed to use its commercially reasonable best
efforts to remarket (the “Remarketing”)
the Original
Notes (as so remarketed, the “Remarketed
Notes”),
which
Remarketing would be effected by establishing a reset interest rate for the
Remarketed Notes, and to sell such Remarketed Notes at a price equal to
approximately, but not less than, 100.50% of the remarketing value of the
Original Notes; and
WHEREAS,
all acts
and things necessary to make the Remarketed Notes, when executed by the Company
and authenticated and delivered by the Trustee as provided in the Indenture,
the
valid and binding obligations of the Company and to make this Ninth Supplemental
Indenture a valid and binding agreement in accordance with the Original
Indenture have been done or performed; and
WHEREAS,
the
Company has entered into a Registration Rights Agreement dated as of July
1,
2005 (the “Registration
Rights Agreement”)
among the
Company and the Remarketing Agent relating to the Remarketed Notes;
NOW,
THEREFORE, in
consideration of the premises, agreements and obligations set forth herein
and
for other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, the parties hereto hereby agree, for the equal and
proportionate benefit of all Holders of the Remarketed Notes, as
follows:
ARTICLE
1
Relation
to
Indenture; Definitions
SECTION
1.01. Relation
to Indenture and Eighth Supplemental Indenture.
With
respect to the
Remarketed Notes, each of the Eighth Supplemental Indenture and this Ninth
Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION
1.02. Definitions.
For
all purposes of
this Ninth Supplemental Indenture, except as otherwise expressly provided
herein, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned thereto in the Original Indenture or the Eighth
Supplemental Indenture, as applicable.
SECTION
1.03. General
References.
All
references in
this Ninth Supplemental Indenture to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Ninth
Supplemental Indenture; and the terms “herein”,
“hereof”,
“hereunder”
and any other
word of similar import refers to this Ninth Supplemental Indenture.
ARTICLE
2
The
Remarketed
Notes
SECTION
2.01. The
Form of the Remarketed Notes.
Notwithstanding
anything to the contrary set forth in the Original Indenture or the Eighth
Supplemental Indenture, the Remarketed Notes shall be substantially in the
form
attached as Exhibit A
hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as the Company may deem appropriate or as may
be
required or appropriate to comply with any laws or with any rules made pursuant
thereto or with the rules of any securities exchange or automated quotation
system on which the Remarketed Notes may be listed or traded, or to conform
to
general usage, or as may, consistently with the Indenture, be determined
by the
officers executing such Remarketed Notes, as evidenced by their execution
thereof.
Except
as otherwise
provided herein, the Remarketed Notes shall be executed, authenticated and
delivered in accordance with the provisions of, and shall in all respects
be
subject to, the terms, conditions and covenants of the Original Indenture
as
supplemented by the Eighth Supplemental Indenture and this Ninth Supplemental
Indenture (including the form of Remarketed Note set forth as Exhibit A
hereto (the terms
of which are incorporated in and made a part of this Ninth Supplemental
Indenture for all intents and purposes)). In the event of any inconsistency
between (a) the provisions of this Ninth Supplemental Indenture and (b) the
provisions of either (i) the Original Indenture or (ii) the Eighth Supplemental
Indenture, the provisions of this Ninth Supplemental Indenture shall be
controlling with respect to the Remarketed Notes.
SECTION
2.02. Amount.
The
aggregate
principal amount of the Remarketed Notes which may be authenticated and
delivered pursuant hereto is $272,102,000. The Trustee shall initially
authenticate and deliver Remarketed Notes for original issue in an initial
aggregate principal amount of $272,102,000 upon delivery to the Trustee of
a
Company Order for the authentication and delivery of such Remarketed
Notes.
SECTION
2.03. Global
Securities; Restrictions on Transfer and Exchange.
The
Remarketed
Notes shall initially be issued in the form of one or more Global Securities.
