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UNITED STATES OF AMERICA In the Matter of File No. 991 0178 AGREEMENT CONTAINING CONSENT ORDER The Federal Trade Commission ("Commission"), having initiated an investigation of the acquisition by El Paso Energy Corporation of the voting securities of Sonat Inc., and it now appearing that El Paso Energy Corporation, hereinafter sometimes referred to as "proposed Respondent," is willing to enter into an agreement containing an order to divest certain assets and providing for other relief: IT IS HEREBY AGREED by and between proposed Respondent, by its duly authorized officers and attorneys, and counsel for the Commission that: 1. Proposed Respondent El Paso Energy Corporation is a corporation organized, existing and doing business under and by virtue of the laws of the State of Delaware with its office and principal place of business located at 1001 Louisiana Street, Houston, Texas 77002. 2. Proposed Respondent admits all the jurisdictional facts set forth in the draft of complaint here attached. 3. Proposed Respondent waives:
4. This agreement shall not become part of the public record of the proceeding unless and until it is accepted by the Commission. If this agreement is accepted by the Commission it, together with the draft of complaint contemplated thereby, will be placed on the public record for a period of thirty (30) days and information in respect thereto publicly released and early termination of the waiting period will be granted. The Commission thereafter may either withdraw its acceptance of this agreement and so notify the proposed Respondent, in which event it will take such action as it may consider appropriate, or issue and serve its complaint (in such form as the circumstances may require) and decision, in disposition of the proceeding. 5. This agreement is for settlement purposes only and does not constitute an admission by proposed Respondent that the law has been violated as alleged in the draft of complaint here attached, or that the facts as alleged in the draft complaint, other than jurisdictional facts, are true. 6. This agreement contemplates that, if it is accepted by the Commission, and if such acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of Section 2.34 of the Commission's Rules, the Commission may, without further notice to the proposed Respondent, (1) issue its complaint corresponding in form and substance with the draft of complaint here attached and its decision containing the following order in disposition of the proceeding and (2) make information public with respect thereto. When so entered, the order shall have the same force and effect and may be altered, modified or set aside in the same manner and within the same time provided by statute for other orders. The order shall become final upon service. Delivery by the U.S. Postal Service of the complaint and decision containing the agreed-to order to proposed Respondent's address as stated in this agreement shall constitute service. Proposed Respondent waives any right it may have to any other manner of service. The complaint may be used in construing the terms of the order, and no agreement, understanding, representation, or interpretation not contained in the order or the agreement may be used to vary or contradict the terms of the order. 7. By signing this agreement, proposed Respondent represents that it can accomplish the full relief contemplated by this agreement. 8. Proposed Respondent has read the proposed complaint and order contemplated hereby. Proposed Respondent understands that once the order has been issued, it will be required to file one or more compliance reports showing that it has fully complied with the order. Proposed Respondent further understands that it may be liable for civil penalties in the amount provided by law for each violation of the order after it becomes final. Proposed Respondent agrees to comply with Paragraphs II. D and VI. A. of the proposed order from the date the Commission accepts the Agreement Containing Consent Order in this matter. ORDER I. IT IS ORDERED that, as used in this Order, the following definitions shall apply: A. "Respondent" means El Paso Energy Corporation, its directors, officers, employees, agents, representatives, successors, and assigns; its subsidiaries, divisions, groups, and affiliates controlled by El Paso Energy Corporation, and the respective directors, officers, employees, agents, representatives, successors, and assigns of each. B. "Acquisition" means the acquisition by El Paso Energy Corporation of 100 percent of the voting securities of Sonat, pursuant to the Agreement and Plan of Merger dated March 13, 1999 by and between El Paso and Sonat. C. "Commission" means the Federal Trade Commission. D. "Competing Pipeline" means any existing, planned or proposed pipeline owned or operated by anyone other than El Paso or Sonat that transports, or is intended to transport, natural gas produced in the Gulf of Mexico Outer Continental Shelf. E. "Connection Agreement" means any agreement between natural gas pipelines that provides