EXHIBIT 10.S
[JPMORGAN LOGO]
SENIOR SECURED ACQUISITION TERM LOAN
CREDIT AGREEMENT
AMONG
EL PASO ENERGY PARTNERS, L.P.,
EL PASO ENERGY PARTNERS FINANCE CORPORATION,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
AS DOCUMENTATION AGENT
UBS WARBURG LLC AND WACHOVIA BANK, NATIONAL ASSOCIATION,
AS CO-SYNDICATION AGENTS
AND
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
DATED AS OF NOVEMBER 27, 2002
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
AS SOLE BOOK RUNNER AND LEAD ARRANGER
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................................ 2
Section 1.1 Defined Terms..................................................................... 2
Section 1.2 Other Definitional Provisions..................................................... 25
ARTICLE II AMOUNT AND TERMS OF LOANS............................................................................. 26
Section 2.1 Loans............................................................................. 26
Section 2.2 Repayment of Loans; Evidence of Debt.............................................. 26
Section 2.3 Procedure for Borrowing........................................................... 27
Section 2.4 Limitation on Loans............................................................... 27
Section 2.5 Termination of Commitments........................................................ 27
ARTICLE III [RESERVED]........................................................................................... 27
ARTICLE IV ARTICLE IV GENERAL PROVISIONS FOR LOANS............................................................... 27
Section 4.1 Optional and Mandatory Prepayments................................................ 27
Section 4.2 Conversion and Continuation Options............................................... 28
Section 4.3 Minimum Amounts of Tranches....................................................... 29
Section 4.4 Interest Rates and Payment Dates.................................................. 29
Section 4.5 Computation of Interest and Fees.................................................. 29
Section 4.6 Inability to Determine Interest Rate.............................................. 30
Section 4.7 Pro Rata Treatment and Payments................................................... 30
Section 4.8 Illegality........................................................................ 31
Section 4.9 Requirements of Law............................................................... 31
Section 4.10 Taxes............................................................................. 32
Section 4.11 Indemnity......................................................................... 34
Section 4.12 Lenders Obligation to Mitigate.................................................... 34
Section 4.13 Acquisition; Disposition; Redesignation........................................... 34
Section 4.14 Redesignated Senior Indebtedness.................................................. 35
Section 4.15 Securities Demand................................................................. 35
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................................................... 35
Section 5.1 Financial Condition............................................................... 35
Section 5.2 No Change......................................................................... 36
Section 5.3 Existence; Compliance with Law.................................................... 36
Section 5.4 Power; Authorization; Enforceable Obligations..................................... 36
Section 5.5 No Legal Bar...................................................................... 37
Section 5.6 No Material Litigation............................................................ 37
Section 5.7 No Default........................................................................ 37
Section 5.8 Ownership of Property; Liens...................................................... 38
Section 5.9 Intellectual Property............................................................. 38
Section 5.10 No Burdensome Restrictions........................................................ 38
Section 5.11 Taxes............................................................................. 38
Section 5.12 Federal Regulations............................................................... 38
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Section 5.13 ERISA............................................................................. 38
Section 5.14 Investment Company Act; Other Regulations......................................... 38
Section 5.15 Subsidiaries...................................................................... 39
Section 5.16 Purpose of Loans.................................................................. 39
Section 5.17 Environmental Matters............................................................. 39
Section 5.18 Accuracy and Completeness of Information.......................................... 40
Section 5.19 Security Documents................................................................ 41
Section 5.20 Joint Venture Charters, G&A Agreement, etc........................................ 41
Section 5.21 Senior Debt....................................................................... 42
Section 5.22 Solvency.......................................................................... 42
Section 5.23 Transaction....................................................................... 42
ARTICLE VI CONDITIONS PRECEDENT.................................................................................. 42
Section 6.1 Conditions to Extensions of Credit................................................ 42
ARTICLE VII AFFIRMATIVE COVENANTS................................................................................ 48
Section 7.1 Financial Statements.............................................................. 48
Section 7.2 Certificates; Other Information................................................... 50
Section 7.3 Payment of Obligations............................................................ 51
Section 7.4 Conduct of Business and Maintenance of Existence.................................. 52
Section 7.5 Maintenance of Property; Insurance................................................ 52
Section 7.6 Inspection of Property; Books and Records; Discussions............................ 52
Section 7.7 Notices........................................................................... 52
Section 7.8 Environmental Laws................................................................ 53
Section 7.9 Maintenance of Liens of the Security Documents.................................... 54
Section 7.10 Pledge of After-Acquired Property................................................. 54
Section 7.11 Agreements Respecting Unrestricted Subsidiaries................................... 55
Section 7.12 Joint Venture Charters, G&A Agreement, etc........................................ 55
Section 7.13 Use of Proceeds................................................................... 55
Section 7.14 Undertaking with respect to the EPN Revolving Credit Commitments.................. 56
ARTICLE VIII NEGATIVE COVENANTS.................................................................................. 56
Section 8.1 Financial Condition Covenants..................................................... 56
Section 8.2 Limitation on Indebtedness........................................................ 56
Section 8.3 Limitation on Liens............................................................... 57
Section 8.4 Limitation on Guarantee Obligations............................................... 59
Section 8.5 Limitations on Fundamental Changes................................................ 60
Section 8.6 Limitation on Sale of Assets...................................................... 60
Section 8.7 Limitation on Dividends........................................................... 61
Section 8.8 Limitation on Investments, Loans and Advances..................................... 62
Section 8.9 Limitation on Optional Payments and Modifications of Certain Agreements........... 63
Section 8.10 Limitation on Transactions with Affiliates........................................ 63
Section 8.11 Limitation on Sales and Leasebacks................................................ 64
Section 8.12 Limitation on Changes in Fiscal Year.............................................. 64
Section 8.13 Limitation on Lines of Business................................................... 64
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Section 8.14 Governing Documents............................................................... 64
Section 8.15 Compliance with ERISA............................................................. 64