Such Global Securities (i) shall bear the legends applicable to Global
Securities set forth in the Original Indenture (including without limitation
in
Sections 202 and 204 thereof), (ii) may be exchanged in whole or in
part
for Securities in definitive form upon the terms and subject to the conditions
provided in the Original Indenture (including without limitation
Section 305 thereof) and in this Ninth Supplemental Indenture and
(iii) shall otherwise be subject to the applicable provisions of the
Indenture.
(1) Rule
144A
Global Notes.
The Remarketed
Notes offered and sold to “qualified institutional buyers” (“QIBs”
or individually,
a “QIB”)
(which term
shall have the meaning assigned to it in Rule 144A under the Securities Act
of
1933, as amended (the “Securities
Act”))
in the United
States of America in reliance on Rule 144A will initially be issued as permanent
Global Securities (the “Rule
144A Global
Notes”),
without
interest coupons, substantially in the form of Exhibit
A
hereto. The Rule 144A Global Notes will be duly executed by the Company,
authenticated by the Trustee, deposited with the Trustee (as custodian for
The
Depository Trust Company (“DTC”),
which shall act
as Depositary with respect to the Remarketed Notes constituting Global
Securities) and registered in the name of DTC or a nominee thereof.
(2) Regulation
S
Global Notes.
Remarketed Notes
offered and sold in Offshore Transactions to Non-U.S. Persons (each such
term to
have the meaning assigned to it in Regulation S under the Securities Act
(“Regulation
S”))
in reliance on
Regulation S will initially be issued as permanent Global Securities (the
“Regulation
S
Global Notes”),
without
interest coupons, substantially in the form of Exhibit
A
hereto. The Regulation S Global Notes will be duly executed by the Company,
authenticated by the Trustee, deposited with the Trustee (as custodian for
DTC)
and registered in the name of DTC or a nominee thereof.
SECTION
2.04. Transfer
and Exchange.
(1) Transfer
and
Exchange of Remarketed Notes in Certificated Form.
In addition to
the requirements set forth in the Original Indenture (including without
limitation Section 305 thereof), the Remarketed Notes in certificated form
that
are “Registrable Securities” under the Registration Rights Agreement (the
“Transfer
Restricted Securities”)
which are
presented or surrendered for registration of transfer or exchange pursuant
the
Original Indenture shall be accompanied by the following additional information
and documents, as applicable, upon which the Security Registrar and the Trustee
may conclusively rely:
(a) if
such Transfer
Restricted Securities are being delivered to the Security Registrar by a
Holder
for registration in the name of such Holder, without transfer, a certification
from such Holder to that effect (in substantially the form of the
Exchange/Transfer Certificate included in Exhibit
A
hereto); or
(b) if
such Transfer
Restricted Securities are being transferred (1) to a QIB in accordance with
Rule
144A under the Securities Act or (2) pursuant to an exemption from registration
in accordance with Rule 144 under the Securities Act (and based upon an opinion
of counsel if the Company or the Trustee so requests) or (3) pursuant to
an
effective registration statement under the Securities Act, a certification
to
that effect from the Holder (in substantially the form of the Exchange/Transfer
Certificate included in Exhibit
A
hereto); or
(c) if
such Transfer
Restricted Securities are being transferred pursuant to an exemption from
registration in accordance with Rule 904 of Regulation S under the Securities
Act, certifications to that effect from the Holder (in substantially the
form of
both (i) the Exchange/Transfer Certificate included in Exhibit
A
hereto and (ii) the Regulation S Certificate included in Exhibit
A
hereto) and an opinion of counsel to that effect if the Company or the Trustee
so requests; or
(d) if
such Transfer
Restricted Securities are being transferred in reliance on and in compliance
with another exemption from the registration requirements of the Securities
Act,
a certification to that effect from the Holder (in substantially the form
of the
Exchange/Transfer Certificate included in Exhibit
A
hereto) and an opinion of counsel to that effect if the Company or the Trustee
so requests.
