SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
SCHEDULE 13D/A
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13(d)-2(a)
(AMENDMENT NO. 4)
EL PASO ENERGY PARTNERS, L.P.
(Name of Issuer)
COMMON UNITS
(Title of Class of Securities)
28368B
(CUSIP Number)
D. MARK LELAND
SENIOR VICE PRESIDENT
4 GREENWAY PLAZA
HOUSTON, TEXAS 77046
(832) 676-6152
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
APRIL 16, 2003
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) OR 13d-1(g), check the
following box [ ].
(Continued on the following pages)
(Page 1 of 8 Pages)
CUSIP NO. 28368B 13D PAGE 2 OF 8 PAGES
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
El Paso Corporation
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER 11,674,245
NUMBERS OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ---------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 11,674,245
REPORTING
PERSON WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,674,245 Common Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.6%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
2
CUSIP NO. 28368B 13D PAGE 3 OF 8 PAGES
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
DeepTech International Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER 8,852,902
NUMBERS OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ---------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 8,852,902
REPORTING
PERSON WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,852,902 Common Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
3
CUSIP NO. 28368B 13D PAGE 4 OF 8 PAGES
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
El Paso Energy Partners Company, L.L.C.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER 8,852,902
NUMBERS OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ---------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 8,852,902
REPORTING
PERSON WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,852,902 Common Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
4
CUSIP NO. 28368B 13D PAGE 5 OF 8 PAGES
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Sabine River Investors I, L.L.C.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER 8,852,902
NUMBERS OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ---------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 8,852,902
REPORTING
PERSON WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,852,902 Common Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, OO
- --------------------------------------------------------------------------------
5
CUSIP NO. 28368B 13D PAGE 6 OF 8 PAGES
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
El Paso Tennessee Pipeline Co.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER 2,821,343
NUMBERS OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ---------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 2,821,343
REPORTING
PERSON WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,821,343 Common Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
6
CUSIP NO. 28368B 13D PAGE 7 OF 8 PAGES
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
El Paso Field Services Holding Company
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER 2,821,343
NUMBERS OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ---------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 2,821,343
REPORTING
PERSON WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,821,343 Common Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
7
CUSIP NO. 28368B 13D PAGE 8 OF 8 PAGES
- --------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Sabine River Investors II, L.L.C.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER 2,821,343
NUMBERS OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER 0
BENEFICIALLY
OWNED BY ---------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 2,821,343
REPORTING
PERSON WITH ---------------------------------------------------------
10 SHARED DISPOSITIVE POWER 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,821,343 Common Units
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, OO
- --------------------------------------------------------------------------------
9
ITEM 1. SECURITY AND ISSUER.
This Amendment No. 4 (this "Amendment") amends our statement on
Schedule 13D filed on June 11, 1999 (as amended prior to this Amendment, the
"Schedule 13D") relating to ownership of common units representing limited
partner interests in El Paso Energy Partners, L.P., a Delaware limited
partnership (the "Issuer"). The Issuer's principal executive offices are located
at 1001 Louisiana Street, Houston, TX 77002.
ITEM 2. IDENTITY AND BACKGROUND.
This Amendment is being filed by El Paso Corporation, DeepTech
International Inc., El Paso Energy Partners Company, L.L.C., El Paso Tennessee
Pipeline Co., El Paso Field Services Holding Company, Sabine River Investors I,
L.L.C. and Sabine River Investors II, L.L.C., each being referred to herein as a
"Reporting Person."
Sabine River Investors I, L.L.C., a Delaware limited liability company
("Sabine I"), is wholly owned by El Paso Energy Partners Company, L.L.C. Sabine
I's only material assets are the common units it owns. Sabine I's principal
business is to serve as the holder of some of the Issuer's common units.
Sabine River Investors II, L.L.C., a Delaware limited liability company
("Sabine II"), is wholly owned by EPFS Holding. Sabine II's only material assets
are the common units it owns. Sabine II's principal business is to serve as the
holder of some of the Issuer's common units.
El Paso Energy Partners Company, L.L.C., a Delaware limited liability
company ("EPEPC"), is wholly owned by DeepTech International Inc. EPEPC's
principal business is to serve as the holding company of Sabine I.
DeepTech International Inc., a Delaware corporation ("DeepTech"), is
wholly owned by El Paso Corporation. DeepTech International Inc.'s principal
business is to serve as the holding company of EPEPC.
El Paso Field Services Holding Company, a Delaware corporation ("EPFS
Holding"), is wholly owned by El Paso Tennessee Pipeline. EPFS Holding's
principal business is to own, operate, acquire and construct natural gas
gathering, processing and other related facilities.
El Paso Tennessee Pipeline Co., a Delaware corporation ("El Paso
Tennessee"), is wholly owned by El Paso Corporation. El Paso Tennessee's
principal business is to serve as the holding company of EPFS Holding.
El Paso Corporation, a Delaware corporation, is a global energy company
with operations that range from energy production and extraction to power
generation.
10
The principal business and office address of each of the Reporting
Persons is 1001 Louisiana Street, Houston, Texas 77002.
Attached as Exhibit 2 hereto and incorporated herein by reference is a
list of all directors and executive officers of each Reporting Person. Each
director and executive officer of each Reporting Person is a citizen of the
United States.
(d), (e) During the last five years, no Reporting Person nor, to the
best of their knowledge, any entity or person with respect to whom information
is provided in response to this Item has, during the last five years, been (i)
convicted in a criminal proceeding (excluding traffic violations and similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such law.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Not applicable for this Amendment.
11
ITEM 4. PURPOSE OF TRANSACTION.
Not applicable for this Amendment. No Reporting Person has any plans
or proposals of the type referred to in clauses (a) through (j) of Item 4 of
Schedule 13D, although they reserve the right to formulate such plans or
proposals in the future.
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
(a) The following table describes the number of common units, including
Common Units issuable upon exercise or conversion of derivative securities and
the percent of outstanding common units owned by each person identified in Item
2. All percentages are based on the 47,480,314 Common Units issued and
outstanding on April 30, 2003.
Total
Derivative ---------------------------
Holder Common Units Securities Number %(1)
- ------ ------------ ------------ ------------ ------------
El Paso Corporation(2) 11,674,245 -- 11,674,245 24.6%
DeepTech(3) 8,852,902 -- 8,852,902 18.7%
EPEPC(3) 8,852,902 -- 8,852,902 18.7%
Sabine I 8,852,902 -- 8,852,902 18.7%
El Paso Tennessee(4) 2,821,343 -- 2,821,343 5.9%
EPFS Holding(4) 2,821,343 -- 2,821,343 5.9%
Sabine II 2,821,343 -- 2,821,343 5.9%
- ----------
(1) In accordance with SEC regulations under Section 13(d) of the Securities
Exchange Act of 1934, as amended, the percent shown in this column for each
Common Unit holder represents the number of Common Units owned by such holder
plus the derivative securities (on an as converted basis) owned by such
holder divided by the number of Common Units outstanding plus the number of
derivative securities (on an as converted basis) owned by such holder.
(2) Includes 8,852,902 common units owned directly by Sabine I and 2,821,343
common units owned directly by Sabine II.
(3) Includes 8,852,902 common units owned directly by Sabine I.
(4) Includes 2,821,343 common units owned directly by Sabine II.
12
(b) Each person identified in (a) above has the sole power to vote or
direct the vote and the sole power to dispose or direct the disposition of the
Common Units beneficially owned by such person.
(c) Except as otherwise described herein, none of the persons
identified in (a) above have effected any transactions in the Issuer's common
units during the past 60 days.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
EPEPC is no longer the general partner of the Issuer.
Pursuant to a Security and Intercreditor Agreement dated as of April
16, 2003, Sabine I and Sabine II have pledged their common units to certain
lenders named therein.
13
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1: Joint Filing Agreement among El Paso Corporation, DeepTech, EPEPC,
El Paso Tennessee, EPFS Holding, Sabine I and Sabine II.
Exhibit 2: List of all directors and executive officers of each of El Paso
Corporation, DeepTech, EPEPC, El Paso Tennessee, EPFS Holding,
Sabine I and Sabine II.
Exhibit 3: Security and Intercreditor Agreement dated as of April 16, 2003
among El Paso Corporation, the persons referred to therein as
Pipeline Company Borrowers, the persons referred to therein as
Grantors, each of the Representative Agents, JPMorgan Chase Bank,
as Credit Agreement Administrative Agent and JPMorgan Chase Bank,
as Collateral Agent, Intercreditor Agent and Depository Bank.
14
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 7, 2003 El Paso Energy Partners Company, L.L.C.
By: /s/ D. Mark LeLand
-------------------------------------
Name: D. Mark LeLand
Title: Senior Vice President and
Chief Operating Officer
Dated: May 7, 2003 DeepTech International Inc.
By: /s/ D. Mark LeLand
-------------------------------------
Name: D. Mark LeLand
Title: Senior Vice President and Controller
Dated: May 7, 2003 El Paso Corporation
By: /s/ David L. Siddall
-------------------------------------
Name: David L. Siddall
Title: Vice President
Dated: May 7, 2003 El Paso Field Services Holding Company
By: /s/ D. Mark Leland
-------------------------------------
Name: D. Mark Leland
Title: Senior Vice President and Chief
Financial Officer
Dated: May 7, 2003 El Paso Tennessee Pipeline Co.
By: /s/ David L. Siddall
-------------------------------------
Name: David L. Siddall
Title: Vice President
15
Dated: May 7, 2003 Sabine River Investors I, L.L.C.
By: /s/ David L. Siddall
---------------------------------
Name: David L. Siddall
Title: Vice President
Dated: May 7, 2003 Sabine River Investors II, L.L.C.
By: /s/ David L. Siddall
---------------------------------
Name: David L. Siddall
Title: Vice President
16
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
1.* Joint Filing Agreement among El Paso Corporation, DeepTech, EPEPC,
El Paso Tennessee, EPFS Holding, Sabine I and Sabine II.
2.* List of all directors and executive officers of each of El Paso
Corporation, DeepTech, EPEPC, El Paso Tennessee, EPFS Holding,
Sabine I and Sabine II.
3.* Security and Intercreditor Agreement dated as of April 16, 2003
among El Paso Corporation, the persons referred to therein as
Pipeline Company Borrowers, the persons referred to therein as
Grantors, each of the Representative Agents, JPMorgan Chase Bank,
as Credit Agreement Administrative Agent and JPMorgan Chase Bank,
as Collateral Agent, Intercreditor Agent and Depository Bank.
- ----------
* Filed herewith.
17
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) of Regulation 13D of the Securities
Exchange Act of 1934, as amended, the persons or entities below agree to the
joint filing on behalf of each of them of this Statement on Schedule 13D
(including any and all amendments thereto) with respect to the Common Units of
El Paso Energy Partners, L.P., and further agree that this Joint Filing
Agreement be included as an Exhibit to such joint filings. In evidence thereof
the undersigned, being duly authorized, hereby execute this Agreement as of the
7th day of May, 2003.
El Paso Energy Partners Company, L.L.C.
By: /s/ D. Mark Leland
-------------------------------------
Name: D. Mark Leland
Title: Senior Vice President and
Chief Operating Officer
DeepTech International Inc.
By: /s/ D. Mark Leland
-------------------------------------
Name: D. Mark LeLand
Title: Senior Vice President and
Controller
El Paso Corporation
By: /s/ David L. Siddall
-------------------------------------
Name: David L. Siddall
Title: Vice President
El Paso Field Services Holding Company
By: /s/ D. Mark Leland
-------------------------------------
Name: D. Mark LeLand
Title: Senior Vice President and Chief
Financial Officer
El Paso Tennessee Pipeline Co.
By: /s/ David L. Siddall
-------------------------------------
Name: David L. Siddall
Title: Vice President
Sabine River Investors I, L.L.C.
By: /s/ David L. Siddall
----------------------------------
Name: David L. Siddall
Title: Vice President
Sabine River Investors II, L.L.C.
By: /s/ David L. Siddall
----------------------------------
Name: David L. Siddall
Title: Vice President
EXHIBIT 2
DIRECTORS, MANAGERS, EXECUTIVE OFFICERS
OR CONTROLLING PERSONS
The name, business address, present principal occupation or employment and the
name, principal business address of any corporation or other organization in
which such employment is conducted, of each of the executive officers and
directors of (i) El Paso Energy Partners Company, (ii) Deeptech International
Inc., (iii) El Paso Field Services Holding Company, (iv) El Paso Tennessee
Pipeline Co. and (v) El Paso Corporation.
(i) EL PASO ENERGY PARTNERS COMPANY.
--------------------------------
NAME, PRINCIPAL BUSINESS
ADDRESS OF ORGANIZATION IN
NAME AND CAPACITY IN WHICH PRINCIPAL WHICH PRINCIPAL OCCUPATION
BUSINESS ADDRESS SERVES OCCUPATION IS CONDUCTED
---------------- ------ ---------- ------------
Robert G. Phillips Director, Chairman Director, Chairman of the Board El Paso Energy Partners
4 Greenway Plaza of the Board and and Chief Executive Officer of Company
Houston, Texas 77046 Executive Officer El Paso Energy Partners Company 4 Greenway Plaza
Houston, Texas 77046
James H. Lytal Director and President President of El Paso Energy El Paso Energy Partners
4 Greenway Plaza Partners Company Company
Houston, Texas 77046 4 Greenway Plaza
Houston, Texas 77046
Keith B. Forman Vice President and Vice President and Chief El Paso Energy Partners
4 Greenway Plaza Chief Financial Financial Officer of El Paso Company
Houston, Texas 77046 Officer Energy Partners Company 4 Greenway Plaza
Houston, Texas 77046
D. Mark Leland Senior Vice President Senior Vice President and El Paso Energy Partners
4 Greenway Plaza and Chief Operating Chief Operating Officer of Company
Houston, Texas 77046 Officer El Paso Energy 4 Greenway Plaza
Partners Company Houston, Texas 77046
Kathy A. Welch Vice President Vice President and El Paso Energy Partners
4 Greenway Plaza and Controller Controller of Company
Houston, Texas 77046 El Paso Energy Partners 4 Greenway Plaza
Company Houston, Texas 77046
Michael B. Bracy Director Retired 1001 Louisiana Street
1001 Louisiana Street Houston, Texas 77002
Houston, Texas 77002
H. Douglas Church Director Retired 1001 Louisiana Street
1001 Louisiana Street Houston, Texas 77002
Houston, Texas 77002
Kenneth L. Smalley Director Retired 1001 Louisiana Street
1001 Louisiana Street Houston, Texas 77002
Houston, Texas 77002
(ii) DEEPTECH INTERNATIONAL INC.
---------------------------
NAME, PRINCIPAL BUSINESS
ADDRESS OF ORGANIZATION IN
NAME AND CAPACITY IN WHICH PRINCIPAL WHICH PRINCIPAL OCCUPATION
BUSINESS ADDRESS SERVES OCCUPATION IS CONDUCTED
---------------- ------ ---------- ------------
Robert G. Phillips Director, Chairman Director, Chairman of the El Paso Energy Partners
4 Greenway Plaza of the Board and Board and Chief Executive Company
Houston, Texas 77046 Chief Executive Officer Officer of El Paso Energy 4 Greenway Plaza
Partners Company Houston, Texas 77046
James H. Lytal Director and President President of El Paso Energy El Paso Energy Partners
4 Greenway Plaza Partners Company Company
Houston, Texas 77046 4 Greenway Plaza
Houston, Texas 77046
Keith B. Forman Vice President and Vice President and Chief El Paso Energy Partners
4 Greenway Plaza Chief Financial Financial Officer of El Paso Company
Houston, Texas 77046 Officer Energy Partners Company 4 Greenway Plaza
Houston, Texas 77046
D. Mark Leland Senior Vice President Senior Vice President and El Paso Energy Partners
4 Greenway Plaza and Controller Chief Operating Officer of Company
Houston, Texas 77046 El Paso Energy Partners 4 Greenway Plaza
Company Houston, Texas 77046
(iii) EL PASO FIELD SERVICES HOLDING COMPANY
--------------------------------------
NAME, PRINCIPAL BUSINESS
ADDRESS OF ORGANIZATION IN
NAME AND CAPACITY IN WHICH PRINCIPAL WHICH PRINCIPAL OCCUPATION
BUSINESS ADDRESS SERVES OCCUPATION IS CONDUCTED
---------------- ------ ---------- ------------
H. Brent Austin Director and President and El Paso Corporation
1001 Louisiana Street Executive Vice Chief Operating Officer of 1001 Louisiana Street
Houston, Texas 77002 President El Paso Corporation Houston, Texas 77002
(iv) EL PASO TENNESSEE PIPELINE CO.
------------------------------
NAME, PRINCIPAL BUSINESS
ADDRESS OF ORGANIZATION IN
NAME AND CAPACITY IN WHICH PRINCIPAL WHICH PRINCIPAL OCCUPATION
BUSINESS ADDRESS SERVES OCCUPATION IS CONDUCTED
---------------- ------ ---------- ------------
Ronald L. Kuehn, Jr. Director, Chairman of Director, Chairman of the El Paso Corporation
1001 Louisiana Street the Board and Board and Chief 1001 Louisiana Street
Houston, Texas 77002 Chief Executive Executive Officer of El Paso Houston, Texas 77002
Officer Corporation
H. Brent Austin Director, President President and El Paso Corporation
1001 Louisiana Street and Chief Operating Chief Operating Officer of 1001 Louisiana Street
Houston, Texas 77002 Officer El Paso Corporation Houston, Texas 77002
David E. Zerhusen Director and Executive Executive Vice President of El Paso Corporation
1001 Louisiana Street Vice President El Paso Corporation 1001 Louisiana Street
Houston, Texas 77002 Houston, Texas 77002
Peggy A. Heeg Director and Executive Vice President and El Paso Corporation
1001 Louisiana Street Executive Vice General Counsel of El Paso 1001 Louisiana Street
Houston, Texas 77002 President, Law Corporation Houston, Texas 77002
D. Dwight Scott Executive Vice Executive Vice President and El Paso Corporation
1001 Louisiana Street President and Chief Chief Financial Officer of 1001 Louisiana Street
Houston, Texas 77002 Financial Officer El Paso Corporation Houston, Texas 77002
Jeffrey I. Beason Director, Senior Vice Senior Vice President and El Paso Corporation
1001 Louisiana Street President and Controller of El Paso 1001 Louisiana Street
Houston, Texas 77002 Controller Corporation Houston, Texas 77002
John J. Hopper Vice President Senior Vice President and El Paso Corporation
1001 Louisiana Street and Treasurer Treasurer of El Paso 1001 Louisiana Street
Houston, Texas 77002 Corporation Houston, Texas 77002
Joe B. Wyatt Director Director of El Paso Corporation
1001 Louisiana Street El Paso Corporation 1001 Louisiana Street
Houston, Texas 77002 Houston, Texas 77002
(v) EL PASO CORPORATION:
--------------------
NAME, PRINCIPAL BUSINESS
ADDRESS OF ORGANIZATION IN
NAME AND CAPACITY IN WHICH PRINCIPAL WHICH PRINCIPAL OCCUPATION
BUSINESS ADDRESS SERVES OCCUPATION IS CONDUCTED
---------------- ------ ---------- ------------
Ronald L. Kuehn, Jr. Chairman of the Director, Chairman of the El Paso Corporation
1001 Louisiana Street Board, Chief Board, and Chief 1001 Louisiana Street
Houston, Texas 77002 Executive Officer, Executive Officer of El Paso Houston, Texas 77002
and Director Corporation
H. Brent Austin President and Chief President and El Paso Corporation
1001 Louisiana Street Operating Officer Chief Operating Officer of 1001 Louisiana Street
Houston, Texas 77002 El Paso Corporation Houston, Texas 77002
D. Dwight Scott Executive Vice Executive Vice President El Paso Corporation
1001 Louisiana Street President and Chief and Chief Financial Officer 1001 Louisiana Street
Houston, Texas 77002 Financial Officer of El Paso Corporation Houston, Texas 77002
David E. Zerhusen Executive Vice Executive Vice President El Paso Corporation
1001 Louisiana Street President of El Paso Corporation 1001 Louisiana Street
Houston, Texas 77002 Houston, Texas 77002
Robert W. Baker Executive Executive Vice President El Paso Corporation
1001 Louisiana Street Vice President of El Paso Corporation 1001 Louisiana Street
Houston, Texas 77002 Houston, Texas 77002
Peggy A. Heeg Executive Vice Executive Vice President and El Paso Corporation
1001 Louisiana Street President and General Counsel of El Paso 1001 Louisiana Street
Houston, Texas 77002 General Counsel Corporation Houston, Texas 77002
Jeffrey I. Beason Senior Vice President Senior Vice President and El Paso Corporation
1001 Louisiana Street and Controller Controller of El Paso 1001 Louisiana Street
Houston, Texas 77002 Corporation Houston, Texas 77002
Greg G. Jenkins Executive Vice Executive Vice President of El Paso Corporation
1001 Louisiana Street President El Paso Corporation 1001 Louisiana Street
Houston, Texas 77002 Houston, Texas 77002
Rodney Erskine President, El Paso President of El Paso El Paso Production Company
1001 Louisiana Street Production Company Production Company 1001 Louisiana Street
Houston, Texas 77002 Houston, Texas 77002
Byron Allumbaugh Director Retired Chairman, Ralphs 610 Newport Center Drive
610 Newport Center Drive, Grocery Company Suite 210
Suite 210 Newport Beach, CA 92660
Newport Beach, CA 92660
John M. Bissell Director Chairman of the Board of Bissell Inc.
2345 Walker Ave., N.W. Bissell Inc. 2345 Walker Ave., N.W.
Grand Rapids, MI 49501 Grand Rapids, MI 49544
Juan Carlos Braniff Director Vice Chairman, Universidad 1200, Col. XOCO
Universidad 1200, Col. XOCO Grupo Financiero Bancomer Mexico, D.F.C.P. 03339
Mexico, D.F.C.P. 03339
James L. Dunlop Director Business Consultant 1659 North Boulevard
1659 North Boulevard Houston, Texas 77006
Houston, Texas 77006
Robert W. Goldman Director Business Consultant 13 DuPont Circle
13 DuPont Circle Sugar Land, TX 77479
Sugar Land, TX 77479
J. Michael Talbert Director Chairman of Transocean Inc.
Chairman of the Board the Board, 4 Greenway Plaza
Transocean Inc. Transocean Inc. Houston, Texas 77046
4 Greenway Plaza
Houston, Texas 77046
John Whitmire Director Chairman of CONSOL Energy, Inc.
Consol Energy, Inc. the Board, 1800 Washington Road
1800 Washington Road CONSOL Energy, Inc. Pittsburgh, PA 15241
Pittsburgh, PA 15241
James F. Gibbons Director Professor at Stanford Stanford University
Stanford University University School of Paul G. Allen Center for
Paul G. Allen Center for Engineering Integrated Systems
Integrated Systems Room 201 (Mail Stop 4075)
Room 201 (Mail Stop 4075) Stanford, CA 94305
Stanford, CA 94305
Anthony W. Hall, Jr. Director City Attorney, City of Attorney, City of Houston
900 Bagby, 4th Floor Houston 900 Bagby, 4th Floor
Houston, Texas 77002 Houston, Texas 77002
J. Carleton MacNeil Jr Director Securities Consultant 3421 Spanish Trail
3421 Spanish Trail Building 227D
Building 227D Delray Beach, FL 33483
Delray Beach, FL 33483
Thomas R. McDade Director Senior Partner, McDade, McDade, Fogler, Maines, L.L.P.
Two Houston Center Fogler, Marnes, L.L.P. Two Houston Center
909 Fannin, Suite 1200 909 Fannin, Suite 1200
Houston, Texas 77010 Houston, Texas 77010
Malcolm Wallop Director Chairman, Frontiers of Frontiers of Freedom
Western Strategy Group Freedom Foundation Foundation
1100 Wilson Blvd., 12011 Lee Jackson
Suite 1400 Memorial Hwy.
Arlington, VA 22209 Fairfax, VA 22033
William A. Wise Director Director of El Paso El Paso Corporation
1001 Louisiana Street Corporation 1001 Louisiana Street
Houston, Texas 77002 Houston, Texas 77002
Joe B. Wyatt Director Chancellor Emeritus, Vanderbilt University
Vanderbilt University Vanderbilt University 211 Kirkland Mall
211 Kirkland Mall Nashville, TN 37240
Nashville, TN 37240
(vi) SABINE RIVER INVESTORS I, L.L.C.
---------------------------------
NAME, PRINCIPAL BUSINESS
ADDRESS OF ORGANIZATION IN
NAME AND CAPACITY IN WHICH PRINCIPAL WHICH PRINCIPAL OCCUPATION
BUSINESS ADDRESS SERVES OCCUPATION IS CONDUCTED
---------------- ------ ---------- ------------
Robert G. Phillips Chief Executive Officer Chief Executive El Paso Energy Partners, L.P.
1001 Louisiana Street Officer of El Paso Four Greenway Plaza
Houston, Texas 77002 Energy Partners, L.P. Houston, Texas 77046
James H. Lytal President President of El Paso El Paso Energy Partners, L.P.
1001 Louisiana Street Energy Partners, L.P. Four Greenway Plaza
Houston, Texas 77002 Houston, Texas 77046
D. Dwight Scott Executive Vice President Executive Vice El Paso Corporation
1001 Louisiana Street President and Chief 1001 Louisiana Street
Houston, Texas 77002 Financial Officer of Houston, Texas 77002
El Paso Corporation
D. Mark Leland Senior Vice President Senior Vice President El Paso Energy Partners, L.P.
1001 Louisiana Street and Controller and Chief Operating Four Greenway Plaza
Houston, Texas 77002 Officer of El Paso Houston, Texas 77046
Energy Partners, L.P.
Keith B. Forman Vice President and Chief Vice President and El Paso Energy Partners, L.P.
1001 Louisiana Street Financial Officer Chief Financial Four Greenway Plaza
Houston, Texas 77002 Officer of El Paso Houston, Texas 77046
Energy Partners, L.P.
(vi) SABINE RIVER INVESTORS II, L.L.C.
---------------------------------
NAME, PRINCIPAL BUSINESS
ADDRESS OF ORGANIZATION IN
NAME AND CAPACITY IN WHICH PRINCIPAL WHICH PRINCIPAL OCCUPATION
BUSINESS ADDRESS SERVES OCCUPATION IS CONDUCTED
---------------- ------ ---------- ------------
Robert G. Phillips President Chief Executive El Paso Energy Partners, L.P.
1001 Louisiana Street Officer of El Paso Four Greenway Plaza
Houston, Texas 77002 Energy Partners, L.P. Houston, Texas 77046
H. Brent Austin Executive Vice President President and Chief El Paso Energy Partners, L.P.
1001 Louisiana Street Operating Officer of Four Greenway Plaza
Houston, Texas 77002 El Paso Corporation Houston, Texas 77046
D. Dwight Scott Executive Vice President Executive Vice El Paso Corporation
1001 Louisiana Street President and Chief 1001 Louisiana Street
Houston, Texas 77002 Financial Officer of Houston, Texas 77002
El Paso Corporation
D. Mark Leland Senior Vice President and Senior Vice President El Paso Energy Partners, L.P.
1001 Louisiana Street Chief Financial Officer and Chief Operating Four Greenway Plaza
Houston, Texas 77002 Officer of El Paso Houston, Texas 77046
Energy Partners, L.P.
Exhibit 3
SECURITY AND
INTERCREDITOR AGREEMENT
DATED AS OF APRIL 16, 2003
AMONG
EL PASO CORPORATION,
THE PERSONS REFERRED TO HEREIN AS
PIPELINE COMPANY BORROWERS,
THE PERSONS REFERRED TO HEREIN AS GRANTORS,
EACH OF THE REPRESENTATIVE AGENTS,
JPMORGAN CHASE BANK,
AS CREDIT AGREEMENT ADMINISTRATIVE AGENT
AND
JPMORGAN CHASE BANK,
AS COLLATERAL AGENT, INTERCREDITOR AGENT, AND DEPOSITORY BANK
TABLE OF CONTENTS
SECURITY AND INTERCREDITOR AGREEMENT
ARTICLE I DEFINITIONS AND INTERPRETATION..........................................................................2
SECTION 1.01 DEFINITIONS..................................................................................2
SECTION 1.02 PRINCIPLES OF INTERPRETATION.................................................................3
SECTION 1.03 ACCOUNTING TERMS; GAAP.......................................................................3
SECTION 1.04 SCHEDULE II; SUPPLEMENTS TO SCHEDULES........................................................3
ARTICLE II SECURED OBLIGATIONS AND PREPAYMENTS....................................................................6
SECTION 2.01 MANDATORY ASSET PREPAYMENT EVENT.............................................................6
SECTION 2.02 MANDATORY ASSET PREPAYMENT AMOUNT............................................................7
SECTION 2.03 RESERVED.....................................................................................7
SECTION 2.04 MANDATORY PREPAYMENTS........................................................................7
SECTION 2.05 PREPAYMENTS GENERALLY.......................................................................14
SECTION 2.06 OPTIONAL PREPAYMENTS........................................................................14
SECTION 2.07 TIME FOR PAYMENTS...........................................................................14
SECTION 2.08 AMOUNTS NOT SUBJECT TO SHARING..............................................................15
SECTION 2.09 PAYMENTS RECEIVED BY ANY OTHER SECURED PARTY................................................15
SECTION 2.10 PRESUMPTION REGARDING PAYMENTS..............................................................16
SECTION 2.11 NO SEPARATE SECURITY........................................................................16
SECTION 2.12 PRIORITY OF LIENS...........................................................................16
ARTICLE III REPRESENTATIONS AND WARRANTIES.......................................................................16
SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTY..........................................16
ARTICLE IV PLEDGED ACCOUNTS......................................................................................19
SECTION 4.01 CREATION OF PLEDGED ACCOUNTS................................................................19
SECTION 4.02 CASH COLLATERAL ACCOUNT; APPLICATION OF FUNDS...............................................20
SECTION 4.03 QUALIFIED INVESTMENTS ACCOUNT...............................................................22
SECTION 4.04 PAYMENTS IN TRUST...........................................................................24
SECTION 4.05 INVESTMENT OF FUNDS IN PLEDGED ACCOUNTS.....................................................24
SECTION 4.06 TRANSFERS FROM ACCOUNTS DURING THE CONTINUANCE OF AN EVENT OF DEFAULT.......................26
SECTION 4.07 REPORTS, CERTIFICATIONS AND INSTRUCTIONS....................................................27
SECTION 4.08 DEPOSITORY BANK UNDERTAKINGS................................................................27
SECTION 4.09 FORCE MAJEURE...............................................................................29
SECTION 4.10 CLEARING AGENCY.............................................................................29
SECTION 4.11 RETURN OF FUNDS TO THE COMPANY..............................................................30
ARTICLE V SECURITY INTERESTS.....................................................................................30
SECTION 5.01 GRANT OF SECURITY INTERESTS.................................................................30
SECTION 5.02 SECURITY FOR OBLIGATIONS....................................................................32
SECTION 5.03 DELIVERY AND CONTROL OF COLLATERAL..........................................................33
SECTION 5.04 FURTHER ASSURANCES; ETC.....................................................................33
SECTION 5.05 GRANTING PARTIES REMAIN LIABLE..............................................................35
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SECTION 5.06 ADDITIONAL EQUITY INTERESTS.................................................................35
SECTION 5.07 RELEASE OF COLLATERAL.......................................................................36
SECTION 5.08 VOTING RIGHTS, DIVIDENDS, PAYMENTS, ETC.....................................................49
SECTION 5.09 THE COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.............................................41
SECTION 5.10 JOINDER OF CIG AND CIG PARENT...............................................................41
ARTICLE VI REMEDIES AND ENFORCEMENT..............................................................................42
SECTION 6.01 REMEDIES AND ENFORCEMENT ACTION.............................................................42
SECTION 6.02 SUBROGATION, ETC............................................................................44
SECTION 6.03 OTHER REMEDIES OF SECURED PARTIES...........................................................44
SECTION 6.04 REQUIRED LENDERS CONSENT....................................................................44
ARTICLE VII COLLATERAL AGENT, INTERCREDITOR AGENT AND DEPOSITORY BANK............................................45
SECTION 7.01 AUTHORIZATION AND ACTION OF THE COLLATERAL AGENT AND INTERCREDITOR AGENT....................45
SECTION 7.02 RELIANCE....................................................................................46
SECTION 7.03 JPMORGAN CHASE BANK AND AFFILIATES..........................................................46
SECTION 7.04 ACCEPTANCE OF COLLATERAL....................................................................46
SECTION 7.05 THE COLLATERAL AGENT MAY PERFORM............................................................47
SECTION 7.06 DUTIES......................................................................................47
SECTION 7.07 LIABILITY...................................................................................49
SECTION 7.08 SUCCESSOR COLLATERAL AGENT, DEPOSITORY BANK AND INTERCREDITOR AGENT.........................49
SECTION 7.09 SUITS, ETC. BROUGHT BY THE COLLATERAL AGENT.................................................50
SECTION 7.10 COMPENSATION OF THE COLLATERAL AGENT, THE DEPOSITORY BANK AND THE INTERCREDITOR AGENT.......50
SECTION 7.11 TAXES, STAMP AND OTHER SIMILAR TAXES........................................................51
SECTION 7.12 LIMITATION ON DUTIES IN RESPECT OF COLLATERAL...............................................51
SECTION 7.13 REQUIRED LENDER PARTIES; PROCEDURES RELATING TO THE OCCURRENCE OF AN EVENT OF DEFAULT OR A
REMEDIES TRIGGER EVENT......................................................................52
SECTION 7.14 NO LIABILITY FOR COLLATERAL AGENT...........................................................54
SECTION 7.15 INDEMNIFICATION.............................................................................54
SECTION 7.16 RIGHT TO INITIATE JUDICIAL PROCEEDINGS, ETC.................................................55
SECTION 7.17 MERGER; CONSOLIDATION.......................................................................55
SECTION 7.18 TREATMENT OF LENDER PARTIES.................................................................55
SECTION 7.19 MISCELLANEOUS...............................................................................56
ARTICLE VIII OTHER AGREEMENTS; INSTRUCTIONS OF LENDER PARTIES....................................................56
SECTION 8.01 PROVISION OF INFORMATION; MEETINGS..........................................................56
SECTION 8.02 REPRESENTATIVE AGENTS; LENDER PARTY ACTION..................................................57
ARTICLE IX MISCELLANEOUS.........................................................................................59
SECTION 9.01 INDEMNITY AND EXPENSES......................................................................59
SECTION 9.02 AMENDMENTS; WAIVERS, ETC....................................................................60
SECTION 9.03 SECURITY INTEREST ABSOLUTE AND WAIVERS......................................................62
SECTION 9.04 NOTICES; ETC................................................................................64
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SECTION 9.05 CONTINUING SECURITY INTEREST; ASSIGNMENTS...................................................65
SECTION 9.06 TERMINATION.................................................................................65
SECTION 9.07 EXECUTION IN COUNTERPARTS...................................................................66
SECTION 9.08 SEVERABILITY................................................................................66
SECTION 9.09 INTEGRATION.................................................................................66
SECTION 9.10 NO PARTNERSHIP..............................................................................66
SECTION 9.11 NO RELIANCE.................................................................................66
SECTION 9.12 ACKNOWLEDGMENT OF RIGHTS OF MUSTANG INVESTORS AND OTHERS....................................66
SECTION 9.13 NO IMPAIRMENT...............................................................................66
SECTION 9.14 EQUITABLE REMEDIES..........................................................................67
SECTION 9.15 REMEDIES....................................................................................67
SECTION 9.16 LIMITATIONS.................................................................................67
SECTION 9.17 SURVIVAL....................................................................................68
SECTION 9.18 NEW, REPLACEMENT, OR REFINANCED FINANCING TRANSACTIONS......................................68
SECTION 9.19 JURISDICTION, ETC...........................................................................68
SECTION 9.20 GOVERNING LAW...............................................................................69
SECTION 9.21 WAIVER OF JURY TRIAL........................................................................69
SECTION 9.22 CONFIDENTIALITY.............................................................................69
SECTION 9.23 SECURED PARTIES BOUND HEREBY................................................................70
SCHEDULES
Schedule I Grantors
Schedule II-A Certain Information Relating to the 3-Year Facility
Schedule II-B Certain Information Relating to the Credit Agreement
Schedule II-C Certain Information Relating to Each Underlying Transaction
Schedule II-D Certain Information Relating to Additional Covered Letters of Credit
Schedule II-E Certain Information Relating to Future Covered Hedging Arrangements
Schedule III [RESERVED]
Schedule IV Initial Pledged Equity
Schedule V Name, Location, Chief Executive Office, Type of Organization, Jurisdiction of
Organization and Organizational Identification Number
Schedule VI Trade Names
Schedule VII Changes in Name, Location, Etc.
EXHIBITS
Exhibit A Form of Request of Representative Agent
Exhibit B Form of Officer's Certificate for Qualified Investments
Exhibit C Form of CIG Joinder Agreement
Exhibit D Form of CIG Parent Joinder Agreement
Exhibit E Form of Representative Agency Agreement
Exhibit F Form of Representative Agent Joinder Agreement
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SECURITY AND INTERCREDITOR AGREEMENT
SECURITY AND INTERCREDITOR AGREEMENT, dated as of April 16, 2003, made
by and among (capitalized terms used herein shall have the meanings assigned
thereto in Section 1.01 of this Agreement):
El Paso Corporation, a Delaware corporation (the "Company");
Each of the Persons (other than the Company) listed on the signature
pages hereof as a Borrower and, from and after the occurrence and satisfaction
of the matters set forth in Section 5.10 hereof, CIG (collectively, the
"Pipeline Company Borrowers") (the Company and the Pipeline Company Borrowers
being, collectively, the "Borrowers");
Each of the Persons listed on Schedule I hereto as a Grantor and, from
and after the occurrence and satisfaction of the matters set forth in Section
5.10 hereof, CIG Parent (collectively, the "Grantors") (the Borrowers and the
Grantors being, collectively, the "Credit Parties" and the Credit Parties and
each other Restricted Subsidiary that is not a Project Financing Subsidiary
being, collectively, the "Credit Related Parties");
JPMorgan Chase Bank ("JPMorgan"), not in its individual capacity but
solely as administrative agent for the Lenders under the Credit Agreement
(solely in such capacity, the "Credit Agreement Administrative Agent") and as
Representative Agent for the Lenders;
JPMorgan, not in its individual capacity but solely in its capacities
as (a) the Depository Bank (solely in such capacity, the "Depository Bank"), (b)
collateral agent on behalf and for the benefit of the Secured Parties (solely in
such capacity, the "Collateral Agent") and (c) intercreditor agent (solely in
such capacity, the "Intercreditor Agent") for the Lender Parties hereunder; and
The 3-Year Facility Agent, each of the other Persons listed on the
signature pages hereof as a Representative Agent, and each Representative Agent
that becomes a party to this Agreement pursuant to a Representative Agent
Joinder Agreement.
PRELIMINARY STATEMENTS
(1) As of the date hereof, the Company is obligated, or may in the
future become obligated, upon the happening of a contingency or otherwise, to
provide Credit Support to the Secured Parties pursuant to one or more of the EPC
Documents.
(2) As of the date hereof, one or more Additional Covered Letters of
Credit have been issued for the account of the Company, each in the amount set
forth on Schedule II-D hereto.
(3) Pursuant to, and subject to the terms and conditions of, the Credit
Agreement, the Lenders thereunder have established a revolving credit and letter
of credit facility incorporating two credit arrangements: (i) a $3,000,000,000
revolving credit loan facility (the "Revolving Credit Facility") in favor of the
Company and the Pipeline Company Borrowers, and (ii) a
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$1,500,000,000 letter of credit sub-facility (the "LC Facility") in favor of the
Company, which Revolving Credit Facility and LC Facility will be used to amend,
restate, restructure and replace that certain $3,000,000,000 364-Day Revolving
Credit and Competitive Advance Facility Agreement, among, inter alia, the
Company and the Credit Agreement Administrative Agent, dated as of May 15, 2002,
as the same has been amended, supplemented, and modified prior to the date of
this Agreement, and to issue trade and standby letters of credit. Letters of
credit issued under the LC Facility are herein collectively referred to as "LCs"
and loans under the Revolving Credit Facility are herein collectively referred
to as "Revolving Credit Loans." The commitments of the Lenders under the Credit
Agreement to provide the Revolving Credit Facility and the LC Facility are
herein collectively referred to as the "Revolving Commitments."
(4) As of the Closing Date, the 3-Year Facility and certain of the
Underlying Documents are being amended and restated, or otherwise amended or
modified.
(5) The Credit Parties, the Collateral Agent, the Intercreditor Agent,
the Depository Bank, the Credit Agreement Administrative Agent (on behalf of (i)
the Lenders, (ii) the Lenders that have agreed to issue letters of credit
pursuant to the Credit Agreement, and (iii) the Counterparty Groups), the 3-Year
Facility Agent (on behalf of the 3-Year Facility Lenders and each issuer of a
letter of credit issued under the 3-Year Facility), and each other
Representative Agent (on behalf of its Related Creditors), have agreed to enter
into this Agreement in order to set forth certain agreements among the Credit
Parties, the Collateral Agent, the Intercreditor Agent, the Depository Bank,
each Representative Agent, and each other Secured Party with respect to their
respective rights in respect of the Collateral, mandatory prepayments and
certain other matters related to the Financing Documents or the Collateral
Documents.
NOW, THEREFORE, to secure the Secured Obligations and to provide for
the mandatory prepayments and applications of funds set forth herein, and in
consideration of the premises and to induce each of the Lender Parties to enter
into the Credit Agreement, the amendment and restatement of the 3-Year Facility,
or amendments and restatements or other amendments or modifications to certain
of the Underlying Documents to which it is a party, as applicable, in each case
as contemplated to occur on the Closing Date, and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, each
of the Credit Parties hereby agrees with the Collateral Agent, for the benefit
of the Secured Parties, and with the Intercreditor Agent, for the benefit of the
Lender Parties, and to the extent set forth herein, the Lender Parties agree
with each other and/or for the benefit of the Credit Parties, as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions.
(a) Defined terms used in this Agreement and the Schedules and Exhibits
to this Agreement have the meanings assigned to them in Appendix A-1.
(b) Terms defined in Article 8 or 9 of the UCC and/or in the Federal
Book Entry Regulations are used in this Agreement as such terms are defined in
such Article 8 or 9 and/or the Federal Book Entry Regulations.
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Section 1.02 Principles of Interpretation. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein)
and shall include all exhibits, annexes, schedules, appendices, or other
attachments thereto, (b) any reference herein to any Person shall be construed
to include such Person's successors and assigns, (c) any reference herein to any
Applicable Law means such Applicable Law as amended, modified, codified,
replaced, or reenacted, in whole or in part, and in effect from time to time,
including rules and regulations promulgated thereunder and reference to any
section or other provision of any Applicable Law means that section or provision
of such Applicable Law from time to time in effect and any amendment,
modification, codification, replacement, or reenactment of such section or other
provision, (d) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (e) all references herein to
Articles, Sections, Exhibits, Appendices and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement, and (f) all references to "days" shall mean calendar days. This
Agreement is the result of negotiations among the parties thereto and their
respective counsel. Accordingly, this Agreement shall be deemed the product of
all parties thereto, and no ambiguity in this Agreement shall be construed in
favor of or against any Credit Party or any Lender Party.
Section 1.03 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Collateral Agent that the Company requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of or calculation of compliance with such provision (or if the
Collateral Agent, upon instruction from the Intercreditor Agent notifies the
Company that the Required Lender Parties request an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given before
or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
Section 1.04 Schedule II; Supplements to Schedules.
(a) Schedule II.
(i) Schedule II-A sets forth (A) the 3-Year Revolving Credit
Exposure as of the Closing Date and the portion thereof attributable to (1)
revolving credit loans and unreimbursed drawings under letters of credit issued
and outstanding thereunder and (2) undrawn amounts of letters of credit issued
and outstanding thereunder, (B) the Representative Agent and
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the Related Creditors under the 3-Year Facility as of the Closing Date, and (C)
certain other information.
(ii) Schedule II-B sets forth (A) the Revolving Credit
Exposure, as of the Closing Date and the portion thereof attributable to (1)
Revolving Credit Loans and unreimbursed drawings under LCs issued and
outstanding thereunder and (2) undrawn amounts of LCs issued and outstanding
thereunder, (B) the Representative Agent and the Related Creditors under the
Credit Agreement as of the Closing Date, and (C) certain other information.
(iii) Schedule II-C sets forth the Attributable Principal
Amount (and each component thereof) of each Underlying Transaction as of the
Closing Date (and the method used to calculate such amount (and each such
component)), the Company Project Support Document for each Underlying
Transaction, the Representative Agent and the Related Creditors under each
Underlying Transaction as of the Closing Date, and certain other information.
(iv) Schedule II-D sets forth the amount of each Additional
Covered Letter of Credit and the Additional Covered Letter of Credit Exposure
under such Additional Covered Letter of Credit issued and outstanding as of the
Closing Date, the Company Reimbursement Document for such Additional Covered
Letter of Credit, the issuer of such Additional Covered Letter of Credit (which
shall be deemed to be the Representative Agent under such Additional Covered
Letter of Credit), the Related Creditors under such Additional Covered Letter of
Credit as of the Closing Date, and certain other information.
(v) Schedule II-E is the form to be used to set forth the Net
Termination Amount of each Future Covered Hedging Agreement, the Representative
Agent for each Future Covered Hedging Agreement (which shall, in each instance,
be the Credit Agreement Administrative Agent), and certain other information.
(b) Supplements to Schedules.
(i) The Company shall deliver a supplement to Schedule VII,
and the Representative Agent for each Financing Transaction then outstanding
shall deliver supplements to the relevant pages of Schedule II, in each case, to
the Intercreditor Agent (with a copy to the Company) and each other
Representative Agent on a quarterly basis, as of March 31, June 30, September 30
and December 31 of each calendar year, commencing June 30, 2003, within 60 days
after the end of each of the first three calendar quarters and within 120 days
after the end of the calendar year.
(ii) The Intercreditor Agent shall promptly request (but in no
event later than three Business Days after any Mandatory Asset Prepayment
Amount, any Current Payment Amount, any Enforcement Proceeds, or any other funds
(other than funds deposited into the Collateral Account pursuant to Section
4.03(b)) is or are deposited into the Collateral Account) each Representative
Agent to deliver a supplement to the applicable portion of Schedule II for the
Financing Transaction for which it acts as Representative Agent reflecting the
proper information thereon as of each Payment Date. Promptly after receipt of
such request from the Intercreditor Agent, but in any event, within three
Business Days after receipt of such request, each Representative Agent shall
deliver to the Intercreditor Agent a supplement to
-4-
Schedule II for the Financing Transaction for which it acts as Representative
Agent with a copy to the Company. Upon receipt of any such supplements to
Schedule II, the Intercreditor Agent and the Collateral Agent may rely on the
information set forth on such supplements for all purposes under this Agreement,
including for purposes of making distributions on the applicable Payment Date
under Section 2.04(b) and for purposes of Section 4.02.
(iii) The Company, or if reasonably practicable, the duly
appointed Representative Agent, for a new, replacement, or refinanced Financing
Transaction shall deliver to the Intercreditor Agent a supplement to the
relevant pages of Schedule II simultaneously with the effectiveness of such new,
replacement, or refinanced Financing Transaction.
(iv) The Company shall notify the Intercreditor Agent and the
Collateral Agent of changes to the information reflected on the applicable
portion of Schedule II in the event of any change in the relevant information
for any Financing Transaction, including in the event of any change in the
Attributable Principal Amount of any Underlying Transaction as a result of
repayments or prepayments of any portion of the Underlying Obligations of such
Underlying Transaction, and the applicable Representative Agent for any such
Financing Transaction shall deliver to the Intercreditor Agent a supplement to
such portion of Schedule II promptly after any such change in the information on
such portion of Schedule II for such Financing Transaction.