Section 8.16 Limitation on Restrictions Affecting Subsidiaries................................. 65
Section 8.17 Creation of Restricted Subsidiaries............................................... 65
Section 8.18 Hazardous Materials............................................................... 65
Section 8.19 Holding Companies................................................................. 65
Section 8.20 No Voluntary Termination of Joint Venture Charters................................ 66
Section 8.21 Actions by Joint Ventures......................................................... 66
Section 8.22 Hedging Transactions.............................................................. 66
ARTICLE IX EVENTS OF DEFAULT..................................................................................... 66
ARTICLE X THE ADMINISTRATIVE AGENT............................................................................... 70
Section 10.1 Appointment....................................................................... 70
Section 10.2 Delegation of Duties.............................................................. 70
Section 10.3 Exculpatory Provisions............................................................ 70
Section 10.4 Reliance by Administrative Agent.................................................. 70
Section 10.5 Notice of Default................................................................. 71
Section 10.6 Non-Reliance on Administrative Agent and Other Lenders............................ 71
Section 10.7 Indemnification................................................................... 72
Section 10.8 Administrative Agent in Its Individual Capacity................................... 72
Section 10.9 Successor Administrative Agent.................................................... 72
Section 10.10 Other Agents...................................................................... 72
ARTICLE XI MISCELLANEOUS......................................................................................... 73
Section 11.1 Amendments and Waivers............................................................ 73
Section 11.2 Notices........................................................................... 73
Section 11.3 No Waiver; Cumulative Remedies.................................................... 74
Section 11.4 Survival of Representations and Warranties........................................ 74
Section 11.5 Payment of Expenses and Taxes..................................................... 74
Section 11.6 Successors and Assigns; Participations; Purchasing Lenders........................ 75
Section 11.7 Adjustments; Set-off.............................................................. 78
Section 11.8 Counterparts...................................................................... 79
Section 11.9 Severability...................................................................... 79
Section 11.10 Integration....................................................................... 79
Section 11.11 Usury Savings Clause.............................................................. 79
Section 11.12 GOVERNING LAW..................................................................... 80
Section 11.13 Submission To Jurisdiction; Waivers............................................... 80
Section 11.14 Acknowledgements.................................................................. 80
Section 11.15 Confidentiality................................................................... 81
Section 11.16 WAIVERS OF JURY TRIAL............................................................. 81
Section 11.17 ACKNOWLEDGEMENT OF NO CLAIMS, OFFSETS OR DEFENSES; RELEASE BY THE LOAN PARTIES.... 81
Section 11.18 Releases.......................................................................... 82
Section 11.19 Co-Borrower's Obligations......................................................... 83
Section 11.20 Intercreditor Agreement........................................................... 83
Section 11.21 Certain Reorganization Transactions............................................... 83
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Section 11.22 Certain Permitted Transactions.................................................... 83
ARTICLE XII THE COLLATERAL AGENT................................................................................. 84
Section 12.1 Appointment....................................................................... 84
Section 12.2 Delegation of Duties.............................................................. 85
Section 12.3 Exculpatory Provisions............................................................ 85
Section 12.4 Reliance by Collateral Agent...................................................... 85
Section 12.5 Notice of Default................................................................. 85
Section 12.6 Indemnification................................................................... 86
Section 12.7 Successor Collateral Agent........................................................ 86
Section 12.8 Amendment......................................................................... 86
ANNEXES
Annex I Applicable Margin
SCHEDULES
Schedule I Lenders, Commitments and Loan Percentages
Schedule 5.6 Litigation
Schedule 5.15 Subsidiaries
Schedule 5.17 Environmental Matters
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of EPEPC Guarantee
Exhibit C Form of EPEPC Security Agreement (G&A Agreement)
Exhibit D Form of Borrower Guarantee
Exhibit E Form of Borrower Pledge Agreement
Exhibit F Form of Borrower Security Agreement
Exhibit G Form of Subsidiaries Guarantee
Exhibit H Form of Subsidiary Pledge Agreement
Exhibit I From of Subsidiary Security Agreement
Exhibit J Form of Guarantees and Security Documents Confirmation
Exhibit K Form of Amended and Restated Intercreditor Agreement
Exhibit L Form of Assignment and Assumption
Exhibit M Form of Environmental Compliance Certificate
Exhibit N Form of Borrowing Certificate
Exhibit O Description of Chaco Transactions
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SENIOR SECURED ACQUISITION TERM LOAN CREDIT AGREEMENT, dated as of
November 27, 2002, among EL PASO ENERGY PARTNERS, L.P., a Delaware limited
partnership (the "Borrower"), EL PASO ENERGY PARTNERS FINANCE CORPORATION, a
Delaware corporation (the "Co-Borrower"), each bank and other financial
institution from time to time party to this Agreement (the "Lenders"), ▇▇▇▇▇▇▇
▇▇▇▇▇ CREDIT PARTNERS L.P., as documentation agent (the "Documentation Agent"),
UBS WARBURG LLC and WACHOVIA BANK, NATIONAL ASSOCIATION, as co-syndication
agents (the "Co-Syndication Agents"), and JPMORGAN CHASE BANK, as administrative
agent for the Lenders hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower and El Paso Corporation, a Delaware corporation
("El Paso"), have entered into the Acquisition Document (as hereinafter defined)
for the purchase by the Borrower of certain equity interests, certain natural
gas gathering assets located in the San ▇▇▇▇ Basin of New Mexico and Colorado
certain natural gas liquids transportation and fractionation assets located in
Texas and certain oil and natural gas gathering assets located in the offshore
deep water regions of the Gulf of Mexico that are owned by El Paso or its
Subsidiaries (as hereinafter defined) for an aggregate consideration of up to
$782,000,000, subject to closing adjustments, as more fully provided therein;
WHEREAS, an equity investment of not less than $350,000,000 (the
"Equity Investment") consisting of Series C units issued by the Borrower to El
Paso is to be effected as a portion of the consideration owed to El Paso under
the terms of the Acquisition Document;
WHEREAS, the Borrower and the Co-Borrower are issuing senior
subordinated debt securities in the form of Senior Subordinated Notes (as
hereinafter defined) in a public or private offering in a face amount not less
than $200,000,000 (the "Acquisition Offering"), the net proceeds of which will
be available to the Borrower to fund a portion of the consideration owed to El
Paso under the terms of the Acquisition Document;
WHEREAS, the Equity Investment and the Acquisition Offering together
with the proceeds of the Loans (as hereinafter defined) will be used to
consummate the acquisition, purchase and sale contemplated by the Acquisition
Document;
WHEREAS, the Borrower has requested that the Lenders make such Loans to
it and the Co-Borrower, and the Lenders are prepared to make such Loans upon and
subject to the terms hereof;
WHEREAS, the Lenders, the Administrative Agent, the Co-Syndication
Agents and the Documentation Agent are willing to become parties hereto, but
only on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Acquired Business": as defined in subsection 8.8(e).