(2) Transfer
and
Exchange of Global Notes.
The transfer and
exchange of the Global Notes (as defined below) or beneficial interests therein
shall be effected through the Depositary, upon the terms and subject to the
conditions provided in the Original Indenture, this Ninth Supplemental Indenture
(including the restrictions on transfer set forth therein and herein) and
the
rules and procedures of the Depositary therefor, which shall include
restrictions on transfer comparable to those set forth therein and herein
to the
extent required by the Securities Act. Neither the Security Registrar nor
the
Trustee shall have any liability or responsibility for any such transfers
or
exchanges of the Global Notes or beneficial interests therein.
SECTION
2.05. Legends.
(1) Except
as permitted
by the following paragraphs (2) and (3) immediately below, each certificate
evidencing the Rule 144A Global Notes or Regulation S Global Notes (each
a
“Global
Note”)
or any other
Remarketed Notes in certificated form (and all Remarketed Notes issued in
exchange therefor or substitution thereof other than the Exchange Notes (as
defined below)) shall bear a legend in substantially the following
form:
THIS
SECURITY HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”) AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS
THAT (A)
IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A “QIB”) OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS
SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE
SECURITIES ACT,
(2) AGREES
THAT IT WILL
NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT
THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER
THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS SECURITY,
RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT
(IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS, AND
(3) AGREES
THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(D) OR (2)(E) ABOVE)
A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN
CONNECTION WITH
ANY TRANSFER OF THIS SECURITY OR ANY INTEREST HEREIN WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,”“UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
(2) Upon
any sale or
transfer of a Transfer Restricted Security (including any Transfer Restricted
Security represented by a Global Note) pursuant to Rule 144 under the Securities
Act or an effective registration statement under the Securities Act, which
in
either case shall be certified by the Company to the Trustee and the Security
Registrar upon which each may conclusively rely:
(a) in
the case of any
Transfer Restricted Security in definitive form, the Security Registrar shall
permit the Holder thereof to exchange such Transfer Restricted Security for
a
Remarketed Note in definitive form that does not bear the legend set forth
in
(1) above and rescind any restriction on the transfer of such Transfer
Restricted Security; and
(b) in
the case of any
Transfer Restricted Security represented by a Global Note, such Transfer
Restricted Security shall not be required to bear the legend(s) set forth
in (1)
above if all other interests in such Global Note have been or are concurrently
being sold or transferred pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the Securities Act,
but
such Transfer Restricted Security shall continue to be subject to the provisions
of Section 305 of the Original Indenture and this Section 2.05 of this Ninth
Supplemental Indenture.
(3) Notwithstanding
the
foregoing, upon consummation of the Exchange Offer (as defined in the
Registration Rights Agreement), the Company shall issue and, upon receipt
of a
Company Order in accordance with the Original Indenture, the Trustee shall
authenticate Remarketed Notes (“Exchange
Notes”)
in exchange for
Remarketed Notes accepted for exchange in the Exchange Offer, which Exchange
Notes shall not bear the legend set forth in (1) above, and the Security
Registrar shall rescind any restriction on the transfer of the Exchange Notes,
in each case unless the Holder of Remarketed Notes being transferred in the
Exchange Offer is either (A) a broker-dealer tendering Remarketed Notes acquired
directly from the Company, (B) a person participating in the Exchange Offer
for
purposes of distributing the Exchange Notes or (C) a person who is an
“affiliate” (as defined in Rule 144 under the Securities Act) of the Company.
The Company shall identify to the Trustee and the Security Registrar such
Holders of the Remarketed Notes in a written certification signed by an officer
of the Company and, absent receipt of a certificate from the Company to such
effect, the Trustee and the Security Registrar shall assume that there are
no
such Holders.