(v) The form of each supplement to Schedule II described in
this Section 1.04(b) shall (A) be substantially similar to the Schedules (or
forms) attached hereto as Schedules II-A, B, C, D, or E, as applicable, with
such modifications as the Intercreditor Agent may reasonably deem appropriate to
reflect information necessary or useful for the administration of this
Agreement, (B) in the case of amendments and refinancings, amend, restate and
supersede the relevant portion of Schedule II or supplement thereto previously
in effect, (C) be executed by the Representative Agent for the applicable
Financing Transaction, and (D) be dated effective as of the last day of the
calendar quarter, for supplements delivered in accordance with Section
1.04(b)(i), or the date of receipt of the amount to be distributed, for
supplements to be delivered in accordance with Section 1.04(b)(ii).
(c) Audit Rights. At any time and from time to time, the Collateral
Agent shall have the right, and upon the affirmative direction of the Required
Lender Parties (acting through the Intercreditor Agent), the Collateral Agent
shall be obligated, to cause the Company to audit the then current information
in Schedule II and its supplements, or any portion thereof. The Company shall
pay the expense of the first such audit performed in any calendar year, and of
any audit that discovers a material error from the information so audited. Any
such audit shall be performed by the certified public accountants that audit the
Company's financial statements or such other certified public accountants as are
selected by the Company and reasonably acceptable to the Collateral Agent.
(d) Company Review. The Company shall have the right at any time and
from time to time, at its expense, to review all or any portion of Schedule II
and any supplements thereto and to consult with the applicable Representative
Agent(s) concerning any particular Financing Transaction(s) and the portion of
Schedule II and any supplements related thereto. The Company shall have the
right not later than ten days after receipt of the quarterly
-5-
supplements delivered pursuant to Section 1.04(b)(i), at its expense, to request
that the certified public accountants described in Section 1.04(c) audit any of
the information in Schedule II, its supplements, or any portion thereof. The
Company shall delivery a copy of any such request for an audit to the Collateral
Agent simultaneously with such request.
(e) Audited Schedules and Supplements. The audited Schedule II or the
audited supplements thereto shall, absent manifest error, supersede and replace
the relevant portions of Schedule II and its supplements upon acknowledgement
and written consent by the applicable Representative Agent(s).
ARTICLE II
SECURED OBLIGATIONS AND PREPAYMENTS
Section 2.01 Mandatory Asset Prepayment Event. Each of the following
events (to the extent occurring after the Effective Date) shall be a "Mandatory
Asset Prepayment Event":
(a) the receipt by any Grantor or its designee of the Net Cash Proceeds
from the Disposition of any Collateral permitted in accordance with the Credit
Agreement;
(b) the receipt by any Credit Related Party or its designee of the Net
Cash Proceeds from the Disposition of any Restricted Equity Interests; provided
that the Disposition of the Equity Interests in WIC pursuant to the terms and
provisions of Section 2.18 of the Credit Agreement shall not constitute a
Mandatory Asset Prepayment Event hereunder;
(c) with respect to any Restricted Subsidiary that is a Grantor, the
receipt by such Restricted Subsidiary or its designee of the Net Cash Proceeds
from the Disposition of any Covered Asset (other than Collateral or Restricted
Equity Interests) owned by such Grantor;
(d) with respect to any Restricted Subsidiary that is not a Grantor,
the receipt by the Parent of such Restricted Subsidiary (or by such Parent's
designee) of a cash dividend or distribution of an amount equal to the Net Cash
Proceeds received by such Restricted Subsidiary from the Disposition of any of
such Restricted Subsidiary's Covered Assets; and
(e) with respect to any Restricted Subsidiary that is not a Grantor,
the failure of such Restricted Subsidiary either (x) to make a cash dividend or
distribution to its Parent (or to such Parent's designee) in an amount equal to
the Net Cash Proceeds received by such Restricted Subsidiary from the
Disposition of any of its Covered Assets or (y) to invest any portion of such
amount that is not paid as a cash dividend or distribution under clause (x) in
one or more Qualified Investments within a time period ending upon the earlier
to occur of (i) a Remedies Trigger Event and (ii) the expiration of 365 days
following receipt by such Restricted Subsidiary of such Net Cash Proceeds (or if
a binding contract to make a Qualified Investment with respect to all or any
portion of such amount has been entered into within such 365 day period, then as
to the amount of such Qualified Investment, the failure to invest such amount in
such Qualified Investment within 90 additional days following the end of such
365 day period); provided that, for the avoidance of doubt, if such Net Cash
Proceeds from the Disposition of a single such Covered Asset are received by the
applicable Restricted Subsidiary in installments, the 365 day period described
in clause (ii) shall commence for each installment on the date of receipt by the
applicable Restricted Subsidiary of such installment.
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Section 2.02 Mandatory Asset Prepayment Amount. The amounts described
in this Section 2.02 are the applicable "Mandatory Asset Prepayment Amounts"
resulting from each Mandatory Asset Prepayment Event described in Section 2.01:
(a) with respect to a Mandatory Asset Prepayment Event described in
Section 2.01(a), 100% of the Net Cash Proceeds described in Section 2.01(a);
(b) with respect to a Mandatory Asset Prepayment Event described in
Section 2.01(b), 100% of the Net Cash Proceeds described in Section 2.01(b);
(c) with respect to a Mandatory Asset Prepayment Event described in
Section 2.01(c), if such Mandatory Asset Prepayment Event does not occur
concurrently with, or during the pendency of, an Event of Default, an amount
equal to 80% of the Net Cash Proceeds described in Section 2.01(c) and, if such
Mandatory Asset Prepayment Event occurs concurrently with, or during the
pendency of, an Event of Default, an amount equal to 100% of the Net Cash
Proceeds described in Section 2.01(c);
(d) with respect to a Mandatory Asset Prepayment Event described in
Section 2.01(d), if such Mandatory Asset Prepayment Event does not occur
concurrently with, or during the pendency of, an Event of Default, an amount
equal to 80% of the cash dividend or other distribution described in Section
2.01(d) and, if such Mandatory Asset Prepayment Event occurs concurrently with,
or during the pendency of, an Event of Default, an amount equal to 100% of the
cash dividend or other distribution described in Section 2.01(d); and
(e) with respect to a Mandatory Asset Prepayment Event described in
Section 2.01(e), if such Mandatory Asset Prepayment Event does not occur
concurrently with, or during the pendency of, a Voting Notice Event, an amount
equal to 80% of the portion of the Net Cash Proceeds described therein that is
not either (x) paid to the applicable Restricted Subsidiary's Parent (or to such
Parent's designee) as a cash dividend or distribution or (y) invested in
Qualified Investments within the time period required pursuant to Section
2.01(e) and, if such Mandatory Asset Prepayment Event occurs concurrently with,
or during the pendency of, a Voting Notice Event, an amount equal to 100% of any
remaining Net Cash Proceeds described in Section 2.01(e).
Section 2.03 Reserved.
Section 2.04 Mandatory Prepayments.
(a) Deposit of Mandatory Asset Prepayment Amount. Promptly, and in any
event within five (5) days after the occurrence of a Mandatory Asset Prepayment
Event, as determined in accordance with the applicable subsection of Section
2.01 (or in the case of a Restricted Subsidiary's Disposition of a Covered Asset
as described in Section 2.01(e), as provided in Section 4.03(f)), the Company
shall (i) notify the Collateral Agent and the Intercreditor Agent in writing of
(A) the occurrence of such Mandatory Asset Prepayment Event, (B) the amount of
the related Mandatory Asset Prepayment Amount, and (C) if, pursuant to the
proviso in clause (ii) of this sentence, the Company is not required to make a
deposit into the Collateral Account in an amount equal to the full Mandatory
Asset Prepayment Amount, the portion, if any, of the Mandatory Asset Prepayment
Amount to be deposited by the Company,
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and (ii) deposit into the Collateral Account an amount equal to the Mandatory
Asset Prepayment Amount, or portion thereof, required to be so deposited in
accordance with the corresponding subsection of Section 2.02; provided that, for
any Covered Asset, the Disposition of which gives rise to a Mandatory Asset
Prepayment Event under Section 2.01(e), the Company shall be obligated to
deposit into the Collateral Account only the amount, if any, by which the
applicable Mandatory Asset Prepayment Amount exceeds the amount required to be
transferred into the Collateral Account in respect of such Mandatory Asset
Prepayment Event pursuant to Section 4.03(f). In the case of any Mandatory Asset
Prepayment Events described in Section 2.01(a), but only in such case, the
Company shall be obligated to deposit into the Collateral Account the actual Net
Cash Proceeds received from the Disposition of the Collateral.
(b) Application of Funds. As soon as reasonably practicable after the
Intercreditor Agent receives the necessary supplements to Schedule II requested
pursuant to Section 1.04(b)(ii), on each Business Day that funds are available
in the Collateral Account (each such day, a "Payment Date"), such funds shall be
distributed and applied, as follows:
(i) If no Remedies Trigger Event has occurred, and if the
3-Year Facility Termination has not occurred, then the Collateral Agent shall
direct the Depository Bank to distribute such available funds (provided that
with respect to any amount deposited into the Collateral Account pursuant to
Section 4.03(a) or (b), such amount shall be available only after the
occurrence, if ever, of a Mandatory Asset Prepayment Event with respect to such
amount), subject to Section 2.05 and after giving effect to Section 4.03, if
applicable, on such Payment Date as follows:
first, to pay to the 3-Year Facility Agent to repay
the principal of the revolving credit loans under the 3-Year
Facility (including unreimbursed drawings under letters of
credit then issued and outstanding thereunder), together with
all applicable Interest and Fees thereon, until the 3-Year
Revolving Credit Exposure equals an amount, represented by the
3-Year Facility Agent in the supplement to Schedule II-A
delivered by the 3-Year Facility Agent to the Intercreditor
Agent in connection with such payment, to be equal to the
aggregate undrawn amount of all letters of credit then issued
and outstanding under the 3-Year Facility;
second, to transfer to the Cash Collateral Subaccount
(3-Year LCs) to cash collateralize (in accordance with Section
4.02) an amount, represented by the 3-Year Facility Agent in
the supplement to Schedule II-A delivered by the 3-Year
Facility Agent to the Intercreditor Agent in connection with
such payment to be equal to the amount, if any, by which (x)
the aggregate undrawn amount of all letters of credit then
issued and outstanding under the 3-Year Facility exceeds (y)
the amount, if any, then held in the Cash Collateral
Subaccount (3-Year LCs) as of such date (prior to giving
effect to the transfer contemplated by this clause second), as
of such Payment Date; and
third, any remaining balance of the available funds
in the Collateral Account shall be applied in accordance with
Section 2.04(b)(ii).
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The 3-Year Facility Agent shall distribute any amounts paid to it by
the Depository Bank under this Agreement to the appropriate 3-Year
Facility Lenders in accordance with the 3-Year Facility Documents.
(ii) If no Remedies Trigger Event has occurred, and if the
3-Year Facility Termination has occurred or is occurring concurrently, then on
any Payment Date the Collateral Agent shall direct the Depository Bank to
distribute such available funds (provided that, with respect to any amount of
funds deposited into the Collateral Account pursuant to Section 4.03(a) or (b),
such amount of funds shall be available only after the occurrence, if ever, of a
Mandatory Asset Prepayment Event with respect to such amount of funds) (any such
available amount in the Collateral Account as of such Payment Date being
referred to as the "Current Payment Amount"), subject to Section 2.05 and after
giving effect to Section 4.03, if applicable, to the Representative Agents, to
be applied to the Revolving Credit Exposure, the Underlying Obligations, and the
Additional Covered Letter of Credit Exposure (but, for avoidance of doubt, no
such funds shall be applied to obligations arising in respect of Future Covered
Hedging Agreements) pro rata, in each case in accordance with the allocations
determined by the Collateral Agent on such Payment Date in accordance with this
Section 2.04(b)(ii), as follows:
(A) The portion of the Current Payment Amount to be
allocated to the Revolving Commitments, as of such Payment Date,
shall equal the Current Payment Amount, as of such date, multiplied
by a fraction, the numerator of which is the aggregate Revolving
Commitments as of such date before giving effect to any permanent
reduction of the Revolving Commitments that may be required
pursuant to the Credit Agreement, and the denominator of which is
the Total Mandatory Prepayment Obligations, as of such date (the
"Revolving Credit Allocation"). The Revolving Credit Allocation
shall be distributed and applied as follows:
(I) If, after giving effect to any permanent
reduction of the Revolving Commitments that may be required
pursuant to the Credit Agreement, the aggregate Revolving
Commitments equal or exceed the Revolving Credit Exposure as
of such Payment Date (which amount, and the subcomponents
thereof, shall be set forth in the supplement to Schedule II-B
delivered by the Credit Agreement Administrative Agent to the
Intercreditor Agent in connection with such payment), then
provided that no Default (as defined in the Revolving Credit
Facility) or Event of Default has occurred and is continuing,
the Collateral Agent shall direct the Depository Bank to
distribute promptly an amount equal to the Revolving Credit
Allocation to the Company, which may be used by the Company
for general corporate purposes. If a Default (as defined in
the Revolving Credit Facility) or an Event of Default has
occurred and is continuing, then the Collateral Agent shall
direct the Depository Bank to transfer such Revolving Credit
Allocation into a subaccount of the Cash Collateral Account to
be held and applied in accordance with Section 4.02(b)(ii).
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(II) If, after giving effect to any
permanent reduction of the Revolving Commitments that may be
required pursuant to the Credit Agreement, the Revolving
Credit Exposure exceeds the aggregate Revolving Commitments as
of such Payment Date (which amount, and the subcomponents
thereof, shall be set forth in the supplement to Schedule II-B
delivered by the Credit Agreement Administrative Agent to the
Intercreditor Agent in connection with such payment), the
Collateral Agent shall direct the Depository Bank to
distribute promptly an amount equal to the Revolving Credit
Allocation as follows:
first, to pay to the Credit Agreement
Administrative Agent to repay the principal of the
Revolving Credit Loans (including unreimbursed
drawings under LCs then issued and outstanding),
together with all applicable Interest and Fees
thereon, until the Revolving Credit Exposure equals
an amount, represented by the Credit Agreement
Administrative Agent in the supplement to Schedule
II-B delivered by the Credit Agreement Administrative
Agent to the Intercreditor Agent in connection with
such payment, to be equal to the aggregate undrawn
amount of all LCs then issued and outstanding under
the Revolving Credit Facility;
second, to transfer to the Cash Collateral
Subaccount (Credit Agreement LCs) to cash
collateralize (in accordance with Section 4.02) an
amount, represented by the Credit Agreement
Administrative Agent in the supplement to Schedule
II-B delivered by the Credit Agreement Administrative
Agent to the Intercreditor Agent in connection with
such payment, to be equal to the amount, if any, by
which (x) the aggregate undrawn amount of all LCs
then issued and outstanding under the LC Facility
exceeds (y) the amount, if any, then held in the Cash
Collateral Subaccount (Credit Agreement LCs) as of
such date (prior to giving effect to the transfer
contemplated by this clause second), as of such
Payment Date; and
third, provided that no Event of Default has
occurred and is continuing, to pay to the Company any
remaining portion of such Revolving Credit
Allocation, which may be used by the Company for
general corporate purposes. If an Event of Default
has occurred and is continuing, then the Collateral
Agent shall direct the Depository Bank to transfer
such remaining portion of the Revolving Credit
Allocation into a subaccount of the Cash Collateral
Account to be held and applied in accordance with
Section 4.02(b)(ii).
The Credit Agreement Administrative Agent shall distribute any amounts
paid to it by the Depository Bank under this Agreement to the
appropriate Lenders in accordance with the Credit Agreement Documents.
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(B) The portion of the Current Payment
Amount to be allocated to the Underlying Obligations for each
Underlying Transaction, as of such Payment Date, shall equal
the Current Payment Amount as of such date multiplied by a
fraction, the numerator of which is the Attributable Principal
Amount of such Underlying Transaction as of such Payment Date,
represented by the Representative Agent for such Underlying
Transaction in the supplement to Schedule II-C delivered by
such Representative Agent to the Intercreditor Agent in
connection with such payment, and the denominator of which is
the Total Mandatory Prepayment Obligations, determined by the
Collateral Agent as of such Payment Date (for each Underlying
Transaction, the "Underlying Allocation"). On the Payment
Date, the Collateral Agent shall direct the Depository Bank to
distribute an amount equal to the Underlying Allocation for a
particular Underlying Transaction to a subaccount of the Cash
Collateral Account established for such Underlying
Transaction, to be held and applied in accordance with Section
4.02(b)(iii).
(C) The portion of the Current Payment
Amount to be allocated to Additional Covered Letters of Credit
issued and outstanding as of any such Payment Date (the
"Covered Letter of Credit Allocation"), shall equal the
Current Payment Amount as of such Payment Date, multiplied by
a fraction, the numerator of which is the sum of the
Additional Covered Letter of Credit Exposure under each
Additional Covered Letter of Credit as of such Payment Date
represented by the Representative Agent for such Additional
Covered Letter of Credit in the supplement to Schedule II-D
for such Additional Covered Letter of Credit delivered by such
Representative Agent to the Intercreditor Agent in connection
with such payment, and the denominator of which is the Total
Mandatory Prepayment Obligations, determined by the Collateral
Agent as of such Payment Date. On the Payment Date, the
Collateral Agent shall direct the Depository Bank to
distribute and apply the Covered Letter of Credit Allocation
as follows:
first, to pay to the applicable
Representative Agents for all such Additional Covered
Letters of Credit to repay, on a pro rata basis, all
unreimbursed drawings under outstanding Additional
Covered Letters of Credit, together with all
applicable Interest and Fees thereon; and
second, to transfer to the Cash Collateral
Subaccount (Additional LCs) to cash collateralize (in
accordance with Section 4.02) each Additional Covered
Letter of Credit in an amount, represented by the
applicable Representative Agent(s) for such
Additional Covered Letters of Credit in the
supplement to Schedule II-D relating to such
Additional Covered Letters of Credit delivered by
such Representative Agent(s) to the Intercreditor
Agent in connection with such payment, to be equal to
the amount, if any, by which (x) the aggregate
undrawn amount of all Additional Covered Letters of
Credit then issued and outstanding exceeds (y) the
amount, if any, then held in the Cash Collateral
Subaccount
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(Additional LCs) as of such date (prior to giving
effect to the transfer contemplated by this clause
second), as of such Payment Date.
(iii) At any time and from time to time after the
occurrence of a Remedies Trigger Event, (v) all Excess Hedging Collateral, if
any, paid to the Collateral Agent by the Credit Agreement Administrative Agent
pursuant to the Collateral Security Agreement, (w) all Unused Cash Collateral,
(x) all funds in the Qualified Investments Account or any subaccount thereof,
(y) all Mandatory Asset Prepayment Amounts received by the Collateral Agent in
respect of any Mandatory Asset Prepayment Event, and (z) all Enforcement
Proceeds received by the Collateral Agent, shall be deposited into, or
transferred to, the Collateral Account, and the Collateral Agent shall direct
the Depository Bank to distribute all such funds available on any Payment Date
as follows:
(A) first, to pay to the Collateral Agent,
the Intercreditor Agent and the Depository Bank, on a pro rata
basis, amounts for the payment or reimbursement of all
reasonable fees, costs, and expenses (including legal fees and
expenses) and other similar amounts due and payable as of such
Payment Date to the Collateral Agent, the Intercreditor Agent,
or the Depository Bank (as applicable) in connection with (x)
the taking of any Enforcement Action by the Collateral Agent
in accordance with the Collateral Documents and (y) the
execution and administration of its or their duties hereunder
or under any other Collateral Documents to which it is a
party;
(B) second, to pay to each applicable
Representative Agent, on a pro rata basis, to repay the
Covered Obligations in the ratio that each of the following
set forth in clauses (I) through (V) below (in each case as
represented by the applicable Representative Agent in a
supplement to Schedule II delivered by such Representative
Agent to the Intercreditor Agent in connection with such
payment) bears to the sum, as of such Payment Date, of (1) the
3-Year Revolving Credit Exposure, plus (2) the Revolving
Credit Exposure, plus (3) the Attributable Principal Amounts
of all the Underlying Transactions, plus (4) the Additional
Covered Letter of Credit Exposure under all the Additional
Covered Letters of Credit then issued and outstanding, plus
(5) the Net Termination Amounts that would be payable by the
Company under all Future Covered Hedging Agreements
outstanding as of the date of the occurrence of the Remedies
Trigger Event under the circumstances described in Section
2.04(b)(iii)(B)(V), (the "Aggregate Exposure"):
(I) the 3-Year Revolving Credit
Exposure, in the case of Secured Obligations then
existing under the 3-Year Facility;
(II) the Revolving Credit Exposure,
in the case of Secured Obligations then existing
under the Credit Agreement;
(III) with respect to each
Underlying Transaction then in effect, the
Attributable Principal Amount then outstanding under
such Underlying Transaction;
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(IV) with respect to each
Additional Covered Letter of Credit then issued and
outstanding, the Additional Covered Letter of Credit
Exposure then existing thereunder; and
(V) with respect to each Future
Covered Hedging Agreement then in effect, the amount
by which (x) the net settlement, termination, or
analogous amount, if any, that would be due and
payable by the Company to the Counterparty Group
pursuant to the terms thereof if an early termination
date were to occur thereunder as a result of an event
of default, where the Counterparty Group is not the
defaulting party thereunder, exceeds (y) the sum of
(1) the fair market value of any collateral or other
credit support provided by the Company or any of its
Affiliates to the relevant Counterparty Group under
such Future Covered Hedging Agreement, including any
collateral provided pursuant to the Collateral
Security Agreement, but specifically excluding any
payments required to be made under this Section
2.04(b) in respect thereof, plus (2) all amounts
previously paid hereunder in respect of such Net
Termination Amount (the "Net Termination Amount" of
such Future Covered Hedging Agreement) as represented
by the applicable Representative Agent for such
Future Covered Hedging Agreement on a supplement to
Schedule II-E delivered by such Representative Agent
to the Intercreditor Agent in connection with such
payment; and
(C) third, to distribute any remaining funds
in the Collateral Account to the Company or its successor to
be used for general corporate purposes, or as a court of
competent jurisdiction may otherwise direct.
The terms of this Section 2.04(b)(iii) shall apply solely to the
application of funds in the Collateral Account following the occurrence
of a Remedies Trigger Event hereunder and shall in no way affect,
impair, or limit the rights of the Secured Parties otherwise provided
in any Financing Document or any other Collateral Document.
(iv) The Collateral Agent shall give entitlement
orders to the Depository Bank as appropriate in order to effectuate the
transfers and allocations set out in this Section 2.04(b). Without intending to
alter the pro rata application of the Enforcement Proceeds or any other amounts
in the Collateral Account after the occurrence of a Remedies Trigger Event, the
manner of application of such funds shall be similar to the application
specified for Mandatory Asset Prepayment Amounts prior to a Remedies Trigger
Event, including to the extent any of the Covered Obligations constitute Covered
Letter of Credit Obligations, the cash collateralization of such Covered Letter
of Credit Obligations by the portion of any Enforcement Proceeds or other funds
properly applicable to such Covered Letter of Credit Obligation, in an amount up
to the undrawn amount thereof as of the date of such application, to be held by
the Collateral Agent in one or more subaccounts of the Cash Collateral Account
for the ratable benefit of all Persons to whom such Covered Letter of Credit
Obligations are owed, and if any amount so held becomes Unused Cash Collateral
in the future, such funds shall be transferred to the Collateral Account and
applied in accordance with Section 2.04(b)(iii).
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Section 2.05 Prepayments Generally.
(a) Payment of Fees by the Company. With respect to prepayments made
pursuant to Section 2.04(b), in respect of the 3-Year Revolving Credit Exposure,
the Revolving Credit Exposure, any Underlying Obligation or any Additional
Covered Letter of Credit Exposure, the Company shall pay or cause to be paid all
indemnity amounts, make whole premiums (if any), expenses and other amounts,
other than the applicable Interest and Fees, that become due and payable under
the applicable Financing Documents in connection with any such prepayment made
pursuant to Section 2.04(b).
(b) Contingent Obligations. With respect to any portion of a Mandatory
Asset Prepayment Amount or Current Payment Amount that is required under Section
2.04(b) to be applied to a Covered Letter of Credit Obligation, regardless of
whether the Collateral Agent is the Representative Agent for the issuer of the
applicable letter of credit, the amount properly payable in respect thereof or
attributable thereto shall be held in the applicable subaccount of the Cash
Collateral Account for application and distribution in accordance with Section
4.02.
(c) Future Calculations of Attributable Principal Amounts. Any amount
transferred by the Collateral Agent into a subaccount of the Cash Collateral
Account established for the benefit of a particular Underlying Transaction
pursuant to Section 2.04(b)(ii)(B) shall be deemed to have been applied, on the
date of such transfer into such subaccount of the Cash Collateral Account, to
prepay the Underlying Transaction in accordance with the terms of the Underlying
Documents (or, if the Underlying Documents provide no terms for such
application, then all such amounts shall be applied to principal), for purposes
of determining the Attributable Principal Amount of such Underlying Transaction
under this Agreement or any other Collateral Document (including, without
limitation, for purposes of determining the allocation of any Current Payment
Amount under Section 2.04(b)(ii)(B) as of a later date, for purposes of
determining the amount of any distribution in respect of such Underlying
Transaction under Section 2.04(b)(iii) and for purposes of determining the
Voting Amount applicable to such Underlying Transaction).
Section 2.06 Optional Prepayments. The Company or any other Person
shall be entitled to repay or prepay any Covered Obligation voluntarily and in
any order of priority agreed to by such Person and the Person to whom such
Covered Obligation is owed, or the Representative Agent of such Person to whom
such Covered Obligation is owed, pursuant to the terms of the applicable
Financing Documents, from funds not otherwise required to be allocated and
applied in accordance with this Agreement or any other Financing Document.
Section 2.07 Time for Payments. All payments required to be made by or
on behalf of the Company or any other Borrower or Grantor to the Collateral
Agent under this Agreement or required to be deposited into the Collateral
Account under this Agreement shall be paid in full, and without condition or
deduction for any counterclaim, defense, recoupment or setoff, in Dollars and in
immediately available funds not later than 11:00 a.m. (New York City time) on
the due date thereof at the place and in the manner designated in this
Agreement. Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or commitment fee, as the case may
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be; provided that, if such extension would cause payment of interest on or
principal of any Covered Obligations to be made in the next succeeding calendar
month, such payment shall be made on the next preceding Business Day.
Section 2.08 Amounts Not Subject to Sharing. Notwithstanding any other
provision of this Agreement:
(a) No Secured Party shall have any obligation under this Agreement to
share any payment made to such Secured Party by any Person (other than payments
of amounts that constitute Mandatory Asset Prepayment Amounts hereunder by any
Borrower or Grantor or Affiliate thereof) with another Secured Party.
(b) No Secured Party shall have any obligation under this Agreement to
share any payment of principal, interest, investment, return on investment, fees
(including any fees which have been offered to or are available to Secured
Parties for entering into any of the Financing Documents), indemnity, breakage
costs, compensation for the increased cost of maintaining its portion of the
Secured Obligations or Covered Obligations, or other similar amount paid by any
Credit Related Party to such Secured Party for its own account pursuant to the
terms of any Financing Document, if and to the extent such payment is not
required under this Agreement to be made to the Collateral Agent or to be
deposited in the Collateral Account.
(c) No Secured Party shall have any obligation to share any payment
made by any Credit Related Party to such Secured Party pursuant to any other
document, agreement, undertaking or other arrangement in respect of any
Indebtedness or guaranty owed to such Secured Party, unless such payment was
made from (i) amounts that constitute Mandatory Asset Prepayment Amounts
hereunder, (ii) amounts paid under the Parent Guarantee Agreement, or (iii)
amounts paid under the Subsidiary Guarantee Agreement.
Section 2.09 Payments Received by Any Other Secured Party.
(a) Except as otherwise provided in Section 2.08, if on any day any
Secured Party other than the Collateral Agent shall receive any amount (other
than amounts received by such Secured Party from or through the Collateral Agent
pursuant to this Agreement or from or through a Representative Agent pursuant to
the Financing Documents or related documents to which it is a party (including
prepayments contemplated in Section 2.06)), whether (i) by way of voluntary or
involuntary payment, (ii) by virtue of an exercise of any right of set-off,
banker's lien or counterclaim, (iii) as proceeds of any insurance policy
covering any Collateral, (iv) from proceeds of the liquidation or dissolution of
any issuer of Pledged Equity or any issuer of Restricted Equity Interests or
from distribution of their respective assets among their respective creditors
(however such liquidation, dissolution or distribution may occur), (v) as
payment of any of the Secured Obligations or Covered Obligations, (vi) as
consideration for the agreement of such Secured Party, or as part of any
transaction or series of related transactions in which such Secured Party shall
have agreed, to waive or amend any provision of any Financing Documents to which
it is a party, (vii) from a realization on the Collateral which is required to
be allocated and paid in accordance with Section 2.04, or (viii) in connection
with any payment of the Secured Obligations or Covered Obligations as a result
of any Enforcement Action, in any such case, in excess of such Secured Party's
ratable share of such payment, as determined in
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accordance with Section 2.04(b), such Secured Party shall forthwith notify the
Intercreditor Agent thereof and shall promptly, and in any event within ten
Business Days of its so obtaining the same, pay such amount or excess amount
(less any reasonable costs and expenses incurred by such Secured Party in
obtaining or preserving such payment) to the Intercreditor Agent for the account
of the Secured Parties, and such excess amount shall be deposited by the
Intercreditor Agent into the Collateral Account and distributed and applied in
accordance with Section 2.04(b).
(b) If, after any payment is received by a Secured Party and paid over
to the Intercreditor Agent pursuant to Section 2.09(a), such payment is
rescinded or must otherwise be restored by the Secured Party that first obtained
it, each other Secured Party that obtained the benefit of such payment (whether
pursuant to a distribution hereunder, or otherwise) shall return to such Secured
Party its portion of the payment so rescinded or required to be restored upon
demand therefor, together with its pro rata portion of any interest or other
amount paid or payable in connection with the rescission or the restoration of
such payment by the Secured Party that first obtained it.
Section 2.10 Presumption Regarding Payments. For purposes hereof, any
payment received by any Secured Party from the Collateral Agent pursuant to the
terms of this Agreement may be presumed by such Secured Party to have been
properly made by the Collateral Agent to such Secured Party in accordance with
the terms of this Agreement unless such Secured Party receives notice from any
other Secured Party that such payment was not made in accordance with terms of
this Agreement.
Section 2.11 No Separate Security. Each Secured Party represents and
warrants to each other Secured Party that, in respect of its interest in Secured
Obligations, it has not received any security or guaranty from any Granting
Party or any other Person, other than its interest in the Collateral under the
Collateral Documents, its interest in the Subsidiary Guarantee Agreement, and
its interest in the Parent Guarantee Agreement, or as otherwise provided in the
Financing Documents.
Section 2.12 Priority of Liens. Each of the Secured Parties agrees that
it will not directly or indirectly take any action to contest or challenge (a)
the validity, legality, enforceability, perfection or avoidability of any
Collateral Document or the respective security interests of the Collateral Agent
in the Collateral under the Collateral Documents or (b) the priority of the
Liens on the Collateral under the Collateral Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Credit Party. Each
Credit Party, with respect to itself and its Subsidiaries, represents and
warrants to the Intercreditor Agent and to the Collateral Agent, for the benefit
of the Secured Parties, that:
(a) With respect to any Credit Party that is a Grantor: (i) such Credit
Party's exact legal name is correctly set forth in Schedule V, (ii) such Credit
Party has only the trade names listed on Schedule VI, (iii) such Credit Party is
located (within the meaning of Section 9-307
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of the UCC) and has its chief executive office, in the state or jurisdiction
set forth in Schedule V, (iv) the information set forth in Schedule V with
respect to such Credit Party is true and accurate in all respects and (v) within
the last five years, such Credit Party has not previously changed its legal
name, location, chief executive office, type of organization, jurisdiction of
organization or organizational identification number from those set forth in
Schedule V except as disclosed in Schedule VII.
(b) Such Credit Party is duly organized or formed, validly existing
and, if applicable, in good standing in its jurisdiction of organization or
formation. Such Credit Party possesses all applicable Business Entity powers and
all other authorizations and licenses necessary to engage in its business and
operations as now conducted, the failure to obtain or maintain which would have
a Material Adverse Effect.
(c) The execution, delivery and performance by such Credit Party of the
Collateral Documents to which it is a party are within such Credit Party's
applicable Business Entity powers, have been duly authorized by all necessary
applicable Business Entity action, and do not contravene (i) such Credit Party's
organizational documents or (ii) any material contractual restriction binding on
or affecting such Credit Party.
(d) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority is required for the due execution,
delivery and performance by such Credit Party of any Collateral Document to
which it is a party, except those necessary to comply with Applicable Laws
required in the ordinary course to comply with ongoing obligations of such
Credit Party under the Collateral Documents to which it is a party.
(e) This Agreement constitutes, and the other Collateral Documents when
delivered shall constitute, the legal, valid and binding obligations of such
Credit Party that is a party thereto, enforceable against such Credit Party in
accordance with their respective terms, except as may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity.
(f) With respect to any Credit Party that is a Grantor, all Collateral
pledged by such Credit Party hereunder consisting of certificated securities has
been delivered to the Collateral Agent.
(g) With respect to any Credit Party that is a Grantor, this Agreement
is effective to create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a Lien on, and security interest in, all right, title
and interest of such Granting Party in the Collateral pledged by such Credit
Party hereunder as security for the Secured Obligations, prior and superior in
right to any other Person (except for Collateral Permitted Liens), except in
each case above as may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally. All financing statements have been filed that are necessary to
perfect any security interest created pursuant to any Collateral Document that
can be perfected by the filing of such financing statements and all actions
necessary to provide control to the Collateral Agent with respect to Collateral
pledged by such Credit Party hereunder for which control can be established have
been taken, including delivery of such Collateral consisting of certificated
securities to the Collateral Agent.
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(h) With respect to any Credit Party that is a Grantor, the Pledged
Equity pledged as Collateral by such Credit Party to the Collateral Agent
hereunder has (to the extent applicable) been duly authorized and validly issued
and is fully paid and non-assessable. With respect to any Equity Interests
pledged by such Credit Party to the Collateral Agent hereunder that are
uncertificated securities, such Credit Party has caused the issuer thereof to
agree in an authenticated record with such Credit Party and the Collateral Agent
that such issuer will comply with instructions with respect to such
uncertificated securities originated by the Collateral Agent without further
consent of such Credit Party. If such Credit Party is an issuer of Equity
Interests pledged hereunder, such Credit Party confirms that it has received
notice of such security interest.
(i) With respect to any Credit Party that is a Grantor, the Initial
Pledged Equity pledged as Collateral by such Credit Party to the Collateral
Agent hereunder constitutes 100% of the issued and outstanding Equity Interests
of each issuer thereof, except as indicated on Schedule IV.
(j) If such Credit Party owns Restricted Equity Interests, such Credit
Party has good title to its respective Restricted Equity Interests, free and
clear of all Liens or other encumbrances, except for (i) Collateral Permitted
Liens and (ii) with respect to the Restricted Equity Interests in CIG, prior to
the execution and delivery by CIG and CIG Parent of their respective Joinder
Agreements, Liens or other encumbrances granted in favor of the lenders or other
creditors pursuant to the Mustang Financing.
(k) On an as of the Closing Date, all of the information set forth on
Schedule II is true, correct, and complete in all material respects with respect
to each Financing Transaction to which such Credit Party or any of its
Subsidiaries is a party or by which such Credit Party's or any such Subsidiary's
property or assets are bound. On and as of the last day of each calendar quarter
following the Closing Date, all of the information on Schedule II, as the same
may have been supplemented pursuant to Section 1.04(b), and as the same may be
further supplemented by information delivered by the Company to the applicable
Representative Agent and to the Collateral Agent no later than the later of (i)
70 days after the end of each of the first three calendar quarters or 130 days
after the last calendar quarter of any calendar year (as applicable) and (ii)
two Business Days after delivery of any audit requested pursuant to Section
1.04(d) (but in any event no later than 45 days after the Company shall have
requested such audit), is true, correct, and complete in all material respects
with respect to each Financing Transaction to which such Credit Party or any of
its Subsidiaries is a party or by which such Credit Party's or any such
Subsidiary's property or assets are bound; provided that the Credit Parties
shall not be deemed to have made the representations and warranties contained in
this sentence with respect to any calendar quarter until the expiration of the
time period with respect to such calendar quarter described in clauses (i) and
(ii) preceding.
All representations and warranties made by the Credit Parties herein, and
in any other Collateral Document delivered pursuant hereto, shall survive the
execution and delivery by the Credit Parties of the Collateral Documents.
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ARTICLE IV
PLEDGED ACCOUNTS
Section 4.01 Creation of Pledged Accounts.
(a) The Collateral Agent is hereby directed by the Company and each
Grantor to cause to be established on or before the date hereof with, and
maintained thereafter by, the Depository Bank at its offices in New York City,
New York (ABA No. 021000021), in the name of the Collateral Agent as entitlement
holder and under the sole control and dominion of the Collateral Agent and
subject to the terms of this Agreement, the following segregated non-interest
bearing Dollar-denominated securities accounts (collectively, the "Pledged
Accounts"):
(i) a master collateral account, Account No. 10205184 (the
"Collateral Account") into which Mandatory Asset Prepayment Amounts and Current
Payment Amounts will be deposited and to which Unused Cash Collateral and
certain amounts described in Section 4.03(f) will be transferred;
(ii) a cash collateral account, Account No. 10205185 (the
"Cash Collateral Account"), into which certain amounts will be deposited in
accordance with this Agreement; and
(iii) an account from which the Company, on behalf of the
Restricted Subsidiaries, may direct Collateral Agent to cause the Depository
Bank to pay funds to the Company to make certain Qualified Investments, Account
No. 10205186 (the "Qualified Investments Account").
(b) Commencing with the date hereof and continuing until the
termination of the security interests granted under this Agreement in accordance
with Section 9.06, each Pledged Account shall be maintained by the Depository
Bank in the name of and under the sole dominion and control of the Collateral
Agent; provided that the Cash Collateral Account and all subaccounts thereof may
be terminated at such time as: (i) all Covered Letter of Credit Obligations
previously outstanding have expired or have been paid, settled, satisfied,
released, or otherwise terminated, and (ii) all amounts on deposit in the Cash
Collateral Account and all subaccounts thereof have been distributed to the
Representative Agents of the Secured Parties to whom Covered Obligations are
then owed or have been transferred to the Collateral Account as Unused Cash
Collateral. The Collateral Agent shall cause each of the Pledged Accounts to be,
and each Pledged Account shall be, separate from all other accounts held by or
under the control or dominion of the Collateral Agent. Each Pledged Account
shall be established and maintained by the Depository Bank as a securities
account at its offices in New York City, New York, in the name of the Collateral
Agent. The Company irrevocably confirms the authority of (and directs and
authorizes) the Collateral Agent to or to cause the Depository Bank to, and the
Collateral Agent agrees to or to cause the Depository Bank to, deposit into, or
credit to, and transfer funds from the Pledged Accounts to the Lender Parties or
their Representative Agents and to the Company (or its designee) in accordance
with this Agreement.
(c) The Lender Parties and the Credit Parties acknowledge that the
Collateral Agent may cause the Depository Bank to establish subaccounts of the
Cash Collateral Account
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and the Qualified Investments Account, and that such subaccounts may, at the
Collateral Agent's election, be either (1) actual, separate accounts or (2)
notional accounts reflected in the Collateral Agent's records as accounting
entries with respect to the actual Cash Collateral Account and the Qualified
Investments Account maintained by the Depository Bank. Each such subaccount
shall constitute a Pledged Account hereunder, and each actual subaccount shall
be established and maintained by the Depository Bank as a securities account at
its offices in New York City, State of New York, in the name of the Collateral
Agent.
(d) Unless otherwise specified in this Agreement, all references to the
Cash Collateral Account or the Qualified Investments Account shall include
references to all subaccounts thereof, and such subaccounts shall be subject to
the same restrictions and limitations as the Cash Collateral Account or the
Qualified Investments Account, as applicable.
(e) The Company shall not have any rights against or to moneys or funds
on deposit in, or credited to, the Pledged Accounts, as third-party beneficiary
or otherwise, except the right of the Company to receive moneys or funds on
deposit in, or credited to, the Pledged Accounts, as required or permitted by
this Agreement, and to direct the Collateral Agent as to the investment of
moneys held in the Pledged Accounts as permitted by Section 4.04. In no event
shall any amounts or Cash Equivalents deposited into, or credited to, any
Pledged Account, be registered in the name of the Company, payable to the order
of the Company, or specially endorsed to the Company, except to the extent that
the foregoing have been specially endorsed to the Depository Bank or endorsed in
blank.
Section 4.02 Cash Collateral Account; Application of Funds.
(a) The Collateral Agent shall cause the Depository Bank to establish
and maintain (i) a subaccount in respect of the Covered Letter of Credit
Obligations under the Credit Agreement (the "Cash Collateral Subaccount (Credit
Agreement LCs)"), (ii) a subaccount in respect of the Covered Letter of Credit
Obligations under the 3-Year Facility (the "Cash Collateral Subaccount (3-Year
Facility LCs)"), (iii) a subaccount in respect of the Additional Covered Letters
of Credit (the "Cash Collateral Subaccount (Additional LCs)"), and (iv) such
additional subaccounts of the Cash Collateral Account as may be required or
appropriate under the terms of this Agreement.
(b) To the extent required pursuant to Sections 2.04(b)(i)second,
2.04(b)(ii)(A)(I), 2.04(b)(ii)(A)(II)second, 2.04(b)(ii)(A)(II)third,
2.04(b)(ii)(B), 2.04(b)(ii)(C) second, 2.04(b)(iv), 2.05(b), 4.03(f),
5.08(c)(ii), or 5.08(c)(iii) amounts shall be deposited in the Cash Collateral
Account or subaccounts thereof to be applied as follows:
(i) With respect to amounts deposited into a subaccount of the
Cash Collateral Account as cash collateral for Covered Letter of Credit
Obligations pursuant to Sections 2.04(b)(i)second, 2.04(b)(ii)(A)(II)second,
2.04(b)(ii)(C)second, or 2.05(b), if any Covered Letter of Credit Obligation is
drawn, in whole or in part, the Collateral Agent shall, upon three Business Days
prior written notice from the issuer thereof, (x) request the applicable
Representative Agent for such Covered Letter of Credit Obligation to provide a
supplement to the applicable portion of Schedule II in respect of such Covered
Letter of Credit Obligation and to specify the undrawn amount of such Covered
Letter of Credit Obligation, in each case
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immediately prior to giving effect to the drawing of such Covered Letter of
Credit Obligation (such date, immediately before giving effect to such drawings,
the "Letter of Credit Calculation Date") and (y) within three Business Days
after the date of receipt of such information from the applicable Representative
Agent, direct the Depository Bank to distribute promptly an amount equal to such
issuer's share of the funds allocated to such Covered Letter of Credit
Obligation that are available in the applicable subaccount of the Cash
Collateral Account, up to all of such share, as determined below on and as of
the Letter of Credit Calculation Date, to reimburse such drawing either (A) to
the issuer directly, or (B) to the Company, if the Company has previously
reimbursed such amount to the issuer. The share of funds available in a
particular subaccount of the Cash Collateral Account for distribution to a
particular issuer of a Covered Letter of Credit Obligation or the Company (as
applicable) on any such date, shall be determined by the Collateral Agent on
such date as follows:
(A) for each issuer of a letter of credit under the
3-Year Facility, an amount equal to the product of (x) a fraction, the
numerator of which is the undrawn amount of such issuer's letter of
credit (as specified by the 3-Year Facility Agent), as of such date,
and the denominator of which is the aggregate undrawn amounts of all
letters of credit issued and outstanding under the 3-Year Facility (as
reflected on the applicable portion of the most recent supplement to
Schedule II-A), as of such date, multiplied by (y) the total amount of
funds available in the Cash Collateral Subaccount (3-Year Facility
LCs), as of such date;
(B) for each issuer of an LC, an amount equal to the
product of (x) a fraction, the numerator of which is the undrawn amount
of such issuer's LC (as specified by the Credit Agreement
Administrative Agent), as of such date, and the denominator of which is
the aggregate undrawn amounts of all LCs issued and outstanding (as
reflected on the most recent supplement to Schedule II-B), as of such
date, multiplied by (y) the total amount of funds available in the Cash
Collateral Subaccount (Credit Agreement LCs), as of such date; and
(C) for each issuer of an Additional Covered Letter
of Credit, an amount equal to the product of (x) a fraction, the
numerator of which is the undrawn amount of such issuer's Additional
Covered Letter of Credit (as reflected on the applicable portion of the
most recent supplement to Schedule II-D delivered by the Representative
Agent for such Additional Covered Letter of Credit to the Collateral
Agent pursuant to Section 1.04(b)), as of such date, and the
denominator of which is the aggregate undrawn amounts of all Additional
Covered Letters of Credit issued and outstanding (as reflected on the
most recent supplements to Schedule II-D for each such Additional
Covered Letter of Credit), as of such date, multiplied by (y) the total
amount of funds available in the Cash Collateral Subaccount (Additional
LCs), as of such date.
(ii) With respect to amounts deposited into a subaccount of
the Cash Collateral Account pursuant to Sections 2.04(b)(ii)(A)(I),
2.04(b)(ii)(A)(II)third, 4.03(f), 5.08(c)(ii), or 5.08(c)(iii) such amounts
shall be held in the applicable subaccount until the earliest to occur of (1)
the next distribution of funds (in addition to the funds held in such
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subaccount) pursuant to Section 2.04(b)(ii), at which time the Collateral Agent
shall direct the Depository Bank to apply the amount in such subaccount as a
part of such distribution, (2) the date that no Event of Default exists and is
continuing, at which time the Collateral Agent shall direct the Depository Bank
to distribute such funds in such subaccount to the Company (or to the Company's
designee), to be used by the Company for general corporate purposes, or to be
used by such designee for any lawful purpose, and (3) the occurrence of a
Remedies Trigger Event, at which time the Collateral Agent shall direct the
Depository Bank to deposit such funds in such subaccount into the Collateral
Account to be applied in accordance with Section 2.04(b)(iii). The Collateral
Agent shall have the right to seek such assurance from the Required Lender
Parties as the Collateral Agent shall deem appropriate, in the Collateral
Agent's reasonable opinion, as to the pendency of an Event of Default.
(iii) With respect to amounts deposited into a subaccount of
the Cash Collateral Account pursuant to Section 2.04(b)(ii)(B), at any time
(before or after a Remedies Trigger Event), the Representative Agent in respect
of a particular Underlying Transaction shall have the right to request that the
Collateral Agent deliver the funds in such subaccount to such Representative
Agent. Upon receipt of any such written request in the form of Exhibit A, the
Collateral Agent shall promptly direct the Depository Bank to deliver to such
Representative Agent the amount so requested, up to all of the available funds
in such subaccount. The Representative Agent under a particular Underlying
Transaction shall distribute any amounts received by it pursuant to this Section
4.02(b)(iii) to the appropriate Secured Parties in accordance with the
Underlying Documents. All interest and proceeds resulting from an investment of
the funds in, or credited to, a subaccount maintained pursuant to the terms of
this Section 4.02(b)(iii) shall not be transferred to the Company, but may be
reinvested in Cash Equivalents; provided, that the Secured Parties under the
applicable Underlying Transaction shall bear all risk of loss with respect to
any investment of funds held in such subaccount.
(c) If the Collateral Agent receives written notice from the applicable
Representative Agent that any Covered Letter of Credit Obligation, or any
portion thereof, has terminated, expired, or has otherwise been released or
satisfied undrawn, and as a result, the total amount of funds in the applicable
subaccount of the Cash Collateral Account, as of such date, exceeds the
aggregate undrawn amount of all letters of credit issued and outstanding, as of
such date, that are cash collateralized by the funds in such subaccount, or if
the Collateral Agent receives written notice from the applicable Representative
Agent that the Underlying Obligations relating to a particular Underlying
Transaction for which funds have been deposited into the Cash Collateral Account
pursuant to Section 2.04(b)(ii)(B) have been paid in full or otherwise released
or fully satisfied, then (i) the Collateral Agent shall direct the Depository
Bank to transfer such excess of funds on deposit in the applicable subaccount of
the Cash Collateral Account or any remaining funds on deposit in the applicable
subaccount of the Cash Collateral Account in respect of such satisfied
Underlying Obligation (any such amount, "Unused Cash Collateral") into the
Collateral Account; (ii) such Unused Cash Collateral shall constitute part of
the Current Payment Amount; and (iii) such Unused Cash Collateral shall be
applied in accordance with Section 2.04.