"Acquisition": the acquisition and purchase by the Borrower from El
Paso or its Subsidiaries of (i) all of the equity interests in ANR Central, EP
San ▇▇▇▇ and EP South Texas and their respective assets, (ii) an indirect 50%
equity interest in Coyote Gas, (iii) certain residual interests related to the
Chaco cryogenic plant, and (iv) the Typhoon Oil Gathering System, for an
aggregate consideration of up to $782,000,000, subject to closing adjustments,
pursuant to the terms and conditions of the Acquisition Document.
"Acquisition Document": the Contribution, Purchase and Sale Agreement,
by and between El Paso, as seller, and the Borrower, as buyer, dated as of
November 21, 2002 governing the terms and conditions of the Acquisition.
"Acquisition Offering": as defined in the Recitals hereto.
"Administrative Agent": as defined in the introductory paragraph of
this Agreement.
"Administrative Questionnaire": an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (i)
vote 10% or more of the securities having ordinary voting power for the election
of directors (or similar authority) of such Person or (ii) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise; provided, that any third Person which also beneficially owns 10% or
more of the securities having ordinary voting power for the election of
directors (or similar authority) of a Joint Venture or Subsidiary shall not be
deemed to be an Affiliate of the Borrower and its Subsidiaries or Joint Ventures
merely because of such common ownership.
"Agreement": this Senior Secured Acquisition Term Loan Credit
Agreement, as amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New York City (each
change in the Prime Rate to be effective on the date such change is publicly
announced); and "Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by
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federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Alternate Base Rate.
"ANR Central": ANR Central Gulf Gathering Company, L.L.C., a Delaware
limited liability company acquired as a Restricted Subsidiary in the
Acquisition.
"Applicable Margin": for each Type of Loan, the rate per annum
specified in Annex I attached hereto, which rate is based on the ratings by
Standard & Poor's Ratings Services (or any successor statistical rating
organization) ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. (or any successor
statistical rating organization) ("Moody's") of the senior, secured long-term
bank debt of the Borrower in effect at the time of such determination.
"Approved Fund": any Person (other than a natural person) that is (or
will be) engaged in making, holding or otherwise investing in commercial loans
and similar extensions of credit in the ordinary course of its business and that
is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c)
an entity or an Affiliate of an entity that administers or manages a Lender.
"Argo": Argo, L.L.C., a Delaware limited liability company.
"Argo I": ▇▇▇▇ I, L.L.C., a Delaware limited liability company.
"Argo II": Argo II, L.L.C., a Delaware limited liability company.
"Arizona Gas": Arizona Gas Storage, L.L.C., a Delaware limited
liability company.
"Assignment and Assumption": an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 11.6), and accepted by the Administrative Agent, in the form
of Exhibit L or any other form approved by the Administrative Agent.
"Atlantis": Atlantis Offshore, L.L.C., a Delaware limited liability
company.
"Borrower": as defined in the introductory paragraph of this Agreement.
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"Borrower Guarantee": the Guarantee made by the Borrower and the
Co-Borrower in favor of the EPNHC Administrative Agent for the benefit of the
EPNHC Lenders in the form of Exhibit D hereto.
"Borrower Pledge Agreement": the Amended and Restated Borrower Pledge
and Security Agreement made by the Borrower in favor of the Collateral Agent for
the benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, in the form of
Exhibit E hereto, as amended, supplemented and modified by the Guarantees and
Security Document Confirmation, and as the same may be amended, supplemented or
otherwise modified from time to time.
"Borrower Security Agreement": the Amended and Restated Borrower
Security Agreement made by the Borrower in favor of the Collateral Agent for the
benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, in the form of
Exhibit F hereto, as amended, supplemented and modified by the Guarantees and
Security Document Confirmation, and as the same may be amended, supplemented or
otherwise modified from time to time.
"Business": as defined in Section 5.17.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Calculation Period": each period of four consecutive fiscal quarters
of the Borrower.
"Cameron Highway": Cameron Highway Oil Pipeline Company, a Delaware
general partnership and a Joint Venture to be created by the Borrower and one or
more Persons that are not Affiliates of the Borrower to construct, own and
operate the Cameron Highway Oil Pipeline.
"Cameron Highway Clawback": the "clawback" and similar obligations to
be incurred by the Borrower and any Restricted Subsidiary under the Cameron
Highway Financing Documents in an aggregate amount not to exceed $50,000,000 at
any one time outstanding.
"Cameron Highway Financing": the loans to be made to Cameron Highway
under the Cameron Highway Financing Documents to finance the construction and
operation of the Cameron Highway Oil Pipeline.
"Cameron Highway Financing Documents": (i) the Credit Agreement to be
entered into among Cameron Highway, as Borrower, JPMorgan Chase Bank (or another
financial lending institution), individually and as Administrative Agent, and
the lenders party thereto and (ii) the other financing documents (as identified
therein); in the case of (i) and (ii) above, as amended, restated, renewed,
replaced or otherwise modified from time to time.
"Cameron Highway Oil Pipeline": an approximately 390-mile crude oil
pipeline servicing the offshore deep water regions of the Gulf of Mexico.
"Capital Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
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"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing. In addition, with
respect to the Borrower, "Capital Stock" shall include the Units and the General
Partnership Interest.
"Cash Equivalents": (i) 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; (ii)
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 S&P or ▇▇▇▇▇'▇; (iii) commercial paper maturing no more than one
year from the date of creation thereof and, at the time of acquisition, having
the highest rating obtainable from either S&P or Moody's; (iv) certificates of
deposit or banker's acceptances maturing within one year from the date of
acquisition thereof issued by (x) any Lender, (y) 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
$250,000,000 or (z) any bank which has a short-term commercial paper rating
meeting the requirements of clause (iii) above (any such Lender or bank, a
"Qualifying Lender"); (v) 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 hereunder) or issued by any Qualifying Lender;
and (vi) 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.
"Chaco": The Chaco Liquids Plant Trust, a Massachusetts business trust,
which became a Restricted Subsidiary of the Borrower in connection with the
Chaco Transactions.