SECTION
2.06. Denominations.
Notwithstanding
anything to the contrary set forth in the Original Indenture or the Eighth
Supplemental Indenture (including without limitation Section 2.03 of the
Eighth
Supplemental Indenture), the Remarketed Notes shall be issued in denominations
of $1,000 and integral multiples of $1,000.
SECTION
2.07. Registration
Rights Agreement.
Holders
of the
Remarketed Notes shall have the benefit of the Company’s registration
obligations with respect to the Remarketed Notes, and such Holders shall
also
have certain obligations to indemnify the Company under certain circumstances,
all as more fully set forth in the Registration Rights Agreement.
SECTION
2.08. Additional
Event of Default.
With
respect only
to the Remarketed Notes, in addition to the other events or circumstances
set
forth as Events of Default in Section 501 of the Original Indenture, the
following event shall constitute an Event of Default: default in the payment
of
Liquidated Damages (as defined in the Registration Rights Agreement), if
any,
when such Liquidated Damages become due and payable pursuant to the Registration
Rights Agreement and the continuance of such default for 30 days.
ARTICLE
3
Miscellaneous
SECTION
3.01. Certain
Trustee Matters.
The
recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness.
The
Trustee makes
no representations as to the validity or sufficiency of this Ninth Supplemental
Indenture or the Remarketed Notes or the proper authorization or the due
execution hereof or thereof by the Company.
SECTION
3.02. Continued
Effect.
Except
as expressly
supplemented and amended by this Ninth Supplemental Indenture, the Original
Indenture (as supplemented and amended to date, including without limitation
by
the Eighth Supplemental Indenture) shall continue in full force and effect
in
accordance with the provisions thereof, and the Original Indenture (as so
supplemented and amended, and as further supplemented and amended by this
Ninth
Supplemental Indenture) is in all respects hereby ratified and confirmed.
This
Ninth Supplemental Indenture and all its provisions shall be deemed a part
of
the Original Indenture in the manner and to the extent herein and therein
provided.
SECTION
3.03. Governing
Law.
This
Ninth
Supplemental Indenture and the Remarketed Notes shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION
3.04. Counterparts.
This
instrument may
be executed in any number of counterparts, each of which shall be deemed
to be
an original, but all such counterparts shall together constitute but one
and the
same instrument.
(Signature
Pages Follow)
IN
WITNESS WHEREOF,
the parties hereto have caused this Ninth Supplemental Indenture to be duly
executed and delivered, all as of the day and year first above
written.
EL
PASO
CORPORATION
By:
/s/▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
HSBC
BANK USA,
NATIONAL ASSOCIATION
as
Trustee
By:
/s/Herawattee Alli
Authorized
Signatory
EXHIBIT
A
[FORM
OF
FACE OF REMARKETED NOTE]
[If
a
Global Security, insert—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO,
OR
REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER
OF, OR
IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT
TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
[If
a
Global Security, insert—UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO
THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[If
a
Transfer Restricted Security, insert—THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS
THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) (A “QIB”) OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING
THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING
THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE
SECURITIES ACT,
(2) AGREES
THAT
IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING
INTO
ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE)
UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
SECURITY, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER
OR
ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES
IS A
QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN
AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS, AND
(3) AGREES
THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN
IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(D) OR (2)(E) ABOVE)
A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY OR ANY INTEREST HEREIN WITHIN
THE
TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX
SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS “OFFSHORE
TRANSACTION,”“UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM
BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.]