Section 4.03 Qualified Investments Account.
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(a) If a FERC-Regulated Restricted Subsidiary receives Net Cash
Proceeds from the Disposition of a Covered Asset as described in Section
2.01(e), then the Company shall deposit, or cause to be deposited, into the
Collateral Account within five days after such receipt, an amount equal to the
amount, if any, by which (i) the portion thereof that is not deemed to have been
invested in Qualified Investments pursuant to clause (a)(y) or (a)(z) of the
definition of Qualified Investments exceeds (ii) $100,000,000.
(b) If an Unregulated Restricted Subsidiary receives Net Cash Proceeds
from the Disposition of a Covered Asset as described in Section 2.01(e), then
the Company shall deposit or cause to be deposited, into the Collateral Account
within five days after such receipt of an amount equal to the portion thereof
that is not deemed to have been invested in Qualified Investments pursuant to
clause (b)(y) or (b)(z) of the definition of Qualified Investments.
(c) So long as no Remedies Trigger Event has occurred and is continuing
within one Business Day after receipt, the Collateral Agent shall direct the
Depository Bank to transfer the funds deposited into the Collateral Account
pursuant to Section 4.03(a) or (b) (in either case, for each Disposition, the
"Remaining Reinvestment Amount") to the Qualified Investments Account.
(d) If at any time, funds are to be transferred to the Qualified
Investments Account pursuant to Section 4.03(a) or (b), in respect of the
Covered Assets of more than one Restricted Subsidiary, or in respect of more
than one Covered Asset of a single Restricted Subsidiary, the Collateral Agent
shall cause the Depository Bank to establish and maintain individual securities
subaccounts, or the Collateral Agent shall establish in its accounting records
notional subaccounts (each, a "Qualified Investments Subaccount") within the
Qualified Investments Account, for each such Restricted Subsidiary or such
Covered Asset.
(e) For the period from the initial transfer of the Remaining
Reinvestment Amount to the Qualified Investments Account, until the earlier to
occur of (i) a Voting Notice Event and (ii) the date, if ever, on which the
failure of the applicable Restricted Subsidiary to invest such Remaining
Reinvestment Amount in Qualified Investments becomes a Mandatory Asset
Prepayment Event under Section 2.01(e), the Collateral Agent shall, at the
written direction of the Company from time to time, cause the Depository Bank to
pay such funds on deposit in the Qualified Investments Account (or any
applicable Qualified Investments Subaccount) to the Restricted Subsidiary
identified by the Company in the Officer's Certificate described in the
following sentence. The written direction described in the preceding sentence
shall be accompanied by an Officer's Certificate in the form of Exhibit B
setting forth (A) the name of the Restricted Subsidiary whose Disposition of
Covered Assets resulted in the deposit of the applicable Remaining Reinvestment
Amount that is being requested to be paid pursuant to such written direction,
(B) if the Restricted Subsidiary referred to in clause (A) is a FERC-Regulated
Restricted Subsidiary, a statement by the Company that all funds retained by
such FERC-Regulated Restricted Subsidiary pursuant to Section 4.03(a) from the
Net Cash Proceeds of all of its Dispositions of Covered Assets prior to the date
of such certificate have been, or (by making the currently proposed Qualified
Investment(s)) will be, used to make Qualified Investments, and (C) a
description of the Qualified Investment(s) to be made (or deemed made) by such
Unregulated Restricted Subsidiary with such funds, pursuant to the definition of
"Qualified Investments." Notwithstanding the foregoing, the Company shall have
the right to
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direct that funds on deposit in the Qualified Investments Account or any
applicable Qualified Investments Subaccount be paid to a FERC-Regulated
Restricted Subsidiary in respect of new Qualified Investments made or deemed
made by such FERC-Regulated Restricted Subsidiary only if, on the proposed date
of such payment from the Qualified Investments Account or applicable Qualified
Investments Subaccount, the aggregate amount of Qualified Investments made by
such FERC-Regulated Restricted Subsidiary after the Effective Date equals or
exceeds the sum of (1) for each Disposition of a Covered Asset by such
FERC-Regulated Restricted Subsidiary resulting in a deposit into the Cash
Collateral Account, the product of (x) $100,000,000 times (y) the number of such
Dispositions of Covered Assets by such FERC-Regulated Restricted Subsidiary
resulting in such a deposit, plus (2) for all Dispositions of Covered Assets by
such FERC-Regulated Restricted Subsidiary that do not result in deposits into
the Cash Collateral Account, the amount by which the aggregate Net Cash Proceeds
of such Dispositions exceed the aggregate amount not invested or deemed to have
been invested by such FERC-Regulated Restricted Subsidiary in Qualified
Investments prior to such date.
(f) Upon the occurrence of a Mandatory Asset Prepayment Event under
Section 2.01(e) with respect to any Disposition of any Restricted Subsidiary's
Covered Assets, then 80% of any funds remaining in the Qualified Investments
Account or the Qualified Investments Subaccount in respect of such Disposition
shall be transferred by the Collateral Agent to the Collateral Account to be
applied as a Mandatory Asset Prepayment Amount in accordance with Section
2.04(b)(i) or (ii), as applicable, and 20% of any such remaining funds shall be
paid to the Company or as the Company directs, to be used for general corporate
purposes; provided that if a Voting Notice Event has occurred and is continuing
at the time of such Mandatory Asset Prepayment Event, then the Collateral Agent
shall direct the Depository Bank to transfer 100% of the funds remaining in the
Qualified Investments Account and in all Qualified Investments Subaccounts to a
subaccount of the Cash Collateral Account to be held and applied in accordance
with Section 4.02(b)(ii). The Collateral Agent shall effectuate the transfer
required pursuant to this Section 4.03(f) by giving appropriate entitlement
orders to the Depository Bank.
Section 4.04 Payments in Trust. If, notwithstanding the instructions
given or required to be given in accordance with this Article IV, any payments
required by any Collateral Document to be remitted to the Collateral Agent are
instead remitted to the Company or its Affiliates (it being the intent and
understanding of the parties hereto that such payments are not to be made
directly to the Company but directly to the Collateral Agent for deposit into,
or credit to, the relevant Pledged Account for application in accordance with
Sections 2.04 and 2.05 and this Article IV), then, to the fullest extent
permitted by Applicable Law, the Company or such other Person shall receive such
payments into a constructive trust for the benefit of the Secured Parties and
subject to the Secured Parties' security interest, and shall (or shall use its
best efforts to cause the Person receiving such payments to) promptly remit them
to the Collateral Agent for deposit into, or credit to, the applicable Pledged
Account designated by this Article IV.
Section 4.05 Investment of Funds in Pledged Accounts.
(a) The Collateral Agent will promptly direct the Depository Bank to
(i) invest amounts on deposit in, or credited to, the Pledged Accounts in Cash
Equivalents which are deposited into, or credited to, each such Pledged Account,
(ii) invest any interest paid on the
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Cash Equivalents referred to in clause (i) above, and (iii) reinvest other
proceeds of any such Cash Equivalents that may mature or be sold, in each case,
in Cash Equivalents which are deposited into, or credited to, such Pledged
Account, in each case (other than with respect to funds on deposit in, or
credited to, the subaccounts of the Cash Collateral Account maintained pursuant
to Section 4.02(b)(iii)) as the Company may select and instruct the Collateral
Agent, unless, to the knowledge of the Collateral Agent, any Event of Default
has occurred and is continuing, in which event the Collateral Agent shall direct
the Depository Bank to invest such amounts in Cash Equivalents as the Collateral
Agent may be instructed by the Required Lender Parties, acting through the
Intercreditor Agent. Subject to Sections 4.02(b)(iii) and 7.10, if no Event of
Default then exists, interest and proceeds resulting from an investment of funds
in any Pledged Account in Cash Equivalents that are not invested or reinvested
in Cash Equivalents shall be promptly transferred to the Company to be used for
general corporate purposes. In addition, in accordance with instructions from
the Company (if not during the pendency of an Event of Default) or from the
Required Lender Parties acting through the Intercreditor Agent (during the
pendency of an Event of Default) the Collateral Agent shall have the right at
any time to direct the Depository Bank to exchange such Cash Equivalents for
similar Cash Equivalents of smaller or larger denominations.
(b) The Collateral Agent shall not direct the Depository Bank to invest
or reinvest any funds in any Pledged Account unless it has received instructions
from the Company or the Required Lender Parties in accordance with this Section
4.05 as to the investment of such funds. All investments and reinvestments of
funds in the Pledged Accounts shall be made in the name of the Depository Bank.
(c) Whenever directed to make a transfer of funds from any of the
Pledged Accounts in accordance with this Article IV, the Collateral Agent is
hereby directed and authorized by the Company to direct the Depository Bank to
liquidate (or cause to be liquidated) Cash Equivalents (in order of their
respective maturities with the Cash Equivalents with the shortest maturities
being liquidated first), to the extent that, after application of all other
funds available for such purpose pursuant to this Article IV, the liquidation of
any Cash Equivalent is necessary to make such transfer.
(d) Neither the Collateral Agent nor the Depository Bank shall (in the
absence of gross negligence or willful misconduct, as finally determined by a
court of competent jurisdiction) have any liability with respect to any
interest, cost or penalty on the liquidation of any Cash Equivalent pursuant to
this Agreement, nor shall the Collateral Agent (in the absence of gross
negligence or willful misconduct, as finally determined by a court of competent
jurisdiction) have any liability with respect to Cash Equivalents (including
purchases or conversions of foreign exchange) or moneys deposited into, or
credited to, the Pledged Accounts (or any losses resulting therefrom) invested
in accordance with the instructions of the Company or the Required Lender
Parties (acting through the Intercreditor Agent), as the case may be. Without
limiting the generality of the foregoing, the Collateral Agent shall have no
responsibility for any investment losses resulting from the investment,
reinvestment or liquidation of all or a portion of funds in the Pledged
Accounts, if the Collateral Agent has made such investment, reinvestment or
liquidation, as applicable, in accordance with the instructions of the Company
or the Required Lender Parties, as specified in this Section 4.05 and Section
4.06, and pursuant to the other terms, and subject to the conditions, of this
Agreement.
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(e) All references in this Agreement to Pledged Accounts and to cash,
moneys or funds therein or balances thereof, shall include the Cash Equivalents
in which such cash, moneys, funds or balances are then invested and the proceeds
thereof, and all financial assets and security entitlements carried in or
credited to such Pledged Accounts.
(f) (i) Neither the Collateral Agent nor any of its Affiliates
assume any duty or liability for monitoring the rating or performance of
any Cash Equivalent. Subject to Section 4.06, in the event an investment
selection is not made by the Company or the Required Lender Parties acting
through the Intercreditor Agent in accordance with this Section 4.05, the
funds in the Pledged Accounts shall not be invested and the Collateral
Agent shall not incur any liability for interest or income thereon. The
Collateral Agent shall have no obligation to cause the investment or
reinvestment of the funds in the Pledged Accounts if all or a portion of
such funds is deposited with the Collateral Agent after 11:00 a.m. (New
York City time) on the day of deposit. Instructions to invest or reinvest
that are received after 11:00 a.m. (New York City time) will be treated as
if received on the following Business Day in New York. Requests or
instructions received after 11:00 a.m. (New York City time) by the
Collateral Agent to liquidate all or a portion of funds in any Pledged
Account will be treated as if received on the following Business Day in New
York.
(ii) The Credit Parties acknowledge that non-deposit
investment products (A) are not obligations of, nor guaranteed, by JP
Morgan Chase Bank nor any of its Affiliates; (B) are not FDIC insured;
and (C) are subject to investment risks, including the possible loss of
principal amount invested.
Section 4.06 Transfers from Accounts During the Continuance of an Event
of Default. Subject to the following sentence, upon receipt by the Collateral
Agent of a Notice Related to Financing Document Event of Default, or upon the
Collateral Agent's otherwise becoming aware of the existence and continuance of
an Event of Default, in each case until receipt by the Collateral Agent of a
withdrawal of such Notice Related to Financing Document Event of Default (or, in
the case of the Collateral Agent's becoming aware of the existence and
continuance of an Event of Default, receipt by the Collateral Agent of a waiver
of any Financing Document Event of Default underlying such Event of Default),
before the subject matter thereof has become a Voting Notice Event, by the
requisite percentage of Lender Parties necessary to waive such Financing
Document Event of Default under the applicable Financing Transaction (unless the
subject matter thereof shall have become a Voting Notice Event prior to the
Collateral Agent's receipt of such withdrawal of Notice Relating to Financing
Document Event of Default or the effectiveness of such waiver, as the case may
be, in which case such withdrawal or waiver shall be ineffective for purposes of
this Section 4.06), the Collateral Agent shall not accept any instructions from
the Company with respect to any transfer or withdrawal of funds on deposit in,
or credited to, any Pledged Account and, in such circumstances, the Collateral
Agent shall only accept and comply with instructions for the investment,
transfer or withdrawal of funds in the Pledged Accounts solely from the Required
Lender Parties and without further consent by the Company. If during the
pendency of an Event of Default but before the occurrence of a Remedies Trigger
Event, the Required Lender Parties, acting through the Intercreditor Agent have
not provided instructions as to the investment of such funds for any period of
five Business Days, then until the Collateral Agent receives investment
instructions
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from the Required Lender Parties, the Collateral Agent shall invest such funds
as the Company shall direct (other than with respect to funds on deposit in, or
credited to, the subaccounts of the Cash Collateral Account maintained pursuant
to Section 4.02(b)(iii)).
Section 4.07 Reports, Certifications and Instructions.
(a) The Collateral Agent shall maintain all such accounts, books and
records as may be necessary to properly record all transactions carried out by
it under this Agreement. The Collateral Agent shall permit the Representative
Agents, the Company and its Affiliates and their authorized representatives to
examine such accounts, books and records; provided that any such examination
shall occur upon reasonable notice and during normal business hours.
(b) The Collateral Agent shall deliver to the Company and each
Representative Agent, as soon as practicable after the end of each calendar
month following the Closing Date, copies of the account statements for all
Pledged Accounts (including all subaccounts) for such month. Such account
statements shall indicate, with respect to each such account, deposits, credits
and transfers, investments made and closing balances. The Collateral Agent shall
provide any additional information or reports relating to the Pledged Accounts
and the transactions therein reasonably requested from time to time by the
Company or any Lender Party.
(c) Each time the Company directs the Collateral Agent to make or cause
to be made a transfer or withdrawal from a Pledged Account, it shall be deemed
to represent and warrant for the benefit of the Collateral Agent and the other
Lender Parties that such transfer or withdrawal is being made in an amount, and
shall be applied solely for the purposes, permitted by, and otherwise in
accordance with, this Agreement. Except to the extent any officer or officers of
the Collateral Agent responsible for the administration of this Agreement has
actual knowledge to the contrary, the Collateral Agent may conclusively rely on,
and shall incur no liability in so relying on, any such direction.
(d) Notwithstanding any provision to the contrary contained in this
Agreement, all notices, certifications, approvals, directions, instructions or
other communication given to the Collateral Agent with respect to any payments,
transfers, credits, deposits, withdrawals or investments with respect to, or
otherwise relating to, any Pledged Account, in each case, by the Company or by
any other Lender Party or the Intercreditor Agent shall be given in writing, and
the Collateral Agent shall not be required to take any action with respect to
any payments, transfers, credits, deposits, withdrawals or investments unless it
has received such written instructions specifying the date, amount and Pledged
Account with respect to which such payment, transfer, credit, deposit,
withdrawal or investment is to be made.
Section 4.08 Depository Bank Undertakings. The Depository Bank hereby
represents and warrants to, and agrees with the Company and the Collateral Agent
as follows:
(a) The Depository Bank (i) is a securities intermediary on the date
hereof and (ii) so long as this Agreement remains in effect and JP Morgan Chase
Bank remains the Depository Bank hereunder, shall remain a securities
intermediary, and shall act as such with respect to the Company, the Collateral
Agent, the Pledged Accounts and all of the Account
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Collateral and any other property (including all financial assets and security
entitlements maintained or carried in the Pledged Accounts) from time to time
transferred to, credited to, deposited in, or maintained in the Pledged
Accounts.
(b) Each of the Pledged Accounts is, and shall remain, and the
Depository Bank shall maintain each of the Pledged Accounts as, a securities
account, with the Collateral Agent (and no other Person) as the entitlement
holder and under the sole dominion and control of the Collateral Agent for the
ratable benefit of the Collateral Agent and the other Secured Parties.
(c) The Depository Bank (i) has identified (and will continue to
identify) the Collateral Agent for the ratable benefit of the Collateral Agent
and the other Secured Parties in its records as, and will treat the Collateral
Agent as (A) the sole Person having a security entitlement against the
Depository Bank with respect to the Pledged Accounts and the Account Collateral
from time to time carried in the Pledged Accounts, (B) the sole entitlement
holder against the Depository Bank with respect to each of the Pledged Accounts,
(C) the sole Person having dominion and control over each of the Pledged
Accounts and any and all assets, property and items from time to time carried in
such Pledged Accounts (including cash) and (D) the sole Person entitled to
exercise the rights that comprise the Pledged Accounts; and (ii) has credited
and will continue to credit such assets, property and items to the Pledged
Accounts in accordance with written instructions given pursuant to, and the
other terms and conditions of, this Agreement.
(d) All of the property, including Account Collateral and cash, from
time to time carried in or credited to the Pledged Accounts, shall constitute
financial assets, and the Depository Bank shall treat all such property as
financial assets under Article 8 of the UCC.
(e) Notwithstanding any other provision in this Agreement to the
contrary, the Depository Bank shall comply with any and all entitlement orders
and other directions originated by, and only by, the Collateral Agent in respect
of the Pledged Accounts and the Account Collateral from time to time carried
therein without any further consent or action by the Company or any other Person
and shall not comply with the entitlement orders of any other Person.
(f) The "securities intermediary's jurisdiction" (within the meaning of
Section 8-110(e) of the UCC) of the Depository Bank is and will continue to be
the State of New York.
(g) To be binding on the Depository Bank, all instructions by the
Collateral Agent pursuant to Section 4.06 with respect to the Account Collateral
carried in the Pledged Accounts must be given to the Depository Bank, and only
pursuant to and subject to the terms and conditions of this Agreement.
(h) Anything herein to the contrary notwithstanding, the Depository
Bank will not be required to follow any instruction that would violate any
Applicable Law, decree, regulation or order of any Governmental Authority
(including any court or tribunal) or the terms of this Agreement.
(i) The Depository Bank has not entered into and will not enter into
any agreement with any other Person relating to the Pledged Accounts or any
Pledged Financial
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Assets credited thereto pursuant to which it has agreed or will agree to comply
with entitlement orders of such Person. The Depository Bank has not entered into
any other agreement with the Company or any other Person purporting to limit or
condition the duties of the Depository Bank to comply with entitlement orders
originated by the Collateral Agent as set forth in Section 4.08(e).
(j) The Depository Bank hereby permanently waives and releases any Lien
or other right it may have against the Pledged Accounts and any Pledged
Financial Assets or Pledged Security Entitlements carried in or credited to the
Pledged Accounts and any credit balance or cash in the Pledged Accounts, and
agrees that it will not assert any such Lien or other right in, to or against
the Pledged Accounts or any Pledged Financial Asset or Pledged Security
Entitlement carried therein or credited thereto, or any credit balance or cash
in the Pledged Accounts.
(k) The Depository Bank will send copies of all statements and
confirmations for and in respect of the Pledged Accounts simultaneously to the
Company and the Collateral Agent.
(l) All securities or other property underlying any financial assets
consisting of Account Collateral deposited in or credited to a Pledged Account
shall be registered in the name of the Depository Bank, endorsed to the
Depository Bank or in blank or credited to another securities account or
securities accounts maintained in the name of the Depository Bank, and in no
case will any financial asset consisting of Account Collateral deposited in or
credited to an Pledged Account be registered in the name of the Company, payable
to the order of the Company or specially endorsed to the Company, except to the
extent the foregoing have been specially endorsed by the Company to the
Depository Bank or in blank.
(m) If any Person (other than the Collateral Agent) asserts to the
Depository Bank any Lien, encumbrance or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process)
against any Account Collateral, the Depository Bank will as promptly as
practicable thereafter notify the Company and the Collateral Agent thereof.
Section 4.09 Force Majeure. Neither the Collateral Agent nor the
Depository Bank shall incur any liability for not performing any act or
fulfilling any obligation hereunder by reason of any occurrence beyond its
control (including any provision of any present or future law or regulation or
any act of any Governmental Authority, any act of God, war or terrorism, or the
unavailability of the Federal Reserve Bank wire services or any electronic
communication facility).
Section 4.10 Clearing Agency. The Account Collateral in the Pledged
Accounts may be held by the Collateral Agent directly or through any clearing
agency or depository including the Federal Reserve/Treasury Book-Entry System
for United States and federal agency securities, and the Depository Trust
Company (collectively, the "Clearing Agency"). The Collateral Agent shall not
have any responsibility or liability for the actions or omissions to act on the
part of any Clearing Agency. The Collateral Agent is authorized, for any
Collateral at any time held hereunder, to register the Collateral in the name of
one or more of its nominee(s) or the
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nominee(s) of any Clearing Agency in which the Collateral Agent has a
participant account, and such nominee(s) may sign the name of any Credit Party
and guarantee such signature in order to transfer securities or certify
ownership thereof to tax or other Governmental Authorities.
Section 4.11 Return of Funds to the Company. Upon termination of this
Agreement in accordance with Section 9.06, the Collateral Agent shall, at the
Company's expense, promptly pay, transfer and deliver to or to the order of the
Company all moneys, investments, and other property held in, or credited to, the
Pledged Accounts, in each case, in accordance with the instructions of the
Company.
ARTICLE V
SECURITY INTERESTS
Section 5.01 Grant of Security Interests.
(a) Each Grantor hereby grants to the Collateral Agent, for the ratable
benefit of the Secured Parties, a security interest in such Grantor's right,
title and interest in and to the following, in each case, as to each type of
property described below, whether now owned or hereafter acquired by such
Grantor, wherever located, and whether now or hereafter existing or arising
(collectively, the "Security Collateral"):
(i) the Initial Pledged Equity and the certificates, if any,
representing the Initial Pledged Equity, and all dividends, distributions,
return of capital, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of, in exchange for, or
in conversion of, any or all of the Initial Pledged Equity and all subscription
warrants, rights or options issued thereon or with respect thereto;
(ii) all additional shares of stock and other Equity Interests
of or in any Pledged Company or EPN, as applicable from time to time acquired by
such Grantor in any manner (such shares and other Equity Interests, together
with the Initial Pledged Equity, being the "Pledged Equity"), and the
certificates, if any, representing such additional shares or other Equity
Interests, and all dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
Pledged Equity and all subscription warrants, rights or options issued thereon
or with respect thereto;
(iii) all books and records of such Grantor pertaining to such
Security Collateral;
(iv) all supporting obligations, general intangibles and
contract rights (including rights under limited liability company agreements,
limited partnership agreements and any other organizational or constituent
documents pursuant to which Pledged Equity has been issued or which sets out
rights with respect thereto), warranties, indemnities or guaranties, in each
case to the extent relating to, or payable in respect of, interests in the
foregoing Security Collateral, and any tort claims (including all commercial
tort claims) arising in connection with interests in the Security Collateral;
and
(v) all proceeds of the foregoing Security Collateral.
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(b) Each Grantor hereby grants to the Collateral Agent, for the ratable
benefit of the Secured Parties, a security interest in such Grantor's right,
title and interest in and to the following (but excluding Excluded Grantor
Assets), in each case, as to each type of property described below, whether now
owned or hereafter acquired by such Grantor, wherever located, and whether now
or hereafter existing or arising (all such property in which a security interest
is granted under this Section 5.01(b) being collectively, the "Grantor Payment
Collateral"):
(i) all Accounts or payment intangibles owing to such Grantor
by (A) any Pipeline Company Borrower, (B) any other Grantor, or (C) the Company;
(ii) all instruments owing to such Grantor by (A) any Pipeline
Company Borrower, (B) any other Grantor, or (C) the Company;
(iii) all chattel paper in respect of obligations payable to
such Grantor with respect to which the account debtor is (A) any Pipeline
Company Borrower, (B) any other Grantor, or (C) the Company; and
(iv) all proceeds of the foregoing Grantor Payment Collateral.
Notwithstanding the foregoing, the Grantor Payment Collateral shall not include,
and the Liens created under this Section 5.01(b) shall not encumber, (A) any (1)
Accounts owing to any Exempted Guarantor by the Company, (2) payment intangibles
owing to any Exempted Guarantor by the Company, (3) instruments owing to any
Exempted Guarantor by the Company, (4) chattel paper in respect of obligations
payable to any Exempted Guarantor with respect to which the account debtor is
the Company, and (5) the proceeds of the property described in this clause (A),
or (B) any Excluded Payment Property of any Grantor (all of the foregoing
Property described in clause (A) or (B) of this sentence being, collectively,
the "Excluded Grantor Assets").
(c) The Company hereby grants to the Collateral Agent, for the ratable
benefit of the Secured Parties, a security interest in and to the following (but
excluding Excluded Payment Property of the Company), in each case, as to each
type of property described below, whether now owned or hereafter acquired by the
Company, wherever located, and whether now or hereafter existing or arising (all
such property in which a security interest is granted under this Section 5.03(c)
being collectively, the "Company Payment Collateral", and together with the
Grantor Payment Collateral, the "Payment Collateral"):
(i) all Accounts or payment intangibles owing to the Company
by (A) any Pipeline Company Borrower, or (B) any Grantor (other than any Grantor
that is an Exempted Guarantor);
(ii) all instruments owing to the Company by (A) any Pipeline
Company Borrower, or (B) any Grantor (other than any Grantor that is an Exempted
Guarantor;
(iii) all chattel paper in respect of obligations payable to
the Company with respect to which the account debtor is (A) any Pipeline Company
Borrower, or (B) any Grantor (other than any Grantor that is an Exempted
Guarantor); and
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(iv) all proceeds of the foregoing Company Payment Collateral.
Notwithstanding the foregoing, the Company Payment Collateral shall not include,
and the Liens created under this Section 5.01(c) shall not encumber, any
Excluded Payment Property of the Company.
(d) Each of the Company and each Grantor hereby grants to the
Collateral Agent, for the ratable benefit of the Secured Parties, a security
interest in such Granting Party's right, title and interest in and to the
following, in each case, as to each type of property described below, whether
now owned or hereafter acquired by such Granting Party, wherever located, and
whether now owned or hereafter existing or arising (collectively, the "Account
Collateral"):
(i) the Pledged Accounts, all Pledged Security Entitlements
with respect to all Pledged Financial Assets from time to time carried in or
credited to each Pledged Account, all Pledged Financial Assets, and all
property, funds, interest, dividends, distributions, cash, instruments and other
property from time to time carried in or credited to any Pledged Account or
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such funds and Pledged Financial Assets, and all certificates and
instruments, if any, from time to time representing or evidencing the Pledged
Accounts;
(ii) all promissory notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time delivered to or
otherwise possessed by the Collateral Agent for or on behalf of such Granting
Party, including those delivered or possessed in substitution for or in addition
to any or all of the then existing Account Collateral;
(iii) all interest, dividends, distributions, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Account
Collateral;
(iv) all books and records of such Granting Party pertaining
to any of the Account Collateral;
(v) all supporting obligations, general intangibles, contract
rights, warranties, indemnities and guaranties, in each case to the extent
relating to, or payable in respect of, the foregoing Account Collateral; and
(vi) all proceeds of the foregoing Account Collateral.
Section 5.02 Security for Obligations.
(a) In the case of each Grantor, the security interests granted by such
Grantor pursuant to Sections 5.01(a), 5.01(b) and 5.01(d), secure the payment
and performance of all such Grantor's Grantor Secured Obligations, whether now
existing or hereafter arising.
(b) In the case of the Company, the security interests granted by the
Company pursuant to Sections 5.01(c) and 5.01(d) secure the payment and
performance of all the Company Secured Obligations, whether now existing or
hereafter arising.
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(c) Without limiting the generality of subsections (a) and (b) of this
Section 5.02, (i) as to the Company, the security interests granted by the
Company pursuant to Sections 5.01(c) and 5.01(d) secure the payment of all
amounts that constitute part of the Company Secured Obligations and would be
owed by the Company but for the fact that they are unenforceable or not
allowable due to the existence of an Insolvency Proceeding involving the
Company, and (ii) as to each Grantor, the security interests granted by such
Grantor pursuant to Sections 5.01(a), 5.01(b) and 5.01(d) secure the payment of
all amounts that constitute part of such Grantor's Grantor Secured Obligations
and would be owed by such Grantor but for the fact they are unenforceable or not
allowable due to the existence of an Insolvency Proceeding involving such
Grantor.
Section 5.03 Delivery and Control of Collateral.
(a) All certificates or instruments representing or evidencing Security
Collateral shall be delivered to and held by or on behalf of the Collateral
Agent pursuant hereto and shall be in suitable form for transfer by delivery, or
shall be accompanied by duly indorsed instruments of transfer or assignment in
blank, all in form and substance reasonably satisfactory to the Collateral
Agent, but excluding checks, certificates of title and other similar
instruments. If an Event of Default has occurred and is continuing, the
Collateral Agent shall have the right, in its discretion and without notice to
any Credit Party, to transfer to or to register in the name of the Collateral
Agent or any of its nominees any or all of the Security Collateral, subject only
to the revocable rights specified in Section 5.08. In addition, the Collateral
Agent shall have the right at any time to exchange certificates or instruments
representing or evidencing Security Collateral for certificates or instruments
of smaller or larger denominations.
(b) With respect to any Security Collateral in which any Grantor has
any right, title or interest and that constitutes an uncertificated security,
such Grantor will cause the issuer thereof to agree in an authenticated record
with such Grantor and the Collateral Agent that such issuer will comply with
instructions with respect to such Security Collateral originated by the
Collateral Agent without further consent of such Grantor, such authenticated
record to be in form and substance satisfactory to the Collateral Agent. With
respect to any Security Collateral in which any Granting Party has any right,
title or interest and that is not an uncertificated security, upon the request
of the Collateral Agent, such Grantor will notify each such issuer of Pledged
Equity that such Pledged Equity is subject to the security interest granted
hereunder.
(c) Each Granting Party shall deliver to the Collateral Agent all
Payment Collateral pledged by it that constitutes instruments or tangible
chattel paper, accompanied by duly indorsed instruments of transfer or
assignment in blank, which instruments of transfer or assignment shall be in
form reasonably satisfactory to the Collateral Agent.
Section 5.04 Further Assurances; Etc.
(a) Each Granting Party agrees that from time to time, at the expense
of such Granting Party, such Granting Party will promptly do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, pledge agreements, collateral assignments,
account control agreements, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and
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other instruments as the Collateral Agent, the Depository Bank, or any other
Secured Party through its Representative Agent, may reasonably require from time
to time in order to (i) carry out more effectively the purposes of the
Collateral Documents with respect to the Collateral, (ii) to the fullest extent
permitted by Applicable Law, subject its right, title and interest in and to the
Collateral to the Liens now or hereafter created or stated to be created by any
of the Collateral Documents with respect to the Collateral, (iii) perfect and
maintain the validity and effectiveness of the Collateral Documents and the
validity, effectiveness and priority of the Liens created or stated to be
created thereunder and (iv) assure, grant, collaterally assign, transfer,
preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter stated to be granted to the Secured Parties
in respect of the Collateral under any Collateral Document or under any other
instrument executed in connection with any Collateral Document to which it is a
party. Without limiting the generality of the foregoing, each Granting Party
will promptly with respect to Collateral of such Granting Party: (A) execute or
authenticate and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Collateral Agent may request, in order to perfect and
preserve the security interest granted or stated to be granted by such Granting
Party to the Collateral Agent under any Collateral Document; (B) deliver and
pledge to the Collateral Agent for benefit of the Secured Parties certificates
representing Security Collateral that constitutes certificated securities,
accompanied by undated stock powers indorsed in blank, and deliver and pledge to
the Collateral Agent for the benefit of the Secured Parties all tangible chattel
paper and all instruments constituting Collateral, together with duly indorsed
instruments of transfer or assignment in blank; (C) take all action necessary to
ensure that the Collateral Agent has control of Collateral, if any, consisting
of deposit accounts, as provided in Section 9-104 of the UCC, control of the
Account Collateral as provided in Sections 8-106 and 9-106 of the UCC, and
control of electronic chattel paper as provided in Section 9-105 of the UCC; and
(D) deliver to the Collateral Agent evidence that all other action that the
Collateral Agent may reasonably request as necessary or desirable to perfect and
preserve the security interests created by such Granting Party under this
Agreement or any other Collateral Document has been taken.
(b) Each Granting Party hereby authorizes the Collateral Agent to file
one or more financing or continuation statements, and amendments thereto,
including one or more financing statements indicating that such financing
statements cover all right, title and interest of such Granting Party in and to
the Collateral, in each case without the signature of such Granting Party. The
Collateral Agent shall provide a copy of each such financing statement to each
Granting Party. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law. Each Granting Party
ratifies its authorization for the Collateral Agent to have filed such financing
statements, continuation statements or amendments filed prior to the date
hereof.
(c) If the Mustang Financing is repaid in full pursuant to the
provisions of Section 2.18 of the Credit Agreement then, in connection with the
execution and delivery of the CIG Joinder Agreement and CIG Parent Joinder
Agreement pursuant to Sections 5.10(a) and 5.10(b) hereof, respectively, there
shall be delivered a favorable written opinion of (i) Jones Day, special New
York counsel for the Credit Parties, or such other nationally recognized law
firm that may be reasonably acceptable to the Collateral Agent, which opinion
shall contain all
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opinions of the type set forth in Exhibit F-1 to the Credit Agreement that are
pertinent to (A) the obligations of CIG under the CIG Joinder Agreement and this
Agreement, (B) the obligations of CIG Parent under the CIG Parent Joinder
Agreement, this Agreement and the Subsidiary Guarantee Agreement, (C) the
obligations of the Company under the Parent Guarantee Agreement (taking into
account the effect of the matters set forth in clauses (A) and (B) above and the
obligations of CIG under the Credit Agreement), and (D) the obligations of the
Grantors under the Subsidiary Guarantee Agreement (taking into account the
effect of the matters set forth in clauses (A) and (B) above), such opinions to
be in substantially the same form as the corresponding opinions contained in
Exhibit F-1 to the Credit Agreement, mutatis mutandis, and addressed to the same
Persons, and (ii) the General Counsel or Associate General Counsel of the
Company, which opinion shall contain all opinions of the type set forth in
Exhibit F-2 to the Credit Agreement that are pertinent to the matters set forth
in paragraphs (i)(A) through (D) above, such opinions to be in substantially the
same form as the corresponding opinions contained in Exhibit F-2 to the Credit
Agreement, mutatis mutandis, and addressed to the same Persons.
Section 5.05 Granting Parties Remain Liable. Anything herein to the
contrary notwithstanding, (a) each Granting Party shall remain liable under any
contracts and agreements included in such Granting Party's Collateral
(including, with respect to Security Collateral, any obligations under limited
liability company agreements, limited partnership agreements and any other
organizational or constituent documents pursuant to which Pledged Equity has
been issued or which sets out obligations with respect to Security Collateral)
to the extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed, (b)
the exercise by the Collateral Agent of any of the rights hereunder shall not
release any Granting Party from any of its duties or obligations under the
contracts and agreements included in the Collateral and (c) no Secured Party
shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement or any other Collateral
Document, nor shall any Secured Party be obligated to perform any of the
obligations or duties of any Granting Party thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
Section 5.06 Additional Equity Interests.
(a) Pledged Equity. Each Grantor agrees that (i) it will cause each
Pledged Company the Pledged Equity in which has been pledged by such Grantor
hereunder, not to issue any Equity Interests or other securities in addition to
or in substitution for the Pledged Equity issued by such Pledged Company, except
to such Grantor, (ii) it will pledge hereunder, immediately upon such Grantor's
acquisition (directly or indirectly) thereof, any and all additional Equity
Interests issued by such Pledged Company or by EPN, and (iii) it will cause all
such Equity Interests issued by such Pledged Company to be certificated
securities under Article 8 of the UCC and under Article 8 or Chapter 8 of the
Uniform Commercial Code as in effect in the jurisdiction of organization of such
Pledged Company; provided, however, that this Section 5.06 shall not limit any
Grantor's rights under Section 5.07(a)(ii) hereof.
(b) Ownership of Equity Interests in Grantors. The Company agrees and
covenants that it will at all times own, directly or indirectly, 100% of the
outstanding Equity Interests (including all voting, economic and other rights
associated therewith) in each Grantor,
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except for the rights of the Collateral Agent hereunder with respect to the
Equity Interests in any Grantor that is a Pledged Company.
(c) Ownership of Equity Interests in Pledged Companies. Each Grantor
(including any successor thereto pursuant to a merger or consolidation permitted
under Section 6.05 of the Credit Agreement) agrees and covenants that (i) it
will at all times remain a registered organization, as defined in Section
9-102(70) of the UCC, (ii) with respect to each Pledged Company in which such
Grantor has pledged Equity Interests hereunder, such Grantor will at all times
own directly 100% of the outstanding Equity Interests issued by such Pledged
Company (including voting, economic and other rights associated therewith),
except for the Class B Interests and the rights of the Collateral Agent
hereunder, and (iii) the Class B Interests shall not hereafter be granted, and
shall not have, greater voting, economic or other rights than such Equity
Interests have on the date hereof.
Section 5.07 Release of Collateral.
(a) Partial Release of Collateral.
(i) Payments out of Pledged Accounts. Upon any payment of
amounts out of any Pledged Account (and not deposited into, or transferred to,
another Pledged Account) to (A) the Collateral Agent, the Intercreditor Agent,
or the Depository Bank in respect of amounts due and payable hereunder to such
Persons, (B) any Secured Party, or its Representative Agent, or (C) the Company
or any Restricted Subsidiary (or any other Person designated in writing by the
Company to the Collateral Agent to receive such payment), in each case in
accordance with the Collateral Documents, the Liens created under the Collateral
Documents on such amount shall be automatically released without further action
or consent by the Collateral Agent or any other Person (including any Secured
Party or any Lender Party).
(ii) Other Collateral. Without limiting the applicability of
Section 5.07(a)(iii), any Grantor may, from time to time, so long as no Event of
Default shall have occurred and be continuing, request the Collateral Agent to
release the Liens created under the Collateral Documents covering any portion of
the Security Collateral of such Grantor proposed to be Disposed of by such
Grantor to any other Person, pursuant to a written notice from an Authorized
Signatory of such Grantor (a "Notice of Partial Release"). The Notice of Partial
Release shall be delivered to the Company and the other Grantors, the Collateral
Agent, and each Representative Agent at least ten Business Days prior to the
date of the proposed Disposition of such Security Collateral and shall (A)
specify the Security Collateral to be so Disposed of and the proposed date of
such Disposition and (B) certify (1) that the Disposition of such Security
Collateral shall be effected as a cash transaction for fair market value, on an
arms-length basis, (2) that the Disposition of such Security Collateral would
not contravene the terms of any Financing Document to which such Grantor is a
party or by which such Grantor's property or assets are bound, and (3) that,
after giving effect to such Disposition, no default would occur as a result of
such Disposition under any Financing Document to which such Grantor is a party
or by which such Grantor's property or assets are bound. If a Notice of Partial
Release is delivered to the Collateral Agent in accordance herewith, and if the
Security
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Collateral proposed to be Disposed of is exclusively EPN Units, then any Liens
created under the Collateral Documents on such Security Collateral shall, as of
the date of Disposition, be automatically released without further action or
consent of the Collateral Agent or any other Person (including any other Secured
Party or any Lender Party). If the Security Collateral proposed to be disposed
of is not exclusively EPN Units, then the Liens created under the Collateral
Documents on such Security Collateral shall not be released, unless the
Collateral Agent is notified by the Required Lender Parties that they consent to
such Disposition. If the Collateral Agent receives consent to the proposed
Disposition from the Required Lender Parties, the Collateral Agent shall
promptly notify the Company, the Grantors, the Lender Parties and the Secured
Parties, and the Liens created under the Collateral Documents on such Security
Collateral to be Disposed of shall, as of the date of such Disposition, be
automatically released without further action or consent by the Collateral Agent
or any other Person (including any other Secured Party or any Lender Party).
(iii) Mustang Financing Releases.
(A) If the Credit Agreement Administrative Agent
notifies the Collateral Agent that the Mustang Financing has been
repaid in full pursuant to the provisions of Section 2.18(a) of the
Credit Agreement and that all conditions relating to such repayment set
forth in Section 2.18(a) of the Credit Agreement, and the matters set
forth in Section 2.18(b) of the Credit Agreement have occurred and been
satisfied, and provided that the matters set forth in Section 5.10
hereof have occurred and been satisfied, then upon and
contemporaneously with the indefeasible repayment of the loans under
the 3-Year Facility, and termination of the 3-Year Facility
Commitments, the Collateral Agent shall release the Pledged Equity in
Noric I and Noric IV from the Liens of this Agreement and any other
Collateral Document (and shall deliver to the Company or to such other
Person as the Company shall direct, any certificates evidencing such
Pledged Equity) and upon such release, Noric I Holding and Noric IV
Holding shall be released automatically from their respective
obligations (x) as Grantors under this Agreement and the other
Collateral Documents and (y) as guarantors under the Subsidiary
Guarantee Agreement, and the Collateral Agent shall, at the Company's
sole cost and expense, promptly execute and/or deliver any instrument
or document reasonably requested by the Company to evidence such
releases and the termination of such Liens.
(B) If the Credit Agreement Administrative Agent
notifies the Collateral Agent that the Mustang Financing has been
repaid in full pursuant to the provisions of Section 2.18(c) of the
Credit Agreement and that all conditions relating to such repayment set
forth in Section 2.18(c) of the Credit Agreement have occurred and been
satisfied, and provided that the matters set forth in Section 5.10
hereof have occurred and been satisfied, then upon and
contemporaneously with such repayment of the Mustang Financing, the
Collateral Agent shall release the Pledged Equity in Noric I and Noric
IV from the Liens created under this Agreement and any other Collateral
Documents (and shall deliver to the Company, or to such other Person as
the Company shall direct, any
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certificates evidencing such Pledged Equity) and upon such release,
Noric I Holding and Noric IV Holding shall be released automatically
from their respective obligations (x) as Grantors under this Agreement
and the other Collateral Documents and (y) as guarantors under the
Subsidiary Guarantee Agreement, and the Collateral Agent shall, at the
Company's sole cost and expense, promptly execute and/or deliver any
instrument or document reasonably requested by the Company to evidence
such releases and the termination of such Liens.
(b) Full Release of Collateral. On the earliest date that (i) the
3-Year Facility has been repaid in full, the 3-Year Facility Commitments have
been terminated, and no letters of credit issued thereunder remain outstanding
(as certified in writing by the 3-Year Facility Agent to the Collateral Agent),
and (ii) either (A) all payment obligations under the Revolving Credit Facility
(including the Revolving Credit Loans) have been repaid in full, the Revolving
Commitments have been terminated, and no LCs issued thereunder remain
outstanding (as certified in writing by the Credit Agreement Administrative
Agent to the Collateral Agent) or (B) the requisite percentage of the Lenders
have approved the release of the Liens created by the Collateral Documents on
the Collateral in accordance with Section 10.02 of the Credit Agreement (as
certified in writing by the Credit Agreement Administrative Agent to the
Collateral Agent), and (iii) the Company has provided reasonably satisfactory
evidence to the Collateral Agent that the senior unsecured debt of the Company
is rated BBB, with stable outlook, by S&P, and Baa2, with stable outlook, by
Moody's, the Liens created under the Collateral Documents on all the Collateral
shall be fully and automatically released without further action by the
Collateral Agent or any other Person (including any other Secured Party or any
Lender Party).
(c) Delivery of Releases and Return of Collateral. Upon the full
release of Collateral under Section 5.07(b), the Collateral Agent shall take the
additional actions with respect to such release set forth in Section 9.06.
Without limiting the generality of Section 5.07(a)(ii) providing for the
automatic release of the Liens created under the Collateral Documents on part of
the Collateral, the Collateral Agent shall, at the Company's sole expense,
execute and deliver to the applicable Granting Parties, on the date of any such
proposed release under Section 5.07(a)(ii), a release or releases (including,
without limitation, Uniform Commercial Code partial release or termination
statements, as applicable) in form reasonably satisfactory to such applicable
Granting Parties, as to the applicable Collateral to be released from the Liens
created by the Collateral Documents, and each such release shall state that it
is effective as of the date specified for the effectiveness of such release
pursuant to Section 5.07(a)(ii). With respect to the release of Liens provided
for in Section 5.07(a)(iii)(A) and (B), the Collateral Agent shall, at the
Company's sole expense, execute a release or releases (including, without
limitation, Uniform Commercial Code partial release statements) in form
reasonably satisfactory to the applicable Grantor, as to the Pledged Equity in
Noric I and Noric IV, and any such release shall state that it is effective as
of the date of the occurrence and satisfaction of the matters set forth in
Section 5.10 hereof. Upon the release of any Collateral, the Collateral Agent
shall return such Collateral to the applicable Granting Parties (or to their
designees designated in writing to the Collateral Agent) together with any
certificates or instruments representing or evidencing any such Collateral that
is Security Collateral.
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Section 5.08 Voting Rights, Dividends, Payments, Etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) each Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Security Collateral
(including rights relating to conversion or exchange thereof) of such Grantor or
any part thereof at any time and for any purpose; provided that such Grantor
will not exercise or refrain from exercising any such right if such action would
violate this Agreement;
(ii) except as provided in Section 5.08(b), each Grantor shall
be entitled to receive and retain any and all cash dividends, interest and other
cash distributions paid in respect of the Security Collateral of such Grantor;
(iii) each Granting Party shall be entitled to receive and
retain all payments made on or in respect of Payment Collateral pledged by such
Granting Party; and
(iv) the Collateral Agent will (A) execute and deliver (or
cause to be executed and delivered) to each Grantor all such proxies and other
instruments as such Grantor may reasonably request for the purpose of enabling
such Grantor to exercise the voting and other rights that it is entitled to
exercise pursuant to paragraph (i) above (including, in the case of a conversion
or exchange of Pledged Equity, the Collateral Agent's delivering to EPN or to
the Pledged Company, as applicable, on behalf of the applicable Grantor, the
certificate(s) or instrument(s) representing or evidencing any such Collateral
for the purpose of effecting the exchange of such certificate(s) or
instrument(s) for new certificate(s) or instrument(s)) and to receive the
dividends, interest or other distributions that it is authorized to receive and
retain pursuant to paragraph (ii) above, and (B) with respect to Payment
Collateral, provide such instructions to account debtors and Persons obligated
to make payments on instruments as will enable each Granting Party to receive
all payments it is authorized to receive and retain pursuant to paragraph (iii)
above. In the absence of instructions to vote or exercise other rights, the
Collateral Agent shall not be obligated and shall incur no liability for its
failure to take any action in respect of such rights.
(b) The Collateral Agent shall be entitled to receive (whether or not
an Event of Default has occurred and is continuing), (i) all non-cash dividends
and distributions (including distributions upon conversion or exchange of
Security Collateral) paid in respect of Security Collateral, which shall be held
by the Collateral Agent as Security Collateral, and (ii) all cash dividends,
interest and other cash distributions in respect of Security Collateral
distributed in exchange for, in redemption of, or in connection with a partial
or total liquidation or dissolution or with a reduction of capital, capital
surplus or paid-in-surplus, which distributions described in this clause (ii)
shall be deposited in the Collateral Account and held and administered as
Account Collateral. Each issuer of Pledged Equity that is a party to this
Agreement agrees to pay and deliver all dividends, distributions and interest
described in this Section 5.08(b) on such Pledged Equity directly to the
Collateral Agent. Each Grantor that has granted a security interest in Pledged
Equity under this Agreement in a Pledged Company that is not a party to this
Agreement, agrees to cause such Pledged Company to pay all dividends,
distributions and interest described in this Section 5.08(b) on such Pledged
Equity directly to the Collateral Agent.