"Chaco Transactions": The series of related transactions among the
Borrower, certain subsidiaries of El Paso and certain other entities with
respect to the Chaco cryogenic plant and certain related facilities located in
San ▇▇▇▇ County, New Mexico, which transactions are more specifically described
as of May 16, 2001 on Exhibit O hereto.
"Change in Control": (a) the acquisition by any Person or two or more
Persons acting in concert (other than the management of El Paso as of the
Closing Date and the shareholders of El Paso as of the Closing Date) of
beneficial ownership (within the meaning of Rule 13d-3, promulgated by the
Securities and Exchange Commission and now in effect under the Securities
Exchange Act of 1934, as amended) of 50% or more of the issued and outstanding
shares of voting stock of El Paso; (b) the occurrence of a "change in control"
under the Senior Subordinated Note Indentures; or (c) the occurrence of any of
the following:
(1) the sale, transfer, lease, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
assets of Borrower and its Restricted Subsidiaries taken as a whole to
any "person" (as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) other than the El Paso
Group;
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(2) the adoption of a plan relating to the liquidation or
dissolution of the Borrower or the General Partner; or
(3) such time as the El Paso Group ceases to own,
directly or indirectly, all of the general partner interests of the
Borrower or members of the El Paso Group cease to serve as the only
general partners of the Borrower.
Notwithstanding the foregoing, (i) a conversion of the Borrower from a
limited partnership to a corporation, limited liability company or other form of
entity or an exchange of all of the outstanding limited partnership interests
for Capital Stock in a corporation, for member interests in a limited liability
company or for any other equity interests in such other form of entity shall not
constitute a Change of Control, so long as following such conversion or exchange
the El Paso Group beneficially owns, directly or indirectly, in the aggregate
more than 50% of the securities having ordinary voting power for the election of
directors of such entity, or any combination thereof, and continues to own a
sufficient number of the outstanding voting securities of such entity to elect a
majority of its directors, managers, trustees or other persons serving in a
similar capacity for such entity, and (ii) consummation of the i-share
Transactions shall not constitute a Change of Control.
"Closing Date": November 27, 2002.
"Co-Borrower": as defined in the introductory paragraph to this
Agreement.
"Co-Syndication Agents": as defined in the introductory paragraph of
this Agreement.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": the "Collateral" as defined in the several Security
Documents.
"Collateral Agent": JPMorgan, in its capacity as Collateral Agent as
appointed by the EPN Group Lenders and its successors and assigns.
"Commitment": as to any Lender, the obligation of such Lender to make
Loans hereunder on the Closing Date in an aggregate principal amount not to
exceed the amount set forth opposite such ▇▇▇▇▇▇'s name on Schedule I, as such
amount may be reduced or terminated in accordance with the provisions of this
Agreement.
"Commodity Hedging Program": any hedge agreement designed to protect
the Borrower or any of its Subsidiaries against fluctuations in petroleum
prices.
"Common Unit": a partnership interest of a limited partner of the
Borrower representing a fractional part of the partnership interests of all
limited partners of the Borrower and having the rights and obligations specified
with respect to Common Units in the Partnership Agreement.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
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"Consolidated EBITDA": for any period and in accordance with Section
4.13, the Consolidated Net Income ((i) including earnings and losses from
discontinued operations, except to the extent that any such losses represent
reserves for losses attributable to the planned disposition of material assets,
(ii) excluding extraordinary gains, and gains and losses arising from the sale
of material assets, and (iii) including other non-recurring losses) for such
period, plus (x) the aggregate amount of cash distributions received by the
Borrower and its consolidated Subsidiaries (excluding Unrestricted Subsidiaries
and Joint Ventures) from Unrestricted Subsidiaries and Joint Ventures (other
than cash proceeds funded from the refinancing of the original capital
investment by the Borrower and its Subsidiaries in Unrestricted Subsidiaries and
Joint Ventures), and (y) to the extent reflected as a charge in the statement of
Consolidated Net Income for such period, the sum of (a) interest expense,
amortization of debt discount and debt issuance costs (including the write-off
of such costs in connection with prepayments of debt) and commissions, discounts
and other fees and charges associated with standby letters of credit, (b) taxes
measured by income accrued as an expense during such period, (c) depreciation,
depletion, and amortization expense, and (d) non-cash compensation expense
resulting from the accounting treatment applied, in accordance with GAAP, to
management's equity interest minus the equity of the Borrower and its
consolidated Subsidiaries (excluding Unrestricted Subsidiaries and Joint
Ventures) in the earnings of Unrestricted Subsidiaries and Joint Ventures;
provided that Consolidated EBITDA shall exclude any insurance proceeds relating
to the Poseidon casualty described in SEC reports up to an aggregate amount of
$6,000,000; provided, further, that for the Calculation Periods ending September
30, 2002 and December 31, 2002, the pro forma adjustments required by Section
4.13 as a result of the Acquisition shall be calculated as follows: (A) in the
case of the Calculation Period ending September 30, 2002, the sum of the actual
EBITDA attributable to the San ▇▇▇▇ Assets for the calendar quarters ending June
30, 2002 and September 30, 2002 multiplied by 2 and (B) in the case of the
Calculation Period ending December 31, 2002, the sum of the actual EBITDA
attributable to the San ▇▇▇▇ Assets for the calendar quarters ending June 30,
2002, September 30, 2002 and December 31, 2002 multiplied by 4/3.
"Consolidated Interest Expense": for any period, and in accordance with
Section 4.13, total cash interest expense (including that attributable to
Capital Leases) of the Borrower and its Subsidiaries (excluding Unrestricted
Subsidiaries and Joint Ventures) for such period with respect to all outstanding
Indebtedness of the Borrower and such Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Hedge Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP).
"Consolidated Net Income": for any period, and in accordance with
Section 4.13, the net income or net loss of the Borrower and its consolidated
Subsidiaries (excluding Unrestricted Subsidiaries and Joint Ventures) for such
period determined in accordance with GAAP on a consolidated basis.
"Consolidated Net Worth": as of the date of determination, all items
which in conformity with GAAP would be included under shareholders' equity on a
consolidated balance sheet of the Borrower and its consolidated Subsidiaries
(excluding Unrestricted Subsidiaries) at such date.