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CUSIP
No. ___________
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ISIN
No. ___________
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No.: ___________
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$_____________
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EL
PASO
CORPORATION
Remarketed
Senior
Note
Due August 16, 2007
El
Paso
Corporation, a corporation duly organized and existing under the laws of
Delaware (the “Company,”
which term
includes any successor corporation under the Indenture hereinafter referred
to),
for value received, hereby promises to pay to
[_________________________________] [if
a Global
Security, insert - Cede
&
Co., as
nominee for The Depository Trust Company] or its registered assigns, the
principal sum of _______________________ United States Dollars [if
a Global
Security, insert - ,
or such other
principal amount as shall be set forth in the Schedule of Increases or Decreases
attached hereto,] at the office of the Company designated for such purpose
in
The City of New York, on August 16, 2007 in such coin or currency of the
United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest thereon quarterly
in
arrears on each February 16, May 16, August 16 and November 16 of each year
(each such date, an “Interest
Payment
Date”),
commencing on
August 16, 2005, at the rate of (i) 6.14% per annum for the period from May
16,
2005 to, but excluding, July 1, 2005 and (ii) 7.625% per annum from, and
including, July 1, 2005 (or from and including the next most recent date
to
which interest has been paid or duly provided for) to, but excluding, the
date
on which the principal hereof has been paid or made available for
payment.
The
amount of
interest so payable for any period shall be computed (i) for any full quarterly
period on the basis of a 360-day year of twelve 30-day months; (ii) for any
period shorter than a full quarterly period, on the basis of a 30-day month;
and
(iii) for periods of less than a month, on the basis of the actual number
of
days elapsed per 30-day month. In the event that any Interest Payment Date
is
not a Business Day, then payment of the interest or principal payable on
such
date will be made on the next succeeding day which is a Business Day and
no
interest shall accrue in respect of the amounts which payment is so delayed
for
the period from and after such Interest Payment Date, except that, if such
Business Day is in the next succeeding calendar year, such payment shall
be made
on the immediately preceding Business Day, in each case with the same force
and
effect as if made on such date.
Payments
of the
principal of and interest on the Remarketed Notes shall be made at the office
of
the Company designated for such purpose in The City of New York; provided
that,
unless this Remarketed Note is a Remarketed Note issued in global form
(“Global
Security”),
interest may be
paid, at the option of the Company, (i) by check mailed to the address of
the
Person entitled thereto as such address shall appear in the Security Register
or
(ii) by wire transfer at such place and to such account at a banking institution
in the United States as may be designated in writing to the Trustee at least
five Business Days prior to the date for payment by the Person entitled thereto.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date, as provided in the Indenture, as hereinafter defined,
shall be paid to the Person in whose name this Remarketed Note (or one or
more
Predecessor Securities) shall have been registered at the close of business
on
the Regular Record Date with respect to such Interest Payment Date, provided
that interest payable on the Stated Maturity shall be paid to the Person
to whom
principal is paid. Any such interest not so punctually paid or duly provided
for
shall forthwith cease to be payable to the Holder on such Regular Record
Date
and shall be paid as provided in said Indenture.
Reference
is hereby
made to the further provisions of this Remarketed Note set forth herein,
which
further provisions shall for all purposes have the same effect as if set
forth
at this place.
Unless
the
certificate of authentication hereon has been executed by the Trustee referred
to herein by manual signature, this Remarketed Note shall not be entitled
to any
benefit under the Indenture or be valid or obligatory for any
purpose.
(Signature
Page
Follows)
IN
WITNESS WHEREOF, EL PASO CORPORATION
has caused this
instrument to be executed in its corporate name by the signature of its duly
authorized officers.
EL
PASO
CORPORATION
By:
Name:
Title:
DATED:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the
Remarketed Senior Notes Due August 16, 2007 referred to in the within-mentioned
Indenture.