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With respect to any Pledged Equity issued in conversion or exchange of Pledged
Equity issued by an issuer that is not a Pledged Company, the Grantor that has
pledged such Pledged Equity shall instruct the issuer to deliver directly to the
Collateral Agent the Pledged Equity so issued in the exchange or conversion. Any
and all dividends, distributions and interest described in this Section 5.08(b)
that are received by a Grantor contrary to the provisions of this Section
5.08(b), shall be received in trust for the benefit of the Collateral Agent,
shall be segregated from the other property or funds of such Grantor, and shall
promptly be delivered or paid over to the Collateral Agent and held and
administered as above provided in this Section 5.08(b).
(c) Upon the occurrence and during the continuance of any Event of
Default:
(i) all rights of each Grantor to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise be
entitled to exercise pursuant to Section 5.08(a)(i) shall, upon delivery by the
Collateral Agent to such Grantor of a written notice of such Event of Default,
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall thereupon have the sole right to exercise or refrain from
exercising such voting and other consensual rights;
(ii) all rights of each Grantor to receive the dividends,
interest and other distributions that it would otherwise be authorized to
receive and retain pursuant to Section 5.08(a)(ii) shall, upon delivery by the
Collateral Agent to such Grantor of a written notice of such Event of Default,
cease, and all such rights shall thereupon become vested in the Collateral
Agent, and any and all such cash dividends, interest and other cash
distributions received by such Grantor shall be promptly delivered to the
Collateral Agent who shall cause the Depository Bank to deposit same in a
subaccount of the Cash Collateral Account to be administered in accordance with
Section 4.02(b)(ii) as Account Collateral. With respect to any issuer of Pledged
Equity that is a party to this Agreement, upon delivery by the Collateral Agent
to such issuer of a written notice of such Event of Default, such issuer shall
thereafter pay and deliver all dividends, distributions and interest described
in this Section 5.08(c)(ii) directly to the Collateral Agent, until such issuer
has received written notice from the Collateral Agent that such Event of Default
no longer exists. Each Grantor that has granted a security interest in Pledged
Equity under this Agreement in an issuer that is not a party to this Agreement,
agrees to cause such issuer to pay and deliver all dividends, distributions and
interest described in this Section 5.08(c)(ii), directly to the Collateral
Agent. Any such dividends, interest and distributions received by a Grantor
contrary to the provisions of this Section 5.08(c)(ii) shall be received in
trust for the benefit of the Collateral Agent, shall be segregated from the
other funds of such Grantor and shall be promptly paid over to the Collateral
Agent who shall cause the Depository Bank to deposit same in a subaccount of the
Cash Collateral Account to be administered as above provided in this Section
5.08(c)(ii); and
(iii) all rights of each Granting Party to receive the
payments on Payment Collateral that it would otherwise be authorized to receive
and retain pursuant to Section 5.08(a)(iii) shall, upon delivery by the
Collateral Agent to the Granting Parties and the Pipeline Company Borrowers of a
written notice of such Event of Default, cease and thereafter all such payments
shall be made by the Granting Party or the Pipeline Company Borrower, as
applicable, that is the account debtor or Person obligated to make payment on
such Payment Collateral, directly to the Collateral Agent, who shall cause the
Depository Bank to deposit same
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in a subaccount of the Cash Collateral Account to be administered in accordance
with Section 4.02(b)(ii) as Account Collateral. Any such payments received by a
Granting Party contrary to the provisions of this Section 5.08(c)(iii) shall be
received in trust for the benefit of the Collateral Agent, shall be segregated
from the other funds of such Granting Party and shall be promptly paid over by
such Granting Party to the Collateral Agent who shall cause the Depository Bank
to deposit same in a subaccount of the Cash Collateral Account to be
administered in accordance with this Section 5.08(c)(iii).
Section 5.09 The Collateral Agent Appointed Attorney-in-Fact. Each
Granting Party hereby irrevocably appoints the Collateral Agent such Granting
Party's attorney-in-fact, with full authority in the place and stead of such
Granting Party and in the name of such Granting Party or otherwise, from time to
time, in the Collateral Agent's discretion, to take any action and to execute
any instrument that the Collateral Agent may deem necessary or advisable to
accomplish the purposes of this Agreement and any other Collateral Agreement
with respect to the Collateral and the Collateral Agent's rights and remedies
with respect thereto, including, without limitation:
(a) to ask for, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(b) to receive, indorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above; and
(c) to file any claims or take any action or institute any proceedings
that the Collateral Agent may deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce the rights of the Collateral Agent
and any other Secured Party with respect to any of the Collateral;
provided that the Collateral Agent shall not exercise the power and authority
granted to it pursuant to clause (a) or clause (c) above except during such
period as an Event of Default has occurred and is continuing.
Section 5.10 Joinder of CIG and CIG Parent. If the Mustang Financing is
repaid in full pursuant to the provisions of Section 2.18 of the Credit
Agreement, then at such time as CIG is required to become a Pipeline Company
Borrower thereunder, (a) CIG and each Person then party to this Agreement shall
execute and deliver the CIG Joinder Agreement to the Collateral Agent, with a
copy to the Credit Agreement Administrative Agent, (b) the CIG Parent and each
Person then party to this Agreement shall execute and deliver the CIG Parent
Joinder Agreement to the Collateral Agent, with a copy to the Credit Agreement
Administrative Agent, (c) CIG shall execute a joinder agreement to the Credit
Agreement in substantially the form of Exhibit H to the Credit Agreement and
deliver such executed joinder agreement to the Credit Agreement Administrative
Agent and deliver an executed copy thereof to the Collateral Agent, (d) the CIG
Parent shall deliver any certificates or instruments representing the Security
Collateral in CIG to the Collateral Agent in suitable form for transfer by
delivery or accompanied by indorsed instruments of transfer or assignment in
blank as provided for certificated Security Collateral in Section 5.03(a)
hereof, (e) the CIG Parent shall cause CIG to agree in an authenticated record
(in form reasonably satisfactory to the Collateral Agent) with the CIG Parent
and the Collateral
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Agent that CIG will comply with instructions originated by the Collateral Agent
without the further consent of CIG, with respect to any Pledged Equity in CIG
that is an uncertificated security, as provided for uncertificated Security
Collateral in Section 5.03(b) hereof, and (f) the opinions referenced in Section
5.04(c) hereof shall be rendered and delivered to the Collateral Agent and the
other addressees thereof. Upon the occurrence and satisfaction of all of the
matters set forth above in this Section 5.10, each Schedule to this Agreement
shall be deemed automatically amended to incorporate the information on the
correspondingly numbered Schedule to the CIG Joinder Agreement (with respect to
pertinent matters related to CIG) and to incorporate the information on the
correspondingly numbered Schedule to the CIG Parent Joinder Agreement (with
respect to pertinent matters related to CIG Parent). Each of the requirements
set forth in this Section 5.10 shall be satisfied on a substantially
contemporaneous basis with the repayment in full of the Mustang Financing.
ARTICLE VI
REMEDIES AND ENFORCEMENT
Section 6.01 Remedies and Enforcement Action.
(a) At such time as any Event of Default has occurred and is
continuing, the Collateral Agent shall have the right to take such actions as
are necessary or appropriate to enforce, implement and administer the provisions
hereof or of any other Collateral Document that are applicable to any period
during which an Event of Default has occurred and is continuing, and without
limiting the foregoing, the Collateral Agent shall have and may exercise,
enforce, implement and administer all rights, privileges, powers, benefits and
remedies granted to or arising in favor of the Collateral Agent under such
provisions with respect to any such Event of Default, including in each case
referenced above the provisions of Sections 2.02(c) through (e), Sections
2.04(b)(ii)(A)(I) and (II), Section 4.02(b)(ii), 4.03(f), Section 4.05(a),
Section 4.06, Section 5.03(a), Section 5.08, and Section 5.09, with respect to
the percentage of Net Cash Proceeds constituting Mandatory Asset Prepayment
Amounts, the application or non-application of funds in Pledged Accounts,
deposits or transfers of funds into or from Pledged Accounts or subaccounts
thereof, delivery of funds from Pledged Accounts to Representative Agents, the
right to direct investments, voting rights with respect to Security Collateral,
and powers of attorney; provided, however, notwithstanding the foregoing, unless
a Voting Notice Event has occurred and is continuing or a Remedies Trigger Event
has occurred, the Collateral Agent shall not (a) take or commence any
Foreclosure Action with respect to Collateral, (b) exercise any power of sale
with respect to the Collateral under any Collateral Document, (c) commence any
proceeding to sell any Collateral pursuant to judicial proceedings, whether in a
legal or equitable proceeding, (d) make any demand for payment under the
Subsidiary Guarantee Agreement or the Parent Guarantee Agreement, or (e) charge
or exercise any contractual or legal setoff rights with respect to any Account
Collateral or Payment Collateral against all or any part of the Secured
Obligations or Covered Obligations.
(b) At such time as an Event of Default that is a Voting Notice Event
has occurred and is continuing or a Remedies Trigger Event has occurred, the
Collateral Agent shall have and in its discretion may exercise any or all of the
following rights and remedies:
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(i) Enforcement Actions. The Collateral Agent may take any
Enforcement Action or Enforcement Actions (at such times, places and by
such methods, as the Collateral Agent shall determine, including any
actions incidental to carrying out any such Enforcement Action) in
order to enforce the Collateral Documents and to realize upon the
Collateral or, in the case of any Insolvency Proceeding against the
Company or any of its Subsidiaries, seeking to enforce the claims and
Liens of the Secured Parties with respect to the Collateral, including
claims under the Collateral Documents.
(ii) Sale; Incidents of Sale. The Granting Parties agree that,
to the extent notice of sale shall be required by Applicable Law with
respect to the Disposition of any Collateral, at least ten days' notice
to the Company of the time and place of any public Disposition or the
time after which any private Disposition is to be made shall constitute
reasonable notification. The Collateral Agent shall not be obligated to
make any Disposition of Collateral regardless of notice of Disposition
having been given. The Collateral Agent may adjourn any public or
private Disposition from time to time by announcement at the time and
place fixed therefor, and such Disposition may, without further notice,
be made at the time and place to which it was so adjourned. With
respect to any Disposition of any of the Collateral made or caused to
be made by the Collateral Agent, whether made under the power of
Disposition hereby given or pursuant to judicial proceedings, to the
extent permitted by Applicable Law:
(A) Any Secured Party, the Company, and any of the
Company's Affiliates (including any Grantor) may bid for, and
purchase, the Collateral offered for sale, and, upon compliance
with the terms of sale and Applicable Law, may hold and Dispose
of such property; and
(B) Pursuant to the power of attorney granted under
Section 5.09, the Collateral Agent may, but shall not be
obligated to, make all necessary deeds, bills of sale and
instruments of assignment and transfer covering the Collateral
Disposed of, and for that purpose the Collateral Agent may
execute all necessary deeds, bills of sale and instruments of
assignment and transfer, and may substitute one or more Persons
with like power.
(iii) Collateral Agent May File Proofs of Claim. In case of
the pendency of any Insolvency Proceeding relative to the Company or
any of its Subsidiaries or the Collateral, the Collateral Agent
(irrespective of whether any of the outstanding Secured Obligations or
Covered Obligations shall then be due and payable) shall be entitled
and empowered (but not obligated), by intervention in such proceeding
or otherwise, (a) to file and prove a claim for the whole amount of the
Secured Obligations owing and unpaid in order to protect the rights of
the Secured Parties under the Collateral Documents and with respect to
the Collateral, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Collateral
Agent (including any claim for the reasonable compensation,
disbursements and advances of the Collateral Agent in its individual or
trust capacity and its agents and counsel) and of any other Secured
Parties in respect of the Collateral Documents and the Collateral
allowed in such judicial proceeding and (b) to collect and receive any
moneys
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or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Secured Party to make payments
with respect to such claims to the Collateral Agent.
(iv) Collateral Agent May Enforce Claims. All rights of action
and claims under this Agreement and the other Collateral Documents may
be prosecuted and enforced by the Collateral Agent; provided that the
Collateral Agent is also hereby appointed as agent for the other
Secured Parties for the purposes of protecting their interests in and
to any portion of the Collateral and under the Collateral Documents,
and the Collateral Agent shall take such action solely as agent for the
Secured Parties. Enforcement Proceeds received by the Collateral Agent
in connection with any Enforcement Action shall, after provision for
the payment of the reasonable compensation, expenses, disbursements and
advances of (a) the Collateral Agent, in its capacity as Collateral
Agent (including previously outstanding amounts in respect thereof) and
(b) its agents and counsel, be for the benefit of the other relevant
Secured Parties and deposited into the Collateral Account for
application as provided under the applicable provisions of this
Agreement.
Section 6.02 Subrogation, Etc. Each Secured Party agrees that
notwithstanding the source of any Enforcement Proceeds on deposit in, or
credited to, the Collateral Account from time to time, from and after the
occurrence of a Remedies Trigger Event all such Enforcement Proceeds shall be
applied as provided for in Section 2.04(b)(iii).
Section 6.03 Other Remedies of Secured Parties. Except as the same
relates to the Collateral or as otherwise expressly prohibited by this Agreement
or any other Collateral Document, each Secured Party may exercise any right or
power, enforce any remedy, give any direction, consent or waiver or make any
determination, under or in respect of any provision of any Financing Document to
which it is a party. Notwithstanding the foregoing, no Secured Party other than
the Collateral Agent shall have the right to take any Enforcement Action with
respect to the Collateral, the Parent Guarantee Agreement or the Subsidiary
Guarantee Agreement or seek to exercise and enforce the Liens granted to the
Collateral Agent on the Collateral herein or under any other Collateral
Document, and all such Enforcement Actions shall be effected solely through the
Collateral Agent (including Subagents referenced in Section 7.06(b)). No
reference in this Agreement to the Collateral Agent's making a demand for
payment under the Subsidiary Guarantee Agreement or the Parent Guarantee
Agreement shall be construed to mean that such a demand is required in order to
cause any obligation under the Subsidiary Guarantee Agreement or the Parent
Guarantee Agreement to become due and payable, it being understood that
obligations under the Subsidiary Guarantee Agreement and the Parent Guarantee
Agreement shall, respectively, become due and payable at such times as they
become due and payable under the terms of the Subsidiary Guarantee Agreement and
the Parent Guarantee Agreement.
Section 6.04 Required Lenders Consent. Each Credit Party acknowledges
and agrees that all provisions hereof that require the Collateral Agent to
obtain the consent, approval or direction of the Required Lender Parties prior
to the Collateral Agent's taking, or omitting to take, any action contemplated
by this Article VI, shall be solely for the benefit of the Collateral Agent, the
Intercreditor Agent and the other Secured Parties, and shall not be for the
benefit of
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any Credit Party, and as between the Collateral Agent and the Credit Parties,
the Collateral Agent may take any actions contemplated by this Article VI at the
time or times set forth in this Article VI, or in the Collateral Agent's
discretion not take such action, whether or not any Secured Party has consented
to, directed or approved the Collateral Agent's action or inaction.
ARTICLE VII
COLLATERAL AGENT, INTERCREDITOR
AGENT AND DEPOSITORY BANK
Section 7.01 Authorization and Action of the Collateral Agent and
Intercreditor Agent.
(a) This Agreement. Each Representative Agent party hereto, acting on
behalf of such Representative Agent's Related Creditors, hereby appoints and
authorizes the Collateral Agent and the Intercreditor Agent to take such action
as agent on its behalf and on behalf of its Related Creditors (i) to execute and
deliver all of the Collateral Documents (other than this Agreement) pursuant to
which such Representative Agent or such Related Creditors are parties or are
intended to be bound and which Collateral Documents are to be delivered on or
after the Closing Date, and (ii) to exercise such powers and discretion under
this Agreement and the other Collateral Documents to which the Collateral Agent
or the Intercreditor Agent, as the case may be, is a party as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement, neither the Collateral Agent nor the
Intercreditor Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lender Parties (acting, in the case of instructions to the
Collateral Agent, through the Intercreditor Agent) issued in accordance with
this Agreement. None of the Collateral Agent, the Depository Bank or the
Intercreditor Agent shall incur any liability for (x) any determination made or
instruction given by the Required Lender Parties (acting, in the case of
instructions to the Collateral Agent and the Depository Bank, through the
Intercreditor Agent) or (y) with respect to instructions as to the investment of
funds in the Pledged Accounts in Cash Equivalents in accordance with Section
4.05 only, any instructions of the Company. Any such instructions described in
clauses (x) and (y) preceding shall be binding on all Secured Parties and Lender
Parties. In no event shall the Collateral Agent or the Intercreditor Agent be
required to take any action that exposes it to personal liability or that is
contrary to this Agreement or Applicable Law. Each of the Collateral Agent and
the Intercreditor Agent agrees to give, as promptly as practicable, to each
Representative Agent notice of each notice given to it by the Company, any other
Representative Agent, or any other Person pursuant to the terms of this
Agreement or any other Collateral Document.
(b) Mustang Intercreditor Agreement. Each Representative Agent party
hereto, acting on behalf of such Representative Agent's Related Creditors,
hereby appoints, authorizes, and directs the Collateral Agent to execute,
deliver, and perform the Collateral Agent's obligations under, the Mustang
Intercreditor Agreement on behalf of such Representative Agent and its Related
Creditors.
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Section 7.02 Reliance. Each of the Collateral Agent, the Depository
Bank, and the Intercreditor Agent: (a) may consult with legal counsel (including
counsel for any Credit Party, with the permission of such Credit Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of any such counsel, accountants or experts; (b)
except as otherwise expressly provided in this Agreement, makes no warranty or
representation to any other Secured Party and shall not be responsible to any
other Secured Party for any statements, warranties or representations (whether
written or oral) made by any other Person, or in any other capacity in or in
connection with the Collateral Documents or the Financing Documents; (c) except
as otherwise expressly provided in this Agreement, shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any Financing Document or the Collateral Documents on
the part of the Company or any of its Subsidiaries or as to the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, or to inspect the property (including the books and records) of the
Company or any of its Subsidiaries; (d) shall not be responsible to any other
Secured Party for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any Lien
or security interest created or purported to be created under or in connection
with, any Financing Document or Collateral Document or any other instrument or
document furnished pursuant to any Financing Document or Collateral Document;
(e) shall incur no liability under or in respect of any Financing Document or
Collateral Document by acting upon any notice, consent, certificate, schedule,
supplement or other instrument or writing believed by it to be genuine and
signed or sent by the proper party or parties or by relying upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person.
Section 7.03 JPMorgan Chase Bank and Affiliates. With respect to its
commitment (if any), any loans or other credit advances made by it (if any), any
Secured Obligations owed to it (if any), and any notes issued to it under the
Credit Agreement (if any), JPMorgan shall have the same rights and powers under
the Collateral Documents to which it is a party as any other Lender Party
thereto, and may exercise the same as though it were not an agent of such Lender
Parties; and the terms "Lender Party", "Lender", and "Secured Party", shall,
unless otherwise expressly indicated, include JPMorgan, its individual and
agency capacities. JPMorgan and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the Company,
any Affiliate of the Company, any of their respective Subsidiaries and any
Person that may do business with or own securities of the Company, any Affiliate
of the Company or any such Subsidiary, all as if JPMorgan, were not an agent of
the Lender Parties, and without any duty to account therefor to any other Lender
Party.
Section 7.04 Acceptance of Collateral. The Collateral Agent has no duty
to solicit the deposit of any Collateral with it by any Credit Party or other
Person and agrees to accept all Collateral to be delivered to or held by the
Collateral Agent pursuant to the terms of this Agreement or any other Collateral
Document. The Collateral Agent shall, on behalf and for the benefit of the
Secured Parties, be the beneficiary and hold and safeguard any Collateral
delivered to it during the term of this Agreement or any other Collateral
Document as specified herein or therein and in accordance with Applicable Law,
and shall hold such Collateral in accordance with the provisions of this
Agreement or such other Collateral Document, as the case may be,
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and in accordance with Applicable Law; provided that the Collateral Agent shall
not be required to hold or safeguard the Collateral with a higher degree of care
than it holds and safeguards its own property.
Section 7.05 The Collateral Agent May Perform. If any Credit Party
fails to perform any agreement required to be performed by it under any
Collateral Document, the Collateral Agent may, but shall have no obligation to,
itself perform, or cause performance of, such agreement without notice to the
Company or to such Grantor, and the reasonable expenses of the Collateral Agent
incurred in connection therewith shall be payable by the Company or such
Grantor, as applicable, under Section 9.01.
Section 7.06 Duties.
(a) The powers conferred on the Collateral Agent hereunder are solely
to protect the Secured Parties' interest in the Collateral and shall not impose
any duty upon the Collateral Agent to exercise any such powers, including the
exercise of any of the powers granted to the Collateral Agent pursuant to
Article VI. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, and as otherwise
expressly provided in this Agreement, the Collateral Agent shall have no duty as
to any Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Collateral, whether or not any Secured Party has or is deemed to have knowledge
of such matters, or as to the taking of any necessary steps to preserve rights
against any parties or any other rights pertaining to any Collateral. The
Collateral Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment equal to that which it accords its own property.
(b) Anything contained herein to the contrary notwithstanding, the
Collateral Agent may from time to time, when the Collateral Agent deems it to be
necessary, appoint one or more subagents (each a "Subagent") for all or any part
of the Collateral, and the Collateral Agent and any Subagents may perform any
and all their duties and exercise their rights and powers through their
respective Related Parties (and the exculpatory provisions herein shall apply to
such Subagents or Related Parties). In the event that the Collateral Agent so
appoints any Subagent with respect to any Collateral, (i) the pledge of such
Collateral and the security interest granted in such Collateral by each Granting
Party hereunder shall be deemed for purposes of this Agreement to have been made
to such Subagent, in addition to the Collateral Agent, for the ratable benefit
of the Secured Parties, as security for the Secured Obligations of such Granting
Party, (ii) such Subagent shall automatically be vested, in addition to the
Collateral Agent, with all rights, powers, privileges, interests and remedies of
the Collateral Agent hereunder with respect to such Collateral, and (iii) the
term "Collateral Agent", when used herein in relation to any rights, powers,
privileges, interests and remedies of the Collateral Agent with respect to such
Collateral, shall include such Subagent; provided that no such Subagent shall be
authorized to take any action (including without limitation any Enforcement
Action) with respect to any such Collateral or under any Collateral Document,
unless and except to the extent expressly authorized in writing by the
Collateral Agent.
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(c) Except as expressly provided in this Agreement, none of the
Collateral Agent, the Depository Bank or the Intercreditor Agent shall be deemed
to be responsible for, have knowledge of, or have any duty to ascertain or
inquire into, (i) the occurrence of any Event of Default, Voting Notice Event,
or Remedies Trigger Event (or if any such event would occur after giving effect
to any application of funds contemplated by any provision of this Agreement)
unless and until it has received written notice thereof from the Company or any
other Lender Party or (ii) the existence, the content, or the terms and
conditions of, any other agreement, instrument or document, in each case, to
which it is not a party or beneficiary, whether or not referenced herein.
Without prejudice to the foregoing, none of the knowledge or information that
any department or division of JPMorgan or any of its Affiliates may have from
time to time shall be attributed to the Collateral Agent, the Depository Bank or
the Intercreditor Agent, and none of the Collateral Agent, the Depository Bank
or the Intercreditor Agent shall have any duty to disclose, nor shall be liable
for the failure to disclose, any information relating to the Company or any of
its Subsidiaries that is communicated to or obtained by JPMorgan or any of its
Affiliates in any capacity. In no event shall JPMorgan, in its capacity as
Collateral Agent, Intercreditor Agent, or Depository Bank, be liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if JPMorgan has been advised
of the likelihood of such loss or damage and regardless of the form of action.
(d) Neither the Collateral Agent, nor the Intercreditor Agent, nor the
Depository Bank makes any representation as to the value or condition of the
security interests created hereunder or any part thereof, or as to the title of
any Granting Party or as to the rights and interests granted or the security
afforded by this Agreement or any other Collateral Document, or as to the
validity, execution (except by itself), enforceability, legality or sufficiency
of this Agreement, any other Collateral Document or the Secured Obligations, and
neither the Collateral Agent, nor the Intercreditor Agent, nor the Depository
Bank (in its individual and agency capacities) shall incur any liability or
responsibility in respect of any such matters. The Collateral Agent assumes no
responsibility and shall not be deemed to have assumed any responsibility,
either express or implied, to monitor the validity or sufficiency of the
Collateral. The Lender Parties further acknowledge and agree that the provisions
of the Collateral Documents which empower and/or entitle the Collateral Agent to
take action, to refrain to take action, or to request the taking or refraining
from taking action, with respect to the Collateral or otherwise shall not
impose, and shall not be deemed to impose, on the Collateral Agent an obligation
to act independently from the instructions of the Lender Parties or any class or
portion thereof (in each case, acting, in the case of instructions to either the
Collateral Agent or the Depository Bank, through the Intercreditor Agent or
their respective Representative Agents, as the case may be) or to monitor the
contingencies that may give rise to the exercise of such power or entitlement.
(e) Without prejudice to Section 4.07(d), all notices, certifications,
approvals, directions, instructions or other communication given to the
Intercreditor Agent or the Collateral Agent with respect to, or otherwise
relating to, this Agreement or the other Collateral Documents, in each case, by
any Secured Party or Representative Agent (whether on its own behalf or on
behalf of its Related Creditors (or any class thereof)) shall be given by an
Authorized Signatory of such Person and, except as otherwise expressly required
under the Collateral Documents, neither the Intercreditor Agent nor the
Collateral Agent shall be required to take any action under any Collateral
Document unless it has received such instructions.
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(f) The parties hereto agree that any of the acknowledgements,
consents, agreements and statements made by the Collateral Agent in respect of
the Collateral in the Collateral Documents are being made in its capacity as
directed agent for, and on behalf and at the request of, the Secured Parties and
that such acknowledgements, consents, agreements and statements are being made
without independent investigation and without liability as a principal. The
parties hereto understand and agree that, notwithstanding any other term of any
Collateral Document, in making any determinations, taking actions, granting
consents, refraining from taking actions, and withholding consents contemplated
in the Collateral Documents, each of the Collateral Agent and the Intercreditor
Agent is authorized, and should be expected, to consult with legal and other
advisors and with the Representative Agents, acting on behalf of the Lender
Parties.
Section 7.07 Liability. None of the Depository Bank, the Collateral
Agent, or the Intercreditor Agent, nor any of their respective directors,
officers, agents, or employees, shall be liable for any error of judgment or for
any act done or omitted to be done by it, or for any mistake of fact or law, or
for anything it may in the future do or refrain from doing, except to the extent
that any such liability is determined by a court of competent jurisdiction in a
final, non-appealable judgment to have resulted from such Person's (or its
employees' or agents') gross negligence or willful misconduct.
Section 7.08 Successor Collateral Agent, Depository Bank and Intercreditor
Agent.
(a) Subject to the appointment and acceptance of a successor Collateral
Agent, Depository Bank or Intercreditor Agent (as applicable) as provided in
this paragraph, any of them may resign at any time by notifying the
Representative Agents and the Company. Upon any such resignation, the Required
Lender Parties shall have the right, in consultation with the Company, to
appoint a successor to such resigning party. If no successor shall have been so
appointed by the Required Lender Parties and shall have accepted such
appointment within 30 days after the retiring Collateral Agent, Depository Bank
or Intercreditor Agent (as applicable) gives notice of its resignation, then the
retiring Collateral Agent, Depository Bank or Intercreditor Agent (as
applicable) may, on behalf of the Lender Parties and in consultation with the
Company, appoint a successor which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance by a successor
of its appointment as Collateral Agent, Depository Bank or Intercreditor Agent
(as applicable) hereunder, such successor shall succeed to and become vested
with all the rights, powers, privileges, and duties of the retiring Collateral
Agent, Depository Bank or Intercreditor Agent (as applicable), and such retiring
party shall be discharged from its duties and obligations hereunder. The fees
payable by the Company to a successor Collateral Agent, Depository Bank or
Intercreditor Agent (as applicable) shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such successor.
After resignation of the Collateral Agent, Depository Bank or Intercreditor
Agent (as applicable) hereunder, the provisions of this Article VII and Section
9.01 shall continue in effect for the benefit of such retiring party, its
Subagents and their respective Related Parties in respect of any action taken or
omitted to be taken by any of them while such retiring party was acting as
Collateral Agent, Depository Bank or Intercreditor Agent (as applicable).
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(b) Concurrently with the acceptance by any successor Depository Bank
of its appointment, the Collateral Agent shall cause the removed or resigning
Depository Bank to deliver the funds on deposit in the Pledged Accounts and all
other Collateral then held by such Depository Bank hereunder to the successor
Depository Bank.
Section 7.09 Suits, Etc. Brought By the Collateral Agent. In any suit,
proceeding or action brought by the Collateral Agent in its individual capacity
(and in its capacity as agent hereunder) under or with respect to the Collateral
for any sum required to be paid to it under this Agreement or any other
Collateral Document, or to enforce any provisions hereof or thereof, the Company
will save, indemnify and keep the Collateral Agent in its individual capacity
(and in its capacity as trustee or agent hereunder) harmless from and against
all expense, loss or damage (including reasonable and documented attorney's fees
and expenses) suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction of liability of the obligor under such Collateral
Document, arising out of a breach by any Credit Party of any of its obligations
under any Collateral Document to which it is a party, and all such obligations
of the Company shall be and remain enforceable against and only against the
Company, and shall not be recoverable from any Secured Party or the Collateral
Agent (in its individual capacity).
Section 7.10 Compensation of the Collateral Agent, the Depository Bank
and the Intercreditor Agent. Each of the Collateral Agent, the Depository Bank
and the Intercreditor Agent shall be entitled to reasonable compensation as may
be agreed in writing from time to time between the Company and such agent or the
Depository Bank, as the case may be, for all services rendered under this
Agreement and the other Collateral Documents, and such compensation, together
with reimbursement of such agent or the Depository Bank, as the case may be, in
its individual capacity (and its agency capacity) for its advances,
disbursements and reasonable out-of-pocket expenses in connection with the
performance of the trust and activities provided for herein (including the
reasonable and documented fees and expenses of its agents and of counsel,
accountants and other experts incurred in connection therewith), shall be paid
in full by the Company not later than 30 days following the delivery of written
demand to the Company from such agent or the Depository Bank, as the case may
be, from time to time as services are rendered and expenses are incurred. All
such payments made by the Company to the Collateral Agent, the Depository Bank
or the Intercreditor Agent, shall be made free and clear of all present and
future income, stamp or other taxes, levies and withholdings imposed, assessed,
levied or collected by the government of the United States of America or any
political subdivision or taxing authority thereof. Except as otherwise expressly
provided herein, no Lender Party shall have any liability for any fees, expenses
or disbursements of the Collateral Agent, the Depository Bank or the
Intercreditor Agent. Upon its resignation or removal, each of the Collateral
Agent, the Depository Bank and the Intercreditor Agent shall be entitled to the
payment by the Company of its compensation and indemnification then due and
payable for the services rendered under this Agreement and the other Collateral
Documents to which it is a party, and to reimbursement of all reasonable
out-of-pocket expenses up to the date of resignation or removal (including the
reasonable fees and expenses of counsel, if any) incurred in connection with the
performance of such services concurrently with such resignation or removal (in
the case of fees and, to the extent invoiced, reasonable out-of-pocket expenses)
and not later than 30 days following the delivery of written demand therefore to
the Company (in the case of other amounts due and payable under this Section
7.10). If the Company fails to pay any amount due and payable to the Collateral
Agent, Intercreditor Agent, or Depository Bank under this
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Section 7.10 within the time period set forth herein for payment, without
limiting any other right or remedy the Collateral Agent, Intercreditor Agent or
Depository Bank may have under this Agreement, the Collateral Agent may pay such
fees, costs and expenses from any funds on deposit in any of the Pledged
Accounts, first from any amounts otherwise payable to the Company under Sections
4.05(a) or 5.08, or both; next, pro rata from the subaccounts of the Cash
Collateral Account in which funds have been deposited to cash collateralize
Covered Letter of Credit Obligations; and next, from any other funds in any
Pledged Account, pro rata, based on the percentage of the funds in each such
Pledged Account compared to the aggregate of all funds in such Pledged Accounts.
The agreements in this Section 7.10 shall survive any resignation or removal of
the Collateral Agent, the Depository Bank or the Intercreditor Agent, as the
case may be, and the termination of the other provisions of this Agreement.
Section 7.11 Taxes, Stamp and Other Similar Taxes.
(a) The Company shall pay or reimburse the Collateral Agent, the
Intercreditor Agent and the Depository Bank within 30 days after written request
to the Company therefor, for any transfer taxes or other taxes relating to or
incurred in connection with the Collateral and shall indemnify and hold harmless
the Collateral Agent, the Intercreditor Agent and the Depository Bank from any
amounts that it is obligated to pay in the way of such taxes. Any payments of
income from the Collateral shall be subject to withholding regulations then in
force with respect to United States federal taxation. Upon the Collateral
Agent's request, the Company and each Lender Party will promptly provide the
Collateral Agent, the Intercreditor Agent and the Depository Bank with the
appropriate Form W-9 for tax identification number certifications, or Form
W-8BEN, for non-resident alien certifications. The Collateral Agent, the
Intercreditor Agent and Depository Bank shall be responsible only for income
reporting to the Internal Revenue Service with respect to income earned on the
Collateral. This Section 7.11 shall survive the termination of this Agreement
and the resignation or removal of the Collateral Agent.
(b) The Company agrees to indemnify and hold harmless each of the
Collateral Agent, the Depository Bank and the Intercreditor Agent (each in its
agency capacity), and each other Lender Party from, and shall reimburse each of
the Collateral Agent, the Depository Bank and the Intercreditor Agent (in its
agency capacity) and each other Lender Party for any present or future claim for
liability for any stamp or other similar tax and any penalties or interest with
respect thereto, which may be assessed, levied or collected by any jurisdiction
in connection with the Collateral Documents, the Collateral created thereunder
or the attachment or perfection of the security interest granted to the
Collateral Agent in any Collateral. All amounts due under this Section 7.11(b)
shall be payable not later than 30 days after delivery of written demand to the
Company therefor. The obligations of the Company under this Section 7.11 shall
survive the resignation or removal of the Collateral Agent or the Intercreditor
Agent or the termination of the other provisions of this Agreement.
Section 7.12 Limitation on Duties in Respect of Collateral. Except as
provided in this Agreement or under Applicable Law as to the custody thereof,
and the accounting to the Company and the Grantors and the Lender Parties for
moneys received hereunder, neither the Depository Bank nor the Collateral Agent
shall have any duty (implied or otherwise) to the Credit Parties or the Lender
Parties with respect to any Collateral in its possession or control or
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in the possession or control of its agent or nominee, any income thereon, or the
priority or preservation of rights against prior parties or any other rights
pertaining thereto. To the extent, however, that the Collateral Agent or the
Depository Bank or an agent or nominee of either of them maintains possession or
control of any of the Collateral or the Collateral Documents at any office of
the Collateral Agent or the Depository Bank, the Collateral Agent or the
Depository Bank shall, or shall instruct such agent or nominee to, grant the
Credit Parties and the Lender Parties reasonable access to inspect such
Collateral (other than, except to the extent permitted pursuant to Article IV,
the Account Collateral, the Pledged Accounts and all funds and Pledged Financial
Assets (including Pledged Security Entitlements and Cash Equivalents) from time
to time on deposit in, or credited to, any thereof) or Collateral Documents.
Section 7.13 Required Lender Parties; Procedures Relating to the
Occurrence of an Event of Default or a Remedies Trigger Event.
(a) Each Representative Agent hereby agrees with its Related Creditors,
the Collateral Agent and the Intercreditor Agent, to give prompt notice to the
Collateral Agent through the Intercreditor Agent upon (i) the occurrence of a
Financing Document Event of Default under any Financing Document to which it is
a party or with respect to which it is acting as Representative Agent, and (ii)
the subsequent occurrence of any event or circumstance related to the Financing
Document Event of Default referenced in clause (i) (such as the waiver or cure
of such Financing Document Event of Default, or the acceleration of obligations
or exercise of remedies under the related Financing Documents with respect to
such Financing Document Event of Default) (each such notice referenced in clause
(i) or (ii) being a "Notice Related to Financing Document Event of Default").
Each Notice Related to Financing Document Event of Default shall describe such
Financing Document Event of Default or such subsequent event or circumstance in
reasonable detail.
(b) The Collateral Agent agrees with each Representative Agent, the
Intercreditor Agent and the Secured Parties that upon (i) the Collateral Agent's
receipt from the Intercreditor Agent of a Notice Related to Financing Document
Event of Default, or (ii) the Collateral Agent's otherwise becoming aware of the
occurrence and continuation of an Event of Default, the Collateral Agent shall
determine (A) whether such Event of Default is of a type that does not
constitute a Voting Notice Event and does not constitute an Automatic Remedies
Trigger Event, (B) whether such Event of Default is of a type that constitutes a
Voting Notice Event but does not constitute an Automatic Remedies Trigger Event,
or (C) whether such Event of Default is of a type that constitutes an Automatic
Remedies Trigger Event. Upon the Collateral Agent's determination as set forth
in (A), (B) or (C) of the preceding sentence, the Collateral Agent shall give
notice to each Representative Agent through the Intercreditor Agent as follows:
(x) If the Collateral Agent determines that the Event of
Default does not constitute a Voting Notice Event and does not
constitute an Automatic Remedies Trigger Event, the Collateral Agent
shall give notice of such Event of Default (a "Notice of Event of
Default") to each Representative Agent, which Notice of Event of
Default shall describe such Event of Default in reasonable detail;
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(y) If the Collateral Agent determines that the Event of
Default constitutes a Voting Notice Event, but does not constitute an
Automatic Remedies Trigger Event, the Collateral Agent shall give
notice of such Voting Notice Event (a "Voting Notice and Request") to
each Representative Agent, which Voting Notice and Request shall (1)
describe the Voting Notice Event in reasonable detail, and (2) request
that each Lender Party vote and notify its applicable Representative
Agent as to whether such Lender Party does or does not authorize the
Collateral Agent to take Enforcement Actions with respect to the
Collateral; and
(z) If the Collateral Agent determines that the Event of
Default constitutes an Automatic Remedies Trigger Event, the Collateral
Agent shall give notice of such Automatic Remedies Trigger Event (a
"Remedies Trigger Event Notice and Request") to each Representative
Agent, which Remedies Trigger Event Notice and Request shall (1)
describe the Automatic Remedies Trigger Event in reasonable detail, and
(2) request that each Lender Party vote and notify the Collateral Agent
as to whether such Lender Party does or does not authorize the
Collateral Agent to take Enforcement Actions with respect to the
Collateral.
(c) Following receipt of any Voting Notice and Request or Remedies
Trigger Event Notice and Request, as applicable, each Lender Party shall in
accordance with Section 8.02 notify its Representative Agent as to whether it
does or does not authorize the Collateral Agent to take Enforcement Actions with
respect to the Collateral, and each Representative Agent shall in accordance
with Section 8.02 provide to the Intercreditor Agent the information required to
be so provided under Section 8.02 with respect to such vote. The Intercreditor
Agent shall provide to the Collateral Agent notice of the results of the Lender
Parties' vote in respect of such Voting Notice and Request or Remedies Trigger
Event Notice, as applicable (such notice being a "Remedies Notice"), and if the
Required Lender Parties have voted to authorize the Collateral Agent to take
Enforcement Actions (the Intercreditor Agent's notice to the Collateral Agent of
such authorization being a "Remedies Authorization Notice"), such Remedies
Authorization Notice and such Required Lender Parties' authorization shall
constitute general authorization to the Collateral Agent to take all available
Enforcement Actions without further consent or authorization of any Lender
Party. The Collateral Agent shall deliver to each Representative Agent as
promptly as practicable a copy of each Remedies Notice and each Remedies
Authorization Notice that it receives from the Intercreditor Agent.
(d) Notwithstanding the Collateral Agent's receipt of a Remedies
Authorization Notice, in any case in which the Collateral Agent needs or desires
additional or more specific direction, consent or approval from the Required
Lender Parties with respect to taking any Enforcement Action, the Collateral
Agent may submit an additional or supplemental Voting Notice and Request or
Remedies Trigger Event Notice and Request, as applicable, to each Representative
Agent seeking such additional direction, consent or approval, in accordance with
the provisions of Section 8.02 and Section 7.13(c).
(e) The Collateral Agent agrees with each Representative Agent, the
Intercreditor Agent and the Secured Parties that it will not take Enforcement
Actions, unless the Required Lender Parties have voted to authorize the
Collateral Agent to take Enforcement
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Actions as above provided; provided, however, that upon the occurrence and
during the continuation of any Event of Default, the Collateral Agent may take
(or not take) the actions set forth in Section 6.01(a) without the consent of
any Secured Party, any Lender Party or any other Person.
(f) Notwithstanding any other provisions hereof to the contrary, the
Collateral Agent shall not be obligated to follow any Remedies Authorization
Notice or take any Enforcement Action or any action authorized by Article VI or
any other provision hereof as to which the Collateral Agent has not received
adequate security or indemnity, in its sole determination, or to the extent that
the Collateral Agent has received a written opinion or advice of its counsel to
the effect that actions authorized to be taken by it pursuant to such Remedies
Authorization Notice are in conflict with any provisions of Applicable Law, this
Agreement or any other Collateral Document or any order of any Governmental
Authority, and the Collateral Agent shall not under any circumstances (except to
the extent that any such liability is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from or to have been
attributable to the gross negligence or willful misconduct of the Collateral
Agent or its employees or agents), be liable to any Credit Related Party,
Secured Party or any other Person for following or refraining from taking any
Enforcement Actions authorized by the Required Lender Parties in a Remedies
Authorization Notice or any action authorized by Article VI or any other
provision hereof.
(g) Nothing in this Article VII shall be construed to restrict the
right of any Lender Party to elect to waive, rescind or revoke any Financing
Document Event of Default, to waive any Event of Default or to authorize the
waiver, rescission or revocation of any Notice of Financing Document Event of
Default in respect of any Financing Document to which such Lender Party is a
party or with respect to which such Lender Party has the authority to waive, or
vote for a waiver, rescission or revocation of, such a Financing Document Event
of Default or Event of Default, or to agree to any amendment of one or more of
the Financing Documents in order to waive or cure such a Financing Document
Event of Default or an Event of Default. A Financing Document Event of Default
may be waived, rescinded or revoked in accordance with the provisions of the
related Financing Documents, subject to the provisions of Section 9.02(b)(ii). A
Voting Notice Event, unless and until it becomes a Remedies Trigger Event, may
be waived, rescinded or revoked only in accordance with the applicable
provisions of Section 9.02(a).
Section 7.14 No Liability for Collateral Agent.
(a) The Collateral Agent shall not incur any liability for failing to
act while waiting for authorization from the Required Lender Parties hereunder.
(b) Except as otherwise specifically provided in this Agreement, the
Collateral Agent shall not take any action pursuant to instructions given to it
by any Person, except with the prior direction, consent, approval or
authorization of the Required Lender Parties.
Section 7.15 Indemnification. Each of the Consenting Lender Parties
severally agrees to indemnify the Collateral Agent, the Depository Bank and the
Intercreditor Agent (to the extent not promptly reimbursed by the Company),
ratably according to the respective outstanding
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amounts of the Covered Obligations owed to such Consenting Lender Party from
time to time, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Collateral Agent, Depository Bank or Intercreditor Agent
(as applicable) in any way relating to or arising out of this Agreement or any
other Collateral Document to which it is a party or any action taken or omitted
by the Collateral Agent, Depository Bank or Intercreditor Agent (as applicable)
under this Agreement or any other Collateral Document to which it is a party
(collectively, the "Indemnified Costs"); provided that no such Consenting Lender
Party shall be liable to the extent that such Indemnified Costs are determined
by a court of competent jurisdiction in a final, nonappealable judgment to have
resulted from the Collateral Agent's, Depository Bank's or Intercreditor Agent's
(as applicable) gross negligence or willful misconduct. Without limiting the
foregoing, each of the Consenting Lender Parties severally agrees to reimburse
the Collateral Agent, Depository Bank or Intercreditor Agent (as applicable)
promptly upon demand for its ratable share of any reasonable out-of-pocket
expenses (including reasonable counsel fees and disbursements) incurred by the
Collateral Agent, Depository Bank or Intercreditor Agent (as applicable) in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any other Collateral Document, to the
extent that the Collateral Agent, the Depository Bank or the Intercreditor Agent
(as applicable) is not reimbursed for such expenses by the Company in accordance
with the terms of this Agreement. In the case of any investigation, litigation
or proceeding giving rise to any Indemnified Costs, this Section 7.15 shall
apply.
Section 7.16 Right to Initiate Judicial Proceedings, Etc. A Remedies
Authorization Notice shall, without limiting the general authorization provided
to the Collateral Agent pursuant to Section 7.13(c) above to take all available
Enforcement Actions, authorize the Collateral Agent: (a) to institute and
maintain such suits and proceedings as it may deem appropriate to protect and
enforce the rights vested in the Collateral Agent by this Agreement and the
other Collateral Documents; and (b) to proceed by suit or suits at law or in
equity to enforce such rights and to foreclose upon the Collateral and to
realize upon all or, from time to time, any of the Collateral pledged hereunder
for the benefit of the Secured Parties under the judgment or decree of a court
of competent jurisdiction.
Section 7.17 Merger; Consolidation. Any corporation into which the
Collateral Agent, the Depository Bank or the Intercreditor Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Collateral Agent, the
Depository Bank or the Intercreditor Agent shall be a party, or any corporation
succeeding to the business of the Collateral Agent, the Depository Bank or
Intercreditor Agent shall be the successor of the Collateral Agent, the
Depository Bank or Intercreditor Agent, as the case may be, hereunder without
the execution or filing of any paper with any party hereto or any further act on
the part of any of the parties hereto except where an instrument of transfer or
assignment is required by law to effect such succession, anything herein to the
contrary notwithstanding.
Section 7.18 Treatment of Lender Parties.
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(a) Each of the Collateral Agent and the Intercreditor Agent may treat
the holders of Covered Obligations as the absolute owners thereof for all
purposes under this Agreement and the other Collateral Documents unless such
Agent shall receive notice to the contrary from any Secured Party or any
applicable Representative Agent on behalf of one or more of its Related
Creditors.
(b) Any Person that shall be designated as the duly authorized
representative of one or more of the Credit Parties or one or more of the Lender
Parties (including any Representative Agent) to act as such in connection with
any matters pertaining to this Agreement, any other Collateral Document or the
Collateral shall present to the Collateral Agent or Intercreditor Agent the
agreement reflecting such authorization and such other documents, including
opinions of counsel, as the Collateral Agent or Intercreditor Agent may
reasonably request, in order to demonstrate to the Collateral Agent the
authority of such Person to act as the representative of such party.
Section 7.19 Miscellaneous.
(a) Each of the Intercreditor Agent and the Collateral Agent shall have
the right at any time to seek instructions concerning the administration of its
duties and obligations hereunder or any other Collateral Documents from the
Required Lender Parties or any court of competent jurisdiction. In the event
that the terms of this Agreement or any other applicable Collateral Document do
not unambiguously mandate the action that the Intercreditor Agent or the
Collateral Agent, as the case may be, is to take or not to take in connection
therewith under the circumstances then existing, or in the event that the
Intercreditor Agent or the Collateral Agent, as the case may be, is in doubt as
to what action it is required to take or not to take, such agent shall be
entitled to refrain from taking any action until directed otherwise in writing
by a request from the Required Lender Parties or by order of a court of
competent jurisdiction.
(b) None of the provisions of this Agreement or the other Collateral
Documents shall be construed to require either the Collateral Agent or the
Intercreditor Agent to expend or risk its own funds or otherwise to incur any
personal financial liability in the performance of any of its duties hereunder
or thereunder. Neither the Collateral Agent nor the Intercreditor Agent shall be
under any obligation to exercise any of the rights or powers vested in it by
this Agreement or the other Collateral Documents, at the request or direction of
any Lender Party, (i) if any action it has been requested or directed to take
would be contrary to Applicable Law, or (ii) unless such agent shall have been
offered security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction (including interest thereon from the time incurred until
reimbursed).