7
"Consolidated Tangible Net Worth": as of the date of determination and
in accordance with Section 4.13, Consolidated Net Worth after deducting
therefrom the following:
(a) goodwill, including any amounts (however designated
on the balance sheet) representing the cost of acquisitions of
Subsidiaries in excess of underlying tangible assets;
(b) patents, trademarks, copyrights;
(c) leasehold improvements not recoverable at the
expiration of a lease; and
(d) deferred charges (including, but not limited to,
unamortized debt discount and expense, organization expenses and
experimental and development expenses, but excluding prepaid expenses).
"Consolidated Total Indebtedness": at any time and in accordance with
Section 4.13, all Indebtedness of the Borrower and its consolidated Subsidiaries
(excluding Unrestricted Subsidiaries) at such time.
"Consolidated Total Senior Indebtedness": at any time and in accordance
with Section 4.13, Consolidated Total Indebtedness less the aggregate
outstanding principal amount of the Senior Subordinated Notes at such time.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Copper Eagle": Copper Eagle Gas Storage, L.L.C., a Delaware limited
liability company.
"Coyote Gas": Coyote Gas Treating, LLC, a Colorado limited liability
company owned 50% by EP San ▇▇▇▇, which ownership interest was acquired in the
Acquisition.
"Crystal Holding": Crystal Holding, L.L.C., a Delaware limited
liability company.
"Default": any of the events specified in Article IX, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Delos": Delos Offshore Company, L.L.C., a Delaware limited liability
company.
"Documentation Agent": as defined in the introductory paragraph of this
Agreement.
"Documents": as defined in subsection 5.20(b).
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"East Breaks": East Breaks Gathering Company, L.L.C., a Delaware
limited liability company.
8
"El Paso": as defined in the Recitals hereto.
"El Paso Energy Management": means El Paso Energy Management, L.L.C., a
Delaware limited liability company.
"El Paso Energy Management Registration Statements": means the Forms
S-1 and S-3 (registration numbers 333-97963 and ▇▇▇-▇▇▇▇▇-▇▇, respectively)
jointly filed, with the Securities and Exchange Commission by El Paso Energy
Management and the Borrower, respectively, as such registration statements are
amended and supplemented from time to time.
"El Paso Group": collectively, (1) El Paso, and (2) each Person which
is a direct or indirect Subsidiary of El Paso, including, without limitation, El
Paso Energy Management.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment or
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes, as now or may at any time hereafter be in effect.
"EP Deepwater": El Paso Energy Partners Deepwater, LLC, a Delaware
limited liability company.
"EP Operating": El Paso Energy Partners Operating Company, L.L.C., a
Delaware limited liability company.
"EP San ▇▇▇▇": El Paso San ▇▇▇▇, L.L.C., a Delaware limited liability
company acquired as a Restricted Subsidiary in the Acquisition.
"EP South Texas": El Paso South Texas, L.P., a Delaware limited
partnership acquired as a Restricted Subsidiary in the Acquisition.
"EP Transport" El Paso Energy Partners Oil Transport Systems, L.L.C., a
Delaware limited liability company.
"EPEPC": El Paso Energy Partners Company, a Delaware corporation.
"EPEPC Guarantee": the Amended and Restated Guarantee made by EPEPC in
favor of the EPN Group Administrative Agents for the benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, in the form of Exhibit B hereto, as amended,
supplemented and modified by the Guarantees and Security Documents Confirmation,
and as the same may be amended, supplemented or otherwise modified from time to
time.
9
"EPEPC Security Agreement": the Amended and Restated Security Agreement
(G&A Agreement) made by EPEPC in favor of the Collateral Agent for the benefit
of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, in the form of Exhibit C
hereto, as amended, supplemented and modified by the Guarantees and Security
Documents Confirmation, and as the same may be amended, supplemented or
otherwise modified from time to time.
"EPGT Texas Pipeline": EPGT Texas Pipeline, L.P., a Delaware limited
partnership.
"EPN Administrative Agent": JPMorgan in its capacity as administrative
agent under the EPN Credit Agreement.
"EPN Aggregate Outstanding Revolving Credit Extensions of Credit":
shall have the same meaning as the defined term "Aggregate Outstanding Revolving
Credit Extensions of Credit" in the EPN Credit Agreement.
"EPN Arizona": EPN Arizona Gas, L.L.C., a Delaware limited liability
company.
"EPN Credit Agreement": The Sixth Amended and Restated Credit
Agreement, dated as of March 23, 1995, as amended and restated through October
10, 2002, among EPN, EPEPFC, the EPN Lenders party thereto, Credit Lyonnais New
York Branch and Wachovia Bank, National Association, as co-syndication agents,
Fleet National Bank and Fortis Capital Corp., as co-documentation agents, and
JPMorgan, as administrative agent, as amended by the First Amendment to Sixth
Amended and Restated Credit Agreement dated as of November 21, 2002, and as such
agreement may be further amended, supplemented or otherwise modified from time
to time in accordance with Section 8.9.
"EPN Gathering and Treating": EPN Gathering and Treating Company, L.P.,
a Delaware limited partnership.
"EPN Gathering and Treating GP Holding": EPN Gathering and Treating GP
Holding, L.L.C., a Delaware limited liability company.
"EPN GP Holding": EPN GP Holding, L.L.C., a Delaware limited liability
company.
"EPN GP Holding I": EPN GP Holding I, L.L.C., a Delaware limited
liability company.
"EPN Group Administrative Agents": the Administrative Agent, the EPN
Administrative Agent and the EPNHC Administrative Agent.
"EPN Group Lenders": the Lenders, the EPN Lenders and the EPNHC
Lenders.
"EPN Holding Company I": EPN Holding Company I, L.P., a Delaware
limited partnership.
"EPN Lenders": shall have the same meaning as the defined term
"Lenders" in the EPN Credit Agreement.
10
"EPN Loan Documents": shall have the same meaning as the defined term
"Loan Documents" in the EPN Credit Agreement.
"EPN Loan Obligations": shall have the same meaning as the defined term
"Obligations" in the EPN Credit Agreement.
"EPN NGL": EPN NGL Storage, L.L.C., a Delaware limited liability
company, formerly known as Crystal Properties and Trading Company, L.L.C.
"EPN Revolving Credit Commitments": shall have the same meaning as the
defined term "Revolving Credit Commitments" in the EPN Credit Agreement.
"EPN Term Loans": shall have the same meaning as the defined term "Term
Loans" in the EPN Credit Agreement.