for, among other things, (i) the connection of a pipeline and the associated installation of valves, measurement apparatus, flanges and other devices necessary to deliver or receive natural gas and (ii) the measurement, nomination, scheduling, or balancing of the volume of natural gas received or delivered. F. "Destin Interest" means Sonat's ownership interest in Destin Pipeline Company, L.L.C. Sonat owns 33 and 1/3 percent of the membership interests of Destin. G. "Divestiture Period" means the period of time beginning on August 1, 1999, and ending on the date Respondent divests ETNG. H. "ETNG" means the East Tennessee Natural Gas Company, a wholly-owned subsidiary of El Paso. I. "Exhibit A" means the arbitration provisions attached to and made part of this Order. J. "Gulf Offshore Area A" means a quadrilateral shaped area of the Gulf of Mexico cornered by and including the following blocks (as those areas and blocks are defined by the Mineral Management Service of the United States Department of Interior): Vermilion Area Block 148, Garden Banks Area Block 122, Garden Banks Area Block 278, West Cameron West Addition Block 407. K. "Gulf Offshore Area B" means a quadrilateral shaped area of the Gulf of Mexico cornered by and including the following blocks (as those areas and blocks are defined by the Mineral Management Service of the United States Department of Interior): Viosca Knoll Area Block 38, Viosca Knoll Area Block 1006, Mississippi Canyon Area Block 441, and Grand Isle Area Block 25. L. "Leviathan" means Leviathan Gas Pipeline Partners, L.P., a publicly held Delaware limited partnership, in which El Paso owns a 34.5 percent effective ownership interest and of which El Paso is the General Partner. M. "Open and Non-Discriminatory Access Obligations" means the obligations (i) to permit any shipper requesting access to Viosca Knoll to obtain such access, at the shipper's expense if any construction of pipe is required; (ii) to permit any other pipeline to interconnect with Viosca Knoll, at the expense of the pipeline requesting the connection, and (iii) not to engage in discrimination in scheduling, rates and terms and conditions of service on Viosca Knoll. N. "Schedule A Properties" means "ETNG", "Destin Interest", and "Sea Robin," also set forth in Schedule A attached to and made part of this Order. O. "Schedule B Agreement" means those transportation and storage agreements listed in Schedule B attached to and made part of this Order. P. "Sea Robin" means the Sea Robin Pipeline Co., a wholly-owned subsidiary of Sonat. Q. "Sonat" means Sonat Inc. as it was constituted prior to the acquisition, its predecessors, subsidiaries, divisions, groups and affiliates controlled by Sonat Inc. and the respective directors, officers, employees, agents, representatives, successors, and assigns of each. P. "TGP" means Tennessee Gas Pipeline Company, a wholly-owned subsidiary of El Paso. S. "Viosca Knoll" means the Viosca Knoll Gathering Company, a Delaware joint venture, which is 99 percent owned by Leviathan, or the natural gas gathering system it owns in Gulf Offshore Area B. II. IT IS FURTHER ORDERED that: A. Respondent shall divest, absolutely and in good faith, and at no minimum price, within six months from the date Respondent executes the Agreement Containing Consent Order, the Schedule A Properties. B. Respondent shall divest the Schedule A Properties only to an acquirer or acquirers that receive the prior approval of the Commission and only in a manner that receives the prior approval of the Commission. C. The purpose of the divestiture of the Schedule A Properties is to ensure the continued use of the Schedule A Properties in the same business in which the Schedule A Properties are engaged at the time of the acquisition, and to remedy the lessening of competition resulting from the acquisition as alleged in the Commission's complaint. D. Pending divestiture of the Schedule A Properties, Respondent shall take such actions as are necessary to maintain the viability and marketability of the Schedule A Properties and to prevent the destruction, removal, wasting, deterioration, or impairment of any of the Schedule A Properties except for ordinary wear and tear. III. IT IS FURTHER ORDERED that: A. If Respondent has not divested, absolutely and in good faith and with the Commission's prior approval, the Schedule A Properties within the time set forth in Paragraph II the Commission may appoint a trustee to divest the Schedule A Properties. In the event that the Commission or the Attorney General brings an action pursuant to § 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l), or any other statute enforced by the Commission, Respondent shall consent to the appointment of a trustee in such action. Neither the appointment of a trustee nor a decision not to appoint a trustee under this Paragraph shall preclude the Commission or the Attorney General from seeking civil penalties or any other relief available to it, including a court-appointed trustee, pursuant to § 5(l) of the Federal Trade Commission Act, or any other statute enforced by the Commission, for any failure by the Respondent to comply with this Order. B. If a trustee is appointed by the Commission or a court pursuant to Paragraph III. A. of this Order, Respondent shall consent to the following terms and conditions regarding the trustee's powers, duties, authority, and responsibilities:
IV. IT IS FURTHER ORDERED that, for a period of ten (10) years from the date this Order becomes final, Respondent shall not, without providing advance written notification to the Commission, directly or indirectly: A. Acquire any stock, share capital, equity or other interest in any concern, corporate or non-corporate, engaged in at the time of such acquisition, or within the two years preceding such acquisition, the transportation of natural gas by pipeline in Gulf Offshore Area A or Gulf Offshore Area B, or in the area north of latitude 34 degrees North within the States of Georgia or Alabama. B. Acquire any assets used or previously used (and still suitable for use) in the transportation of natural gas by pipeline in Gulf Offshore Area A or Gulf Offshore Area B, or in the area north of latitude 34 degrees North within the States of Georgia or Alabama. Said notification shall be given on the Notification and Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal Regulations as amended (hereinafter referred to as "the Notification"), and shall be prepared and transmitted in accordance with the requirements of that part, except that no filing fee will be required for any such notification, notification shall be filed with the Secretary of the Commission, notification need not be made to the United States Department of Justice, and notification is required only of Respondent and not of any other party to the transaction. Respondent shall provide the Notification to the Commission at least thirty days prior to consummating the transaction (hereinafter referred to as the "first waiting period"). If, within the first waiting period, representatives of the Commission make a written request for additional information or documentary material (within the meaning of 16 C.F.R. § 803.20), Respondent shall not consummate the transaction until twenty days after submitting such additional information or documentary material. Early termination of the waiting periods in this paragraph may be requested and, where appropriate, granted by letter from the Bureau of Competition. Provided, however, that prior notification shall not be required by this paragraph for a transaction for which notification is required to be made, and has been made, pursuant to Section 7A of the Clayton Act, 15 U.S.C. § 18a. Provided, however, nothing in this Order shall require prior notification to the Federal Trade Commission of the acquisition of stocks, assets or other interests if the total consideration does not exceed nine million dollars ($9,000,000). V. IT IS FURTHER ORDERED that: A Respondent shall cause Viosca Knoll to adhere to the Open and Non-Discriminatory Access Obligations. B Respondent shall cause Viosca Knoll to submit to binding arbitration at the request of any shipper, producer, or pipeline owner who alleges that Respondent is not adhering to the Open and Non-Discriminatory Access Obligations. C. Within thirty (30) days of receipt of a written request from a Competing Pipeline to interconnect with Viosca Knoll, Respondent shall cause Viosca Knoll to enter into a Connection Agreement with such pipeline. Such Connection Agreements shall be on terms that are usual and customary for pipeline connection on the Outer Continental Shelf of the Gulf of Mexico. Provided, that Respondent need not enter into a Connection Agreement that would require Viosca Knoll to receive natural gas from a "natural gas company" or otherwise cause it to become a "natural gas company" as defined by 15 U.S.C. § 717a(6). D. If the Respondent and a Competing Pipeline are unable to agree on the terms and conditions of a Connection Agreement under Paragraph V. C., and if the Competing Pipeline elects to cause the issue to be submitted to binding arbitration, Respondent shall cause Viosca Knoll to submit to such arbitration. E. Respondent shall cause Leviathan to publish Paragraph V. of the Order and related definitions on Leviathan's electronic website and incorporate Paragraph V into future contracts with shippers and connecting pipelines and shall notify all shippers and connecting pipelines with whom it has existing contracts of this obligation. F. Respondent shall immediately notify the Commission of the initiation of any arbitration proceedings under this Paragraph. Arbitration under this Paragraph shall be pursuant to the terms of the alternative dispute resolution procedures of the Federal Energy Regulatory Commission ("FERC") set forth at 18 C.F.R. § 385.605 (Rule 605), or if the Rule 605 procedures are unavailable (for reasons other than the refusal of the other party to the arbitration to agree to a FERC arbitration), in accordance with the procedures in Exhibit A. Failure of Respondent thereafter to abide by the arbitrator's decision shall be a violation of