ARTICLE VIII
OTHER AGREEMENTS; INSTRUCTIONS OF LENDER PARTIES
Section 8.01 Provision of Information; Meetings.
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(a) Each Lender Party will, from time to time (as it deems reasonably
necessary or appropriate in its sole judgment), consult with the other Lender
Parties with respect to the Secured Obligations, the Covered Obligations, the
affairs of the Company and its Subsidiaries, and the Collateral.
(b) The Intercreditor Agent agrees to give the Collateral Agent, the
Depository Bank and each Representative Agent, and each Representative Agent
agrees to give to each of its Related Creditors, written notice of any
amendment, modification or waiver to the terms of this Agreement or any other
Collateral Document requested from time to time by the Company, any other Credit
Party or any other Person party to this Agreement. Such notice shall include a
description of the proposed terms of such amendment, modification or waiver and
shall be delivered promptly after receipt thereof by the Intercreditor Agent or
Representative Agent, as the case may be. Any notice required to be delivered
pursuant to this Section 8.01(b) shall be delivered at least two Business Days
prior to the effectiveness of any such amendment, modification or waiver and
simultaneously to each Person entitled to delivery thereof.
(c) Any Representative Agent may, at any time following the occurrence
and during the continuation of any Event of Default, request that a meeting or
meetings of the Lender Parties be convened, at reasonable times and locations,
and with reasonable frequency. Such a request for a meeting shall be made in a
written notice given to the Intercreditor Agent. The Intercreditor Agent shall
deliver a copy of such notice to each Representative Agent, and each
Representative Agent shall deliver a copy of such notice to each of its Related
Creditors. Each such notice shall state the date of such meeting (which shall be
not less than five Business Days nor more than 20 Business Days after the date
of such notice, unless otherwise agreed by all Lender Parties) and a general
outline of the issues to be discussed at such meeting. Any such meeting may be
held telephonically. Any Lender Party shall have the right to appoint any Person
(including another Lender Party) to act as its representative at any such
meeting of the Lender Parties. No Lender Party shall be obligated to attend any
such meetings. Upon any such request having been given in accordance with this
Section 8.01(c), a meeting of the Lender Parties shall be convened on the date
specified in the notice of the meeting described herein.
Section 8.02 Representative Agents; Lender Party Action.
(a) Any action taken or omitted to be taken by any Representative Agent
in accordance with the terms of this Agreement and any other applicable
Collateral Documents shall constitute action or inaction by its Related
Creditors in all respects and for all purposes of this Agreement and the other
Collateral Documents.
(b) For all purposes of this Agreement and the other Collateral
Documents, each Representative Agent agrees that it shall act as agent for each
of its Related Creditors, in each case including for the following purposes: (i)
to give or receive any notice, instruction, authorization, direction,
certificate, request, demand or other communication permitted or required to be
given or received hereunder or under any other applicable Collateral Document to
or from the Intercreditor Agent, the Collateral Agent, the Depository Bank, any
other Representative Agent or any other Lender Party, (ii) subject to Section
8.02(c), to vote the outstanding Covered Obligations owing to such Related
Creditor on any matter, at any meeting of Lender Parties hereunder, and (iii)
otherwise to take any action required or permitted to be
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taken by any Representative Agent or any of its Related Creditors hereunder or
thereunder. To the extent that any of such parties shall be entitled to grant
any consent or approval, cast any vote whatsoever, or give any notice,
instruction, authorization, or direction with respect to any matter, any such
consent or approval shall be granted, any such votes shall be cast, any such
notice, instruction, authorization, or direction shall be given, and all of such
actions shall be taken by its Representative Agent.
(c) For purposes of determining whether Required Lender Parties have
consented to, approved, voted in favor of, or given any notice, instruction,
authorization, or direction with respect to any matter, each Representative
Agent shall report to the Intercreditor Agent (i) the portion, in dollars, of
the Voting Amount for such Representative Agent's related Financing Transaction
that is held (or committed) by each of its Related Creditors that has consented
to, approved, voted in favor of, or given notice, instruction, authorization, or
direction with respect to such matter, and (ii) the portion, in dollars, of the
Voting Amount for such Representative Agent's related Financing Transaction that
is held (or committed) by each such Related Creditor which has withheld its
consent, disapproved, voted against, or declined to give notice or direction
with respect to such matter (or is deemed to have done so pursuant to the terms
hereof). If the aggregate dollars so reported by all Representative Agents
attributed to Lender Parties approving, consenting to, voting in favor of, or
giving notice, instruction, authorization, or direction with respect to a matter
exceed the aggregate dollars so reported by all Representative Agents attributed
to Lender Parties withholding consent, disapproving, voting against, or
declining to give notice, instruction, authorization, or direction with respect
to such matter, then the "Required Lender Parties" shall be deemed to have
consented to, approved, or voted in favor of, or given notice, instruction,
authorization, or direction with respect to such matter. If the Required Lender
Parties approve, consent to, vote in favor of, or give notice, instruction,
authorization, or direction with respect to a matter, then the Collateral Agent
is hereby authorized to take all actions and to execute all documents on behalf
of the Lender Parties that may be necessary or appropriate to give effect to
such approval, consent, vote, notice, instruction, authorization, or direction.
(d) Notwithstanding any provision of any Financing Document to the
contrary, if any Lender Party does not notify its Representative Agent of its
decision regarding such Lender Party's consent, approval, vote, notice,
instruction, authorization or direction with respect to a matter within the time
period set forth in the applicable request therefor, then such Lender Party
shall be deemed to have withheld its consent, to have disapproved, to have voted
against, or to have declined to give notice, instruction, authorization or
direction (as applicable) with respect to such matter. If any Representative
Agent does not notify the Intercreditor Agent with respect to the determination
of any matter by its Related Creditors within the time period set forth in the
applicable request therefor, all such Related Creditors shall be deemed
hereunder to have withheld their consent, to have disapproved, to have voted
against, or to have declined to give notice, instruction, authorization or
direction (as applicable) with respect to such matter.
(e) Each Representative Agent hereby agrees that is shall promptly
deliver to each of its Related Creditors a copy of each Notice of Event of
Default, Voting Notice and Request, and Remedies Trigger Event Notice and
Request received by it from the Collateral Agent as well as copies of each other
notice, certificate, request, demand or other written
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communication received by it pursuant to any Collateral Document from the
Collateral Agent, the Depository Bank, the Intercreditor Agent or any Credit
Party.
(f) Each Representative Agent represents and warrants to each Credit
Party, and to the Collateral Agent and the Intercreditor Agent, for the ratable
benefit of the Secured Parties, that such Representative Agent has been
irrevocably appointed as the Representative Agent by its respective Related
Creditors pursuant to a Representative Agency Agreement or in accordance with
the applicable Financing Documents in all respects and for all purposes under
this Agreement and the other Collateral Documents, and that this Agreement, the
Representative Agent Joinder Agreement (if applicable) and the Representative
Agency Agreement (if applicable) to which it is a party constitute the legal,
valid and binding obligations of such Representative Agent and its Related
Creditors, enforceable against such Representative Agent and its Related
Creditors in accordance with its or their respective terms.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Indemnity and Expenses.
(a) Each Credit Party agrees to indemnify (without duplication), defend
and save and hold harmless each of the Collateral Agent, the Intercreditor
Agent, the Depository Bank and the Lender Parties and each of their Affiliates
and their respective officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against, and shall pay, any and all claims,
damages, losses, liabilities and expenses (including reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with (i) this
Agreement or the other Collateral Documents, or (ii) as a result of the
execution or delivery of this Agreement or the other Collateral Documents or the
performance by the Credit Parties hereto and thereto of their respective
obligations hereunder and thereunder, except in each case of clause (i) and
(ii), as to any particular Indemnified Party, to the extent such claim, damage,
loss, liability or expense is found in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from, or to be attributable to,
the gross negligence or willful misconduct of such Indemnified Party or its
employees or agents. The indemnification provisions of this Section 9.01(a) are
not intended to constitute a guaranty of payment of any principal, interest,
facility or commitment fees, rental or other lease payments, or analogous
amounts, under any Covered Obligations; provided that nothing in this section
9.01(a) shall limit the liability of any Credit Party for the payment of any
Covered Obligation, to the extent such liability arises under any other
Financing Document or Collateral Document, including any liability arising under
this Agreement.
(b) Each Credit Party will pay to the Collateral Agent or the
Intercreditor Agent the amount of any and all reasonable out-of-pocket expenses,
including the reasonable fees and expenses of its counsel and of any experts and
agents, that the Collateral Agent or the Intercreditor Agent may incur in
connection with (i) the administration of this Agreement and the other
Collateral Documents, (ii) in the case of the Collateral Agent, the custody,
preservation, or the sale of, collection from or other realization upon, any of
the Collateral of such Credit Party, (iii) the exercise or enforcement of any of
the rights of the Collateral Agent, the Intercreditor
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Agent or any other Secured Party hereunder, or (iv) the failure by such Credit
Party to perform or observe any of the provisions hereof required to be
performed or observed by it.
(c) The indemnities provided by the Credit Parties pursuant to this
Agreement shall survive the expiration, cancellation, termination or
modification of this Agreement or the other Collateral Documents, the
resignation or removal of the Collateral Agent, Depository Bank, Intercreditor
Agent, or Lender Parties and the provision of any subsequent or additional
indemnity by any Person.
(d) All amounts due under this Section 9.01 shall be payable not later
than 30 days after the delivery of written demand to the Company therefor.
Section 9.02 Amendments; Waivers, Etc.
(a) No amendment, modification or waiver of any provision of this
Agreement or any other Collateral Document and no consent with respect to any
departure by any Representative Agent, other Lender Party or Credit Party
herefrom or therefrom, shall be effective unless the same shall be in writing
and (x) signed by the Required Lender Parties or approved by the Required Lender
Parties and signed on their behalf by the Collateral Agent, (y) signed by the
Credit Parties, if any such amendment or modification (A) amends or modifies any
provision of Article II, III, IV, or V of this Agreement or Section 7.11 or 9.01
of this Agreement, or (B) adversely affects the Credit Parties (provided that
the Lender Parties may make amendments or modifications to the provisions of
this Agreement that relate principally to their rights and duties among
themselves that may adversely affect one or more of the Credit Parties without
the execution thereof by the Credit Parties, unless such amendment or
modification increases the obligations of a Credit Party), and (z) acknowledged
in each case by the Collateral Agent and the Intercreditor Agent. Any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. Without limiting the generality of the
requirements set forth in the preceding sentence, no such amendment, waiver or
consent shall:
(i) amend, modify or waive any of the provisions of (x)
Sections 2.01 through 2.08 or (y) the definition of "Attributable Principal
Amount," in either case of (x) or (y) if any such amendment, modification or
waiver would result in any change in the determination of a Mandatory Asset
Prepayment Amount or any change in the ratable sharing or allocation of, or the
priority of, any repayment of any Covered Obligation or cash collateralization
of any Covered Letter of Credit Obligation as required thereby without the
written consent of each Lender Party that is the holder of any outstanding
Covered Obligations, including any Covered Letter of Credit Obligation, at the
time of any such amendment, modification or waiver; provided that, for the
avoidance of doubt, the 90 day period for consummating a Qualified Investment
pursuant to a binding contract referred to in Sections 2.01(e) and 2.02(e) may
be extended with the consent of the Required Lender Parties;
(ii) unless such release is consummated in accordance with the
applicable provisions of Section 5.07, (x) release all or substantially all of
the Collateral (as determined at the time of such release) from the Liens
created hereby in any transaction or series of related transactions, (y) permit
the creation, incurrence, assumption or existence of any Lien
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on the Equity Interests in any Pipeline Company Borrower constituting Collateral
or any other substantial portion of the Collateral in any transaction or series
of related transactions to secure any Indebtedness or other obligations, other
than the Secured Obligations or (z) release any Subsidiary Guarantor from its
guarantee obligations under the Subsidiary Guarantee Agreement, in each case
without the written consent of each Secured Party; or
(iii) change any provision of this Section 9.02, the
definition of "Required Lender Parties" in Section 8.02(c), or any other
provision hereof specifying the percentage of the Lender Parties required to
amend, waive or otherwise modify any rights hereunder or under any other
Collateral Document or make any determination or grant any consent hereunder or
under any other Collateral Document, without the written consent of each Lender
Party affected thereby;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Collateral Agent, the Depository Bank or the
Intercreditor Agent, in addition to the Lender Parties required above, affect
the rights or duties of such Person under this Agreement or any other Collateral
Document to which such Person is a party.
(b) (i) Except as otherwise specifically provided in this
Agreement or any other Collateral Document, the Lender Parties may
amend, modify, terminate, change or waive, or consent or agree to any
amendment, modification, termination, change or waiver of, any
provision of any other Financing Document to which they are parties in
accordance with the terms thereof.
(ii) Notwithstanding anything to the contrary in this
Agreement or any other Collateral Document, in no event shall any
Lender Party have any right to enter into, or consent to, any
amendment, waiver, supplement or other modification of any of the
provisions of any Financing Document that would (A) increase (x) the
sum of (1) the Additional Covered Letter of Credit Exposure for each
Additional Covered Letter of Credit then issued and outstanding plus
(2) the aggregate amount, if any, of funds then held in the Cash
Collateral Subaccount (Additional LCs) above $250,000,000 or (y) the
3-Year Facility Commitments, the Revolving Commitments, or the
Attributable Principal Amount of any Underlying Transaction above the
respective amount thereof on the date of (and before giving effect to)
such amendment, waiver, supplement, or other modification, without (I)
the written consent of each Lender Party, in the case of any increase
in the 3-Year Facility Commitments, and (II) the written consent of the
Required Lender Parties, in the case of any other such increase of
principal or analogous amount; or (B) increase any periodic fees or
other periodically payable amounts (other than principal, interest, or
analogous amounts as described in clause (A)) payable to it under the
Financing Documents above the comparable amount or rate of interest,
fees, or other charges required by prevailing market conditions at such
time for similar transactions; provided, that any Lender Party may
enter into, or consent to, any amendment, waiver, supplement or other
modification of any of the provisions of any Financing Document that
would require the payment of one-time fees or charges so long as (i)
such fees or charges are paid in cash as incurred by any applicable
Credit Related Party and (ii) such payment does not result in a Voting
Notice Event under clause (f) of the definition of the term "Voting
Notice Event"; or (C) extend or postpone any date fixed for any payment
of
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principal, interest, fees or other amounts payable under the Financing
Documents, in the case of this clause (C), in any transaction or series
of related transactions, without notifying each of the Representative
Agents for the other Lender Parties at least three Business Days prior
to any such increase in fees or extension of any such date fixed for
payment.
Section 9.03 Security Interest Absolute and Waivers.
(a) The obligations of each Credit Party under or in respect of this
Agreement or any other Collateral Document to which such Credit Party is a party
are independent of the Secured Obligations or any other obligations of any other
Credit Party under or in respect of the Financing Documents, and a separate
action or actions may be brought and prosecuted by the Collateral Agent against
each Credit Party to enforce this Agreement or any other Collateral Document to
which such Credit Party is a party, irrespective of whether any action is
brought against the Company or any other Credit Party or whether the Company or
any other Credit Party is joined in any such action or actions. All rights of
the Collateral Agent and the other Secured Parties and the Liens granted by the
Granting Parties hereunder, and all obligations of each Credit Party hereunder,
shall be unaffected by, and each Credit Party hereby irrevocably waives (to the
maximum extent permitted by applicable law) any defenses to its obligations
under the Collateral Documents that it may now have or may hereafter acquire,
which defenses in any way relate to, any or all of the following:
(i) any lack of validity or enforceability of any Financing
Document or Collateral Document or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations or Covered
Obligations or any other obligations of any Credit Party under or in respect of
the Financing Documents or Collateral Documents or any other amendment or waiver
of or any consent to any departure from any Financing Document or Collateral
Document, including any increase in the Secured Obligations or Covered
Obligations resulting from the extension of additional credit to any Credit
Party or any of its Subsidiaries or otherwise;
(iii) any Condemnation, exchange, release or non-perfection of
any Collateral or any other collateral, or any release, amendment or waiver of,
or consent to, or departure from any Guaranty of all or any of the Secured
Obligations;
(iv) any manner of application of any Collateral or any other
collateral, or proceeds thereof, to all or any of the Secured Obligations or
Covered Obligations, or any manner of sale or other disposition of any
Collateral or any other collateral for all or any of the Secured Obligations or
Covered Obligations or any other obligations of any Credit Party under or in
respect of the Financing Documents or Collateral Documents or any other assets
of any Credit Party or any of its Subsidiaries;
(v) any change, restructuring or termination of the corporate
structure or existence of any Credit Party or any of its Subsidiaries;
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(vi) any failure of any Secured Party to disclose to any
Credit Party any information relating to the business, condition (financial or
otherwise), operations, performance, assets, nature of assets, liabilities or
prospects of any other Credit Party now or hereafter known to such Secured Party
(each Credit Party waiving any duty on the part of the Secured Parties to
disclose such information);
(vii) the failure of any other Person to execute or deliver
this Agreement or any other Collateral Document, guaranty or agreement or the
release or reduction of liability of any Credit Party or other grantor or surety
with respect to the Secured Obligations or Covered Obligations; or
(viii) any other circumstance (including any statute of
limitations) or any existence of or reliance on any representation by any
Secured Party that might otherwise constitute a defense available to, or a
discharge of, such Credit Party or any other Credit Party or third party grantor
of a secured interest, but specifically excluding any defense or discharge
arising as a result of performance or indefeasible payment.
(b) This Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Secured Obligations is
rescinded or must otherwise be returned by any Secured Party or by any other
Person upon the insolvency, bankruptcy or reorganization of any Credit Party or
otherwise, all as though such payment had not been made.
(c) Each Credit Party hereby unconditionally and irrevocably waives
promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, notice of intent to accelerate,
acceleration, protest or dishonor and any other notice with respect to any of
the Secured Obligations and this Agreement or any other Collateral Document to
which such Credit Party is a party and any requirement that any Secured Party
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any Credit Party or any other
Person or any Collateral.
(d) Each Credit Party hereby unconditionally and irrevocably waives any
right to revoke this Agreement or any other Collateral Document to which such
Credit Party is a party and acknowledges that this Agreement or any other
Collateral Document to which such Credit Party is a party is continuing in
nature and applies to all Secured Obligations, whether existing now or in the
future.
(e) Each Credit Party hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by the Collateral Agent that in any manner impairs, reduces, releases
or otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Credit Party or other rights of
such Credit Party to proceed against any other Credit Party, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the obligations of such Credit
Party hereunder.
(f) Each Credit Party and each of the Lender Parties confirms that it
is the intention of all such Persons that this Agreement, the other Collateral
Documents and the
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obligations of each Credit Party hereunder or thereunder do not constitute a
fraudulent transfer or fraudulent conveyance for purposes of the Bankruptcy
Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar foreign, federal or state law to the extent applicable to this
Agreement, any other Collateral Document and the obligations of each Credit
Party hereunder or thereunder or in connection with any Insolvency Proceeding in
respect of any Credit Party. To effectuate the foregoing intention, the
Collateral Agent, the other Lender Parties and the Granting Parties hereby
irrevocably agree that the obligations of each Granting Party under this
Agreement and the other Collateral Documents at any time shall not exceed the
maximum amount as will result in the obligations of such Granting Party under
this Agreement and the other Collateral Documents not constituting a fraudulent
transfer or fraudulent conveyance (after giving effect to Section 2.02 of the
Subsidiary Guarantee Agreement).
(g) Each Credit Party acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Collateral Documents and that the waivers set forth in this Section 9.03 are
knowingly made in contemplation of such benefits.
Section 9.04 Notices; Etc.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone (and subject to paragraph (b) below), all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Company, to it at El Paso Building, 1001
Louisiana Street, Houston, Texas 77002, Attention of Treasurer (Telecopy No.
(713) 420-2708);
(ii) if to any Pipeline Borrower or Grantor, to it c/o the
Company at the address specified in clause (i) above;
(iii) if to the Credit Agreement Administrative Agent, to
JPMorgan Chase Bank, Technology, Shared Tech & Operation Commercial Loans, L&A
Project Texas, 1111 Fannin, Floor 10, Houston, Texas 77002, Attention of Ina S.
Tjahjono (Telecopy No. (713) 427-6307);
(iv) if to JPMorgan in its capacity as Depository Bank,
Collateral Agent, or Intercreditor Agent, to it at JPMorgan Chase Bank,
Institutional Trust Services, 4 New York Plaza, 15th Floor, New York, New York
10004, Attention of International/Project Finance (Telecopy No. (212) 623-6216);
and
(v) if to a Representative Agent, to the address set forth for
such Representative Agent on the applicable portion of Schedule II, or on a
supplement to Schedule II delivered in accordance with Section 1.04.
(b) Notices and other communications among the Lender Parties, the
Collateral Agent, the Intercreditor Agent and/or the Depository Bank hereunder
may be delivered or furnished by electronic means; provided that, at the
Collateral Agent's request, any
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consent, approval, vote, notice, or direction given by the Required Lender
Parties shall be in writing, or shall be followed by written confirmation from
the Required Lender Parties within one Business Day after such electronic
delivery.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given and effective, if sent by mail, courier or electronic communication, on
the date of delivery thereof to the address specified herein for such notice, or
if by telecopier, when the answerback is received or if by other means, on the
date of receipt; provided that a notice given by telecopier or electronic
communication in accordance with this Section 9.04 but received on any day other
than a Business Day or after business hours in the place of receipt, will be
deemed to be received on the next Business Day in that place.
Section 9.05 Continuing Security Interest; Assignments. This Agreement
and each other Collateral Document shall create a continuing security interest
in the Collateral and shall (a) remain in full force and effect until terminated
in accordance with Section 9.06, (b) be binding upon each Credit Party, its
successors and assigns and (c) inure, together with the rights and remedies of
the Collateral Agent and the Intercreditor Agent hereunder, to the benefit of
the Secured Parties and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), each Secured Party
may assign, sell or otherwise transfer all or any portion of its rights and
obligations in respect of any Secured Obligations or Covered Obligations held by
it to any other Person, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted to such Secured Party herein or
otherwise, in each case subject to the Financing Documents or Collateral
Documents relating to such Secured Obligations. Each of the Collateral Agent and
the Intercreditor Agent shall promptly forward to each Representative Agent
copies of any notice, certificate, report, instrument, demand, request,
direction, instruction, waiver, receipt, consent or other document that it
receives from any other Secured Party hereto or to any other Financing Document
or Collateral Document to which it is a party.
Section 9.06 Termination. Upon (a) the release of the Liens created
under the Collateral Documents on all the Collateral pursuant to Section 5.07(b)
or upon (b) the payment in full, in immediately available funds, of all Secured
Obligations (or in the case of Covered Letter of Credit Obligations, the
termination or expiration thereof), and the distribution in accordance with this
Agreement of all amounts out of the Pledged Accounts if, as a result, no funds
remain in any Pledged Account in respect of Covered Obligations, and the
termination or expiration of each Secured Party's commitment to extend or
maintain credit under any Financing Document (to which it is a party) that
evidences a Covered Obligation, then, (x) in the case of clause (a) or (b), the
Liens and security interest granted hereby shall automatically terminate without
further action by the Collateral Agent or any Secured Party and all rights to
the Collateral shall revert to the applicable Granting Party, and (y) in the
case of clause (b), all other obligations of any Credit Party under this
Agreement and any other Collateral Document shall automatically terminate
without further action by the Collateral Agent or any other Secured Party
(except for indemnification and other payment obligations expressly stated in
this Agreement or any other Collateral Documents to survive such termination).
Upon any such termination, the Collateral Agent will, at the applicable Granting
Party's expense, (i) execute and deliver to such Granting
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Party such release or releases (including Uniform Commercial Code partial
release or termination statements) as such Granting Party shall reasonably
request to evidence such termination, and (ii) the Collateral Agent shall
deliver to the applicable Granting Parties or their designees designated in
writing to the Collateral Agent all remaining Collateral, including any Assets
in the Pledged Accounts and any certificates or instruments representing or
evidencing Security Collateral.
Section 9.07 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
Section 9.08 Severability. If any provision of this Agreement shall be
invalid, illegal or unenforceable, then to the extent permitted by law, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 9.09 Integration. This Agreement and the Collateral Documents
represent the agreement of the parties hereto with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by any party relative to subject matter hereof not expressly set forth or
referred to herein or in the other Collateral Documents.
Section 9.10 No Partnership. Nothing contained in this Agreement and no
action by any Lender Party is intended to constitute or shall be deemed to
constitute the Secured Parties (or any of them) a partnership, association,
joint venture or other entity.
Section 9.11 No Reliance. No Secured Party has relied on any
representation or warranty of any other Secured Party with respect to this
Agreement and the transactions contemplated hereunder unless such representation
or warranty has been set forth expressly in this Agreement.
Section 9.12 Acknowledgment of Rights of Mustang Investors and Others.
With respect to the Grantors holding Equity Interests in any of Noric I, Noric
III or Noric IV, (a) all Covered Obligations owed by such Persons, and (b) the
Collateral Agent's exercise of remedies hereunder or under any other Collateral
Document against such Persons or against any of such Persons' respective Assets,
shall be subject to the limitations on the exercise of remedies and other
matters, and to the rights of Mustang Investors, L.L.C. and the other "Sponsor
Subsidiary Creditors" under the Mustang Intercreditor Agreement, until the
earlier to occur of the Release Date (as defined in the Mustang Intercreditor
Agreement) and the termination of the Mustang Intercreditor Agreement as
provided in Section 6 thereof; provided, however, that the Mustang Intercreditor
Agreement shall cease to be binding upon the Collateral Agent if, and at the
time that, all of the "Sponsor Subsidiary Creditors" under the Amended and
Restated Sponsor Subsidiary Credit Agreement are Affiliates of the Company.
Section 9.13 No Impairment. Nothing in this Agreement is intended or
shall be construed to impair, diminish or otherwise adversely affect any other
rights the Lender Parties may have or may obtain against the Company, any other
Credit Party or any other Person.
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Section 9.14 Equitable Remedies. Each party to this Agreement acknowledges
that the breach by it of any of the provisions of this Agreement is likely to
cause irreparable damage to the other party. Therefore, the relief to which any
party shall be entitled in the event of any such breach or threatened breach
shall include, but not be limited to, a mandatory injunction for specific
performance, injunctive or other judicial relief to prevent a violation of any
of the provisions of this Agreement, damages and any other relief to which it
may be entitled at law or in equity.
Section 9.15 Remedies.
(a) Other than as stated expressly herein, no remedy herein conferred
upon the Collateral Agent or any other Secured Party is intended to be exclusive
of any other remedy and each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Agreement or the other
Collateral Documents, or now or hereafter existing at law or in equity or by
statute or otherwise.
(b) As between the Credit Parties and each Secured Party, it is agreed
that the amounts payable by the Company at any time in respect of the Secured
Obligations shall be a separate and independent debt and each Lender Party shall
be entitled, subject to Section 6.03, to protect and enforce its rights arising
out of the Financing Documents to which it is a party and its right, pursuant to
the terms of any Financing Document to which it is a party, to cancel or suspend
its commitments thereunder and to accelerate the maturity of any of the Covered
Obligations, in each case in accordance with the applicable Financing Documents,
and, except as aforesaid, it shall not be necessary for any other Lender Party
to consent to, or be joined as an additional party in, any proceedings for such
purposes.
(c) In case the Collateral Agent shall have proceeded to enforce any
right, remedy or power under this Agreement or any other Collateral Document and
the proceeding for the enforcement thereof shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Collateral Agent, then and in every such case the Credit Parties and the Lender
Parties shall, subject to any effect of or determination in such proceeding,
severally and respectively be restored to their former positions and rights
under this Agreement or any other Collateral Document and thereafter all rights,
remedies and powers of the Lender Parties shall continue as though no such
proceeding had been taken.
Section 9.16 Limitations.
(a) The obligations, liabilities or responsibilities of any party
hereunder shall be limited to those obligations, liabilities or responsibilities
expressly set forth and attributed to such party pursuant to this Agreement or
otherwise applicable under Applicable Law.
(b) In no event shall any Indemnified Party be liable for, and each of
the Credit Parties hereby agrees not to assert any claim against any Indemnified
Party, on any theory of liability, for consequential, incidental, indirect,
punitive or special damages arising out of or otherwise relating to this
Agreement, the other Collateral Documents, any of the transactions contemplated
herein or therein, or the actual or proposed use of the proceeds of the Credit
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Agreement, the 3-Year Facility, any Additional Covered Letter of Credit, or any
Future Covered Hedging Agreement.
Section 9.17 Survival. Notwithstanding anything in this Agreement to
the contrary, Sections 7.10, 7.11, 7.15, 9.01, 9.17, 9.18, 9.19, 9.20, and 9.21
shall survive any termination of this Agreement. In addition, each
representation and warranty made or deemed to be made hereunder shall survive
the Closing Date.
Section 9.18 New, Replacement, or Refinanced Financing Transactions. If
any new Additional Covered Letter of Credit or Future Covered Hedging Agreement
is entered into by the Company, or if any of the existing Financing Transactions
is replaced or refinanced, then (a) the requisite issuers, Counterparty Groups,
lenders or other beneficiaries entitled, pursuant to such Additional Letters of
Credit, Future Covered Hedging Agreement, or replaced or refinanced Financing
Transaction, to control such matters shall appoint a Person as their
Representative Agent to act on their behalf under this Agreement and such
Persons shall execute a Representative Agency Agreement substantially in the
form of Exhibit E hereto evidencing such appointment, and (b) such
Representative Agent shall execute a Representative Agent Joinder Agreement
substantially in the form of Exhibit F hereto pursuant to which such
Representative Agent shall agree to act on behalf of its Related Creditors in
accordance with this Agreement and the other Collateral Documents and shall
agree to be bound hereby and thereby.
Section 9.19 Jurisdiction, Etc.
(a) Each of the parties hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York, sitting in New York County, and of the United
States District Court for the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding by the Collateral Agent or
any Secured Party arising out of or relating to this Agreement or any of the
other Collateral Documents to which it is a party or under which it is a
beneficiary, or for recognition or enforcement of any judgment obtained in any
such action or proceeding, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court or, to the
fullest extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Lender Party may otherwise have to bring any action or proceeding
relating to this Agreement, the Collateral Documents or any of the other
Financing Documents in the courts of any jurisdiction.
(b) Each of the parties irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any of the other Collateral
Documents to which it is a party in any court referred to in paragraph (a) of
this section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
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(c) Each party to this Agreement irrevocably consents to service of
process in any action or proceeding referred to in this Section 9.19 by the
mailing thereof by certified mail, return receipt requested, addressed as
provided in Section 9.04(a), with a copy thereof to the "General Counsel" of
such Person at such same address. Each Granting Party also hereby irrevocably
appoints CT Corporation System (the "Process Agent"), with an office on the date
hereof at 111 Eighth Avenue, 13th Floor, New York, New York 10011, as its agent
to receive on behalf of such Granting Party and its property service of copies
of the summons and complaint and any other process which may be served in any
such action or proceeding in any aforementioned court in respect of any action
or proceeding arising out of or relating to this Agreement, the Collateral
Documents or any other Financing Documents. Such service may be made by
delivering a copy of such process to the relevant Granting Party by courier and
by certified mail (return receipt requested), fees and postage prepaid, both (i)
in care of the Process Agent at the Process Agent's above address and (ii) at
the relevant Granting Party's address specified pursuant to Section 9.04(a), and
each Granting Party hereby irrevocably authorizes and directs the Process Agent
to accept such service on its behalf. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner
permitted by law.
Section 9.20 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 9.21 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.22 Confidentiality. Each Lender Party agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by Applicable Laws or regulations or by
any subpoena or similar legal process applicable to it, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or under any other Collateral Document or any suit, action or proceeding
relating to this Agreement or any other Collateral Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement to comply with
the provisions of this Section 9.22 or a separate agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or participant in, or any prospective assignee of or participant in, any of
its rights or obligations under this Agreement including, in the case of any
securitization or collateralization of, or other similar transaction relating
to, its commitments or Secured
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Obligations by any Lender Party, disclosure to any necessary Person in
connection with such securitization, collateralization or other transaction
(including any funding vehicle organized to undertake or effectuate such
securitization, collateralization or other transaction, its lenders, sureties,
reinsurers, swap counterparties, guarantors or credit liquidity enhancers, their
respective directors, officers, and advisors, and any rating agency) or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to any Credit Party and its obligations, (g) with the prior
written consent of the Company and (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to such Lender Party on a nonconfidential basis from a
source other than a Credit Party or any of its Subsidiaries or any other Lender
Party. For purposes of this Section, "Information" means all information
received from a Credit Party or any of its Subsidiaries relating to any Credit
Party or any of its Subsidiaries or its businesses, other than any such
information that is available to any Lender Party on a nonconfidential basis
prior to disclosure by such Credit Party; provided that, in the case of
information received from a Credit Party after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information; provided, further, that, notwithstanding anything in
this Agreement to the contrary, each Credit Party and each Lender Party (and
each respective employee, representative, or other agent of such Persons) may
disclose to any and all Persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analysis) that are
provided to it relating to such tax treatment and tax structure; and nothing in
the foregoing authorization shall apply to any disclosure that would constitute
a violation of applicable federal and state securities laws.
Section 9.23 Secured Parties Bound Hereby. Each Credit Party, the
Collateral Agent, the Intercreditor Agent, the Depository Bank and each
Representative Agent hereby acknowledges and agrees that by accepting the rights
and benefits of this Agreement and the other Collateral Documents, and in
consideration thereof, each Secured Party is bound by the provisions of this
Agreement and each other Collateral Document as if it were directly a party
hereto and thereto.
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IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
THE COMPANY: EL PASO CORPORATION
By: _________________________________
Name:
Title:
PIPELINE COMPANY BORROWERS: EL PASO NATURAL GAS COMPANY
By: _________________________________
Name:
Title:
TENNESSEE GAS PIPELINE COMPANY
By: _________________________________
Name:
Title:
ANR PIPELINE COMPANY
By: _________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
GRANTORS: AMERICAN NATURAL RESOURCES COMPANY
By: _________________________________
Name:
Title:
EL PASO ANR INVESTMENTS, L.L.C.
By: _________________________________
Name:
Title:
EL PASO ANRS INVESTMENTS, L.L.C.
By: _________________________________
Name:
Title:
EL PASO CNG COMPANY, L.L.C.
By: _________________________________
Name:
Title:
EL PASO EPN INVESTMENTS, L.L.C.
By: _________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
EL PASO EPNG INVESTMENTS, L.L.C.
By: _________________________________
Name:
Title:
EL PASO NORIC INVESTMENTS I, L.L.C.
By: _________________________________
Name:
Title:
EL PASO NORIC INVESTMENTS III, L.L.C.
By: _________________________________
Name:
Title:
EL PASO NORIC INVESTMENTS IV, L.L.C.
By: _________________________________
Name:
Title:
EL PASO TENNESSEE PIPELINE CO.
By: _________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
EL PASO TGPC INVESTMENTS, L.L.C.
By: _________________________________
Name:
Title:
EL PASO WIC INVESTMENTS, L.L.C.
By: _________________________________
Name:
Title:
SABINE RIVER INVESTORS I, L.L.C.
By: _________________________________
Name:
Title:
SABINE RIVER INVESTORS II, L.L.C.
By: _________________________________
Name:
Title:
SABINE RIVER INVESTORS III, L.L.C.
By: _________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
SABINE RIVER INVESTORS IV, L.L.C.
By: _________________________________
Name:
Title:
SABINE RIVER INVESTORS V, L.L.C.
By: _________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
DEPOSITORY BANK: JPMORGAN CHASE BANK, as Depository Bank
By: __________________________________
Name:
Title:
COLLATERAL AGENT: JPMORGAN CHASE BANK, as Collateral Agent
By: __________________________________
Name:
Title:
INTERCREDITOR AGENT: JPMORGAN CHASE BANK, as Intercreditor Agent
By: __________________________________
Name:
Title:
CREDIT AGREEMENT JPMORGAN CHASE BANK, as Credit
ADMINISTRATIVE AGENT, Agreement Administrative Agent, 3-Year Facility
3-YEAR FACILITY AGENT, Agent, Representative Agent for Lakeside, and
REPRESENTATIVE AGENT FOR Representative Agent for certain Additional
LAKESIDE, AND REPRESENTATIVE Covered Letters of Credit
AGENT FOR CERTAIN ADDITIONAL
COVERED LETTER(S) OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT FOR CITIBANK INTERNATIONAL PLC, as
CANNON INVESTORS TRUST: Representative Agent
By: __________________________________
Name:
Title:
REPRESENTATIVE AGENT FOR CITICORP NORTH AMERICA, INC., as
COSCOL / ARUBA: Representative Agent
By: __________________________________
Name:
Title:
REPRESENTATIVE AGENT CITIBANK, N.A.
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT FOR BANKBOSTON N.A. (A/K/A FLEET NATIONAL
AGUA DEL CAJON: BANK), as Representative Agent
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT FOR ROYAL BANK OF CANADA, as Representative
COASTAL PETROCHEMICAL: Agent
By: __________________________________
Name:
Title:
REPRESENTATIVE AGENT ROYAL BANK OF CANADA
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT FOR DEUTSCHE BANK TRUST COMPANY
HARBORTOWN: AMERICAS, as Representative Agent
By: __________________________________
Name:
Title:
REPRESENTATIVE AGENT DEUTSCHE BANK TRUST COMPANY
FOR CERTAIN ADDITIONAL AMERICAS
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT FOR MIZUHO CORPORATE BANK (USA), as
NOVA SCOTIA 1999: Representative Agent
By: __________________________________
Name:
Title:
REPRESENTATIVE AGENT FOR MIZUHO CORPORATE BANK, LTD., as
NOVA SCOTIA 2000: Representative Agent
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT ABN AMRO BANK N.V.
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT AUSTRALIA AND NEW ZEALAND
FOR CERTAIN ADDITIONAL BANKING GROUP LIMITED
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT BANCA DI ROMA -- CHICAGO BRANCH
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT BANK OF AMERICA, N.A.
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT BAYERISCHE HYPO-UND VEREINSBANK
FOR CERTAIN ADDITIONAL AG, NEW YORK BRANCH
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT BNP PARIBAS
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
REPRESENTATIVE AGENT BNP PARIBAS (SUISSE) S.A.
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT SOCIETE GENERALE
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT THE BANK OF NEW YORK
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT TORONTO DOMINION (TEXAS), INC.
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT WACHOVIA BANK NATIONAL
FOR CERTAIN ADDITIONAL ASSOCIATION
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
REPRESENTATIVE AGENT THE BANK OF NOVA SCOTIA
FOR CERTAIN ADDITIONAL
COVERED LETTER(S)
OF CREDIT:
By: __________________________________
Name:
Title:
Signature Page
Security and Intercreditor Agreement
APPENDIX A-1
DEFINITIONS
In this Agreement and the Schedules and Exhibits hereto, the following
terms shall have the following meanings:
"Account" means any right to payment for goods sold or leased or for
services rendered or for energy provided or to be provided which is not
evidenced by an instrument, whether or not it has been earned by
performance.
"Account Collateral" has the meaning set forth in Section 5.01(d).
"Additional Covered Letter of Credit" means any letter of credit
(including any extensions and renewals thereof from time to time), any
related reimbursement agreement, and all other guarantees, notices of
drawing, certificates, or other documents executed in connection with the
issuance of such letter of credit, in respect of which the Company is
liable for, or has guaranteed, the reimbursement of drawings thereunder,
but specifically excluding (x) all LCs, (y) all letters of credit issued
under the LC Facility or the 3-Year Facility, and (z) all extensions and
renewals of LCs and/or letters of credit issued under the 3-Year Facility,
and all reimbursement agreements, all other guarantees, notices of drawing,
certificates and other documents executed in connection with the issuance
of any LC or any letter of credit under the 3-Year Facility; provided that,
if the issuance of any such letter of credit would cause the sum of (A) the
Additional Covered Letter of Credit Exposure plus (B) the aggregate amount,
if any, then held in the Cash Collateral Subaccount (Additional LCs) to
exceed $250,000,000, then such letter of credit shall not constitute an
Additional Covered Letter of Credit.
"Additional Covered Letter of Credit Exposure" means, under a
particular issued and outstanding Additional Covered Letter of Credit and
as of a particular date, the sum of (a) the aggregate amount of all
unreimbursed drawings under such Additional Covered Letter of Credit as of
such date, plus (b) the amount, if any, by which (i) the aggregate undrawn
amount of such Additional Covered Letter of Credit exceeds (ii) the amount,
if any, then held in the Cash Collateral Subaccount (Additional LCs) that
is properly allocable to such Additional Covered Letter of Credit as of
such date.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Aggregate Exposure" has the meaning set forth in Section
2.04(b)(iii)(B).
"Agreement" means this Security and Intercreditor Agreement.
"Applicable Law" means, with respect to any Person, any and all laws,
statutes, regulations, rules, orders, injunctions, decrees, writs,
determinations, awards and judgments issued by any Governmental Authority
applicable to such Person.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 1
"Assets" means, with respect to any Person, all or any part of its
business, property, rights, interests and assets, both tangible and
intangible (including Equity Interests in any Person), wherever situated.
"Attributable Principal Amount" of a particular Underlying Transaction
means, as of a particular date, the principal, stated, face, base, or
analogous amount of such Underlying Transaction, as identified as the
"Attributable Principal Amount" on Schedule II-C hereto or the latest
supplement to Schedule II-C hereto for such Underlying Transaction,
delivered to the Intercreditor Agent by the Representative Agent for such
Underlying Transaction from time to time in accordance with Section 1.04.
"Authorized Signatory" means, with respect to any Representative Agent
or Credit Party, the individual, or any of the individuals, authorized to
execute and deliver any Collateral Document, and to give written
instructions on behalf of such Representative Agent or Credit Party with
regard to any matters pertaining to any Collateral Document to which such
Representative Agent or Credit Party is a party (as identified on an
incumbency certificate submitted to the Collateral Agent, as a part of
Schedule II, or in a supplement to Schedule II, delivered from time to time
prior to the receipt of any instructions from such Authorized Signatory).
"Automatic Remedies Trigger Event" means the commencement or
occurrence of an Insolvency Proceeding with respect to the Company.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978, as
amended from time to time (11 U.S.C. Section 101, et seq.).
"Board of Directors" means, with respect to any Person, the Board of
Directors or equivalent governing body of such Person as it may be
constituted from time to time.
"Borrowers" has the meaning set forth in the Preamble.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.
"Business Entity" means a partnership, limited partnership, limited
liability partnership, corporation (including a business trust), limited
liability company, unlimited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person under
GAAP, and the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 2
"Cash Collateral Account" has the meaning set forth in Section
4.01(a)(ii).
"Cash Collateral Subaccount (Additional LCs)" has the meaning set
forth in Section 4.02(a).
"Cash Collateral Subaccount (Credit Agreement LCs)" has the meaning
set forth in Section 4.02(a).
"Cash Collateral Subaccount (3-Year Facility LCs)" has the meaning set
forth in Section 4.02(a).
"Cash Equivalents" means (a) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (b) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date
of acquisition thereof and, at the time of acquisition, having the highest
rating obtainable from either Standard & Poors' Ratings Group ("S&P") or
Moody's Investors Service, Inc. ("Moody's"); (c) certificates of deposit or
banker's acceptances maturing within one year from the date of acquisition
thereof issued by (i) any Lender, or (ii) any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia having combined capital and surplus of not less than
$500,000,000 (any such Lender or bank, a "Qualifying Lender"); (d)
eurodollar time deposits having a maturity of less than one year purchased
directly from any Lender (whether such deposit is with such Lender or any
other Lender under the Credit Agreement) or issued by any Qualifying
Lender; and (e) repurchase agreements and reverse repurchase agreements
with a term of not more than 14 days with any Qualifying Lender relating to
marketable direct obligations issued or unconditionally guaranteed by the
United States.
"Casualty Event" means an event that causes any property of a Credit
Party or a Restricted Subsidiary to be damaged, destroyed or rendered unfit
for normal use for any reason whatsoever.
"CIG" means Colorado Interstate Gas Company, a Delaware corporation.
"CIG Joinder Agreement" means an agreement substantially in the form
of Exhibit C, pursuant to which, among other matters, CIG becomes a party
to this Agreement.
"CIG Parent" means, the direct Parent of CIG at the time CIG executes
and delivers the CIG Joinder Agreement.
"CIG Parent Joinder Agreement" means an agreement substantially in the
form of Exhibit D, pursuant to which, among other matters, the CIG Parent
becomes a party to this Agreement and the Subsidiary Guarantee Agreement.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 3
"Class B Interests" means the Equity Interests held by BSCS XXVII,
Inc., a Delaware corporation, in Noric I, Noric III, and Noric IV,
respectively, as of the Closing Date.
"Clearing Agency" has the meaning set forth in Section 4.10.
"Closing Date" means the date of this Agreement.
"Coastal Petrochemical Underlying Transaction" means the Underlying
Transaction relating to Coastal Petrochemical, L.P. described on Part 3 of
Schedule II-C hereto.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means the Account Collateral, the Security Collateral,
the Company Payment Collateral, the Grantor Payment Collateral and all
other property or assets with respect to which a Collateral Document
executed by a Grantor creates or grants, or states that it creates or
grants, a Lien in favor of the Collateral Agent for the ratable benefit of
the Secured Parties.
"Collateral Account" has the meaning set forth in Section 4.01(a)(i).
"Collateral Agent" has the meaning set forth in the Preamble.
"Collateral Documents" means each of this Agreement, the Parent
Guarantee Agreement, the Subsidiary Guarantee Agreement, and any other
agreement that creates or grants, or states that it creates or grants, or
relates to the creation or granting, of a Lien on the Collateral in favor
of the Collateral Agent for the ratable benefit of the Secured Parties.
"Collateral Permitted Liens" means Liens (a) for Taxes or other
obligations or requirements owing to or imposed by Governmental Authorities
existing or having priority, as applicable, by operation of law, in each
case either (i) not yet overdue or (ii) being contested in good faith by
appropriate proceedings by the Company or any of its Subsidiaries, as the
case may be, provided that adequate reserves with respect to such contested
Taxes or other obligations or requirements are maintained on the books of
the Company or the applicable Subsidiary of the Company, as the case may
be, to the extent required by and in conformity with GAAP, and no
enforcement action shall have been taken toward foreclosure on the
Collateral pursuant to such Liens; (b) for judgments or orders that do not
constitute a Voting Notice Event under paragraph (h) of the definition of
"Voting Notice Event" hereunder; or (c) created under the Collateral
Documents.
"Collateral Security Agreement" means the Collateral Security
Agreement between the Company and the Credit Agreement Administrative
Agent, on behalf of the Counterparty Groups, in form and substance
reasonably satisfactory to the Collateral Agent and the Credit Agreement
Administrative Agent.
"Company" has the meaning set forth in the Preamble.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 4
"Company Excluded Assets" has the meaning set forth in Section
5.01(c).
"Company Payment Collateral" has the meaning set forth in Section
5.01(c).
"Company Project Support Document" means, with respect to a particular
Underlying Transaction, the agreement or document evidencing the Company's
payment obligations with respect to such Underlying Transaction, as
identified for such Underlying Transaction on Schedule II-C of this
Agreement, or any supplement to Schedule II-C of this Agreement delivered
to the Intercreditor Agent in accordance with Section 1.04(b).
"Company Reimbursement Document" for a particular Additional Covered
Letter of Credit, means the agreement or document evidencing the Company's
reimbursement obligations (or guarantee obligations with respect to any
other Person's reimbursement obligations) with respect to such Additional
Covered Letter of Credit, as identified for such Additional Covered Letter
of Credit on Schedule II-D of this Agreement, or any supplement to Schedule
II-D of this Agreement delivered to the Intercreditor Agent in accordance
with Section 1.04(b).