"EPNHC": EPN Holding Company, L.P., a Delaware limited partnership.
"EPNHC Administrative Agent": shall have the same meaning as the
defined term "Administrative Agent" in the EPNHC Credit Agreement.
"EPNHC Credit Agreement": that certain Credit Agreement, dated as of
April 8, 2002, as amended and restated through October 10, 2002, among EPNHC,
the EPNHC Lenders party thereto, Banc One Capital Markets, Inc. and Wachovia
Bank, National Association, as co-syndication agents, Fleet National Bank and
Fortis Capital Corp., as co-documentation agents, and JPMorgan, as
administrative agent, as amended by the First Amendment to Amended and Restated
Credit Agreement dated as of November 21, 2002, and as such agreement may be
amended, supplemented or otherwise modified from time to time in accordance with
Section 8.9.
"EPNHC Lenders": shall have the same meaning as the defined term
"Lenders" in the EPNHC Credit Agreement.
"EPNHC Loan Documents": shall have the same meaning as the defined term
"Loan Documents" in the EPNHC Credit Agreement.
"EPNHC Loan Obligations": shall have the same meaning as the defined
term "Obligations" in the EPNHC Credit Agreement.
"EPNHC Term Loans": shall have the same meaning as the defined term
"Term Loans" in the EPNHC Credit Agreement.
"Equity Investment": as defined in the Recitals hereto.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency
11
reserves under any regulations of the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate appearing on page 3750 of the
Dow ▇▇▇▇▇ Market Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 A.M., London time, two Working
Days prior to the beginning of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "Eurodollar
Base Rate" with respect to such Eurodollar Loans for such Interest Period shall
be the rate at which dollar deposits of a comparable amount to such Eurodollar
Loans and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 A.M., London time,
two Working Days prior to the commencement of such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
Eurodollar Base Rate
--------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Article IX, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Federal Funds Effective Rate": as defined in the definition of
Alternate Base Rate.
"FERC": the Federal Energy Regulatory Commission and any successor
thereto.
"First Reserve": First Reserve Gas, L.L.C., a Delaware limited
liability company.
"Flextrend": Flextrend Development Company, L.L.C., a Delaware limited
liability company.
"Foreign Lender": any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
12
"G&A Agreement" means (i) the General and Administrative Services
Agreement (formerly the Management Agreement (as defined in the Existing Credit
Agreement)), dated as of April 8, 2002 by and between DeepTech International
Inc., a Delaware corporation, the General Partner and El Paso Field Services,
L.P., a Delaware limited partnership, as in effect on the Closing Date, and as
further amended, modified or supplemented from time to time in accordance with
Section 8.9, or (ii) any other agreement or arrangement, reasonably acceptable
to the Administrative Agent, providing management, administrative, operational
and other functions to the Borrower adequate to allow the Borrower to conduct
operations consistent with past practices.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"Gateway": Deepwater Gateway L.L.C., a Delaware limited liability
company and a Joint Venture created by the Borrower and Cal Dive International,
Inc. to initially develop and construct the ▇▇▇▇▇ ▇▇▇▇ Platform by, among other
things, building and constructing platforms located in, and providing related
services with respect to, the ▇▇▇▇▇ ▇▇▇▇ Field.
"General Partner": EPEPC in its capacity as the general partner of the
Borrower or any other Person acting as general partner of the Borrower.
"General Partnership Interest": all general partnership interests in
the Borrower.
"Governmental Approval": any authorization, consent, approval, license,
lease, ruling, permit, tariff, rate, certification, exemption, filing, variance,
claim, order, judgment, decree, publication, notice to, declaration of or with
or registration by or with any Governmental Authority.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Green Canyon": Green Canyon Pipe Line Company, L.P., a Delaware
limited partnership.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
13
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Guarantees": collectively, the EPEPC Guarantee, the Borrower
Guarantee, and the Subsidiaries Guarantee.
"Guarantees and Security Documents Confirmation": the Guarantees and
Security Documents Confirmation made by each of the Borrower, the Co-Borrower,
EPEPC, and the Subsidiary Guarantors in favor of the Collateral Agent and the
EPN Group Administrative Agents, substantially in the form of Exhibit J hereto,
amending, supplementing and modifying the EPEPC Guarantee, the Subsidiaries
Guarantee and the Security Documents to reflect a Lien on the Collateral to
secure the Obligations and the Guarantee Obligations of EPEPC and the Subsidiary
Guarantors with respect thereto.
"Hattiesburg Sales": Hattiesburg Industrial Gas Sales, L.L.C., a
Delaware limited liability company.
"Hattiesburg Storage": Hattiesburg Gas Storage Company, a Delaware
general partnership.
"Hazardous Materials": any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum products
(including crude oil or any fraction thereof), defined or regulated as such in
or under any Environmental Law.
"Hedge Agreements": all interest rate swaps, caps or collar agreements
or similar arrangements dealing with interest rates or currency exchange rates
or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"High Island": High Island Offshore System, L.L.C., a Delaware limited
liability company.
"Hub Services": El Paso Hub Services Company, L.L.C., a Delaware
limited liability company.
"i-share Transactions": as defined in subsection 11.22(b).
"Indebtedness": of any Person at any date, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with
14
customary practices and which in any event are no more than 120 days past due
or, if more than 120 days past due, are being contested in good faith and
adequate reserves with respect thereto have been made on the books, of such
Person), (b) any other indebtedness of such Person which is evidenced by a note,
bond, debenture or similar instrument, (c) all obligations of such Person under
Capital Leases, (d) all obligations of such Person in respect of outstanding
letters of credit (other than commercial letters of credit with an initial
maturity date of less than 90 days), acceptances and similar obligations issued
or created for the account of such Person, (e) all liabilities secured by any
Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof and (f) for purposes
of the covenants set forth in Section 8.1, the net obligations of such Person
under Hedge Agreements.
"Indian Basin": El Paso Indian Basin, L.P., a Delaware limited
partnership.