HSBC
BANK USA,
NATIONAL ASSOCIATION
as
Trustee
By:
Authorized
Signatory
[REVERSE
OF
REMARKETED NOTE]
EL
PASO
CORPORATION
Remarketed
Senior
Note
Due August 16, 2007
This
Remarketed
Note is one of a duly authorized issue of securities of the Company (the
“Securities”),
issued and to
be issued in one or more series under an Indenture, dated as of May 10, 1999
(the “Original
Indenture”),
as previously
supplemented (including without limitation by an Eighth Supplemental Indenture,
dated as of June 26, 2002 (the “Eighth
Supplemental Indenture”)
and as further
supplemented by a Ninth Supplemental indenture, dated as of July 1, 2005
(the
“Ninth
Supplemental Indenture,”
and the Original
Indenture, as so supplemented, the “Indenture”),
between the
Company and HSBC Bank USA, National Association, a national banking association,
as successor-in-interest to JPMorgan Chase Bank (formerly The Chase Manhattan
Bank), as trustee (the “Trustee,”
which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations
of
rights, duties and immunities thereunder of the Company, the Trustee and
the
Holders and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Remarketed Note is one of the remarketed
notes
in a series designated as Remarketed Senior Notes Due August 16, 2007 of
the
Company (hereinafter called the “Remarketed
Notes”),
issued under
the Original Indenture, which Remarketed Notes are limited in aggregate
principal amount to $272,102,000.
Except
as provided
in Sections 1006 and 1007 of the Original Indenture, neither the Indenture
nor
the Remarketed Notes limit or otherwise restrict the amount of indebtedness
which may be incurred or other securities which may be issued by the Company.
The Remarketed Notes issued under the Indenture are direct, unsecured
obligations of the Company and will mature on August 16, 2007. The Remarketed
Notes rank on parity with all other unsecured, unsubordinated indebtedness
of
the Company.
The
Remarketed
Notes will bear interest as set forth on the face hereof.
The
Remarketed
Notes are not redeemable prior to maturity except pursuant to a Tax Event
in
accordance with the Eighth Supplemental Indenture. If a Tax Event shall occur,
the Company may, at its option, redeem the Remarketed Notes in whole (but
not in
part) at any time at a price equal to the Redemption Price. Installments
of
interest on the Remarketed Notes that are due and payable on or prior to
the Tax
Event Redemption Date will be payable to the Holders of the Remarketed Notes
registered as such on the Record Date next preceding such Tax Event Redemption
Date.
The
Company agrees,
and by acceptance of a beneficial ownership interest in the Remarketed Notes,
each beneficial holder of Remarketed Notes will be deemed to have agreed
(1) to
treat the Remarketed Notes as indebtedness that is subject to Treas. Reg.
Sec.
1.1275-4 (the “Contingent
Payment Regulations”)
for United
States federal income tax purposes and (2) to be bound by the Company’s
determination of the “comparable yield” and “projected payment schedule,” within
the meaning of the Contingent Payment Regulations, with respect to the
Remarketed Notes for United States federal income tax purposes. A Holder
of
Remarketed Notes may obtain the amount of original issue discount, issue
date,
yield to maturity, comparable yield and projected payment schedule by submitting
a written request for it to the Company at the following address: El Paso
Corporation, Investor Relations, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇.
The
Remarketed
Notes are not entitled to any sinking fund.
If
an Event of
Default with respect to the Remarketed Notes shall occur and be continuing,
the
principal of the Remarketed Notes may be declared due and payable in the
manner
and with the effect provided in the Indenture.
The
Indenture
permits, with certain exceptions as therein provided, the amendment thereof
and
the modification of the rights and obligations of the Company and the rights
of
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Company and the Trustee with the consent of the Holders
of a
majority in aggregate principal amount of the Outstanding Securities of all
series to be affected (voting as one class). The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount
of
the Outstanding Securities of all affected series (voting as one class),
on
behalf of the Holders of all Securities of such series, to waive compliance
by
the Company with certain provisions of the Indenture. The Indenture permits,
with certain exceptions as therein provided, the Holders of a majority in
aggregate principal amount of Securities of any series then Outstanding to
waive
past defaults under the Indenture with respect to such series and their
consequences. Any such consent or waiver by the Holder of this Remarketed
Note
shall be conclusive and binding upon such Holder and upon all future Holders
of
this Remarketed Note and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Remarketed
Note.