"Company Secured Obligations" means obligations for which the Company
is, from time to time, liable under the EPC Documents (including
obligations of the Company under the Credit Agreement in respect of each
Future Covered Hedging Agreement entered into by any Borrower).
"Company Support Documents" means, collectively, the Company Project
Support Documents and the Company Reimbursement Documents.
"Condemnation" means the taking, by right of eminent domain, or a
conveyance in lieu thereof, of property of a Credit Party or a Restricted
Subsidiary.
"Consenting Lender Parties" means those Lender Parties who by
contract, operation of law or otherwise, are bound by the terms of this
Agreement.
"Control" means, at any time of determination, the possession,
directly or indirectly, at such time of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling"
and "Controlled" have meanings correlative thereto.
"Counterparty Group" means any Lender, together with any Affiliate of
such Lender, that enters into a Future Covered Hedging Agreement with the
Company.
"Covered Asset" means any Asset owned by a Restricted Subsidiary that
is not a Project Financing Subsidiary, the Disposition of which is
described in subclause (i) or (ii) of Section 6.04(b) of the Credit
Agreement.
"Covered Letter of Credit Obligation" means the contingent
reimbursement obligation of the Company under (a) a letter of credit issued
under the 3-Year Facility, (b)
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 5
an LC, or (c) an Additional Covered Letter of Credit, but only in respect
of the undrawn amount thereof.
"Covered Letter of Credit Allocation" has the meaning set forth in
Section 2.04(b)(ii)(C).
"Covered Obligations" means all the obligations of any Person under
the Financing Documents, but in each case, only to the extent that (a) the
Company is directly obligated to pay such obligations under the Financing
Documents or (b) the Company has provided Credit Support for such
obligations under the EPC Documents.
"Credit Agreement" means the $3,000,000,000 Revolving Credit
Agreement, of even date herewith, among, inter alia, the Borrowers, the
Lenders, and the Credit Agreement Administrative Agent.
"Credit Agreement Administrative Agent" has the meaning set forth in
the Preamble.
"Credit Agreement Documents" means, the Credit Agreement, the
promissory notes, if any, issued thereunder, and any other agreement
entered into that is related to the transactions contemplated by the Credit
Agreement, and, if requested by the Company, shall include any credit
agreement and related notes, documents and agreements entered into in
connection with a Refinancing of the Credit Agreement.
"Credit Parties" has the meaning set forth in the Preamble.
"Credit Related Parties" has the meaning set forth in the Preamble.
"Credit Support" means any direct or indirect guaranty by the Company
of payment, or obligation by the Company to purchase or acquire any
indebtedness, or any other agreement by the Company that directly or
indirectly assures a Person against loss.
"Current Payment Amount" has the meaning set forth in Section
2.04(b)(ii).
"Debt" has the meaning set forth in the Credit Agreement.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Delaware UCC" means the Uniform Commercial Code as in effect in the
State of Delaware.
"Depository Bank" has the meaning set forth in the Preamble.
"Disposition" means with respect to any Asset of any Person, any sale,
transfer, or other disposition of ownership of such Asset by such Person,
including any Casualty Event with respect to such Assets, any Condemnation
thereof, or any foreclosure of Liens
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 6
thereon by a Person other than the Collateral Agent (but shall not include
the granting of a Lien permitted under the Credit Agreement or the granting
or existence of any Lien or other encumbrance not prohibited under the
Credit Agreement with respect thereto, or the issuance by such Person of
indebtedness or equity). "Dispose" shall have a correlative meaning. For
the avoidance of doubt, the issuance of equity or indebtedness by the
Company or any of the Company's Subsidiaries that is not prohibited under
the Credit Agreement shall not constitute a Disposition.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 3.01 of the Credit Agreement are satisfied (or waived in accordance
with Section 10.02 thereof).
"Enforcement Action" means the taking of any or all of the following
actions:
1. applying funds in the Pledged Accounts to the payment of the
Covered Obligations;
2. making any demand for, or receiving any, payment under the
Subsidiary Guarantee Agreement or the Parent Guarantee Agreement;
3. taking any Foreclosure Action;
4. exercising any other power of sale or other rights or remedies
under any of the Collateral Documents;
5. proceeding to protect and enforce the rights of the Secured
Parties under this Agreement or any other Collateral Document by sale
of the Collateral pursuant to judicial proceedings or by a proceeding
in equity or at law or otherwise, whether for the enforcement of the
security interests created under or pursuant to this Agreement or any
other Collateral Document or for the enforcement of any other legal,
equitable or other remedy available under this Agreement, any other
Collateral Document, or Applicable Law;
6. exercising any of the rights and remedies of a secured party
with respect to the Collateral upon default under the UCC or the
Uniform Commercial Code, as in effect in any applicable jurisdiction
in which the Collateral is located;
7. charging, exercising any contractual or legal setoff rights,
or otherwise applying any funds held with respect to the Account
Collateral against all or any part of the Secured Obligations or
Covered Obligations; and
8. exercising any other right or remedy provided in this
Agreement or otherwise available to the Collateral Agent, to the
extent permitted by Applicable Law.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 7
"Enforcement Proceeds" means any cash, securities or any other
consideration received from time to time by the Collateral Agent as a
result of the taking of any Enforcement Action in accordance with the
Collateral Documents and Applicable Law, including, without limitation (a)
any balances then outstanding in the Pledged Accounts or received therein
from time to time thereafter, including any Net Cash Proceeds then held in
any Pledged Account, (b) the proceeds of any Disposition or other
Enforcement Action taken pursuant to Article VI, and (c) proceeds of any
Foreclosure Action or judicial or other non-judicial proceeding.
"EPC Documents" means (a) this Agreement, (b) the Parent Guarantee
Agreement, (c) the Credit Agreement, (d) the 3-Year Facility, (e) the
Company Project Support Documents, and (f) the Company Reimbursement
Documents.
"EPN" means El Paso Energy Partners, L.P., a Delaware limited
partnership.
"EPN Units" means any of the Series A Common Units and Series C Units
issued by EPN, that are owned by any Credit Party.
"EPNGC" means El Paso Natural Gas Company, a Delaware corporation.
"Equity Interests" means any capital stock, partnership, joint
venture, member or limited liability or unlimited liability company
interest, beneficial interest in a trust or similar entity or other equity
interest in another Person of whatever nature.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued from time to time thereunder.
"ERISA Affiliate" means any Person who is a member of the Company's
controlled group within the meaning of Section 4001(a)(14)(A) of ERISA.
"Eurodollar" loans means loans under which all or a portion of the
interest payable thereunder bears interest at a rate determined with
reference to interest rates based on the LIBO Rate.
"Event of Default" means a Financing Document Event of Default, a
Voting Notice Event, or an Automatic Remedies Trigger Event.
"Excess Hedging Collateral" means, as of the date of a Remedies
Trigger Event, the amount, if any, by which the sum of (x) the sum of the
net amount, if any, owed by each Counterparty Group to the Company under
Future Covered Hedging Agreements to which such Counterparty Group is a
party (which sum, for the avoidance of doubt, shall not be reduced by any
Net Termination Amount owed by the Company to another Counterparty Group),
plus (y) the amount on deposit in the Hedging Collateral Account, before
giving effect to the deposits described in clause (x), exceeds the sum of
all positive Net Termination Amounts for the Counterparties.
"Excluded Grantor Assets" has the meaning set forth in Section
5.01(b).
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 8
"Excluded Payment Property" means (a) any property of a Grantor of the
type described in (and not excluded from) Section 5.01(b)(i) through (iv),
and any property of the Company of the type described in (and not excluded
from) Section 5.01(c)(i) through (iv), in each case to the extent that the
grant of a security interest therein or a Lien thereon would result in a
breach of or a default under any agreement in existence on the Closing Date
to which the Company or any Subsidiary of the Company is a party (other
than (x) an agreement listed on Annex I to the Officer's Certificate
delivered in connection with the legal opinion relating to the Security and
Intercreditor Agreement rendered by Jones Day dated the date hereof or (y)
an agreement that can be amended solely by the Company and one or more of
its Subsidiaries or by Subsidiaries of the Company), or would result in a
mandatory prepayment obligation under such agreement, or allow any party to
such an agreement to accelerate obligations due thereunder, terminate any
material contract right thereunder or exercise any put or call right, right
of refusal, purchase option or similar right thereunder, and (b) proceeds
of the property described in clause (a) of this definition.
"Exempted Guarantor" means each of American Natural Resources Company,
a Delaware corporation, El Paso CNG Company, L.L.C., a Delaware limited
liability company, and El Paso Tennessee Pipeline Co., a Delaware
corporation.
"Federal Book Entry Regulations" means (a) the federal regulations
contained in Subpart B ("Treasury/Reserve Automated Debt Entry System
(TRADES)") governing book-entry securities consisting of U.S. Treasury
bonds, notes and bills and Subpart D of 31 C.F.R. Part 357, 31 C.F.R.
Section 357.2, Section 357.10 through Section 357.14 and Section 357.41
through Section 357.44 and (b) to the extent substantially identical to the
federal regulations referred to in clause (a) above (as in effect from time
to time), the federal regulations governing other book-entry securities.
"FERC" means the Federal Energy Regulatory Commission, or any agency
or authority of the United States from time to time succeeding to its
function.
"FERC-Regulated Restricted Subsidiary" has the meaning set forth in
the definition of "Qualified Investments" hereunder.
"Financing Document Event of Default" means any default in respect of
any Financing Transaction, or any other event (other than an exercise of a
voluntary prepayment right or voluntary purchase option, or analogous
right), shall occur and shall continue after the applicable grace period,
if any, specified in the related Financing Documents, if the effect of such
default or event is to permit the Lender Parties under such related
Financing Documents immediately to accelerate the maturity of the Covered
Obligations thereunder or to exercise other remedies in respect of the
Covered Obligations thereunder; provided that with respect to the Covered
Obligations in respect of either the Harbortown Underlying Transaction or
the Coastal Petrochemical Underlying Transaction, a Financing Document
Event of Default shall not be deemed to have occurred until the Company
shall have failed to pay an amount properly demanded in respect of the
Company Project Support Document for the applicable Underlying
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 9
Transaction and such failure shall have continued for three Business Days
after such demand.
"Financing Documents" means the 3-Year Facility Documents, the Credit
Agreement Documents, the Underlying Documents, the Additional Covered
Letters of Credit, and the Future Covered Hedging Agreements; provided
that, for the avoidance of doubt, "Financing Documents" shall not include
any Collateral Document.
"Financing Transactions" means the transaction evidenced by the 3-Year
Facility, the transaction evidenced by the Credit Agreement, each
Underlying Transaction, the transaction evidenced by each Additional
Covered Letter of Credit, and the transaction evidenced by each Future
Covered Hedging Agreement.
"Foreclosure Action" means the sale, transfer or other Disposition by
the Collateral Agent of all or any part of the Collateral at any public or
private sale at such place and at such time as the Collateral Agent shall
determine and otherwise as may be required by Applicable Law.
"Future Covered Hedging Agreement" means any Hedging Agreement entered
into after the Closing Date by the Company with any Counterparty Group
thereto, provided, that such Hedging Agreement is identified in a
supplement to Schedule II-E, executed either (a) by the Company pursuant to
Section 1.04(b)(iii) or (b) by the Credit Agreement Administrative Agent
and approved as a Financing Transaction for purposes of the Collateral
Documents in a written notice from the Company to the Collateral Agent.
"GAAP" means generally accepted accounting principles in the United
States of America, as in effect from time to time.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Granting Parties" means, collectively, the Company and each Grantor.
"Grantor Payment Collateral" has the meaning set forth in Section
5.01(b).
"Grantor Secured Obligations" means with respect to each Grantor, such
Grantor's obligations under (a) the Subsidiary Guarantee Agreement and (b)
this Agreement.
"Grantors" has the meaning set forth in the Preamble.
"Guaranty" has the meaning set forth in the Credit Agreement.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 10
"Harbortown Underlying Transaction" means the Underlying Transaction
relating to Harbortown LDHA described in Part 5 to Schedule II-C hereto.
"Hedging Agreements" means all interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements and interest rate
insurance, foreign exchange contracts, currency swap or option agreements,
forward contracts and all other similar agreements or arrangements designed
to alter the risks of any Person arising from fluctuations in interest
rates or currency values.
"Indebtedness" of any Person means, without duplication (a)
indebtedness of such Person for borrowed money, (b) obligations of such
Person (other than any portion of any trade payable obligation of such
Person which shall not have remained unpaid for 91 days or more from the
original due date of such portion) to pay the deferred purchase price of
property or services, and (c) Capital Lease Obligations of such Person.
"Indemnified Costs" shall have the meaning set forth in Section 7.15.
"Indemnified Party" has the meaning set forth in Section 9.01(a).
"Information" has the meaning set forth in Section 9.22.
"Initial Pledged Equity" means with respect to any Granting Party, the
Equity Interests set forth opposite such Granting Party's name on and as
otherwise described in Schedule IV and issued by the Persons named therein.
"Insolvency Proceeding" with respect to any Person, means (a) such
Person shall (i) admit in writing its inability to pay its debts generally;
or (ii) make a general assignment for the benefit of creditors; or (b) any
proceeding shall be instituted or consented to by such Person seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property; or (c) any such
proceeding shall have been instituted against such Person and either such
proceeding shall not be stayed or dismissed for 60 consecutive days or any
of the actions referred to above sought in such proceeding (including the
entry of an order for relief against it or the appointment of a receiver,
trustee, custodian or other similar official for it or any substantial part
of its property) shall occur; or (d) such Person shall take any corporate
action to authorize any of the actions set forth above in this definition.
"Intercreditor Agent" has the meaning set forth in the Preamble.
"Interest and Fees" payable in respect of any principal amount being
prepaid under Section 2.04 as a result of any Mandatory Asset Prepayment
Amount, means the interest accrued to the date of prepayment on the
principal (or analogous) amount prepaid, any breakage costs associated with
the prepayment of Eurodollar, LIBO Rate or analogous loans on the principal
amount prepaid, and a pro rata share of any accrued
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 11
facility fees, commitment fees, or other fees determined by reference to
the amount of principal outstanding or the remaining commitment available
under the applicable Financing Transaction.
"Joinder Agreement" means the CIG Joinder Agreement or the CIG Parent
Joinder Agreement, as the context may require.
"JPMorgan" has the meaning set forth in the Preamble.
"LC Facility" has the meaning set forth in paragraph (3) of the
Preliminary Statements.
"LCs" has the meaning set forth in paragraph (3) of the Preliminary
Statements.
"Lender" means the Persons listed on Schedule I to the Credit
Agreement and any other Person that becomes a Lender under the Credit
Agreement in accordance with the terms thereof, other than any such Person
that ceases to be a Lender in accordance with the terms of the Credit
Agreement.
"Lender Parties" means, collectively, all of the Related Creditors.
"Letter of Credit Calculation Date" has the meaning set forth in
section 4.02(b)(i).
"LIBO Rate" loans means loans under which all or a portion of the
interest payable thereunder bears interest at a rate determined with
reference to interest rates applicable to dollar deposits in the London
interbank market.
"Lien" means any lien, security interest or other charge or
encumbrance, or any assignment of the right to receive income, or any other
type of preferential arrangement, in each case to secure any Indebtedness
or any Guaranty of any Person.
"Mandatory Asset Prepayment Amounts" has the meaning set forth in
Section 2.02.
"Mandatory Asset Prepayment Event" has the meaning set forth in
Section 2.01.
"Material Adverse Effect" means a material adverse effect on the
financial condition or operations of the Company and its consolidated
Subsidiaries on a consolidated basis.
"Moody's" has the meaning set forth in the definition of "Cash
Equivalents."
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Company or an ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions and in respect of which the Company or an ERISA Affiliate has
any liability (contingent or otherwise), such plan being maintained
pursuant to one or more collective bargaining agreements.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 12
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (a) is maintained for employees of the
Company or an ERISA Affiliate and at least one Person other than the
Company and its ERISA Affiliates, or (b) was so maintained and in respect
of which the Company or an ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Mustang Financing" means the minority interest transaction known as
"Project Mustang" among the Company, certain of its Subsidiaries and
Mustang Investors, L.L.C., including (a) obligations of the Company, as
evidenced by that certain Amended and Restated El Paso Agreement, dated as
of May 9, 2000, as amended and restated through the date hereof, by the
Company in favor of Mustang Investors, L.L.C., and the other Indemnified
Persons (as defined therein) and (b) obligations of certain Subsidiaries,
as evidenced by that certain Amended and Restated Sponsor Subsidiary Credit
Agreement, dated as of May 9, 2000, as amended and restated through the
date hereof, by and among Noric Holdings, L.L.C., as borrower, each other
Sponsor Subsidiary (as defined therein), as co-obligors, Clydesdale
Associates, L.P., as subordinated note holder, Mustang Investors, L.L.C.,
as lender, Wilmington Trust Company, as Sponsor Subsidiary Collateral
Agent, and Citicorp North America, Inc., as Mustang Collateral Agent, in
each case as the same may be further amended, supplemented or otherwise
modified from time to time.
"Mustang Intercreditor Agreement" means the Intercreditor Agreement
dated as of the date hereof, among JPMorgan Chase Bank, as the Covered
Obligations Collateral Agent, Mustang Investors, L.L.C., Citicorp North
America, Inc., as the Mustang Collateral Agent, the Company, Noric I
Holding, Noric III, Noric IV Holding, and Wilmington Trust Company, solely
in its capacity as Sponsor Subsidiary Collateral Agent.
"Net Cash Proceeds" means, with respect to the Disposition of any
asset or property, an amount equal to one hundred percent (100%) of the
cash proceeds from such Disposition, net of any Taxes, indemnity
obligations, purchase price adjustments and analogous items, related
transaction fees (including legal fees), commissions and expenses and, if
applicable, amounts required to satisfy Indebtedness or other obligations
secured by Permitted Liens, or other Liens permitted under, or other
encumbrances not prohibited by, the Credit Agreement, on the related
property or asset, and net of all costs reasonably estimated to be
associated with terminating all Hedging Agreements, if any, entered into in
connection with such related property or assets, which Hedging Agreements
are not being sold as part of such Disposition, in each case paid or
reasonably reserved against; provided that if Net Cash Proceeds from the
Disposition of Covered Assets resulting from any Casualty Event or
Condemnation either (x) do not exceed $100,000 for any single Casualty
Event or any single Condemnation with respect to a Covered Asset, or (y)
are both (i) equal to or less than $5,000,000 on an individual basis, and
(ii) equal to or less than $10,000,000 in the aggregate during any fiscal
year of the Company, then such Net Cash Proceeds shall not be considered
Net Cash Proceeds for purposes of the application of Section 2.01; and
provided, further, if Net Cash Proceeds from the Disposition of Covered
Assets (other than Dispositions described in
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 13
the preceding proviso) are both (a) equal to or less than $5,000,000 on an
individual basis, and (b) equal to or less than $10,000,000 in the
aggregate during any fiscal year of the Company, then such Net Cash
Proceeds shall not be considered Net Cash Proceeds for purposes of the
application of Section 2.01.
"Net Termination Amount" as of a particular date and for a particular
Future Covered Hedging Agreement, has the meaning set forth in Section
2.04(b)(iii)(B)(V).
"Net Worth" means as to any Person, as of any date of determination,
the sum of (a) the consolidated common and preferred stockholders' equity
of such Person and its consolidated Subsidiaries, plus (b) the cumulative
amount by which stockholders' equity of such Person shall have been reduced
by reason of non-cash write downs of long-term assets from and after the
Effective Date, plus (c) in the case of the Company, those items included
as "preferred interests of consolidated subsidiaries" (or analogous line
item) as listed on the consolidated balance sheet of the Company as of
December 31, 2002 and regardless of any change thereafter in accounting
treatment thereof, plus (d) in the case of the Company, those items
included as "minority interests of consolidated subsidiaries" (or analogous
line item) as listed on the consolidated balance sheet of the Company as of
December 31, 2002 and regardless of any change thereafter in accounting
treatment thereof, so long as the terms and conditions of any financing
associated with any such items referred to in clause (c) or (d) above (or
successive extensions or refinancings thereof) are not amended so as to
become more restrictive to the Company or its Subsidiaries than the terms
and conditions of the Credit Agreement, and minus (e) accumulated other
comprehensive income (loss) (or analogous line item).
"Noric I" means Noric Holdings I, L.L.C., a Delaware limited liability
company.
"Noric I Holding" means El Paso Noric Investments I, L.L.C., a
Delaware limited liability company.
"Noric III" means Noric Holdings III, L.L.C., a Delaware limited
liability company.
"Noric IV" means Noric Holdings IV, L.L.C., a Delaware limited
liability company.
"Noric IV Holding" means El Paso Noric Investments IV, L.L.C., a
Delaware limited liability company.
"Notice of Event of Default" has the meaning set forth in Section
7.13(b)(x).
"Notice of Partial Release" has the meaning set forth in Section
5.07(a)(ii).
"Notice Related to Financing Document Event of Default" has the
meaning set forth in Section 7.13(a).
"Officer's Certificate" means, with respect to any Person, a
certificate signed by a Responsible Officer of such Person.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 14
"Parent" means, with respect to a particular Restricted Subsidiary,
the holder of the Equity Interests of such Restricted Subsidiary, and any
Person to whom such Equity Interests are assigned in accordance with the
Credit Agreement Documents.
"Parent Guarantee Agreement" means the Guarantee Agreement
substantially in the form of Exhibit E-2 to the Credit Agreement, dated as
of the Closing Date, executed and delivered by the Company in favor of the
Collateral Agent for the ratable benefit of the Secured Parties.
"Payment Collateral" has the meaning set forth in Section 5.01(c).
"Payment Date" has the meaning set forth in Section 2.04(b)(i).
"Permitted Liens" means:
(a) inchoate Liens and charges imposed by law and incidental to
construction, maintenance, development or operation of properties, or
the operation of business, in the ordinary course of business if
payment of the obligation secured thereby is not yet overdue or if the
validity or amount of which is being contested in good faith by the
Company or any of its Subsidiaries;
(b) Liens for Taxes, assessments, obligations under workers'
compensation or other social security legislation or other
requirements, charges or levies of any Governmental Authority, in each
case not yet overdue, or which are being contested in good faith by
appropriate proceedings;
(c) Liens reserved in any oil, gas or other mineral lease entered
into in the ordinary course of business for rent, royalty or delay
rental under such lease and for compliance with the terms of such
lease;
(d) easements, servitudes, rights-of-way and other rights,
exceptions, reservations, conditions, limitations, covenants and other
restrictions that do not materially interfere with the operation,
value or use of the properties affected thereby;
(e) conventional provisions contained in any contracts or
agreements affecting properties under which the Company or any of its
Subsidiaries is required immediately before the expiration,
termination or abandonment of a particular property to reassign to
such Person's predecessor in title all or a portion of such Person's
rights, titles and interests in and to all or portion of such
property;
(f) pledges and deposits to secure the performance of bids,
tenders, trade or government contracts (other than for repayment of
borrowed money), leases, licenses, statutory obligations, surety
bonds, performance bonds, completion bonds and other obligations of a
like kind incurred in the ordinary course of business;
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 15
(g) any Lien reserved in a grant or conveyance in the nature of a
farm-out or conditional assignment to the Company or any of its
Subsidiaries entered into in the ordinary course of business on
reasonable terms to secure undertakings of the Company or any such
Subsidiary in such grant or conveyance;
(h) any Lien consisting of (i) statutory landlord's liens under
leases to which the Company or any of its Subsidiaries is a party or
other Liens on leased property reserved in leases thereof for rent or
for compliance with the terms of such leases, (ii) rights reserved to
or vested in any municipality or governmental, statutory or public
authority to control or regulate any property of the Company or any of
its Subsidiaries, or to use such property in any manner which does not
materially impair the use of such property for the purposes for which
it is held by the Company or any such Subsidiary, (iii) obligations or
duties to any municipality or public authority with respect to any
franchise, grant, license, lease or permit and the rights reserved or
vested in any governmental authority or public utility to terminate
any such franchise, grant, license, lease or permit or to condemn or
expropriate any property, and (iv) zoning laws and ordinances and
municipal regulations;
(i) the creation of interests in property of the character
commonly referred to as a "royalty interest" or "overriding royalty
interest", production payments, farmouts, leases, subleases, rights of
way and other easements, participations, joint venture, joint
operating, unitization, pooling and communitization agreements, or
other similar transactions in the ordinary course of business; and
(j) any judgment lien in respect of any judgment or order that
does not constitute a Voting Notice Event under paragraph (h) of the
definition thereof.
"Person" means an individual, a Business Entity, or a country or any
political subdivision thereof or any agency or instrumentality of such
country or subdivision.
"Pipeline Company Borrowers" has the meaning set forth in the
Preamble.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Accounts" has the meaning set forth in Section 4.01(a).
"Pledged Company" means any issuer of the Initial Pledged Equity, or
any successor entity to such issuer; provided, that (a) EPN shall not
constitute a Pledged Company, and (b) if all of the Equity Interests issued
by a Pledged Company and pledged by a Grantor to the Collateral Agent
hereunder are released from the Liens of this Agreement in accordance with
the terms of this Agreement, then from and after such release, such issuer
shall no longer be a Pledged Company.
"Pledged Equity" has the meaning set forth in Section 5.01(a)(ii).
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 16
"Pledged Financial Assets" means all financial assets credited from
time to time to the Pledged Accounts.
"Pledged Security Entitlement" means all security entitlements with
respect to the Pledged Financial Assets.
"Process Agent" has the meaning set forth in Section 9.19(c).
"Project Financing Subsidiary" has the meaning set forth in the Credit
Agreement.
"Qualified Investments" means:
(a) for any Restricted Subsidiary whose principal business
purpose is the ownership of and operation of assets and properties,
including without limitation natural gas pipelines, that are subject
to regulations promulgated by FERC (a "FERC-Regulated Restricted
Subsidiary"), (x) expenditures that would constitute maintenance or
expansion capital expenditures or other investments or reinvestments
to repair, construct, purchase, or otherwise acquire Assets that
would, following such repair, construction, purchase, or other
acquisition, become eligible for rate coverage under regulations
promulgated by FERC, (y) other than repayments of such Indebtedness
during the pendency of a Voting Notice Event, repayments of
Indebtedness incurred by such Restricted Subsidiary for the purpose of
financing expenditures or other investments or reinvestments described
in clause (x) of this clause (a), and (z) other than such payments (or
retention of funds) during the pendency of a Voting Notice Event,
payments (or retention of funds) to reimburse such Restricted
Subsidiary for amounts paid from such Restricted Subsidiary's
operating cash flow within the previous 365 days (but not prior to the
Effective Date) for expenditures or other investments or reinvestments
of the type described in clause (x) or clause (y) (if, in the case of
clause (y), a repayment of Indebtedness described in clause (y) was
made during the pendency of a Voting Notice Event that was
subsequently cured and no other Voting Notice Event is then pending)
of this clause (a), to the extent such expenditures or such other
investments or reinvestments have not previously been reimbursed to
such Restricted Subsidiary pursuant to this clause (z), or
(b) for any Restricted Subsidiary whose principal business
purpose is the ownership and operation of assets and properties that
are not subject to regulations promulgated by FERC (an "Unregulated
Restricted Subsidiary"), (x) maintenance or expansion capital
expenditures or other investments or reinvestments in Assets that are
useful to the business conducted by such Restricted Subsidiary, (y)
other than repayments of such Indebtedness during the pendency of a
Voting Notice Event, repayments of Indebtedness incurred by such
Restricted Subsidiary for the purpose of financing expenditures or
other investments or reinvestments described in clause (x) of this
clause (b), and (z) other than such payments (or retention of funds)
during the pendency of a Voting Notice Event, payments (or retention
of funds) to reimburse such Restricted Subsidiary for amounts paid
from such Restricted Subsidiary's operating cash
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 17
flow within the previous 365 days (but not prior to the Effective
Date) for expenditures or other investments or reinvestments of the
type described in clause (x) or clause (y) (if, in the case of clause
(y), a repayment of Indebtedness described in clause (y) was made
during the pendency of a Voting Notice Event that was subsequently
cured and no other Voting Notice Event is then pending) of this clause
(b), to the extent such expenditures or such other investments or
reinvestments have not previously been reimbursed to such Restricted
Subsidiary pursuant to this clause (z).
In no event shall the investment in or acquisition of (i) any equity
ownership in any other Business Entity that is not a Credit Related Party,
(ii) all or substantially all of a business conducted by any other Person
or (iii) all or substantially all of the Assets constituting a business
division or other stand-alone business unit of any other Business Entity
constitute a Qualified Investment.
"Qualified Investments Account" has the meaning set forth in Section
4.01(a)(iii).
"Refinancing" means the refinancing of the Credit Agreement or any
Underlying Transaction, provided, that the Covered Obligations resulting
from any such Refinancing (as determined on and as of the date such
Refinancing is consummated) shall not have a principal amount, or in the
case of a revolving loan commitment, a maximum commitment amount, or in the
case of lease financings or other transactions, an analogous amount, as
applicable, that is greater than the corresponding principal, commitment,
or analogous amount of the Covered Obligations of the Financing Transaction
being refinanced.
"Related Creditors" of a particular Representative Agent means the
Secured Parties to the particular Financing Transaction for which such
Representative Agent has been designated to act with respect to matters
arising under, or related to, the Collateral Documents, as set forth on the
applicable portion of Schedule II, or on a supplement to Schedule II
delivered to the Intercreditor Agent in accordance with Section 1.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Remaining Reinvestment Amount" has the meaning set forth in Section
4.03(c).
"Remedies Authorization Notice" has the meaning set forth in Section
7.13(c).
"Remedies Notice" has the meaning set forth in Section 7.13(c).
"Remedies Trigger Event" means (a) an Automatic Remedies Trigger
Event, or (b) the receipt by the Collateral Agent, following the Collateral
Agent's delivery of a Voting Notice and Request under Section 7.13(b)(y),
of a Remedies Authorization Notice of the Required Lender Parties setting
forth, directing, consenting to or approving an Enforcement Action or
Enforcement Actions to be taken by the Collateral Agent.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 18
"Remedies Trigger Event Notice and Request" has the meaning set forth
in Section 7.13(b)(z).
"Representative Agency Agreement" means an agreement substantially in
the form of Exhibit E, pursuant to which the Lender Parties under a
particular Financing Transaction appoint a Representative Agent to act for
them with respect to this Agreement and the other Collateral Documents, and
pursuant to which such Lender Parties agree to be bound by and subject to
the terms of this Agreement and the other Collateral Documents.
"Representative Agent" means (a) with respect to the 3-Year Facility,
the 3-Year Facility Agent, (b) with respect to the Credit Agreement, the
Credit Agreement Administrative Agent, (c) with respect to each Underlying
Transaction, the Person designated as a "Representative Agent" for such
Underlying Transaction on Schedule II-C, or any supplement to Schedule II-C
delivered in accordance with Section 1.04, (d) with respect to each
Additional Covered Letter of Credit, each Person to whom obligations are
owed under such Additional Covered Letters of Credit; provided that if any
issuer under an Additional Covered Letter of Credit designates another
Person to act as its agent with respect to such Additional Covered Letter
of Credit, such designated agent shall be the Representative Agent for such
Person with respect to such Additional Covered Letter of Credit, and (e)
with respect to each Future Covered Hedging Agreement, the Credit Agreement
Administrative Agent.
"Representative Agent Joinder Agreement" means an agreement in the
form of Exhibit F, pursuant to which a Person becomes a Representative
Agent under and party to this Agreement in the capacity of a new, or
substitute, Representative Agent.
"Representative Agent Notice" means, for a particular Financing
Transaction, a notice duly executed by a Representative Agent with respect
to any instruction, consent, approval, or notice of any of the applicable
Related Creditors of such Representative Agent under such Financing
Transaction, which notice shall specify, as applicable, (a) the name of
each Related Creditor agreeing to give such instruction, consent, approval,
or notice, together with the portion, expressed in dollars, of the Voting
Amount under such Financing Transaction that is held by each such Related
Creditor agreeing to give such instruction, consent, approval, or notice,
and (b) the name of each Related Creditor that does not agree (or that is
deemed not to agree) to give such instruction, consent, approval, or
notice, together with the portion, expressed in dollars, of the Voting
Amount under such Financing Transaction that is held by each such Related
Creditor that does not agree (or that is deemed not to agree) to give such
instruction, consent, approval, or notice.
"Required Lender Parties" has the meaning set forth in Section
8.02(c).
"Responsible Officer" means, with respect to any Person, the
president, any vice-president, the treasurer or the chief financial officer
or an Authorized Signatory of such Person.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 19
"Restricted Equity Interests" means, collectively, the Equity
Interests in each of Bear Creek Storage Company, a Louisiana general
partnership, CIG, Mojave Pipeline Company, a Texas general partnership,
Mojave Pipeline Operating Co., a Texas corporation and, as of the Closing
Date, a Subsidiary of Mojave Pipeline Company, and WIC; provided, however,
that (a) if the Equity Interests in CIG or WIC are Disposed of in
accordance with the terms and provisions of Section 6.04(a) of the Credit
Agreement, such Equity Interests shall cease to be "Restricted Equity
Interests" under the Collateral Documents, but with respect to the
Disposition of the Equity Interests in CIG as permitted pursuant to Section
6.04(a)(iv) of the Credit Agreement, any Net Cash Proceeds of such
Disposition shall continue to be Net Cash Proceeds of Restricted Equity
Interests for purposes of Section 2.01(b) of this Agreement, and (b) from
and after the execution and delivery by CIG of the CIG Joinder Agreement
and by CIG Parent of the CIG Parent Joinder Agreement, and the satisfaction
of the matters set forth in Section 5.10 hereof, the Equity Interests in
CIG shall cease to be "Restricted Equity Interests" under the Collateral
Documents.
"Restricted Subsidiaries" means, collectively, each Pipeline Company
Borrower and its Subsidiaries, each Subsidiary Guarantor (other than the
Exempted Guarantors) and its Subsidiaries and Bear Creek Storage Company, a
Louisiana general partnership; provided, however, that (a) any such Person
shall cease to be a "Restricted Subsidiary" under the Collateral Documents
immediately upon any Disposition of the Equity Interests in such Person
permitted by Section 6.04 of the Credit Agreement that results in such
Person no longer being a direct or indirect Subsidiary of the Company and
(b) none of Noric I and its Subsidiaries, Noric III and its Subsidiaries
and Noric IV and its Subsidiaries shall be considered a "Restricted
Subsidiary" hereunder until the repayment in full of the Mustang Financing.
"Revolving Commitments" means, as of a particular date, the aggregate
amount of Revolving Credit Loans and LCs that the Lenders have committed to
provide under the Revolving Credit Facility, including the LC Facility, of
the Credit Agreement, less the amount, if any, held in the Cash Collateral
Subaccount (Credit Agreement LCs).
"Revolving Credit Allocation" has the meaning set forth in Section
2.04(b)(ii)(A).
"Revolving Credit Exposure" means the sum of (a) the aggregate
outstanding principal amount of the Revolving Credit Loans, plus (b) the
aggregate amount of all unreimbursed drawings under LCs, plus (c) the
amount, if any, by which (i) the aggregate undrawn amount of all LCs then
issued and outstanding exceeds (ii) the amount, if any, then held in the
Cash Collateral Subaccount (Credit Agreement LCs).
"Revolving Credit Facility" has the meaning set forth in paragraph (3)
of the Preliminary Statements, and includes any Refinancing thereof.
"Revolving Credit Loans" has the meaning set forth in paragraph (3) of
the Preliminary Statements.
"S&P" has the meaning set forth in the definition of "Cash
Equivalents."
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 20
"Secured Obligations" means, collectively, the Grantor Secured
Obligations and the Company Secured Obligations.
"Secured Parties" means, collectively, the Collateral Agent, and the
banks, investors, financial institutions, or other Persons (other than any
Credit Related Party) that are entitled to payments in respect of the
Covered Obligations.
"Security Collateral" has the meaning set forth in Section 5.01(a).
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or an ERISA Affiliate and no Person other than the Company and its
ERISA Affiliates or (b) was so maintained and in respect of which the
Company or an ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Subagent" has the meaning set forth in Section 7.06(b).
"Subsidiary" means, as to any Person (the "parent") at any date, any
Business Entity, the accounts of which are, or are required to be,
consolidated with those of the parent in the parent's consolidated
financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other Business Entity
of which shares of stock or other Equity Interests having ordinary voting
power (other than stock or such other Equity Interests having such power
only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such Business Entity are at the
time owned, directly or indirectly, through one or more Subsidiaries, or
both, by such Person; provided, however, that except for purposes of
consolidation with the Company in accordance with GAAP (other than for
purposes of (a) the definition of "Net Worth" and "Material Adverse Effect"
herein and in the Credit Agreement or (b) Sections 5.08(f) and 6.01(b) of
the Credit Agreement), in no event shall El Paso Energy Partners, L.P. or
any of its direct or indirect Subsidiaries be deemed to be a Subsidiary of
the Company for any other purpose of this Agreement or any other Collateral
Document.
"Subsidiary Guarantee Agreement" means the Subsidiary Guarantee
Agreement, dated as of the Closing Date, executed and delivered by each
Subsidiary Guarantor in favor of the Collateral Agent for the ratable
benefit of the Secured Parties.
"Subsidiary Guarantor" means, subject to the release of any of the
following as a Subsidiary Guarantor in accordance with the terms of this
Agreement, each of American Natural Resources Company, a Delaware
corporation, El Paso ANR Investments, L.L.C., a Delaware limited liability
company, El Paso ANRS Investments, L.L.C., a Delaware limited liability
company, El Paso CNG Company, L.L.C., a Delaware limited liability company,
El Paso EPN Investments, L.L.C., a Delaware limited liability company, El
Paso Tennessee Pipeline Co., a Delaware corporation, El Paso EPNG
Investments, L.L.C., a Delaware limited liability company, Noric I Holding,
El Paso Noric Investments III, L.L.C., a Delaware limited liability
company, Noric IV Holding, Sabine
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 21
River Investors I, L.L.C., a Delaware limited liability company, Sabine
River Investors II, L.L.C., a Delaware limited liability company, Sabine
River Investors III, L.L.C., a Delaware limited liability company, Sabine
River Investors IV, L.L.C., a Delaware limited liability company, Sabine
River Investors V, L.L.C., a Delaware limited liability company, El Paso
TGPC Investments, L.L.C., a Delaware limited liability company, and El Paso
WIC Investments, L.L.C., a Delaware limited liability company.
"Taxes" means any and all present or future taxes, levies, imports,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TGPC" means Tennessee Gas Pipeline Company, a Delaware corporation.
"Termination Event" means (a) a "reportable event," as such term is
described in Section 4043 of ERISA (other than a "reportable event" not
subject to the provision for 30-day notice to the PBGC under subsection
.11, .12, .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section 2615), or an
event described in Section 4062(e) of ERISA, or (b) the withdrawal of the
Company or any ERISA Affiliate from a Multiple Employer Plan during a plan
year in which it was a "substantial employer," as such term is defined in
Section 4001(a)(2) of ERISA or the incurrence of liability by the Company
or any ERISA Affiliate under Section 4064 of ERISA upon the termination of
a Multiple Employer Plan, or (c) the filing of a notice of intent to
terminate a Plan or the treatment of a Plan amendment as a termination
under Section 4041 of ERISA, or (d) the institution of proceedings to
terminate a Plan by the PBGC under Section 4042 of ERISA, or (e) the
conditions set forth in Section 302(f)(1)(A) and (B) of ERISA to the
creation of a lien upon property or rights to property of the Company or
any ERISA Affiliate for failure to make a required payment to a Plan are
satisfied, or (f) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA, or
(g) the occurrence of any other event or the existence of any other
condition which would reasonably be expected to result in the termination
of, or the appointment of a trustee to administer, any Plan under Section
4042 of ERISA.
"3-Year Facility" means the Amended and Restated $1,000,000,000 3-Year
Revolving Credit and Competitive Advance Facility Agreement, dated as of
August 4, 2000 (as amended and restated through the Closing Date), among
the Company, El Paso Natural Gas Company, Tennessee Gas Pipeline Company,
El Paso CGP Company, the banks and other lenders parties thereto, JPMorgan,
as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN AMRO
Bank N.V., as Co-Documentation Agents, and Bank of America, N.A., as
Syndication Agent, as the same has been and may be amended, supplemented
and modified from time to time.
"3-Year Facility Agent" means the Person acting as Administrative
Agent under the 3-Year Facility.
"3-Year Facility Commitments" means the revolving credit commitments
of the lenders under the 3-Year Facility.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 22
"3-Year Facility Documents" means the collective reference to the
3-Year Facility and any other agreement entered into that is related to the
transactions contemplated by the 3-Year Facility.
"3-Year Facility Lender" means each bank and other lender party to the
3-Year Facility for so long as such Person continues to be a party to the
3-Year Facility.
"3-Year Facility Termination" means the earliest point in time at
which both of the following have occurred: (a) all outstanding indebtedness
and other obligations of the borrowers under the 3-Year Facility have been
paid in full, and (b) the 3-Year Facility Commitments have been terminated
in full.
"3-Year Revolving Credit Exposure" means, as of any date of
determination, the sum of (a) the aggregate principal amount of all
revolving credit loans then outstanding under the 3-Year Facility, plus (b)
the aggregate amount of all unreimbursed drawings under letters of credit
then issued under the 3-Year Facility, plus (c) the amount, if any, by
which (i) the aggregate undrawn amount of all letters of credit then issued
and outstanding under the 3-Year Facility exceeds (ii) the amount, if any,
then held in the Cash Collateral Subaccount (3-Year Facility LCs) as of
such date.
"Total Mandatory Prepayment Obligations" means, as of a particular
date, the sum of (a) the aggregate Revolving Commitments (or if the
Revolving Commitments have been fully terminated, the Revolving Credit
Exposure), as of such date, plus (b) the aggregate Attributable Principal
Amount of all the Underlying Transactions, as of such date, plus (c) the
Additional Covered Letter of Credit Exposure, as of such date.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
"Underlying Allocation" has the meaning set forth in Section
2.04(b)(ii)(B).
"Underlying Documents" means with respect to a particular Underlying
Transaction, all of the agreements and documents evidencing, securing, or
otherwise relating to the Underlying Obligations of such Underlying
Transaction.
"Underlying Obligations" means, with respect to a particular
Underlying Transaction, the obligations thereunder for which the Company
provides or, upon the happening of any contingency, is required to provide,
in whole or in part, Credit Support pursuant to the Company Project Support
Document applicable to such Underlying Transaction, as identified on
Schedule II-C of this Agreement, or on any supplement to Schedule II-C of
this Agreement delivered to the Intercreditor Agent in accordance with
Section 1.04.
"Underlying Transaction" means any one of the transactions as
specified on Schedule II-C of this Agreement, or on any supplement to
Schedule II-C of this Agreement delivered to the Intercreditor Agent in
accordance with Section 1.04 and, at the request of the Company or any
Grantor, includes any Refinancing thereof.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 23
"Unregulated Restricted Subsidiary" has the meaning set forth in the
definition of "Qualified Investments" hereunder.
"Unused Cash Collateral" has the meaning set forth in Section 4.02(c).
"Voting Amount" as of a particular date, for a particular Financing
Transaction, means:
(a) if no Remedies Trigger Event has occurred, the amount, in
dollars, of (i) the 3-Year Facility Commitments, for the 3-Year
Facility, (ii) the Revolving Commitments, for the Credit Agreement,
(iii) the applicable Attributable Principal Amount, for each
Underlying Transaction, and (iv) the applicable Additional Covered
Letter of Credit Exposure, for each Additional Covered Letter of
Credit (for the avoidance of doubt, Counterparty Groups under the
Future Covered Hedging Agreements shall not have the right to consent
to, approve, vote on or provide direction with respect to any matter
under this Agreement prior to a Remedies Trigger Event); and
(b) if a Remedies Trigger Event has occurred, the amount, in
dollars, of (i) the 3-Year Revolving Credit Exposure, for the 3-Year
Facility, (ii) the Revolving Credit Exposure, for the Credit
Agreement, (iii) the applicable Attributable Principal Amount, for
each Underlying Transaction, (iv) the applicable Additional Covered
Letter of Credit Exposure, for each Additional Covered Letter of
Credit, and (v) for each Counterparty Group that has a positive Net
Termination Amount, the applicable Net Termination Amount, for each
group of Future Covered Hedging Agreements then existing between the
Company and such Counterparty Group.
"Voting Notice and Request" has the meaning set forth in Section
7.13(b)(y).