"Initial Lenders" shall mean, collectively, JPMorgan, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners L.P., UBS AG, Stamford Branch and Wachovia Bank, National
Association.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Amended and Restated Intercreditor
Agreement dated as of the Closing Date between the Administrative Agent, for the
benefit of the Lenders, the EPN Administrative Agent, for the benefit of the EPN
Lenders, the EPNHC Administrative Agent, for the benefit of the EPNHC Lenders,
the administrative agent for the lenders in connection with the ▇▇▇▇▇ ▇▇▇▇
Financing Documents, for the benefit of the lenders thereunder, and the
Collateral Agent and acknowledged by the Borrower, the Co-Borrower and EPNHC,
substantially in the form of Exhibit K hereto, as such agreement may be further
amended, modified and supplemented from time to time including, without
limitation, in connection with the closing of the Cameron Highway Financing, at
which time the administrative agent for the lenders in connection with the
Cameron Highway Financing, for the benefit of the lenders thereunder, will
become a party to such Intercreditor Agreement; which Intercreditor Agreement
shall provide for the creation, administration and foreclosure of Liens on the
Collateral on a pari passu basis as described in subsection 8.3(i).
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the
last day of each March, June, September and December, commencing December 31,
2002, (b) as to any Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period, and (c) as to any Eurodollar Loan
having an Interest Period longer than three months, each day which is three
months or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one or two weeks or one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto;
and
15
(b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar Loan
and ending one or two weeks or one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Working Days prior to the last
day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Working Day, such
Interest Period shall be extended to the next succeeding Working Day
unless the result of such extension would be to carry such Interest
Period into another calendar month or week in which event such Interest
Period shall end on the immediately preceding Working Day;
(2) any Interest Period that would otherwise extend
beyond the Maturity Date shall end on the Maturity Date;
(3) except for one or two week Interest Periods, any
Interest Period pertaining to a Eurodollar Loan that begins on the last
Working Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Working Day of a calendar month;
and
(4) the Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Intrastate": El Paso Energy Intrastate, L.P., a Delaware limited
partnership.
"Joint Venture": any Person in which the Borrower and/or its
Subsidiaries hold more than 5% but less than a majority of the equity interests,
and which does not constitute a Subsidiary of the Borrower, whether direct or
indirect; provided that Atlantis, Cameron Highway, Copper Eagle, Coyote Gas,
Gateway and Poseidon Venture and their respective Subsidiaries shall be deemed a
Joint Venture for purpose of the Loan Documents unless any such Person becomes a
Subsidiary in accordance with the definition thereof.
"Joint Venture Charter": with respect to each Joint Venture, the
partnership agreement, certificate of incorporation, by-laws, limited liability
company agreement or other constitutive documents of such Joint Venture, as each
of the same may be further amended, supplemented or otherwise modified in
accordance with Section 8.9.
"JPMorgan": JPMorgan Chase Bank.
"Lenders": as defined in the introductory paragraph of this Agreement.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority, preferential arrangement or other security
agreement of any kind or nature whatsoever
16
(including, without limitation, any conditional sale or other title retention
agreement and any Capital Lease having substantially the same economic effect as
any of the foregoing).
"Loan": as defined in Section 2.1(a).
"Loan Documents": this Agreement, the Notes, the Guarantees, the
Security Documents, any confirmation of such Guarantees and Security Documents,
the Intercreditor Agreement and the Securities Demand Letter Agreement
referenced in Section 4.15.
"Loan Parties": the Borrower, the Co-Borrower, EPEPC, the Subsidiary
Guarantors and each other Affiliate of the Borrower or EPEPC that from time to
time is party to a Loan Document.
"Loan Percentage": as to any Lender, the percentage which such ▇▇▇▇▇▇'s
Loans then outstanding constitutes of the aggregate Loans then outstanding.
"Manta Ray": ▇▇▇▇▇ ▇▇▇ Gathering Company, L.L.C., a Delaware limited
liability company.
"▇▇▇▇▇ ▇▇▇▇ Clawback": the "clawback" and similar obligations incurred
by the Borrower and any Restricted Subsidiary under the ▇▇▇▇▇ ▇▇▇▇ Financing
Documents in an aggregate amount not to exceed $22,500,000 at any one time
outstanding.
"▇▇▇▇▇ ▇▇▇▇ Field": the oil and gas property known as the "▇▇▇▇▇ ▇▇▇▇
Field" located offshore Louisiana, in the Gulf of Mexico Outer Continental
Shelf, including Green Canyon Blocks 474, 518-520, 562-564, 606-608, 652, and
830.
"▇▇▇▇▇ ▇▇▇▇ Financing": the loans made to Gateway under the ▇▇▇▇▇ ▇▇▇▇
Financing Documents.
"▇▇▇▇▇ ▇▇▇▇ Financing Documents": (i) the Credit Agreement dated as of
August 15, 2002, among Gateway, as borrower, JPMorgan, individually and as
administrative agent, Wachovia Bank, National Association and Bank One, N.A., as
syndication agents, Fortis Capital Corp. and BNP Paribas, as documentation
agents, and the lenders party thereto and (ii) the other financing documents (as
identified therein); in the case of (i) and (ii) above, as amended, restated,
renewed, replaced, supplemented or otherwise modified from time to time.
"▇▇▇▇▇ ▇▇▇▇ Lenders": shall have the same meaning as the defined term
"Lenders" in the ▇▇▇▇▇ ▇▇▇▇ Financing Documents.
"▇▇▇▇▇ ▇▇▇▇ Platform": the Moses-type four-column tension leg platform
floating hull facility, pipelines, processing facilities, and appurtenances in
connection with the development of the ▇▇▇▇▇ ▇▇▇▇ Field to be constructed,
installed and owned by Gateway.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the
ability of any Loan Party to perform its obligations under this Agreement, any
of the Notes or any of the other Loan Documents or (c) the validity or
17
enforceability of this Agreement, any of the Notes or any of the other Loan
Documents or the rights or remedies of the Administrative Agent, the Collateral
Agent or the Lenders hereunder or thereunder.
"Material Environmental Amount": an amount payable by the Borrower
and/or its Subsidiaries in excess of $5,000,000 for remedial costs, compliance
costs, compensatory damages, punitive damages, fines, penalties or any
combination thereof.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date": May 16, 2004.
"MIAGS": Matagorda Island Area Gathering System, a Texas joint venture.
"Moody's": as defined in the definition of "Applicable Margin."
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Equity Proceeds": 100% of the cash or non-cash proceeds from the
issuance or sale by the Borrower or any of its Restricted Subsidiaries of any
equity securities, including, without limitation, in connection with the
issuance of any i-shares, net of all reasonable out-of-pocket fees (including
investment banking fees), commissions, costs and other reasonable out-of-pocket
expenses incurred in connection with such issuance or sale. For purposes of
calculating "Net Equity Proceeds", fees, commissions and other costs and
expenses payable to the Borrower or any of its Affiliates shall be disregarded.