As
provided in and
subject to the provisions of the Indenture, the Holder of this Remarketed
Note
shall not have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event
of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount
of
the Securities of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding,
for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this
Remarketed Note for the enforcement of any payment of principal hereof or
interest hereon on or after the respective due dates expressed
herein.
No
reference herein
to the Indenture and no provision of this Remarketed Note or of the Indenture
shall alter or impair the obligation of the Company, which are absolute and
unconditional, to pay the principal of, and premium, if any, and interest
on
this Remarketed Note at the times, place(s) and rates, and in the coin or
currency, herein prescribed.
[If
a Global
Security, insert - The
holders of
beneficial interests in this Global Security will not be entitled to receive
physical delivery of Definitive Securities except as described in the Indenture
and will not be considered the Holders hereof for any purpose under the
Indenture.]
As
provided in the
Indenture and subject to certain limitations therein set forth, the transfer
of
this Remarketed Note is registrable in the Security Register, upon surrender
of
this Remarketed Note for registration of transfer at the office or agency
of the
Company in the Borough of Manhattan, The City of New York, or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or
his
attorney duly authorized in writing, and thereupon one or more new Securities
of
this series and of like tenor, of authorized denominations and for a like
aggregate principal amount, will be issued to the designated transferee or
transferees.
The
Remarketed
Notes are issuable only in registered forms without coupons, in minimum
denominations of $1,000 or any integral multiple thereof. As provided in
the
Indenture and subject to certain limitations therein set forth, the Securities
of this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No
service charge
shall be made for any such registration of transfer or exchange, but the
Company
may require payment of a sum sufficient to cover any transfer tax or other
similar governmental charge payable in connection therewith.
Prior
to due
presentment of this Remarketed Note for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person
in
whose name this Remarketed Note is registered as the owner hereof for all
purposes, whether or not this Remarketed Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No
recourse under
or upon any obligation, covenant or agreement of or contained in the Indenture
or of or contained in any Security, or for any claim based thereon or otherwise
in respect thereof, or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor Person, either directly or through the Company
or
any successor Person, whether by virtue of any constitution, statute or rule
of
law, or by the enforcement of any assessment, penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released by the acceptance hereof and as a condition of, and as part of the
consideration for, the Securities and the execution of the
Indenture.
THIS
REMARKETED
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE
STATE OF NEW YORK.
Except
as otherwise
expressly provided herein, all terms used in this Remarketed Note but not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
[If
a
Transfer Restricted Security, insert—The
Holder of this
Remarketed Note is entitled to the benefits of the Registration Rights
Agreement, dated as of July 1, 2005 (the “Registration
Rights Agreement”),
by and among
the Company and the Remarketing Agent named therein, and such Holders shall
also
have certain obligations to indemnify the Company under certain circumstances,
all as more fully set forth in the Registration Rights Agreement.]
ASSIGNMENT
FORM
FOR
VALUE RECEIVED,
the undersigned hereby sell(s), assign(s) and transfer(s) unto
_____________________________________ (Please Print or Typewrite Name and
Address of Assignee) the within instrument of EL PASO CORPORATION and does
hereby irrevocably constitute and appoint ________________________ Attorney
to
transfer said instrument on the books of the within-named Company, with full
power of substitution in the premises.
Please
Insert
Social Security or
Other
Identifying
Number of Assignee:
Dated:
(Signature)
Signature
Guarantee:
____________________________________________________________________________
(Participant
in a Recognized
Signature
Guaranty
Medallion
Program)
NOTICE:
The
signature to this assignment must correspond with the name as written upon
the
face of the within instrument in every particular, without alteration or
enlargement or any change whatever.
EXCHANGE/TRANSFER
CERTIFICATE
Re: Remarketed
Senior
Notes Due August 16, 2007 of El Paso Corporation (the “Remarketed
Notes”).
This
Exchange/Transfer Certificate relates to $____ principal amount of Remarketed
Notes held by _____________________ (the “Transferor”).