"Voting Notice Event" means the occurrence of any of the following
events:
(a) The Company shall generally not pay its debts as such debts
become due; or
(b) Any Granting Party shall fail to pay or deposit any amount
payable or to be deposited by it under Sections 2.04(a), 4.03,
5.08(b), 5.08(c)(ii), or 5.08(c)(iii) after the same shall be due and,
in the case of Sections 5.08(c)(ii) and 5.08(c)(iii), after delivery
of written notice of the applicable Event of Default pursuant to such
Sections, or any Granting Party shall fail to pay any other amount
payable by it under any Collateral Document within five Business Days
after the same shall be due; or
(c) Any representation or warranty made or deemed made by any
Granting Party under any Collateral Document or by any Granting Party
(or any of its officers) in connection with any Collateral Documents
shall prove to have been incorrect in any material respect when made
or deemed made; or
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 24
(d) Any Granting Party shall fail to perform or observe any other
term, covenant or agreement contained in any Collateral Document
(other than clauses (a), (b) and (c) above) on its part to be
performed or observed and any such failure shall remain unremedied for
30 days after written notice thereof shall have been given to such
Granting Party by the Collateral Agent, or by any Secured Party with a
copy to the Collateral Agent; or
(e) Any Credit Related Party shall fail to pay any Debt or
Guaranty (excluding Debt and Guaranties incurred under the Collateral
Documents) of such Credit Related Party in an aggregate principal
amount of $200,000,000 or more, at such time, or any installment of
principal thereof or interest or premium thereon, when due (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt or Guaranty; or any other default under any agreement or
instrument relating to any such Debt in such aggregate principal
amount or any Covered Obligation (excluding Debt and Guarantees
incurred under the Collateral Documents) or any other event (other
than an exercise of a voluntary prepayment right or voluntary purchase
option or analogous right), shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is to accelerate
the maturity of such Debt in such aggregate principal amount or such
Covered Obligation; or any such Debt in such aggregate principal
amount or such Covered Obligation shall be required to be prepaid
(other than by a regularly scheduled required prepayment), prior to
the stated maturity thereof, as a result of either (i) any default
under any agreement or instrument relating to any such Debt in such
aggregate principal amount or such Covered Obligation, or (ii) the
occurrence of any other event (other than an exercise of a voluntary
prepayment right or voluntary purchase option or analogous right or an
issuance or Disposition of Equity Interests or other Assets, or an
incurrence or issuance of Indebtedness or other obligations, giving
rise to a repayment or prepayment obligation in respect of such Debt
or such Covered Obligation) the effect of which would otherwise be to
accelerate the maturity of such Debt in such aggregate principal
amount or such Covered Obligation; provided, however, that with
respect to the Covered Obligations in respect of either of the Coastal
Petrochemical Underlying Transaction or the Harbortown Underlying
Transaction, a Voting Notice Event under this paragraph (e) shall not
occur until the Company shall have failed to pay an amount properly
demanded in respect of the related Company Project Support Document
for the Coastal Petrochemical Underlying Transaction or the Harbortown
Underlying Transaction, as applicable, and such failure shall have
continued for three Business Days after such demand; or
(f) Any default under any agreement or instrument relating to any
Covered Obligation (excluding Debt and Guarantees incurred under the
Collateral Documents), or any other event (other than an exercise of a
voluntary prepayment right or voluntary purchase option or analogous
right), shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 25
instrument, if the effect of such default or event is to accelerate
the maturity of such Covered Obligation; or any such Covered
Obligation shall be required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof,
as a result of either (i) any default under any agreement or
instrument relating to any such Covered Obligation, or (ii) the
occurrence of any other event (other than an exercise of a voluntary
prepayment right or voluntary purchase option or analogous right or an
issuance or Disposition of Equity Interests or other Assets, or an
incurrence or issuance of Indebtedness or other obligations, giving
rise to a repayment or prepayment obligation in respect of such
Covered Obligation) the effect of which would otherwise be to
accelerate the maturity of such Covered Obligation if, as a result
thereof or with respect thereto, the holder of (or the agent for the
holders of) such Covered Obligation shall take any Enforcement Action
not permitted by this Agreement or the Company shall agree to provide,
or enter into any negotiation with a view to providing, any additional
collateral, or any optional prepayment of such Covered Obligation, or
any fee or other monetary consideration for any amendment, consent,
waiver or other modification with respect to such payment default;
provided, however, that with respect to the Covered Obligations in
respect of either of the Coastal Petrochemical Underlying Transaction
or the Harbortown Underlying Transaction, a Voting Notice Event under
this paragraph (f) shall not occur until the Company shall have failed
to pay an amount properly demanded in respect of the related Company
Project Support Document for the Coastal Petrochemical Underlying
Transaction or the Harbortown Underlying Transaction, as applicable,
and such failure shall have continued for three Business Days after
such demand; or
(g) The commencement of any Insolvency Proceeding with respect to
the Company or any Credit Related Party; or
(h) Any judgment or order for the payment of money in an
aggregate amount in excess of $100,000,000 shall be rendered against
the Company, any Credit Related Party or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days
during which execution (other than any enforcement proceedings
consisting of the mere obtaining and filing of a judgment lien or
obtaining of a garnishment or similar order so long as no foreclosure,
levy or similar process in respect of such judgment lien, or payment
over in respect of such garnishment or similar order, has commenced
and is continuing or has been completed (collectively, the "Permitted
Execution Actions")) shall not be effectively stayed, or any action,
other than a Permitted Execution Action, shall be legally taken by a
judgment creditor to attach or levy upon any property or assets of the
Company or any other Credit Related Party to enforce any such judgment
or order; provided, however, that with respect to any such judgment or
order that is subject to the terms of one or more settlement
agreements that provide for the obligations thereunder to be paid or
performed over time, such judgment or order shall not be deemed under
the Collateral Documents to be undischarged unless and until the
Company or any other Credit Related Party shall have failed to pay any
amounts due and owing thereunder
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 26
(payment of which shall not have been stayed) for a period of 30
consecutive days after the respective final due dates for the payment
of such amounts; or
(i) (i) Any Termination Event with respect to a Plan shall have
occurred and, 30 days after notice thereof shall have been given to
the Company by the Credit Agreement Administrative Agent, such
Termination Event shall still exist; or (ii) the Company or any ERISA
Affiliate shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred Withdrawal Liability to such Multiemployer
Plan; or (iii) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization, or is insolvent or is being
terminated, within the meaning of Title IV of ERISA; or (iv) any
Person shall engage in a "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan;
and in each case in clauses (i) through (iv) above, such event or
condition, together with all other such events or conditions, if any,
would result in an aggregate liability of the Company or any ERISA
Affiliate that would exceed 10% of Net Worth; or
(j) Upon completion of, and pursuant to, a transaction, or a
series of transactions (which may include prior acquisitions of
capital stock of the Company in the open market or otherwise),
involving a tender offer (i) a "person" (within the meaning of Section
13(d) of the Securities Exchange Act of 1934) other than the Company
or a Subsidiary of the Company or any employee benefit plan maintained
for employees of the Company and/or any of its Subsidiaries or the
trustee therefor, shall have acquired direct or indirect ownership of
and paid for in excess of 50% of the outstanding capital stock of the
Company entitled to vote in elections for directors of the Company and
(ii) at any time before the later of 1) six months after the
completion of such tender offer and 2) the next annual meeting of the
shareholders of the Company following the completion of such tender
offer more than half of members of the Board of Directors of the
Company consists of individuals who a) were not members of the Board
of Directors of the Company before the completion of such tender offer
and b) were not appointed, elected or nominated by the Board of
Directors of the Company in office prior to the completion of such
tender offer (other than any such appointment, election or nomination
required or agreed to in connection with, or as a result of, the
completion of such tender offer); or
(k) Any event of default shall occur under any agreement or
instrument relating to or evidencing any Debt now or hereafter
existing of any Credit Related Party as the result of any change in
control of the Company; or
(l) Any material provision of any Collateral Document shall
cease, for any reason, to be valid and binding upon or unenforceable
against any Credit Party that is a party thereto, or any such Credit
Party shall so assert in writing, provided that if such invalidity or
unenforceability is of a nature so as to be amenable to cure within
five Business Days and if, within one Business Day after the Company
receives notice from the Credit Agreement Administrative Agent or
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 27
the Collateral Agent or otherwise becomes aware that such material
provision is not valid or is unenforceable as aforesaid, the Company
delivers written notice to the Collateral Agent that the applicable
Credit Party intends to cure such invalidity or unenforceability as
soon as possible, then a Voting Notice Event shall not exist pursuant
to this paragraph (l) of this definition unless the Company or the
relevant Credit Party shall fail to deliver or cause to be delivered
an amendment or other modification, or other agreement or undertaking,
having the same economic effect as the invalid or unenforceable
provision within four Business Days after the delivery of such written
notice of intent; or
(m) Any Collateral Document shall for any reason fail or cease to
create a valid and enforceable Lien on any Collateral stated to be
covered thereby or, except as permitted by the Credit Agreement
Documents or the Collateral Documents, such Lien shall fail or cease
to be a perfected and first-priority (subject only to Collateral
Permitted Liens) Lien, or any Credit Related Party shall so state in
writing and, if such invalidity or lack of perfection or priority
relates solely to Collateral with an aggregate value of $1,000,000 or
less and such invalidity or lack of perfection or priority is such so
as to be amenable to cure without material disadvantage to the
position of the Collateral Agent or any other Secured Party, such
invalidity or lack of perfection or priority shall not be cured within
10 days of the earlier of such Credit Related Party so stating in
writing or delivery of notice thereof by the Collateral Agent to the
Company (or such shorter period as shall be specified by the
Collateral Agent and is reasonable under the circumstances); or
(n) The failure of the Company to execute and deliver to the
Collateral Agent, on or before the earlier to occur of (i) the date
that the Company enters into any Future Covered Hedging Agreement and
(ii) the 60th day following the Closing Date, the Collateral Security
Agreement, in form and substance reasonably satisfactory to the
Collateral Agent and the Credit Agreement Administrative Agent.
"WIC" means Wyoming Interstate Company Ltd., a Colorado limited
partnership.
Definitions for El Paso Security and Intercreditor Agreement
APPENDIX A-1 - 28
SCHEDULE I
GRANTORS
Grantors that are Restricted Subsidiaries
El Paso ANR Investments, L.L.C.
El Paso ANRS Investments, L.L.C
El Paso EPNG Investments, L.L.C.
El Paso EPN Investments, L.L.C.
El Paso Noric Investments I, L.L.C.
El Paso Noric Investments III, L.L.C.
El Paso Noric Investments IV, L.L.C.
El Paso TGPC Investments, L.L.C.
El Paso WIC Investments, L.L.C.
Sabine River Investors I, L.L.C.
Sabine River Investors II, L.L.C.
Sabine River Investors III, L.L.C.
Sabine River Investors IV, L.L.C.
Sabine River Investors V, L.L.C.
Grantors that are not Restricted Subsidiaries
American Natural Resources Company
El Paso CNG Company, L.L.C.
El Paso Tennessee Pipeline Co.
Schedule I
SCHEDULE II-A
CERTAIN INFORMATION RELATING TO THE 3-YEAR FACILITY
I. SCHEDULE II-A EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: JPMorgan Chase Bank, as
Administrative Agent
A. ADDRESS: JPMorgan Chase Bank
Technology, Shared Tech &
Operation Commercial Loans
L&A Project Texas
1111 Fannin, Floor 10
Houston, Texas 77002
Attention of Ina S. Tjahjono
(Telecopy No. (713) 427-6307)
B. WIRING INSTRUCTIONS: JPMorgan Chase
ABA: 021000021
Acct: 323139434
Ref: El Paso Corp.
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
JPMorgan Chase Bank
ABN Amro Bank N.V.
Bank of America, N.A.
Citicorp North America, Inc.
Credit Suisse First Boston
The Bank of Nova Scotia
Bayerische Hypo-und Vereinsbank AG, New York Branch
BNP Paribas
Deutsche Bank AG New York Branch
The Royal Bank of Scotland plc
Societe Generale
Westdeutsche Landesbank Girozentrale
Mizuho Corporate Bank, Ltd.
The Bank of New York
Commerzbank AG, New York and Grand Cayman Branches
Credit Lyonnais New York Branch
Australia and New Zealand Banking Group Limited
Banco Bilbao Vizcaya Argentaria
The Bank of Tokyo-Mitsubishi, Ltd Houston Agency
Bank One, NA (Main Office Chicago)
KBC Bank N.V.
SunTrust Banks, Inc.
Credit Agricole Indosuez
Goldman Sachs Credit Partners L.P.
Wachovia Bank, National Association
Schedule II-A
Barclays Bank
Norinchukin Bank
Sumitomo Mitsui Banking Corporation
UFJ Bank Limited
Fleet National Bank
IntesaBci S.p.A.
Merrill Lynch, Pierce, Fenner & Smith Inc.
Wells Fargo Bank
Banca di Roma -- Chicago Branch
Bayerische Landesbank, Cayman Islands Branch (f/k/a Bayerische
Landesbank Girozentrale, Cayman Islands Branch)
Dresdner Bank AG, New York and Grand Cayman Branches
ING Capital LLC
National Australia Bank Limited
Amsouth Bank
Toronto Dominion (Texas), Inc.
Arab Bank plc
Natexis Banque Populaires
Southwest Bank of Texas, N.A.
III. 3-YEAR REVOLVING CREDIT EXPOSURE: (EQUALS THE SUM OF A, B, AND C
BELOW)
A. AGGREGATE PRINCIPAL AMOUNT OF ALL REVOLVING CREDIT LOANS
OUTSTANDING UNDER THE 3-YEAR FACILITY: $500,000,000
B. AGGREGATE AMOUNT OF ALL UNREIMBURSED DRAWINGS UNDER LETTERS OF
CREDIT ISSUED UNDER THE 3-YEAR FACILITY: $-0-
C. AMOUNT BY WHICH (1) THE AGGREGATE UNDRAWN AMOUNT OF ALL
LETTERS OF CREDIT ISSUED AND OUTSTANDING UNDER THE 3-YEAR
FACILITY EXCEEDS (2) THE AMOUNT HELD IN THE CASH COLLATERAL
SUBACCOUNT (3-YEAR FACILITY LCS): $476,973,129.21
D. TOTAL 3-YEAR REVOLVING CREDIT EXPOSURE: $1,000,000,000
IV. EPC DOCUMENT:
A. AMENDED AND RESTATED $1,000,000,000 3-YEAR REVOLVING CREDIT
AGREEMENT, dated as of the date hereof among El Paso Corporation, El
Paso Natural Gas Company, Tennessee Gas Pipeline Company, as Borrowers,
JPMorgan Chase Bank, as Administrative Agent, ABN Amro Bank N.V. and
Citicorp North America, Inc., as Co-Document Agents, Bank of America,
N.A., as Syndication Agent, and the several banks and other financial
institutions from time to time party thereto.
By executing this Schedule II-A, the Representative Agent listed on
this Schedule II-A represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material
Schedule II-A
contractual restriction binding on or affecting such Representative Agent and
(b) have been consented to by the requisite percentage of the relevant parties
to the EPC Document listed above in order to authorize such Representative Agent
to act on behalf of all such parties under or in respect of the Collateral
Documents.
[The Remainder of this Page Intentionally Left Blank]
Schedule II-A
Executed as of the ___ day of April, 2003.
JPMORGAN CHASE BANK
By:________________________________________
Name:
Title:
Schedule II-A
ANNEX A
I, ______________________, do hereby certify that I am ______________
of the Representative Agent listed on Schedule II-A and that the Person
executing this Schedule II-A holds the office of such Representative Agent set
forth immediately below his name (or is an authorized signatory of such
Representative Agent) and the signature executed immediately above his name is
the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
JPMORGAN CHASE BANK
By:________________________________________
Name:
Title:
Schedule II-A
SCHEDULE II-B
CERTAIN INFORMATION RELATING TO THE CREDIT AGREEMENT
I. SCHEDULE II-B EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: JPMorgan Chase Bank, as
Administrative Agent
A. ADDRESS: JPMorgan Chase Bank
Technology, Shared Tech & Operation
Commercial Loans
L&A Project Texas
1111 Fannin, Floor 10
Houston, Texas 77002
Attention of Ina S. Tjahjono
(Telecopy No. (713) 427-6307)
B. WIRING INSTRUCTIONS: JPMorgan Chase
ABA: 021000021
Acct: 323139434
Ref: El Paso Corp.
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
JPMorgan Chase Bank
ABN Amro Bank N.V.
Bank of America, N.A.
Citicorp North America, Inc.
Credit Suisse First Boston
The Bank of Nova Scotia
Bayerische Hypo-und Vereinsbank AG, New York Branch
BNP Paribas
Deutsche Bank AG New York Branch
The Royal Bank of Scotland plc
Societe Generale
Westdeutsche Landesbank Girozentrale
Mizuho Corporate Bank, Ltd.
The Bank of New York
Commerzbank AG, New York and Grand Cayman Branches
Credit Lyonnais New York Branch
Mellon Bank, N.A.
Australia and New Zealand Banking Group Limited
Banco Bilbao Vizcaya Argentaria
The Bank of Tokyo-Mitsubishi, Ltd Houston Agency
Bank One, NA (Main Office Chicago)
Lehman Commercial Paper Inc.
Morgan Stanley Bank
Royal Bank of Canada
KBC Bank N.V.
Schedule II-B
Norddeutsche Landesbank Girozentrale
SunTrust Banks, Inc.
Credit Agricole Indosuez
ING Capital LLC
Amarillo National Bank
III. REVOLVING CREDIT EXPOSURE: (equals the sum of A, B, and C below)
A. AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF REVOLVING CREDIT
LOANS: $1,500,000,000
B. AGGREGATE AMOUNT OF ALL UNREIMBURSED DRAWINGS UNDER LCS: $-0-
C. AMOUNT BY WHICH (1) THE AGGREGATE UNDRAWN AMOUNT OF ALL LCS
ISSUED AND OUTSTANDING EXCEEDS (2) THE AMOUNT HELD IN THE CASH
COLLATERAL SUBACCOUNT (CREDIT AGREEMENT LCS): $-0-
D. TOTAL REVOLVING CREDIT EXPOSURE: $3,000,000,000
IV. EPC DOCUMENT:
A. $3,000,000,000 REVOLVING CREDIT AGREEMENT, dated as of the date
hereof, among El Paso Corporation, El Paso Natural Gas Company,
Tennessee Gas Pipeline Company, ANR Pipeline Company, as Borrowers,
JPMorgan Chase Bank, as Administrative Agent, ABN Amro Bank N.V. and
Citicorp North America, Inc., as Co-Document Agents, Bank of America,
N.A. and Credit Suisse First Boston, as Co-Syndication Agents, and the
several banks and other financial institutions from time to time party
thereto.
By executing this Schedule II-B, the Representative Agent listed on
this Schedule II-B represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material contractual restriction binding on or affecting such
Representative Agent and (b) have been consented to by the requisite percentage
of the relevant parties to the EPC Document listed above in order to authorize
such Representative Agent to act on behalf of all such parties under or in
respect of the Collateral Documents.
[The Remainder of this Page Intentionally Left Blank]
Schedule II-B
Executed as of the ___ day of April, 2003.
JPMORGAN CHASE BANK
By:________________________________________
Name:
Title:
Schedule II-B
ANNEX A
I, _____________________, do hereby certify that I am --_____________
of the Representative Agent listed on Schedule II-B and that the Person
executing this Schedule II-B holds the office of such Representative Agent set
forth immediately below his name (or is an authorized signatory of such
Representative Agent) and the signature executed immediately above his name is
the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ____ day of
April, 2003.
JPMORGAN CHASE BANK
By:________________________________________
Name:
Title:
Schedule II-B
SCHEDULE II-C
CERTAIN INFORMATION RELATING TO EACH UNDERLYING TRANSACTION
SEE PARTS 1-8 BELOW
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Schedule II-C Introductory Page
PART 1 OF SCHEDULE II-C
UNDERLYING TRANSACTION:
SERVICIOS EL PASO S.R.L. LEASE OF LPG PLANT FROM BANKBOSTON, N.A.,
BUENOS AIRES BRANCH ("AGUA DEL CAJON")
I. SCHEDULE II-C PART 1 EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: BankBoston N.A. (a/k/a
Fleet National Bank)
A. ADDRESS: 100 Federal Street
MA DE 10006A
Boston, Massachusetts 02110
Attn.: Kay Campbell
Fax No.: (617) 434-4877
B. WIRING INSTRUCTIONS: Fleet Bank Boston
ABA No.: 011-000-138
Account No.: 05697874
Bank Boston NA
International Loan Services
Ref: Servicios del Paso
Attn.: Liz Rivera
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
BankBoston N.A. (a/k/a Fleet National Bank)
BankBoston National Association, Buenos Aires Branch
III. ATTRIBUTABLE PRINCIPAL AMOUNT:$17,858,357.10
METHOD OF CALCULATION: The Attributable Principal Amount as of the
date hereof of $17,858,357.10 (representing
the sum of (i) Fixed Rental Amounts payable
during the life of Lease (defined below) and
(ii) the $4,826,583 exercise price of the
Purchase Option of Lessee (defined below)
payable at Lease expiration, less the amount
of all Fixed Rental Amounts paid by the
Lessee as of the date hereof), reduced from
time to time by the aggregate amount of
deposits, if any, into the applicable
subaccount of the Cash Collateral Account
for the Agua del Cajon Underlying
Transaction pursuant to Section
2.04(b)(ii)(B) of the Intercreditor
Agreement (defined below) and to be held and
applied in accordance with Section
4.02(b)(iii) of the Intercreditor Agreement.
IV. PRINCIPAL UNDERLYING DOCUMENTS:
Schedule II-C Part 1
A. LEASE AGREEMENT, dated November 22, 1999 (the "Lease"), between
BankBoston National Association, Buenos Aires Branch (as "Lessor") and
Servicios El Paso S.R.L. (as "Lessee").
B. PAYMENT AGREEMENT, dated the date hereof, between BankBoston N.A.
and El Paso Corporation (the "Payment Agreement").
V. COMPANY PROJECT SUPPORT DOCUMENTS:
A. GUARANTY AND PUT OPTION AGREEMENT, dated as of November 23, 1999,
between El Paso Corporation (formerly El Paso Energy Corporation) and
BankBoston, N.A., Buenos Aires Branch (the "Guaranty"). Under the
Guaranty, El Paso guarantees certain obligation of the Lessee to the
Bank under the Lease.
B. PUT OPTION AGREEMENT, dated as of November 23, 1999 (the "Put
Agreement"), between El Paso Corporation and BankBoston, N.A., as
amended by the Amendment, Waiver and Consent Agreement, dated the date
hereof (the "Amendment"). Under the Put Agreement, El Paso granted the
Bank the right to transfer its right, title and interest in the lease
properly to El Paso in the event of a Lease termination event or if the
Lessee fails to exercise its Purchase Option prior to expiration of the
Lease.
By executing Part 1 of this Schedule II-C, the Representative Agent
listed on this Part 1 represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material contractual restriction binding on or affecting such
Representative Agent and (b) have been consented to by the requisite percentage
of the relevant parties to the Underlying Documents listed above in order to
authorize such Representative Agent to act on behalf of all such parties under
or in respect of the Collateral Documents.
[The Remainder of this Page Intentionally Left Blank]
Schedule II-C Part 1
Executed as of the ___ day of April, 2003.
BANKBOSTON N.A. (a/k/a Fleet National Bank)
By:________________________________________
Name:
Title:
Schedule II-C Part 1
ANNEX A
I, ________________________, do hereby certify that I am Assistant
Secretary of the Representative Agent listed on Part 1 of Schedule II-C and that
the Person executing Part 1 of Schedule II-C holds the office of such
Representative Agent set forth immediately below his name (or is an authorized
signatory of such Representative Agent) and the signature executed immediately
above his name is the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
BANKBOSTON N.A. (a/k/a Fleet National Bank)
By:________________________________________
Name:
Title:
Schedule II-C Part 1
PART 2 OF SCHEDULE II-C
UNDERLYING TRANSACTION:
CANNON INVESTORS TRUST INVESTMENT IN PREFERRED SHARES OF
COASTAL SECURITIES COMPANY LIMITED ("CANNON INVESTORS TRUST")
I. SCHEDULE II-C PART 2 EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: Citibank International plc,
as Agent
A. ADDRESS: Citibank International plc
2nd Floor
2 Harbor Exchange
London E14 9GE
Attention: Loans Agency
Telecopy: 44-20-7500-4482
B. WIRING INSTRUCTIONS: Citibank International plc London
(CITTGB2LELA)
BA 021000089
Beneficiary: Citibank International
plc
Account 10963054
Reference CITCO Cannon
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
CITCO TRUSTEES (BVI) LIMITED (formerly CITCO International
Trust Company Limited), solely as trustee of Cannon Investors
Trust and not in its individual capacity
CITIBANK (CHANNEL ISLANDS) LIMITED, as Lender
THE BANK OF TOKYO-MITSUBISHI, LTD., as Lender
CREDIT AGRICOLE INDOSUEZ (formerly Caisse Nationale de Credit
Agricole), as Lender
SUMITOMO MITSUI BANKING CORPORATION (formerly The Sumitomo
Bank, Limited), as Lender
MIZUHO CORPORATE BANK, LTD. (formerly known as The Fuji
Bank, Limited), as Lender
BNP PARIBAS (formerly Banque Paribas), as Lender
BANK OF MONTREAL IRELAND PLC, as Equity Investor
COASTAL SECURITIES COMPANY LIMITED
III. ATTRIBUTABLE PRINCIPAL AMOUNT: $100,000,000
METHOD OF CALCULATION: The Attributable Principal Amount as of the
date hereof of $100,000,000, the repayment
of which is guaranteed by El Paso
Corporation pursuant to the Amended and
Restated Guaranty Agreement (defined below),
shall be reduced from time to time in
connection with any Underlying Allocation
payment made, if any, in respect of the
Underlying Transaction (as defined in this
Part 2 of
Schedule II-C Part 2
Schedule II-C) and pursuant to the terms of
this Agreement. Such a reduction shall be in
an amount equal to the portion of the
Underlying Allocation payment constituting
the "Principal Reduction Amount," excluding
amounts constituting the "Related
Non-Interest Amount," each as defined in the
Promissory Note (defined below).
IV. PRINCIPAL UNDERLYING DOCUMENTS:
A. $95,000,000 CREDIT AGREEMENT, dated as of December 20, 1996, among
CITCO Trustees (BVI) Limited (formerly CITCO International Trust
Company, Limited), an International Business Company incorporated under
the laws of the British Virgin Islands as trustee of Cannon Investors
Trust (in such capacity, the "Borrower"), each of the financial
institutions and other institutional lenders listed therein (the
"Lenders") and Citibank International plc as Agent for the Lenders
("Citibank"), (as amended pursuant to the Amendment, Waiver and
Consent, dated as of April 16, 2003 among El Paso Corporation, a
Delaware corporation ("El Paso"), the Borrower, El Paso CGP Company
(formerly known as The Coastal Corporation), a Delaware corporation
("EP CGP"), Coastal Securities Company Limited, a company incorporated
under the laws of Bermuda, ("Coastal Securities"), the Lenders,
Citibank, Coscol Petroleum Corporation, a Delaware corporation
("Coscol"), Coastal Petrochemical International (L) Limited, a company
incorporated under the laws of Labuan ("CPI"), El Paso Merchant
Energy-Petroleum Company (a successor to Coastal Energy Corporation), a
Delaware corporation ("El Paso Merchant"), Coastal Cayman Finance Ltd.,
a company incorporated under the laws of Cayman Islands ("Coastal
Cayman"), and Bank of Montreal Ireland PLC as Equity Investor (such
amendment, the "Amendment, Waiver and Consent").
B. SECURITY AGREEMENT, dated as of December 20, 1996, between the
Borrower and Citibank, as Security Agent, as amended as of April 16,
2003 pursuant to the Amendment, Waiver and Consent.
C. SECURITYHOLDERS AGREEMENT, dated as of December 20, 1996, among
Coscol, CPI, El Paso Merchant, the Borrower, El Paso and Coastal
Securities, as amended and restated as of April 16, 2003 pursuant to
the Amendment, Waiver and Consent.
D. PREFERRED SHARES PURCHASE AGREEMENT, dated as of December 20, 1996,
between Coastal Securities and the Borrower, as amended as of April 16,
2003 pursuant to the Amendment, Waiver and Consent.
E. BYE-LAWS OF COASTAL SECURITIES, dated as of December 20, 1996, as
amended as of April 16, 2003 pursuant to the Amendment, Waiver and
Consent.
F. PROMISSORY NOTE, issued by Coastal Cayman to Coastal Securities for
the principal sum of $156,000,000, as amended and restated as of April
16, 2003 pursuant to the Amendment, Waiver and Consent.
G. SETTLEMENT OF TRUST, dated as of December 20, 1996 between the
Borrower and Bank of Montreal Ireland plc, as amended as of April 16,
2003, pursuant to deed of amendment.
V. COMPANY PROJECT SUPPORT DOCUMENT:
Schedule II-C Part 2
A. AMENDED AND RESTATED GUARANTY AGREEMENT originally dated as of
December 20, 1996, as amended and restated as of June 26, 2001, as
amended and restated as of April 16, 2003 made in favor of Coastal
Securities by El Paso as guarantor, as further amended and restated
pursuant to the Amendment, Waiver and Consent.(1)
By executing Part 2 of this Schedule II-C, the Representative Agent
listed on this Part 2 represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material contractual restriction binding on or affecting such
Representative Agent and (b) have been consented to by the requisite percentage
of the relevant parties to the Underlying Documents listed above in order to
authorize such Representative Agent to act on behalf of all such parties under
or in respect of the Collateral Documents.
[The Remainder of this Page Intentionally Left Blank]
- --------
(1) Under the Amended and Restated Guaranty Agreement, El Paso guarantees the
principal, interest, fees, expenses or otherwise under the Affiliate Notes.
Currently one Affiliate Note for the principal sum of $156,000,000 is
outstanding.
Schedule II-C Part 2
Executed as of the ___ day of April, 2003.
CITIBANK INTERNATIONAL PLC
By:________________________________________
Name:
Title:
Schedule II-C Part 2
ANNEX A
I, _____________________, do hereby certify that I am ________________
of the Representative Agent listed on Part 2 of Schedule II-C and that the
Person executing Part 2 of Schedule II-C holds the office of such Representative
Agent set forth immediately below his name (or is an authorized signatory of
such Representative Agent) and the signature executed immediately above his name
is the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
CITIBANK INTERNATIONAL PLC
By:________________________________________
Name:
Title:
Schedule II-C Part 2
PART 3 OF SCHEDULE II-C
UNDERLYING TRANSACTION:
COASTAL PETROCHEMICAL, L.P.
US$60,000,000 CREDIT AGREEMENT ("COASTAL")
I. SCHEDULE II-C PART 3 EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: Royal Bank of Canada,
as Agent
A. ADDRESS: Royal Bank Plaza
200 Bay Street
12th Floor, South Tower
Toronto, Ontario M5J 2J5
Attn.: Manager Agency Services
Group
Tel: (416) 842-3905
Fax: (416) 842-4023
B. WIRING INSTRUCTIONS: JPMorgan Chase Bank, New York,
New York
ABA 021000021, Swift code: CHASUS33
Swift Address: ROYCCAT2
Beneficiary: Favour:/00002-408-919-9
RBC Loan Syndications,
Toronto, Ontario
Ref: Coastal Petrochemical
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
Royal Bank of Canada
Sumitomo Mitsui Banking Corporation of Canada
BNP Paribas (Canada)
Bank of Tokyo-Mitsubishi (Canada)
III. ATTRIBUTABLE PRINCIPAL AMOUNT: $13,005,000
METHOD OF CALCULATION: The Attributable Principal Amount as of the
date hereof of $13,005,000 (which equals 51%
of the aggregate principal amount of
borrowings outstanding under the Credit
Agreement (defined below) on the date hereof
guaranteed by El Paso under the Guarantee
(defined below)), reduced from time to time
by the aggregate amount of deposits, if any,
into the applicable subaccount of the Cash
Collateral Account for the Coastal
Petrochemical Underlying Transaction
(without any reduction or adjustment on
account of interest) pursuant to Section
2.04(b)(ii)(B) of the Intercreditor
Agreement (defined below) and to be held and
applied in accordance with Section
4.02(b)(iii) of the Intercreditor Agreement.
Schedule II-C Part 3
IV. PRINCIPAL UNDERLYING DOCUMENT:
A. US$60,000,000 CREDIT AGREEMENT, dated as of April 12, 2001 (the
"Credit Agreement"), among Coastal Petrochemical, L.P./Petrochimie
Coastal, S.E.C., as Borrower ("Coastal"), and Royal Bank of Canada,
Sumitomo Mitsui Banking Corporation of Canada, BNP Paribas (Canada),
Bank of Tokyo-Mitsubishi (Canada), as lenders (collectively, the
"Lenders") with Royal Bank of Canada, as agent (the "Agent"), and RBC
Dominion Securities Inc., as amended by the First Amending Agreement to
Credit Agreement, dated the date hereof, among Coastal, the Lenders,
and the Agent.
V. COMPANY PROJECT SUPPORT DOCUMENT:
A. GUARANTEE AND UNDERTAKING, made as of April 12, 2001, between El
Paso Corporation, as Guarantor, and Royal Bank of Canada, as Agent
("Guarantee"). Under the Guarantee, El Paso guarantees up to 51% of
Coastal's indebtedness in respect of the Tranche "A" Credit under the
Credit Agreement and agrees to indemnify the Lenders against
environmental liabilities and against any losses they may sustain or
incur as a result of not being named loss payees under any insurance
policies held by Coastal pursuant to Section 10.1.5 of the Credit
Agreement.
By executing Part 3 of this Schedule II-C, the Representative Agent
listed on this Part 3 represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material contractual restriction binding on or affecting such
Representative Agent and (b) have been consented to by the requisite percentage
of the relevant parties to the Underlying Documents listed above in order to
authorize such Representative Agent to act on behalf of all such parties under
or in respect of the Collateral Documents.
[The Remainder of this Page Intentionally Left Blank]
Schedule II-C Part 3
Executed as of the ___ day of April, 2003.
ROYAL BANK OF CANADA
By:________________________________________
Name:
Title:
Schedule II-C Part 3
ANNEX A
I, _______________________, do hereby certify that I am
___________________ of the Representative Agent listed on Part 3 of Schedule
II-C and that the Person executing Part 3 of Schedule II-C holds the office of
such Representative Agent set forth immediately below his name (or is an
authorized signatory of such Representative Agent) and the signature executed
immediately above his name is the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
ROYAL BANK OF CANADA
By:________________________________________
Name:
Title:
Schedule II-C Part 3
PART 4 OF SCHEDULE II-C
UNDERLYING TRANSACTION:
COSCOL PETROLEUM CORPORATION ("COSCOL") - ARUBA LEASE FINANCING
I. SCHEDULE II-C PART 4 EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: Citicorp North America, Inc.
A. ADDRESS: Two Penns Way
Suite 200
New Castle, DE 19720
Attention: Amy Pincu
Fax: (713) 654-2849
B. WIRING INSTRUCTIONS: Account No. 36852248 (Account Name:
NAIB Medium Term Finance) at Citicorp
North America, Inc., N.A.,
ABA#021000089, Reference: Coscol
Petroleum ADP
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
Certificate Purchaser: BNY Capital Funding LLC
Note Purchaser: Seaboard Capital Corporation*
*As a result of the undivided interests purchased by the APA
Purchasers in the Notes held by Seaboard Capital Corporation,
the Representative Agent, in its capacity as Agent under the
APA, acts on behalf of the following APA Purchasers:
Citicorp North America, Inc.
Bank of America, N.A.
Bank of Montreal
The Bank of New York
The Bank of Nova Scotia
The Bank of Tokyo-Mitsubishi, Ltd.
Barclays Bank PLC
JPMorgan Chase Bank (successor by merger to Chase Bank of
Texas National Association)
Credit Agricole Indosuez
DG Bank Deutsche Genossenschaftsbank, Cayman Island Branch
Dresdner Bank AG, New York and Grand Cayman Branches
Fleet National Bank (a/k/a BankBoston, N.A.)
KBC Bank N.V.
National Westminster Bank PLC
Royal Bank of Canada
The Toronto-Dominion Bank
Schedule II-C Part 4
III. ATTRIBUTABLE PRINCIPAL AMOUNT:$370,000,000
METHOD OF CALCULATION: The Attributable Principal Amount as of the
date hereof of $370,000,000 (consisting of
$358,900,000 attributable to the outstanding
principal amount of the Notes and
$11,100,000 attributable to the outstanding
stated amount of the Certificates), the
repayment of which is guaranteed by El Paso
Corporation pursuant to the Third Amended
and Restated Guaranty described below, shall
be reduced from time to time in connection
with any Underlying Allocation payment made
in respect of the Underlying Transaction (as
defined in this Part 4 of Schedule II-C) and
pursuant to the terms of this Agreement.
Such a reduction, if any, shall be in an
amount equal to the portion of the
Underlying Allocation payment constituting
the "Principal Reduction Amount," excluding
amounts constituting the "Related Interest
Amount," as such terms are defined in the
Amendment, Waiver and Consent defined below.
IV. PRINCIPAL UNDERLYING DOCUMENTS:
A. AMENDED AND RESTATED PARTICIPATION AGREEMENT, dated as of September
18, 1998, among Coscol, U.S. Bank National Association (as
successor-in-interest to State Street Bank and Trust Company of
Connecticut, National Association), as Trustee ("Trustee"), U.S. Bank
National Association (as successor-in-interest to State Street Bank and
Trust Company), as Collateral Trustee ("Collateral Trustee"), Seaboard
Capital Corporation ("Seaboard"), the Persons named therein as Lenders
("Lenders"), Certificate Purchasers ("Certificate Purchasers") and APA
Purchasers ("APA Purchasers"), and Citicorp North America, Inc., as
Administrative Agent ("Administrative Agent"), as amended by: (i) that
certain Waiver and First Amendment to the Amended and Restated
Participation Agreement, dated as of January 25, 1999 among Coscol, The
Coastal Corporation (now known as El Paso CGP Company) ("Guarantor"),
Trustee, Collateral Trustee, Administrative Agent, Seaboard and
Certificate Purchasers, and the related consent letter of even date
therewith among Seaboard, Corporate Asset Funding Company, Inc.
("CAFCO"), and the APA Purchasers party thereto (collectively, the
"Waiver and First Amendment"); (ii) that certain Waiver and Second
Amendment to the Amended and Restated Participation Agreement, dated as
of June 30, 1999 (the "Waiver and Second Amendment"), among Coscol,
Guarantor, Trustee, Collateral Trustee, Seaboard, Administrative Agent,
Certificate Purchasers and the APA Purchasers party thereto; (iii) that
certain Waiver and Third Amendment to the Amended and Restated
Participation Agreement, dated as of March 28, 2000 (the "Waiver and
Third Amendment"), among Coscol, Guarantor, Trustee, Collateral
Trustee, Seaboard, Administrative Agent, CAFCO, Certificate Purchasers,
and the APA Purchasers party thereto; (iv) that certain Master
Amendment (Fourth Amendment), dated as of June 30, 2000 (the "Master
Fourth Amendment"), among Coscol, Guarantor, Trustee, Collateral
Trustee, Seaboard, Administrative Agent, CAFCO, Certificate Purchasers,
and the APA Purchasers party thereto; (v) that certain Amendment and
Consent, dated as of June 26, 2001 (the "June 2001 Amendment and
Consent"), among Coscol, Guarantor, Trustee,
Schedule II-C Part 4
Collateral Trustee, Seaboard, Administrative Agent, CAFCO, Certificate
Purchasers, and the APA Purchasers party thereto; (vi) that certain
Amendment and Consent, dated as of August 29, 2001 (the "August 2001
Amendment and Consent"), among Coscol, Trustee, Collateral Trustee,
Seaboard, Administrative Agent, CAFCO, Certificate Purchasers, and the
APA Purchasers party thereto; and (vii) that certain Amendment, Waiver
and Consent, dated as of the date hereof (the "Amendment, Waiver and
Consent"), among Coscol, Guarantor, Trustee, Collateral Trustee,
Seaboard, Administrative Agent, CAFCO, Certificate Purchasers, APA
Purchasers, and The Bank of Nova Scotia, as Credit Enhancer.
B. AMENDED AND RESTATED LEASE I, dated as of September 18, 1998,
between the Trustee, as Lessor ("Lessor"), and Coscol, as Lessee, as
amended by (i) the June 2001 Amendment and Consent, and (ii) that
certain Amendment and Waiver, dated as of July 31, 2002 (the "July 2002
Amendment and Waiver"), among Coscol, Guarantor, Trustee, Collateral
Trustee, Seaboard, Administrative Agent, CAFCO, and the APA Purchasers
party thereto.
C. LEASE II, dated as of September 18, 1998, between the Trustee, as
Lessor, and Coscol, as Lessee, as amended by (i) the Master Fourth
Amendment, (ii) the June 2001 Amendment, and (iii) the July 2002
Amendment and Waiver.
D. LEASE III, dated as of September 18, 1998, between the Trustee, as
Lessor, and Coscol, as Lessee, as amended by (i) the Master Fourth
Amendment, (ii) the June 2001 Amendment, and (iii) the July 2002
Amendment and Waiver.
E. AMENDED AND RESTATED DECLARATION OF TRUST, dated as of September 18,
1998, by U.S. Bank National Association (as successor-in-interest to
State Street Bank and Trust Company of Connecticut, National
Association), as amended by (i) the Master Fourth Amendment, and (ii)
the Amendment, Waiver and Consent.
F. NOTES AND CERTIFICATES
Notes:
Lease I Series A Trust Note issued by the Trustee in
favor of Seaboard Capital Corporation in the amount
of $87,339,000
Lease I Series B Trust Note issued by the Trustee in
favor of Seaboard Capital Corporation in the amount
of $13,516,750
Lease II Series A1 Trust Note issued by the Trustee
in favor of Seaboard Capital Corporation in the
amount of $112,443,240
Lease II Series B Trust Note issued by the Trustee in
favor of Seaboard Capital Corporation in the amount
of $17,401,930
Lease III Series A1 Trust Note issued by the Trustee
in favor of Seaboard Capital Corporation in the
amount of $111,017,760
Lease III Series B Trust Note issued by the Trustee
in favor of Seaboard Capital Corporation in the
amount of $17,181,320
Certificates:
Schedule II-C Part 4
Lease I Series C Trust Certificate issued by the
Trustee in favor of BNY Capital Funding LLC in the
amount of $3,119,250
Lease II Series C Trust Certificate issued by the
Trustee in favor of BNY Capital Funding LLC in the
amount of $4,015,830
Lease III Series C Trust Certificate issued by the
Trustee in favor of BNY Capital Funding LLC in the
amount of $3,964,920
V. COMPANY PROJECT SUPPORT DOCUMENT:
A. THIRD AMENDED AND RESTATED GUARANTY AGREEMENT, dated as of the date
hereof, made by El Paso Corporation in favor of the Trustee.
By executing Part 4 of this Schedule II-C, the Representative Agent
listed on this Part 4 represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material contractual restriction binding on or affecting such
Representative Agent and (b) have been consented to by the requisite percentage
of the relevant parties to the Underlying Documents listed above in order to
authorize such Representative Agent to act on behalf of all such parties under
or in respect of the Collateral Documents, such consent evidenced solely by the
execution and delivery by such relevant parties of the Amendment, Waiver and
Consent.
[The Remainder of this Page Intentionally Left Blank]
Schedule II-C Part 4
Executed as of the ___ day of April, 2003.
CITICORP NORTH AMERICA, INC., as
Representative Agent
By:________________________________________
Name:
Title:
Schedule II-C Part 4
ANNEX A
I, _______________________, do hereby certify that I am
____________________ of the Representative Agent listed on Part 4 of Schedule
II-C and that the Person executing Part 4 of Schedule II-C holds the office of
such Representative Agent set forth immediately below his name (or is an
authorized signatory of such Representative Agent) and the signature executed
immediately above his name is the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
CITICORP NORTH AMERICA, INC.
By:________________________________________
Name:
Title:
Schedule II-C Part 4
PART 5 OF SCHEDULE II-C
UNDERLYING TRANSACTION:
HARBORTOWN LIMITED DIVIDEND HOUSING ASSOCIATION PROJECT ("HARBORTOWN")
I. SCHEDULE II-C PART 5 EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: Deutsche Bank Trust Company
Americas ("DBTCA")
A. ADDRESS: c/o Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, NY 10019
Attention: Joel Makowsky
Director & Credit Manager
Energy & Utilities
Tel: (212) 469-7896
Fax: (212) 469-5711
Joel.Makowsky@db.com
B. WIRING INSTRUCTIONS: DB Trust Co. Americas
ABA No.: 021-001-033
Account No.: 99-401-268
Reference: Harbortown, LC S07928
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
DBTCA
III. ATTRIBUTABLE PRINCIPAL AMOUNT: $6,300,000
METHOD OF CALCULATION: El Paso Corporation has guaranteed the
obligations of Harbortown (defined below)
under the Reimbursement Agreement (defined
below). DBTCA has agreed that only
$6,300,000 of this guaranty obligation need
be secured. The Attributable Principal
Amount as of the date hereof of $6,300,000
shall be reduced dollar for dollar by any
amount deposited into the Subaccount of the
Cash Collateral Account established for the
Harbortown Underlying Transaction pursuant
to Section 2.04(b)(ii)(B) of this Agreement.
IV. PRINCIPAL UNDERLYING DOCUMENTS:
A. BOND INDENTURE, dated as of August 1, 1991, between Michigan State
Housing Development Authority and NBD Bank, N.A., as Trustee, re
Michigan State Housing Development Authority Limited Obligation Revenue
Refunding Bonds (Harbortown Limited Dividend Housing Association
Project) Series 1991.
Schedule II-C Part 5
B. IRREVOCABLE LETTER OF CREDIT NO. S-07928, dated August 2, 1991, from
DBTCA (formerly, Bankers Trust Company) to NDB Bank, N.A., as amended
to date.
C. AMENDED AND RESTATED LOAN AGREEMENT, dated as of August 1, 1991,
between Michigan State Housing Development Authority and Harbortown
Limited Dividend Housing Association ("Harbortown").
D. GUARANTY, dated as of August 1, 1991, by ANR Development Corporation
in favor of DBTCA (formerly, Bankers Trust Company).
E. REIMBURSEMENT AGREEMENT, dated as of August 1, 1991 (the
"Reimbursement Agreement"), by and between Harbortown and DBTCA
(formerly, Bankers Trust Company), as amended to date.
F. GUARANTY, dated as of August 1, 1991, made by American National
Resources Company ("ANRC") in favor of DBTCA (formerly, Bankers Trust
Company), as amended by the First Amendment to ANRC Guaranty, dated as
of October 31, 2002, between ANRC and DBTCA (formerly, Bankers Trust
Company), as further amended by the Second Amendment to ANRC Guaranty,
dated as of April 16 2003, between ANRC and DBTCA.
V. COMPANY PROJECT SUPPORT DOCUMENT:
A. GUARANTY, dated as of October 31, 2002 (the "El Paso Guaranty"), by
El Paso Corporation ("El Paso") in favor of DBTCA (formerly, Bankers
Trust Company), as amended by the First Amendment to the El Paso
Guaranty, dated as of April 16, 2003, between El Paso and DBTCA.
VI. MISCELLANEOUS:
Notwithstanding Section 1.04(b)(i) of this Agreement, DBTCA shall not
be obligated to deliver a supplement to this Part 5 of Schedule II-C quarterly,
but nothing contained herein shall in any way relieve DBTCA from its obligation
to deliver a supplement to this Part 5 of Schedule II-C pursuant to Section
1.04(b)(ii) of this Agreement.
By executing Part 5 of this Schedule II-C, the Representative Agent
listed on this Part 5 represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement are within such
Representative Agent's corporate powers, have been duly authorized by all
necessary action, and do not contravene (i) such Representative Agent's
organizational documents or (ii) any material contractual restriction binding on
or affecting such Representative Agent.
[The Remainder of this Page Intentionally Left Blank]
Schedule II-C Part 5
Executed as of the ___ day of April, 2003.
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:________________________________________
Name:
Title:
Schedule II-C Part 5
ANNEX A
I, _______________________, do hereby certify that I am
_________________ of the Representative Agent listed on Part 5 of Schedule II-C
and that the Person executing Part 5 of Schedule II-C holds the office of such
Representative Agent set forth immediately below his name (or is an authorized
signatory of such Representative Agent) and the signature executed immediately
above his name is the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:________________________________________
Name:
Title:
Schedule II-C Part 5
PART 6 OF SCHEDULE II-C
UNDERLYING TRANSACTION:
LAKESIDE PURCHASER LLC ("LAKESIDE")
I. SCHEDULE II-C PART 6 EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: JPMorgan Chase Bank
A. ADDRESS: 270 Park Avenue
New York, New York 10017
B. WIRING INSTRUCTIONS: JPMorgan Chase Bank
ABA# 021000021
Clearing Acct: 323224059
Re: Lakeside Real Estate
Trust
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
Bank Hapaolim B.M.
HVB Structured Finance, Inc.
JPMorgan Chase Bank
Black Forest Funding Corporation
Commerzbank AG, New York and Grand Cayman Branches
Suntrust Bank
Sumitomo Mitsui Banking
Barclays Bank PLC
Bank One, N.A. (Main Chicago Office)
UFJ Bank Limited
Mizuho Corporate Bank, Ltd.
III. ATTRIBUTABLE PRINCIPAL AMOUNT:$275,000,000
METHOD OF CALCULATION: The Attributable Principal Amount as of the
date hereof of $275,000,000 (consisting of
$266,750,000 in debt owed to the Backup
Facility Banks and $8,250,000 in Investor
equity), the repayment of which is
guaranteed by El Paso Corporation pursuant
to the Amended and Restated Guarantee
(defined below), shall be reduced from time
to time in connection with any Underlying
Allocation payment made, if any, in respect
of the Underlying Transaction (as defined in
this Part 6 of Schedule II-C) and pursuant
to the terms of this Agreement. Such a
reduction shall be in an amount equal to the
portion of the Underlying Allocation payment
constituting the "Principal Reduction
Amount," excluding amounts constituting the
"Related Non-Principal Amount," as such
terms are defined in the Second Amendment
and Agreement, Waiver and Consent (defined
below).
Schedule II-C Part 6
IV. PRINCIPAL UNDERLYING DOCUMENTS:
A. LOAN FACILITY AGREEMENT, dated as of May 15, 2001, among Lakeside
Real Estate Trust 2001 (the "Lessor"), as Borrower, JPMorgan Chase
Bank, formerly known as The Chase Manhattan Bank, as Administrative
Agent (the "Administrative Agent"), and Relationship Funding Company,
as amended by the First Amendment and Agreement dated as of October 11,
2001 (the "First Amendment") and the Second Amendment and Agreement,
Waiver and Consent, dated as of April 16, 2003, among Lakeside, the
Lessor, Wilmington Trust Company, as trustee of the Lessor (the
"Trustee"), the various signatories thereto as Investors and Backup
Facility Banks and the Administrative Agent (the "Second Amendment").
B. PARTICIPATION AGREEMENT, dated as of May 15, 2001, among Lakeside,
the Lessor, the Administrative Agent, Wilmington Trust Company, as
trustee of the Lessor ("Trustee"), various financial institutions as
Investors and Backup Facility Banks, and JP Morgan Chase Bank, as
Administrative Agent (the "Administrative Agent"), as amended by the
FIRST AMENDMENT AND THE Second Amendment.
C. TRANCHE A NOTE, dated as of October 11, 2001, from the Lessor to
Commerzbank AG, New York and Grand Cayman Branches.