this Order. Provided, however, Viosca Knoll will not be required to abide by an arbitration decision if the decision is vacated by the FERC. G. The provisions of Paragraph V. shall be suspended upon a showing by Respondent by means of affidavit that at least one-third of the membership interests in Destin Pipeline Company, L.L.C. is controlled by a person who does not have an interest in wells or leases in the Viosca Knoll, Mississippi Canyon, Destin Dome, or De Soto Canyon areas of the Gulf of Mexico Outer Continental Shelf. The suspension shall be effective for periods of six months each, beginning 30 days following the submission of Respondent's affidavit, unless the Assistant Director of the Compliance Division of the Bureau of Competition determines that the affidavit is incorrect. Arbitrations under Paragraph V. that were begun during the time the provisions of Paragraph V. were in effect, and the validity of arbitration decisions made thereunder, shall not be affected by the suspension permitted by this subparagraph. H. The provisions of Paragraph V. shall be terminated upon a showing by Respondent by means of affidavit that (a) Respondent is not the operator of Viosca Knoll, (b) Respondent is not the general partner of Leviathan, and (c) El Paso's effective ownership interest in Viosca Knoll and in Leviathan falls below 15 percent or (d) neither Leviathan nor El Paso owns a majority interest in Viosca Knoll. I. The purpose of this Paragraph is to remedy the anticompetitive effects of the acquisition as alleged in the Complaint, if Sonat's interest in Destin Pipeline Company, L.L.C., is sold to a firm with interests in wells or leases in the area in which VKGC or Destin Pipeline Company, L.L.C., are likely to compete. VI. IT IS FURTHER ORDERED that: A. Within ten (10) days from the date that the Commission accepts the Agreement Containing Consent Order in this matter, Respondent shall provide to each customer who has signed a Schedule B Agreement a written notification (i) extending the period during which such customer may give notice of its election to terminate, extend, or roll over such Agreement(s) to 60 days after the date of the divestiture of ETNG, and (ii) extending, at the customer's option, the termination date of the Schedule B Agreement(s). Such termination date may be extended, without penalty, at the customer's option, to either October 31 of the year in which ETNG is divested or October 31 of the year after the year in which ETNG is divested. The customer's option concerning the termination date of the Schedule B Agreement must be exercised at the time the customer provides its notice of election to terminate, extend, or roll over its Schedule B Agreement(s). B. Any Schedule B Agreements and the following agreements entered into, or extended, by an ETNG customer during the Divestiture Period may be terminated, without penalty, if the customer gives notice to ETNG and TGP within 60 days after the date ETNG is divested: 1) firm transportation agreements on ETNG; 2) firm transportation agreements on TGP for Primary Deliveries into ETNG; or 3) firm storage agreements on TGP that utilize a firm transportation agreement on TGP for Primary Deliveries into ETNG. Termination shall be effective on October 31 of the year the customer gives notice or October 31 of the following year at the customer's option. C. Respondent, for at least three years from the date of the ETNG divestiture, shall refrain from taking any action that causes the TGP/ETNG interconnects at Lobelville, Tennessee, and at Ridgetop, Tennessee, to cease having swing capability within the meaning of Section 7.1 of ETNG's FERC Tariff Rate Schedule LMS-MA ("Section 7.1") and, thereafter, until the tenth anniversary of the divestiture of ETNG, to provide at least 60 days' written notice to each TGP customer that receives Primary Deliveries at either Lobelville or Ridgetop of Respondent's change in operation which would cause such interconnect to no longer have swing capability within the meaning of Section 7.1. VII. IT IS FURTHER ORDERED that: A. Within thirty (30) days after the date this Order becomes final and every thirty (30) days thereafter until Respondent has fully complied with the provisions of this Order, Respondent shall submit to the Commission a verified written report setting forth in detail the manner and form in which it intends to comply, is complying, and has complied with this Order. Respondent shall include in its compliance reports, among other things that are required from time to time, a full description of the efforts being made to comply with the Order, including a description of all substantive contacts or negotiations for the divestiture and the identity of all parties contacted. Respondent shall include in its compliance reports copies of all written communications to and from such parties, all internal memoranda, and all reports and recommendations concerning divestiture. The final compliance report shall include a statement that the divestiture has been accomplished in the manner approved by the Commission and shall include the