The
Transferor has
requested the Security Registrar by written order to exchange or register
the
transfer of a Remarketed Note or Remarketed Notes.
In
connection with
such request and in respect of each such Remarketed Note, the Transferor
does
hereby certify that the Transferor is familiar with the Indenture relating
to
the above-captioned Remarketed Notes and that the transfer of this Remarketed
Note does not require registration under the Securities Act (as defined below)
because:**
Such
Remarketed
Note is being acquired for the Transferor’s own account without
transfer.
Such
Remarketed
Note is being transferred (i) to a “qualified institutional buyer” (as defined
in Rule 144A under the Securities Act of 1933, as amended (the “Securities
Act”)),
in accordance
with Rule 144A under the Securities Act or (ii) pursuant to an exemption
from
registration in accordance with Rule 904 of Regulation S under the Securities
Act (and in the case of clause (ii), based upon an opinion of counsel if
the
Company or the Trustee so requests, together with a certification in
substantially the form of the Regulation S Certificate included in such
Remarketed Note).
Such
Remarketed
Note is being transferred (i) pursuant to an exemption from registration
in
accordance with Rule 144 under the Securities Act (and based upon an opinion
of
counsel if the Company or the Trustee so requests) or (ii) pursuant to an
effective registration statement under the Securities Act.
Such
Remarketed
Note is being transferred in reliance on and in compliance with another
exemption from the registration requirements of the Securities Act (and based
upon an opinion of counsel if the Company or the Trustee so
requests).
[INSERT
NAME OF
TRANSFEROR]
By:
Name:
Title:
Address:
Date:
**Check
appropriate
box.
REGULATION
S CERTIFICATE
_________________,
_____
HSBC
BANK USA,
NATIONAL ASSOCIATION, as Security Registrar
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
Attention:
Corporate Trust and Loan Agency
Ladies
and
Gentlemen:
In
connection with
our proposed sale of $_______________ principal amount of Remarketed Senior
Notes Due August 16, 2007 (the “Remarketed
Notes”)
of El Paso
Corporation (the “Company”),
we confirm that
such sale has been effected pursuant to and in accordance with Regulation
S
under the United States Securities Act of 1933, as amended (the “Securities
Act”),
and,
accordingly, we represent that:
(i) the
offer of the
Remarketed Notes was not made to a person in the United States of
America;
|
(ii)
|
at
the time
the buy order was originated, the transferee was outside the United
States
of America or we and any person acting on our behalf reasonably
believed
that the transferee was outside the United States of
America;
|
|
(iii)
|
no
directed
selling efforts have been made by us in contravention of Rule 903
or Rule
904 of Regulation S under the Securities Act, as
applicable;
|
|
(iv)
|
the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act;
and
|
|
(v)
|
if
the
proposed transfer is being made prior to the expiration of the
40-day
distribution compliance period as set forth in Regulation S, the
transfer
is not being made to, or for the benefit or account of, a U.S.
Person
(other than a distributor).
|
You,
the Trustee
and the Company are entitled to rely upon this Regulation S Certificate and
you
are irrevocably authorized to produce this Regulation S Certificate or a
copy
hereof to any interested party in any administrative or legal proceedings
or
official inquiry with respect to the matters covered hereby. Terms used but
not
defined in this Regulation S Certificate have the meanings set forth in
Regulation S under the Securities Act.
Very
truly
yours,
[Name]
By:
Name:
Title:
Address:
[If
a Global
Security, insert as a separate page—
SCHEDULE
OF
INCREASES OR DECREASES
IN
GLOBAL
SECURITY
The
following
increases or decreases in this Global Security have been made:
|
Date
of Exchange
|
Amount
of Decrease in Principal Amount of this Global
Security
|
Amount
of Increase in Principal Amount of this
Global
Security
|
Principal
Amount of this Global Security following such decrease
(or
increase)
|
Signature
of authorized signatory of Trustee or Depositary]
|