D. TRANCHE B NOTE, dated as of October 11, 2001, from the Lessor to
Commerzbank AG, New York and Grand Cayman Branches.
E. LEASE, dated as of May 15, 2001, between the Lessor and Lakeside, as
amended by the First Amendment.
F. ASSIGNMENT OF LEASES, RENTS AND GUARANTEE, dated as of May 15, 2001,
from the Lessor, as Assignor, to the Administrative Agent, as Assignee.
G. TRUST AGREEMENT OF LAKESIDE REAL ESTATE TRUST 2001, dated as of May
14, 2001, among the Investors and the Trustee, as amended by the First
Amendment.
H. SHORT FORM/MEMORANDUM OF LEASE, MORTGAGE, SECURITY AGREEMENT AND
FINANCIAL STATEMENT (INCLUDING FIXTURE FILING), dated as of May 15,
2001, between the Lessor and Lakeside.
I. MORTGAGE, ASSIGNMENT OF RENTS AND LEASES AND SECURITY AGREEMENT,
dated as of May 15, 2001, from Lakeside and the Lessor to the
Administrative Agent.
J. PLEDGE AGREEMENT AND CONTROL AGREEMENT, dated as of May 15, 2001,
between the Lessor and the Administrative Agent.
V. COMPANY PROJECT SUPPORT DOCUMENTS:
A. AMENDED AND RESTATED GUARANTEE, dated as of the date hereof, by El
Paso Corporation in favor of the Lessor, for the benefit of the
Investors, the Lenders, and the Administrative Agent.
Schedule II-C Part 6
By executing Part 6 of this Schedule II-C, the Representative Agent
listed on this Part 6 represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material contractual restriction binding on or affecting such
Representative Agent and (b) have been consented to by the requisite percentage
of the relevant parties to the Underlying Documents listed above in order to
authorize such Representative Agent to act on behalf of all such parties under
or in respect of the Collateral Documents.
Schedule II-C Part 6
Executed as of the ___ day of April, 2003.
JPMORGAN CHASE BANK
By:______________________________________
Name: Peter Ling
Title: Vice President
Schedule II-C Part 6
ANNEX A
I, ______________________, do hereby certify that I am ______________
of the Representative Agent listed on Part 6 of Schedule II-C and that the
Person executing Part 6 of Schedule II-C holds the office of such Representative
Agent set forth immediately below his name (or is an authorized signatory of
such Representative Agent) and the signature executed immediately above his name
is the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
JPMORGAN CHASE BANK
By:________________________________________
Name:
Title:
Schedule II-C Part 6
PART 7 OF SCHEDULE II-C
UNDERLYING TRANSACTION:
NOVA SCOTIA LOAN -- 1999 CREDIT AGREEMENT ("NOVA SCOTIA 1999")
I. SCHEDULE II-C PART 7 EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: Mizuho Corporate Bank (USA),
as Administrative Agent ("Mizuho")
A. ADDRESS: 1251 Avenue of the Americas
New York, NY 10020
B. WIRING INSTRUCTIONS: Mizuho Corporate Bank (USA)
Mizuho Corporate Bank, Ltd., New York
Branch
ABA No.: 026 004 307
Account No.: 879740222205
Reference: El Paso Oil & Gas Nova
Scotia I, ULC/LAD/Mizuho
Corporate Bank (USA)
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
Mizuho Corporate Bank (USA)
Credit Lyonnais New York Branch
Fleet National Bank
Comerica Bank
UFJ Bank Limited
Natexis Banques Populaires
III. ATTRIBUTABLE PRINCIPAL AMOUNT: $100,000,000
METHOD OF CALCULATION: The Attributable Principal Amount as of the
date hereof of $100,000,000, the repayment
of which is guaranteed by El Paso
Corporation pursuant to the Guaranty
described below, shall be reduced from time
to time in connection with any Underlying
Allocation payment made, if any, in respect
of the Underlying Transaction (as defined in
this Part 7 of Schedule II-C) and pursuant
to the terms of this Agreement. Such a
reduction, if any, shall be in an amount
equal to the portion of the Underlying
Allocation payment constituting the
"Principal Reduction Amount," excluding
amounts constituting the "Related Interest
Amount," each as defined in Amendment No. 1
to the Credit Agreement (defined below).
IV. PRINCIPAL UNDERLYING DOCUMENTS:
A. CREDIT AGREEMENT, dated as of December 7, 1999 (as amended, the
"Credit Agreement") among El Paso Oil & Gas Nova Scotia I, ULC
(formerly, Coastal Oil & Gas Nova Scotia I, ULC) ("Nova Scotia"), as
Borrower, Mizuho (as successor by merger
Schedule II-C Part 7
to The Industrial Bank of Japan Trust Company), as Administrative
Agent, Fleet National Bank (formerly, Bank Boston N.A.), as
Documentation Agent, Credit Lyonnais New York Branch, as Syndication
Agent, and the banks party thereto, as amended by Amendment No. 1,
dated as of the date hereof among Nova Scotia, Mizuho (as successor in
interest by merger to IBJ Trust), as Administrative Agent, and the
banks party thereto.
V. COMPANY PROJECT SUPPORT DOCUMENT:
A. GUARANTY, dated as of the date hereof (the "Guaranty"), by El Paso
Corporation in favor of Mizuho, as Administrative Agent under the
Credit Agreement.
By executing Part 7 of this Schedule II-C, the Representative Agent
listed on this Part 7 represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material contractual restriction binding on or affecting such
Representative Agent and (b) have been consented to by the requisite percentage
of the relevant parties to the Underlying Documents listed above in order to
authorize such Representative Agent to act on behalf of all such parties under
or in respect of the Collateral Documents.
[The Remainder of this Page Intentionally Left Blank]
Schedule II-C Part 7
Executed as of the ___ day of April, 2003.
MIZUHO CORPORATE BANK (USA)
By:________________________________________
Name:
Title:
Schedule II-C Part 7
ANNEX A
I, ________________________, do hereby certify that I am
__________________ of the Representative Agent listed on Part 7 of Schedule II-C
and that the Person executing Part 7 of Schedule II-C holds the office of such
Representative Agent set forth immediately below his name (or is an authorized
signatory of such Representative Agent) and the signature executed immediately
above his name is the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
MIZUHO CORPORATE BANK (USA)
By:________________________________________
Name:
Title:
Schedule II-C Part 7
PART 8 OF SCHEDULE II-C
UNDERLYING TRANSACTION:
NOVA SCOTIA LOAN -- 2000 CREDIT AGREEMENT ("NOVA SCOTIA 2000")
I. SCHEDULE II-C PART 8 EFFECTIVE DATE: April 16, 2003
II. REPRESENTATIVE AGENT: Mizuho Corporate Bank, Ltd.,
as Administrative Agent ("Mizuho")
A. ADDRESS: 1251 Avenue of the Americas
New York, NY 10020
B. WIRING INSTRUCTIONS: Mizuho Corporate Bank, Ltd.
Mizuho Corporate Bank, Ltd., New
York Branch
ABA No.: 026 004 307
Account No.: 879740222205
Reference: El Paso Oil & Gas Nova
Scotia, I, ULC/LAD
C. RELATED CREDITORS FOR WHOM THE REPRESENTATIVE AGENT IS ACTING:
Mizuho Corporate Bank, Ltd.
UFJ Bank Limited
Arab Banking Corporation (B.S.C.)
Banca Intesa - New York Branch
III. ATTRIBUTABLE PRINCIPAL AMOUNT: $100,000,000
METHOD OF CALCULATION: The Attributable Principal Amount as of the
date hereof of $100,000,000, the repayment
of which is guaranteed by El Paso
Corporation pursuant to the Guaranty
described below, shall be reduced from time
to time in connection with any Underlying
Allocation payment made, if any, in respect
of the Underlying Transaction (as defined in
this Part 8 of Schedule II-C) and pursuant
to the terms of this Agreement. Such a
reduction, if any, shall be in an amount
equal to the portion of the Underlying
Allocation payment constituting the
"Principal Reduction Amount," excluding
amounts constituting the "Related Interest
Amount," each as defined in Amendment No. 1
to the Credit Agreement (defined below).
IV. PRINCIPAL UNDERLYING DOCUMENT:
A. CREDIT AGREEMENT, dated as of December 19, 2000, (as amended, the
"Credit Agreement") among El Paso Oil & Gas Nova Scotia I, ULC
(formerly Coastal Oil & Gas Nova Scotia I, ULC) ("Nova Scotia"), as
Borrower, Mizuho (formerly The Industrial Bank of Japan, Limited), as
Administrative Agent, UFJ Bank Limited (formerly The Sanwa Bank
Limited), as Syndication Agent, Arab Banking Corporation (B.S.C.), as
Documentation Agent, and the banks party thereto, as amended by
Amendment No. 1,
Schedule II-C Part 8
dated as of the date hereof, among Nova Scotia, Mizuho, as
Administrative Agent, and the banks party thereto.
V. COMPANY PROJECT SUPPORT DOCUMENT:
A. GUARANTY, dated as of the date hereof (the "Guaranty"), by El Paso
Corporation in favor of Mizuho, as Administrative Agent under the
Credit Agreement.
Schedule II-C Part 8
By executing Part 8 of this Schedule II-C, the Representative Agent
listed on this Part 8 represents and warrants to the Collateral Agent, the
Intercreditor Agent and the Depository Bank that the execution, delivery and
performance by such Representative Agent of the Agreement (a) are within such
Representative Agent's corporate, limited liability company, partnership or
other Business Entity powers, have been duly authorized by all necessary action,
and do not contravene (i) such Representative Agent's organizational documents
or (ii) any material contractual restriction binding on or affecting such
Representative Agent and (b) have been consented to by the requisite percentage
of the relevant parties to the Underlying Documents listed above in order to
authorize such Representative Agent to act on behalf of all such parties under
or in respect of the Collateral Documents.
[The Remainder of this Page Intentionally Left Blank]
Schedule II-C Part 8
Executed as of the ___ day of April, 2003.
MIZUHO CORPORATE BANK, LTD.
By:________________________________________
Name:
Title:
Schedule II-C Part 8
ANNEX A
I, ________________________, do hereby certify that I am
__________________ of the Representative Agent listed on Part 8 of Schedule II-C
and that the Person executing Part 8 of Schedule II-C holds the office of the
Representative Agent set forth immediately below his name (or is an authorized
signatory of the Representative Agent) and the signature executed immediately
above his name is the true and correct signature of such Person.
IN WITNESS WHEREOF, the undersigned has set his hand on the ___ day of
April, 2003.
MIZUHO CORPORATE BANK, LTD.
By:________________________________________
Name:
Title:
Schedule II-C Part 8
SCHEDULE II-D
CERTAIN INFORMATION RELATING TO ADDITIONAL COVERED LETTERS OF CREDIT
Schedule II-D Effective Date: April 16, 2003
ADDITIONAL COVERED
LETTER OF CREDIT REPRESENTATIVE ADDRESS OF REPRESENTATIVE WIRING INSTRUCTIONS AMOUNT
(COMPANY NAME AND AGENT AGENT (ISSUER)
LETTER OF CREDIT NUMBER)
- ------------------------ -------------- ------------------------- -------------------------------- ------------------
Manatee Towing Company ABN Amro Bank ABN AMRO Bank N.V. ABN AMRO Bank N.V. $95,900.00(1)
and 200 West Monroe Street New York, NY 61,044.23 GBP
Coastal Tug and Barge, Suite 1100 ABA No.: 026009580 El Paso LC
Inc. Chicago, IL 60606-5002 F/O ABN AMRO Bank N.V. Facility Amount
S319461 Attn: Trade Services Chicago Trade Services CPU $60,000,000.00
Fax: (312) 780-0831 Acct No.: 653-001-1738-41
Re: El Paso Corporation -
00466301
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Merchant Energy ABN Amro Bank ABN AMRO Bank N.V. ABN AMRO Bank N.V. $1,418,600.94(1)
Europe Limited 200 West Monroe Street New York, NY 899,100.61 GBP
S830577 Suite 1100 ABA No.: 026009580
Chicago, IL 60606-5002 F/O ABN AMRO Bank N.V.
Attn: Trade Services Chicago Trade Services CPU
Fax: (312) 780-0831 Acct No.: 653-001-1738-41
Re: El Paso Corporation -
00466301
- -------------------------------------------------------------------------------------------------------------------------------
NEPC Consortium Power ABN Amro Bank ABN AMRO Bank N.V. ABN AMRO Bank N.V. $1,500,000.00
Ltd. 200 West Monroe Street New York, NY
S837602 Suite 1100 ABA No.: 026009580
Chicago, IL 60606-5002 F/O ABN AMRO Bank N.V.
Attn: Trade Services Chicago Trade Services CPU
Fax: (312) 780-0831 Acct No.: 653-001-1738-41
Re: El Paso Corporation -
00466301
- -------------------------------------------------------------------------------------------------------------------------------
Coastal Oil & Gas ANZ Bank $14,500.00(1)
Australia Pty Ltd. 14,500.00 AUD
2970/8200
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Merchant Bank of America $400,000.00
Energy, L.P.
7403743
- -------------------------------------------------------------------------------------------------------------------------------
RELATED
ADDITIONAL COVERED ADDITIONAL COMPANY CREDITORS
LETTER OF CREDIT COVERED LETTER REIMBURSEMENT (OTHER
(COMPANY NAME AND OF CREDIT DOCUMENT THAN THE
LETTER OF CREDIT NUMBER) EXPOSURE ISSUER)
- ------------------------ ---------------- ---------------------- ------------
Manatee Towing Company $95,900.00(1) Assignment, N/A
and 61,044.23 GBP Assumption and
Coastal Tug and Barge, Amendment to the
Inc. El Paso CGP Company
S319461 Letter of Credit
Facility Agreement
Dated 4/16/2003
- -----------------------------------------------------------------------------
El Paso Merchant Energy $1,418,600.94(1) Letter of Credit N/A
Europe Limited 899,100.61 GBP Application El Paso
S830577 Corporation
- -----------------------------------------------------------------------------
NEPC Consortium Power $1,500,000.00 Letter of Credit N/A
Ltd. Application El Paso
S837602 Corporation
- -----------------------------------------------------------------------------
Coastal Oil & Gas $14,500.00(1) Letter of Credit N/A
Australia Pty Ltd. 14,500.00 AUD Facility Agreement
2970/8200 El Paso Corporation
Dated as of
9/24/2002
- -----------------------------------------------------------------------------
El Paso Merchant $400,000.00 Letter of Credit N/A
Energy, L.P. Application El Paso
7403743 Corporation
- -----------------------------------------------------------------------------
Schedule II-D
ADDITIONAL COVERED
LETTER OF CREDIT REPRESENTATIVE ADDRESS OF REPRESENTATIVE WIRING INSTRUCTIONS AMOUNT
(COMPANY NAME AND AGENT AGENT (ISSUER)
LETTER OF CREDIT NUMBER)
- ------------------------ -------------- ------------------------- -------------------------------- ------------------
Coscol Petroleum Bank Of Nova $7,178,000
Corporation Scotia
90073/80085
- --------------------------------------------------------------------------------------------------------------------------------
Coastal Mart, Inc. Banca di Roma Banca di Roma Bank: Citibank N.A. $2,000,000.00
IC-79201 225 West Washington Street New York, NY El Paso LC
Suite 1200 ABA No.: 021000089 Facility Amount
Chicago, IL 60606 Acct Name: Banca di Roma -- New $20,000,000.00
York Branch
Acct No.: 36003043
For further credit to: Banca di
Roma -- Chicago Branch
Acct No.: 809855
Ref: El Paso Corporation
- --------------------------------------------------------------------------------------------------------------------------------
El Paso CGP Company Bayerische $4,130,249.00
(formerly known as The Hypo-und El Paso LC
Coastal Corporation) Vereinsbank Facility Amount
SB104698 $62,000,000.00
- --------------------------------------------------------------------------------------------------------------------------------
East Coast Power L.L.C. Bayerische $30,000,000.00
SB104396 Hypo-und El Paso LC
Vereinsbank Facility Amount
$62,000,000.00
- --------------------------------------------------------------------------------------------------------------------------------
El Paso CGP Company Bayerische $15,848,990.00
(formerly known as The Hypo-und El Paso LC
Coastal Corporation) Vereinsbank Facility Amount
SB104699 $62,000,000.00
- --------------------------------------------------------------------------------------------------------------------------------
El Paso Meizhou Wan The Bank of New $10,648,008.00
Holding Company York
S00040334
- --------------------------------------------------------------------------------------------------------------------------------
Young Gas Storage BNP Paribas $830,720.00
Company, Ltd El Paso LC
S401406 Facility Amount
$85,000,000.00
- --------------------------------------------------------------------------------------------------------------------------------
RELATED
ADDITIONAL COVERED ADDITIONAL COMPANY CREDITORS
LETTER OF CREDIT COVERED LETTER REIMBURSEMENT (OTHER
(COMPANY NAME AND OF CREDIT DOCUMENT THAN THE
LETTER OF CREDIT NUMBER) EXPOSURE ISSUER)
- ------------------------ ---------------- ---------------------- ------------
Coscol Petroleum $7,178,000 El Paso Corporation N/A
Corporation Guaranty
90073/80085
- -----------------------------------------------------------------------------
Coastal Mart, Inc. $2,000,000.00 Letter of Credit N/A
IC-79201 Facility Agreement
El Paso Corporation
Dated as of
8/20/2001
- -----------------------------------------------------------------------------
El Paso CGP Company $4,130,249.00 Letter of Credit N/A
(formerly known as The Facility Agreement
Coastal Corporation) El Paso Corporation
SB104698 dated 8/7/2001
- -----------------------------------------------------------------------------
East Coast Power L.L.C. $23,965,795.32 Letter of Credit N/A
SB104396 Facility Agreement
El Paso Corporation
dated
8/7/2001
- -----------------------------------------------------------------------------
El Paso CGP Company $5,000,000.00 Letter of Credit N/A
(formerly known as The Facility Agreement
Coastal Corporation) El Paso Corporation
SB104699 dated 8/7/2001
- -----------------------------------------------------------------------------
El Paso Meizhou Wan $10,648,008.00 Letter of Credit N/A
Holding Company Application El Paso
S00040334 Corporation
- -----------------------------------------------------------------------------
Young Gas Storage $1,367,430.02 Assignment, N/A
Company, Ltd Assumption and
S401406 Amendment to the
El Paso CGP Company
Letter of Credit
Facility Agreement
Dated 4/16/2003
- -----------------------------------------------------------------------------
Schedule II-D
2
ADDITIONAL COVERED
LETTER OF CREDIT REPRESENTATIVE ADDRESS OF REPRESENTATIVE WIRING INSTRUCTIONS AMOUNT
(COMPANY NAME AND AGENT AGENT (ISSUER)
LETTER OF CREDIT NUMBER)
- ------------------------ -------------- ------------------------- -------------------------------- ------------------
Orange Cogeneration BNP Paribas $775,000.00
Limited Partnership El Paso LC
27497 Facility Amount
$55,000,000.00
- -------------------------------------------------------------------------------------------------------------------------------
Orange Cogeneration BNP Paribas $963,000.00
Limited Partnership El Paso LC
27495 Facility Amount
$55,000,000.00
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Corporation BNP Paribas $1,000,000.00
00027520
- -------------------------------------------------------------------------------------------------------------------------------
Coastal Offshore BNP Paribas $2,233,633.00
Insurance Limited El Paso LC
27603 Facility Amount
$55,000,000.00
- -------------------------------------------------------------------------------------------------------------------------------
Coastal Offshore BNP Paribas $1,723,367.00
Insurance Limited El Paso LC
27604 Facility Amount
$55,000,000.00
- -------------------------------------------------------------------------------------------------------------------------------
Fulton Cogeneration BNP Paribas $404,775.00
Associates, L.P. El Paso LC
27607 Facility Amount
$55,000,000.00
- -------------------------------------------------------------------------------------------------------------------------------
ANR Freight System, Inc. BNP Paribas $2,725,080.00
27613 El Paso LC
Facility Amount
$55,000,000.00
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Tennessee BNP Paribas $816,951.00
Pipeline Co. El Paso LC
27622 Facility Amount
$55,000,000.00
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Corporation BNP Paribas $8,450,000.00
27623 El Paso LC
Facility Amount
$55,000,000.00
- -------------------------------------------------------------------------------------------------------------------------------
San Lucian Oil Company BNP Paribas $600,000.00
Limited (Suisse) S.A.
- -------------------------------------------------------------------------------------------------------------------------------
RELATED
ADDITIONAL COVERED ADDITIONAL COMPANY CREDITORS
LETTER OF CREDIT COVERED LETTER REIMBURSEMENT (OTHER
(COMPANY NAME AND OF CREDIT DOCUMENT THAN THE
LETTER OF CREDIT NUMBER) EXPOSURE ISSUER)
- ------------------------ ---------------- ---------------------- ------------
Orange Cogeneration $775,000.00 Letter of Credit N/A
Limited Partnership Facility Agreement
27497 El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
Orange Cogeneration $1,081,500.00 Letter of Credit N/A
Limited Partnership Facility Agreement
27495 El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
El Paso Corporation $1,000,000.00 Letter of Credit N/A
00027520 Facility Agreement
El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
Coastal Offshore $2,233,633.00 Letter of Credit N/A
Insurance Limited Facility Agreement
27603 El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
Coastal Offshore $1,723,367.00 Letter of Credit N/A
Insurance Limited Facility Agreement
27604 El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
Fulton Cogeneration $404,775.00 Letter of Credit N/A
Associates, L.P. Facility Agreement
27607 El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
ANR Freight System, Inc. $2,725,080.00 Letter of Credit N/A
27613 Facility Agreement
El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
El Paso Tennessee $816,951.00 Letter of Credit N/A
Pipeline Co. Facility Agreement
27622 El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
El Paso Corporation $8,450,000.00 Letter of Credit N/A
27623 Facility Agreement
El Paso Corporation
dated 12/13/2001
- -------------------------------------------------------------------------------
San Lucian Oil Company $600,000.00 Letter of Credit N/A
Limited Application El Paso
- -------------------------------------------------------------------------------
Schedule II-D
3
ADDITIONAL COVERED
LETTER OF CREDIT REPRESENTATIVE ADDRESS OF REPRESENTATIVE WIRING INSTRUCTIONS AMOUNT
(COMPANY NAME AND AGENT AGENT (ISSUER)
LETTER OF CREDIT NUMBER)
- ------------------------ -------------- ------------------------- -------------------------------- ------------------
LCIS2239365
- -------------------------------------------------------------------------------------------------------------------------------
Live Oak Limited Citibank $850,592.00
0881-30010064
- -------------------------------------------------------------------------------------------------------------------------------
NEPC Consortium Power Citibank $4,259,000.00
Ltd.
0088030024869
- -------------------------------------------------------------------------------------------------------------------------------
Manta Ray Gathering Citibank $18,558,712.39
Company, L.L.C.
5812166051
- -------------------------------------------------------------------------------------------------------------------------------
Coastal Offshore Deutsche Bank Deutsche Bank Trust DB Trust Co. Americas $31,903.00
Insurance Limited Company Americas ABA No.: 021-001-033 El Paso LC
S-08569 c/o Deutsche Bank AG New Acct No.: 99-401-268 Facility Amount
York Branch Re: Harbortown LC S07928 or $40,000,000.00
31 West 52nd St. Coastal Offshore Insurance LC
New York, NY 10019 S08335 or
Attn: Joel Makowsky Coastal Offshore Insurance
Fax: 212-469-5711 LC S08569
- -------------------------------------------------------------------------------------------------------------------------------
Coastal Offshore Deutsche Bank Deutsche Bank Trust DB Trust Co. Americas $2,500,000.00
Insurance Limited Company Americas ABA No.: 021-001-033 El Paso LC
S-08335 c/o Deutsche Bank AG New Acct No.: 99-401-268 Facility Amount
York Branch Re: Harbortown LC S07928 or $40,000,000.00
31 West 52nd St. Coastal Offshore Insurance LC
New York, NY 10019 S08335 or
Attn: Joel Makowsky Coastal Offshore Insurance
Fax: 212-469-5711 LC S08569
- -------------------------------------------------------------------------------------------------------------------------------
ANR Eaton Company JPMorgan Chase JPMorgan Chase Bank JPMorgan Chase Bank $442,500.00
P-292889 10420 Highland Manor Dr. ABA No.: 021-00-0021 El Paso LC
4th Floor Acct. No.: ###-##-#### Facility Amount
Tampa Bay, FL 33610 Re: El Paso and letter of credit $55,000,000.00
Attn: Veronica Endara no.
Fax: 813-432-5161
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Merchant JPMorgan Chase JPMorgan Chase Bank JPMorgan Chase Bank $50,000.00
Energy, L.P. 10420 Highland Manor Dr. ABA No.: 021-00-0021
P-289986 4th Floor Acct. No.: ###-##-####
Tampa Bay, FL 33610 Re: El Paso and letter of credit
Attn: Veronica Endara no.
Fax: 813-432-5161
- -------------------------------------------------------------------------------------------------------------------------------
RELATED
ADDITIONAL COVERED ADDITIONAL COMPANY CREDITORS
LETTER OF CREDIT COVERED LETTER REIMBURSEMENT (OTHER
(COMPANY NAME AND OF CREDIT DOCUMENT THAN THE
LETTER OF CREDIT NUMBER) EXPOSURE ISSUER)
- ------------------------ ---------------- ---------------------- ------------
LCIS2239365 Corporation
- -------------------------------------------------------------------------------
Live Oak Limited $850,592.00 Letter of Credit N/A
0881-30010064 Application El Paso
Corporation
- -------------------------------------------------------------------------------
NEPC Consortium Power $3,249,500.00 Letter of Credit N/A
Ltd. Application El Paso
0088030024869 Corporation
- -------------------------------------------------------------------------------
Manta Ray Gathering $457,119.03 Letter of Credit N/A
Company, L.L.C. Application El Paso
5812166051 Corporation
- -------------------------------------------------------------------------------
Coastal Offshore $4,852.07 Assignment, N/A
Insurance Limited Assumption and
S-08569 Amendment to the El
Paso CGP Company
Letter of Credit
Facility Agreement
Dated 4/16/2003
- -------------------------------------------------------------------------------
Coastal Offshore $2,500,000.00 Assignment, N/A
Insurance Limited Assumption and
S-08335 Amendment to the El
Paso CGP Company
Letter of Credit
Facility Agreement
Dated 4/16/2003
- -------------------------------------------------------------------------------
ANR Eaton Company $442,500.00 Assignment, N/A
P-292889 Assumption and
Amendment to the El
Paso CGP Company
Letter of Credit
Facility Agreement
Dated 4/16/2003
- -------------------------------------------------------------------------------
El Paso Merchant $175,000.00 Letter of Credit N/A
Energy, L.P. Application El Paso
P-289986 Corporation
- -------------------------------------------------------------------------------
Schedule II-D
4
ADDITIONAL COVERED
LETTER OF CREDIT REPRESENTATIVE ADDRESS OF REPRESENTATIVE WIRING INSTRUCTIONS AMOUNT
(COMPANY NAME AND AGENT AGENT (ISSUER)
LETTER OF CREDIT NUMBER)
- ------------------------ -------------- ------------------------- -------------------------------- ------------------
EPEC Oil Company JPMorgan Chase JPMorgan Chase Bank JPMorgan Chase Bank $1,854,638.00
P-382682 10420 Highland Manor Dr. ABA No.: 021-00-0021
4th Floor Acct. No.: ###-##-####
Tampa Bay, FL 33610 Re: El Paso and letter of credit
Attn: Veronica Endara no.
Fax: 813-432-5161
- -------------------------------------------------------------------------------------------------------------------------------
EPEC Polymers, Inc. JPMorgan Chase JPMorgan Chase Bank JPMorgan Chase Bank $467,250.00
P-381222 10420 Highland Manor Dr. ABA No.: 021-00-0021
4th Floor Acct. No.: ###-##-####
Tampa Bay, FL 33610 Re: El Paso and letter of credit
Attn: Veronica Endara no.
Fax: 813-432-5161
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Merchant JPMorgan Chase JPMorgan Chase Bank JPMorgan Chase Bank $6,000,000.00
Energy, L.P. 10420 Highland Manor Dr. ABA No.: 021-00-0021
P-225637 4th Floor Acct. No.: ###-##-####
Tampa Bay, FL 33610 Re: El Paso and letter of credit
Attn: Veronica Endara no.
Fax: 813-432-5161
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Hydrocarbons, JPMorgan Chase JPMorgan Chase Bank JPMorgan Chase Bank $4,950,000.00
L.P. 10420 Highland Manor Dr. ABA No.: 021-00-0021
P-228663 4th Floor Acct. No.: ###-##-####
Tampa Bay, FL 33610 Re: El Paso and letter of credit
Attn: Veronica Endara no.
Fax: 813-432-5161
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Corporation Royal Bank of Royal Bank of Canada Credit Bank: JPMorgan Chase Bank $19,400,000.00
01134/S22008 Canada New York Branch Manhattan, NY
One Liberty Plaza, 3rd Credit Bank's ABA No.:
floor 021-00-0021
New York, NY 10006-1404 Acct No.: 920-1-033363
Attn: Chan Panicker, Beneficiary Acct Name: Royal
Manager Bank of Canada, New York
Fax: 212-428-23726235 Beneficiary Acct No.: For
further credit to Account No.
218-599-9
Attn: Manager, Loans
Administration
- -------------------------------------------------------------------------------------------------------------------------------
El Paso Amazonas Societe Generale $359,455.80(1)
Energia Ltda. 1,027,318.95 BRL
40730
- -------------------------------------------------------------------------------------------------------------------------------
RELATED
ADDITIONAL COVERED ADDITIONAL COMPANY CREDITORS
LETTER OF CREDIT COVERED LETTER REIMBURSEMENT (OTHER
(COMPANY NAME AND OF CREDIT DOCUMENT THAN THE
LETTER OF CREDIT NUMBER) EXPOSURE ISSUER)
- ------------------------ ---------------- ---------------------- ------------
EPEC Oil Company $1,629,466.44 Letter of Credit N/A
P-382682 Application El Paso
Corporation
- -----------------------------------------------------------------------------
EPEC Polymers, Inc. $467,250.00 Letter of Credit N/A
P-381222 Application El Paso
Corporation
- -----------------------------------------------------------------------------
El Paso Merchant $6,000,000.00 Letter of Credit N/A
Energy, L.P. Application El Paso
P-225637 Corporation
- -----------------------------------------------------------------------------
El Paso Hydrocarbons, $4,950,000.00 Letter of Credit N/A
L.P. Application El Paso
P-228663 Corporation
- -----------------------------------------------------------------------------
El Paso Corporation $19,400,000.00 Letter of Credit N/A
01134/S22008 Application El Paso
Corporation
- -----------------------------------------------------------------------------
El Paso Amazonas $374,952.73(1) Assignment, N/A
Energia Ltda. 1,071,683.17 Assumption and
40730 BRL Amendment to Letter
of Credit
Application
- -----------------------------------------------------------------------------
Schedule II-D
5
ADDITIONAL COVERED
LETTER OF CREDIT REPRESENTATIVE ADDRESS OF REPRESENTATIVE WIRING INSTRUCTIONS AMOUNT
(COMPANY NAME AND AGENT AGENT (ISSUER)
LETTER OF CREDIT NUMBER)
- ------------------------ -------------- ------------------------- -------------------------------- ------------------
- --------------------------------------------------------------------------------------------------------------------------------
Rondonia Power Company Societe Generale $7,125,021.00El
30207 Paso LC Facility
Amount
$25,000,000.00
- --------------------------------------------------------------------------------------------------------------------------------
El Paso Production Oil Toronto Dominion $5,000,000.00
and Gas Company El Paso LC
(formerly known as Facility Amount
Coastal Oil and Gas $60,000,000
Corporation)
G390391
- --------------------------------------------------------------------------------------------------------------------------------
El Paso Production Oil Toronto Dominion $2,000,000.00
and Gas Company El Paso LC
(formerly known as Facility Amount
Coastal Oil and Gas $60,000,000
Corporation)
G390392
- --------------------------------------------------------------------------------------------------------------------------------
El Paso Production Oil Toronto Dominion $1,500,000.00
and Gas Company El Paso LC
(formerly known as Facility Amount
Coastal Oil and Gas $60,000,000
Corporation)
G390390
- --------------------------------------------------------------------------------------------------------------------------------
Lakeside Purchaser, LLC Toronto Dominion $200,000.00
G390426
- --------------------------------------------------------------------------------------------------------------------------------
Berkshire Power Toronto Dominion $400,000.00
Company, LLC
G390437
- --------------------------------------------------------------------------------------------------------------------------------
Orlando CoGen Limited, Wachovia Wachovia Bank, National Wachovia Bank, National $18,115,397.00
L.P. Association Association
SM417751C 301 S. College Street Charlotte, NC
Charlotte, NC 28288 ABA No.: 053000219
- --------------------------------------------------------------------------------------------------------------------------------
RELATED
ADDITIONAL COVERED ADDITIONAL COMPANY CREDITORS
LETTER OF CREDIT COVERED LETTER REIMBURSEMENT (OTHER
(COMPANY NAME AND OF CREDIT DOCUMENT THAN THE
LETTER OF CREDIT NUMBER) EXPOSURE ISSUER)
- ------------------------ ---------------- ---------------------- ------------
El Paso Natural
Gas Company
- ------------------------------------------------------------------------------
Rondonia Power Company $694,094.81 Amended and N/A
30207 Restated Letter of
Credit Facility
Agreement El Paso
Corporation dated
10/18/2002
- ------------------------------------------------------------------------------
El Paso Production Oil $5,000,000.00 Assignment, N/A
and Gas Company Assumption and
(formerly known as Amendment to the El
Coastal Oil and Gas Paso CGP Company
Corporation) Letter of Credit
G390391 Facility Agreement
Dated 4/16/2003
- ------------------------------------------------------------------------------
El Paso Production Oil $2,000,000.00 Assignment, N/A
and Gas Company Assumption and
(formerly known as Amendment to the El
Coastal Oil and Gas Paso CGP Company
Corporation) Letter of Credit
G390392 Facility Agreement
Dated 4/16/2003
- ------------------------------------------------------------------------------
El Paso Production Oil $1,500,000.00 Assignment, N/A
and Gas Company Assumption and
(formerly known as Amendment to the El
Coastal Oil and Gas Paso CGP Company
Corporation) Letter of Credit
G390390 Facility Agreement
Dated 4/16/2003
- ------------------------------------------------------------------------------
Lakeside Purchaser, LLC $200,000.00 Letter of Credit N/A
G390426 Application El Paso
Corporation
- ------------------------------------------------------------------------------
Berkshire Power $400,000.00 Letter of Credit N/A
Company, LLC Application El Paso
G390437 Corporation
- ------------------------------------------------------------------------------
Orlando CoGen Limited, $18,115,397.00 Letter of Credit N/A
L.P. Application El Paso
SM417751C Corporation
- ------------------------------------------------------------------------------
Schedule II-D
6
ADDITIONAL COVERED
LETTER OF CREDIT REPRESENTATIVE ADDRESS OF REPRESENTATIVE WIRING INSTRUCTIONS AMOUNT
(COMPANY NAME AND AGENT AGENT (ISSUER)
LETTER OF CREDIT NUMBER)
- ------------------------ -------------- ------------------------- -------------------------------- ------------------
Credit: Energy Debt Finance
Acct No.: 01459168108011
Attn: Denise Babbitt
Ref: El Paso Corporation
- -------------------------------------------------------------------------------------------------------------------------------
TOTAL $203,138,330.13
- -------------------------------------------------------------------------------------------------------------------------------
RELATED
ADDITIONAL COVERED ADDITIONAL COMPANY CREDITORS
LETTER OF CREDIT COVERED LETTER REIMBURSEMENT (OTHER
(COMPANY NAME AND OF CREDIT DOCUMENT THAN THE
LETTER OF CREDIT NUMBER) EXPOSURE ISSUER)
- ------------------------ ---------------- ---------------------- ------------
$138,761,513.36
- -------------------------------------------------------------------------------
(1) Converted to U.S. Dollars
SCHEDULE II-E
CERTAIN INFORMATION RELATING TO FUTURE COVERED HEDGING ARRANGEMENTS
Schedule II-E Effective Date: April 16, 2003
Note: In all cases, the Company Support Document will be the Credit Agreement.
REPRESENTATIVE AGENT
FUTURE COVERED (CREDIT AGREEMENT ADDRESS OF NET TERMINATION COMPANY SUPPORT
HEDGING AGREEMENT ADMINISTRATIVE AGENT) REPRESENTATIVE AGENT WIRING INSTRUCTIONS AMOUNT DOCUMENT
- ----------------- --------------------- -------------------- ------------------- --------------- ---------------
NONE
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Schedule II-E
SCHEDULE III
[RESERVED]
Schedule III
SCHEDULE IV
INITIAL PLEDGED EQUITY
A. DESCRIPTION OF INITIAL PLEDGED EQUITY OF SUBSIDIARIES
GRANTOR ISSUER CLASS OF PAR CERTIFICATE NUMBER OF PERCENTAGE OF
EQUITY VALUE NO(s). SHARES OUTSTANDING
INTEREST EQUITY
INTERESTS OF
ISSUER
- ------------------------------------------------------------------------------------------------------------------------------------
American Natural Resources El Paso ANR Investments, Certificate n/a 1 n/a 100%
Company L.L.C. of Interest
El Paso ANR Investments, L.L.C. ANR Pipeline Company Common 1.00 36 1,000 100%
El Paso ANRS Investments, ANR Storage Company Common 1.00 33 1,000 100%
L.L.C.
El Paso CNG Company, L.L.C. El Paso Noric Investments Certificate n/a 1 n/a 100%
III, L.L.C. of Interest
El Paso CNG Company, L.L.C. El Paso WIC Investments, Certificate n/a 1 n/a 100%
L.L.C. of Interest
El Paso EPNG Investments, El Paso Natural Gas Company Certificate 1.00 2 1,000 100%
L.L.C. of Interest
El Paso Noric Investments I, Noric Holdings I, L.L.C. Noric n/a 1 n/a 100%(1)
L.L.C. Holdings I
Class A
Membership
Interest
El Paso Noric Investments III, Noric Holdings III, L.L.C. Noric n/a 1 n/a 100%(1)
L.L.C. Holdings III
Class A
Membership
Interest
El Paso Noric Investments IV, Noric Holdings IV, L.L.C. Noric n/a 1 n/a 100%(1)
L.L.C. Holdings IV
Class A
Membership
Interest
El Paso Tennessee Pipeline Co. El Paso TGPC Investments, Certificate n/a 1 n/a 100%
L.L.C. of Interest
Schedule IV
1
GRANTOR ISSUER CLASS OF PAR CERTIFICATE NUMBER OF PERCENTAGE OF
EQUITY VALUE NO(s). SHARES OUTSTANDING
INTEREST EQUITY
INTERESTS OF
ISSUER
- ------------------------------------------------------------------------------------------------------------------------------------
El Paso TGPC Investments, Tennessee Gas Pipeline Common 5.00 4 208 100%
L.L.C. Company
El Paso WIC Investments, L.L.C. CIG Gas Supply Company Common 1.00 7 1,000 100%
El Paso WIC Investments, L.L.C. Wyoming Gas Supply, Inc. Common 1.00 4 1,000 100%
Sabine River Investors III, Tennessee Storage Company Common 5.00 3 200 100%
L.L.C.
Sabine River Investors IV, Southern Gas Storage Company Common 1.00 2 100 100%
L.L.C.
Sabine River Investors V, El Paso Mojave Pipeline Co. Common 1.00 2 1,000 100%
L.L.C.
Sabine River Investors V, EPNG Mojave, Inc. Common 1.00 2 1,000 100%
L.L.C.
(1) Other than the Class B Interest, all of the Equity Interests of this Pledged
Company are owned by the Subsidiary Guarantor named herein.
B. DESCRIPTION OF EPN UNITS
GRANTOR ISSUER CLASS OF PAR CERTIFICATE NUMBER OF PERCENTAGE OF
EQUITY VALUE NO(s). SHARES OUTSTANDING
INTEREST EQUITY
INTERESTS OF
ISSUER
- ------------------------------------------------------------------------------------------------------------------------------------
El Paso EPN Investments, El Paso Energy Partners, L.P. Series C n/a 2 10,937,500 Variable
L.L.C. Units
Sabine River Investors I, El Paso Energy Partners, L.P. Series A n/a EPN1221 2,950,967 Variable
L.L.C. Units
Sabine River Investors I, El Paso Energy Partners, L.P. Series A n/a EPN1222 2,950,967 Variable
L.L.C. Units
Sabine River Investors I, El Paso Energy Partners, L.P. Series A n/a EPN1223 2,950,968 Variable
L.L.C. Units
Sabine River Investors II, El Paso Energy Partners, L.P. Series A n/a EPN1220 2,821,343 Variable
L.L.C. Units
Schedule IV
2
SCHEDULE V
NAME, LOCATION, CHIEF EXECUTIVE OFFICE, TYPE OF ORGANIZATION, JURISDICTION
OF ORGANIZATION, AND ORGANIZATIONAL IDENTIFICATION NUMBER
TYPE OF JURISDICTION OF ORGANIZATIONAL
COMPANY NAME LOCATION CHIEF EXECUTIVE OFFICE ORGANIZATION ORGANIZATION I.D. NO.
- ------------ -------- ---------------------- ------------ --------------- --------------
ANR Pipeline Company Delaware El Paso Building Corporation Delaware 0394921
1001 Louisiana St.
Houston, Texas 77002
Colorado Interstate Gas Company Delaware El Paso Building Corporation Delaware 0218602
1001 Louisiana St.
Houston, Texas 77002
El Paso Corporation Delaware El Paso Building Corporation Delaware 2884676
1001 Louisiana St.
Houston, Texas 77002
El Paso Natural Gas Company Delaware El Paso Building Corporation Delaware 0247127
1001 Louisiana St.
Houston, Texas 77002
Tennessee Gas Pipeline Company Delaware El Paso Building Corporation Delaware 0414109
1001 Louisiana St.
Houston, Texas 77002
American Natural Resources Company Delaware El Paso Building Corporation Delaware 2003075
1001 Louisiana St.
Houston, Texas 77002
El Paso ANR Investments, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640045
1001 Louisiana St. Company
Houston, Texas 77002
Schedule V
1
TYPE OF JURISDICTION OF ORGANIZATIONAL
COMPANY NAME LOCATION CHIEF EXECUTIVE OFFICE ORGANIZATION ORGANIZATION I.D. NO.
- ------------ -------- ---------------------- ------------ --------------- --------------
El Paso ANRS Investments, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640046
1001 Louisiana St. Company
Houston, Texas 77002
El Paso CNG Company, L.L.C. Delaware El Paso Building Limited Liability Delaware 0935747
1001 Louisiana St. Company
Houston, Texas 77002
El Paso EPN Investments, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640034
1001 Louisiana St. Company
Houston, Texas 77002
El Paso EPNG Investments, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640051
1001 Louisiana St. Company
Houston, Texas 77002
El Paso Noric Investments I, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640048
1001 Louisiana St. Company
Houston, Texas 77002
El Paso Noric Investments III, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640274
1001 Louisiana St. Company Limited
Houston, Texas 77002 Liability Company
El Paso Noric Investments IV, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640047
1001 Louisiana St. Company
Houston, Texas 77002
El Paso Tennessee Pipeline Co. Delaware El Paso Building Corporation Delaware 2140052
1001 Louisiana St.
Houston, Texas 77002
El Paso TGPC Investments, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640033
1001 Louisiana St. Company
Houston, Texas 77002
Schedule V
2
TYPE OF JURISDICTION OF ORGANIZATIONAL
COMPANY NAME LOCATION CHIEF EXECUTIVE OFFICE ORGANIZATION ORGANIZATION I.D. NO.
- ------------ -------- ---------------------- ------------ --------------- --------------
El Paso WIC Investments, L.L.C. Delaware El Paso Building Limited Liability Delaware 3640272
1001 Louisiana St. Company
Houston, Texas 77002
Sabine River Investors I, L.L.C. Delaware El Paso Building Limited Liability Delaware 3144269
1001 Louisiana St. Company
Houston, Texas 77002
Sabine River Investors II, L.L.C. Delaware El Paso Building Limited Liability Delaware 3144244
1001 Louisiana St. Company
Houston, Texas 77002
Sabine River Investors III, L.L.C. Delaware El Paso Building Limited Liability Delaware 3144242
1001 Louisiana St. Company
Houston, Texas 77002
Sabine River Investors IV, L.L.C. Delaware El Paso Building Limited Liability Delaware 3144271
1001 Louisiana St. Company
Houston, Texas 77002
Sabine River Investors V, L.L.C. Delaware El Paso Building Limited Liability Delaware 3144249
1001 Louisiana St. Company
Houston, Texas 77002
Schedule V
3
SCHEDULE VI
TRADE NAMES
None
Schedule VI
SCHEDULE VII
CHANGES
SCOPE: WITHIN LAST 5 YEARS PRIOR TO EFFECTIVE DATE
CHANGES IN CHANGES IN THE
CHANGES IN THE CHANGES IN THE CHIEF TYPE OF
COMPANY COMPANY NAME LOCATION EXECUTIVE OFFICE ORGANIZATION
- ------- -------------- ----------- ---------------- --------------
ANR Pipeline Company None None None None
Colorado Interstate Gas Company None None None None
El Paso Corporation El Paso Energy None None None
Corporation
2/7/2001
El Paso Natural Gas Company None None None None
Tennessee Gas Pipeline Company None None None None
American Natural Resources Company None None None None
El Paso ANR Investments, L.L.C. None None None None
El Paso ANRS Investments, L.L.C. None None None None
El Paso CNG Company, L.L.C. El Paso CNG None None Changed from
Company, L.L.C. corporation to
12/17/2002 limited liability
company on
12/17/2002
El Paso CNG
Company
4/5/2001
El Paso EPN Investments, L.L.C. None None None None
El Paso EPNG Investments, L.L.C. None None None None
El Paso Noric Investments I, L.L.C. None None None None
El Paso Noric Investments III, L.L.C. None None None None
El Paso Noric Investments IV, L.L.C. None None None None
El Paso Tennessee Pipeline Co. None None None None
CHANGES IN THE CHANGES IN THE
JURISDICTION OF ORGANIZATIONAL I.D.
COMPANY ORGANIZATION NO.
- ------- --------------- -------------------
ANR Pipeline Company None None
Colorado Interstate Gas Company None None
El Paso Corporation None None
El Paso Natural Gas Company None None
Tennessee Gas Pipeline Company None None
American Natural Resources Company None None
El Paso ANR Investments, L.L.C. None None
El Paso ANRS Investments, L.L.C. None None
El Paso CNG Company, L.L.C. None None
El Paso EPN Investments, L.L.C. None None
El Paso EPNG Investments, L.L.C. None None
El Paso Noric Investments I, L.L.C. None None
El Paso Noric Investments III, L.L.C. None None
El Paso Noric Investments IV, L.L.C. None None
El Paso Tennessee Pipeline Co. None None
Schedule VII
1
CHANGES IN CHANGES IN THE
CHANGES IN THE CHANGES IN THE CHIEF TYPE OF
COMPANY COMPANY NAME LOCATION EXECUTIVE OFFICE ORGANIZATION
- ------- -------------- ---------- ---------------- --------------
El Paso TGPC Investments, L.L.C. None None None None
El Paso WIC Investments, L.L.C. None None None None
Sabine River Investors I, L.L.C. None None None None
Sabine River Investors II, L.L.C. None None None None
Sabine River Investors III, L.L.C. None None None None
Sabine River Investors IV, L.L.C. None None None None
Sabine River Investors V, L. L. C. None None None None
CHANGES IN THE CHANGES IN THE
JURISDICTION OF ORGANIZATIONAL I.D.
COMPANY ORGANIZATION NO.
- ------- --------------- -------------------
El Paso TGPC Investments, L.L.C. None None
El Paso WIC Investments, L.L.C. None None
Sabine River Investors I, L.L.C. None None
Sabine River Investors II, L.L.C. None None
Sabine River Investors III, L.L.C. None None
Sabine River Investors IV, L.L.C. None None
Sabine River Investors V, L. L. C. None None
Schedule VII
2