date the divestiture was accomplished. B. One year (1) from the date this Order becomes final, annually for the next nine (9) years on the anniversary of the date this Order becomes final, and at other times as the Commission may require, Respondent shall file a verified written report with the Commission setting forth in detail the manner and form in which it has complied and is complying with this Order. VIII. IT IS FURTHER ORDERED that Respondent shall notify the Commission at least thirty (30) days prior to any proposed change in the corporate Respondent that may affect compliance obligations arising out of the Order, such as dissolution, assignment, sale resulting in the emergence of a successor corporation, or the creation or dissolution of subsidiaries or any other change in the corporation. IX. IT IS FURTHER ORDERED that, for the purpose of determining or securing compliance with this Order, upon written request, Respondent shall permit any duly authorized representative of the Commission: A. Access, during office hours and in the presence of counsel, to all facilities and access to inspect and copy all books, ledgers, accounts, correspondence, memoranda and other records and documents in the possession or under the control of Respondent relating to any matters contained in this Order; and B. Upon five days' notice to Respondent and without restraint or interference from it, to interview officers, directors, employees, agents or independent contractors of Respondent. X. IT IS FURTHER ORDERED that this Order will terminate twenty (20) years from the date of its issuance. Signed this _____ day of September, 1999. EL PASO ENERGY CORPORATION, A CORPORATION ________________________ FEDERAL TRADE COMMISSION By: Approved: Molly S. Boast Richard G. Parker Schedule A
Schedule B Agreements 1. Each TGP firm transportation agreement that has (i) a Primary Delivery Point at an TGP/ETNG interconnect, (ii) an initial term of twelve months or longer, and (iii) a currently effective election deadline in the Divestiture Period:
2. Each ETNG firm transportation or storage agreement with an initial term of twelve months or longer that has a currently effective election deadline in the Divestiture Period:
3. Each TGP storage agreement with an initial term of twelve months or longer that has a currently effective election deadline in the Divestiture Period and was entered into with a person who also has a firm transportation agreement with ETNG:
Exhibit A (a) A person desiring arbitration under the Order will give at least ten days notice in writing of the subject it wishes to discuss, provide a written statement of the dispute, and designate an officer or other representative of such party with complete power to resolve the dispute to attend the meeting. Within ten days after receipt of such request, the Respondent will provide a responsive written statement and will designate an officer or other representative of such party who will attend the meeting with complete power to resolve the dispute. (b) If the meeting fails to resolve the dispute among the officers or other representatives of the parties, the dispute shall be submitted for nonappealable, binding determination through arbitration. (c) An officer or other representative with complete authority to resolve the dispute for each party shall attend the arbitration. Three arbitrators shall be chosen from the arbitrators available through the Houston, Texas office, of the American Arbitration Association ("AAA") (or any successor thereto, or if there is no successor thereto, the Judicial Arbitration and Mediation Services, Inc..). (d) The arbitrators shall be appointed by the AAA in accordance with the AAA's rules for selection of arbitrators. Unless otherwise agreed by the parties, the arbitrators shall be individuals with a minimum of ten years experience in the pipeline and energy industry and who are not, and have not previously been, employed by either party (or an affiliate thereof), and do not have a direct or indirect interest in either party (or an affiliate thereof) or the subject matter of the arbitration. (e) The parties shall make discovery and disclosure of all matters relevant to the dispute to the extent and in the manner provided by AAA. The arbitrators will rule on all requests for discovery and disclosure and discovery shall be completed within 30 days of the date of first notice pursuant to (a) above. The arbitrators may consider any matter relevant to the subject of the dispute and shall follow the statutes and decisions of the substantive law of Texas. The arbitrators shall issue a final ruling within 60 days of the date of the first notice pursuant to (a) above. (f)) The ruling of the arbitrators shall be in writing and signed and shall be final and binding upon the Parties. The fees and expenses of counsel, witnesses and employees of the Parties and all other costs and expenses incurred in connection with arbitration shall be allocated as determined by the arbitrators. All meetings and arbitration help pursuant to this Section shall take place in Houston, Texas. |