"Net Proceeds": in connection with any issuance or sale of debt
securities, the cash proceeds when received from such issuance or incurrence,
net of any applicable fees, expenses or other similar payment obligations,
including all reasonable attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other customary fees and
expenses actually incurred (including amounts payable) in connection therewith.
"Non-Recourse Obligations": Indebtedness, Guarantee Obligations and
other obligations of any type (a) as to which neither the Borrower nor any
Restricted Subsidiary (i) is obligated to provide credit support in any form, or
(ii) is directly or indirectly liable, and (b) no default with respect to which
(including any rights which the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any Indebtedness or Guarantee Obligation of the
Borrower or any Restricted Subsidiary to declare a default on such Indebtedness
or Guarantee Obligation of the Borrower or any Restricted Subsidiary or cause
the payment of any such Indebtedness to be accelerated or payable prior to its
stated maturity or cause any such Guarantee Obligation to become payable, in the
case of (a) and (b) above, except for clawbacks and other Guarantee Obligations
permitted under subsections 8.4(e), (f) and (g).
18
"Notes": as defined in Section 2.2(e).
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent, the Collateral Agent or to any Lender (or, in the case of
Hedge Agreements, any Affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement,
any other Loan Document, any Hedge Agreement entered into with any Lender or any
Affiliate of any Lender or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including all
fees, charges and disbursements of counsel to the Administrative Agent, to the
Collateral Agent or to any Lender that are required to be paid by the Borrower
pursuant hereto) or otherwise.
"Offshore Gathering & Transmission": El Paso Offshore Gathering &
Transmission, L.P., a Delaware limited partnership.
"Participants": as defined in subsection 11.6(c).
"Partnership Agreement": the Second Amended and Restated Agreement of
Limited Partnership of the Borrower among the partners of the Borrower effective
as of August 31, 2000, and as in effect on the Closing Date, as amended,
modified and supplemented from time to time in accordance with Section 8.9.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature (the
term "Person" shall not be deemed to include, however, any joint tenancy or
tenancy-in-common pursuant to which any property or assets may be owned in an
undivided interest).
"Petal Gas Storage": Petal Gas Storage, L.L.C., a Delaware limited
liability company.
"Petal Gas Storage Facilities": the salt-dome gas storage facilities
located in Hattiesburg, Mississippi.
"Petroleum": oil, gas and other liquid or gaseous hydrocarbons,
including, without limitation, all liquefiable hydrocarbons and other products
which may be extracted from gas and gas condensate by the processing thereof in
a gas processing plant.
"Pipeline GP Holding": EPN Pipeline GP Holding, L.L.C., a Delaware
limited liability company.
19
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements": collectively, the Borrower Pledge Agreement, the
Subsidiary Pledge Agreement and any other pledge agreement executed and
delivered pursuant to Section 8.17.
"Poseidon": Poseidon Pipeline Company, L.L.C., a Delaware limited
liability company.
"Poseidon Venture": Poseidon Oil Pipeline Company, L.L.C., a Delaware
limited liability company.
"Preference Unit": a partnership interest in the Borrower representing
a fractional part of the partnership interests of all limited partners of the
Borrower and having the rights and obligations specified with respect to
Preference Units in the Partnership Agreement.
"Projections": the projections which were prepared by or on behalf of
the Borrower in connection with the Transaction and delivered to the
Administrative Agent and the Lenders prior to the Closing Date.
"Properties": the facilities and properties owned, leased or operated
by the Borrower or any of its Subsidiaries or any Joint Venture.
"Purchase Price Adjustment": the amount by which the aggregate
consideration paid to El Paso under the Acquisition Document on the Closing Date
is adjusted by an amount equal to the net of (i) total Purchase Price Decreases
(as such term is defined in the Acquisition Document) and (ii) total Purchase
Price Increases (as such term is defined in the Acquisition Documents), as
determined in accordance with the terms and provisions of the Acquisition
Document.
"Redesignation": any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with the penultimate sentence of the
definition of "Unrestricted Subsidiary"; and any designation of an Unrestricted
Subsidiary or a Joint Venture as a Restricted Subsidiary in accordance with the
last sentence of the definition of "Restricted Subsidiary".
"Register": as defined in Section 11.6(b)(iv).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Related Parties": 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.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
20
"Reorganization Transactions": as defined in Section 11.21.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC
Reg.Sections.2615.
"Required EPN Group Lenders": at any time, EPN Group Lenders the Total
EPN Group Credit Percentages of which aggregate at least 51%.
"Required Lenders": at any time, Lenders the Loan Percentages of which
aggregate at least 51%.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the Chief Executive Officer, the Chief Operating
Officer, the President, the Chief Financial Officer, the Treasurer or any vice
president of the General Partner or the Borrower.
"Restricted Payment": as defined in Section 8.7.
"Restricted Subsidiary": any Subsidiary of the Borrower other than an
Unrestricted Subsidiary. Subject to the right to redesignate certain Restricted
Subsidiaries as Unrestricted Subsidiaries in accordance with the definition of
"Unrestricted Subsidiary", all of the Subsidiaries of the Borrower as of the
date hereof other than Arizona Gas, EPN Arizona and MIAGS are Restricted
Subsidiaries. Notwithstanding the foregoing, any Subsidiary which guarantees the
Senior Subordinated Notes shall be a Restricted Subsidiary. Any Subsidiary
designated as an Unrestricted Subsidiary may be redesignated as a Restricted
Subsidiary with the consent of the Required Lenders as long as, after giving
effect thereto, no Default or Event of Default has occurred and is continuing
and the Borrower would be in pro forma compliance with the covenants set forth
in Section 8.1 after giving effect thereto.
"San ▇▇▇▇ Assets": collectively, the assets acquired by the Borrower
and its Restricted Subsidiaries pursuant to the Acquisition, including, without
limitation, (i) the natural gas gathering system assets located in the San ▇▇▇▇
Basin of New Mexico and Colorado commonly called the San ▇▇▇▇ Gathering System,
the ▇▇▇▇▇▇ Compression Plant, the Global Compression Plant, the Rattlesnake
Treating Plant, the Florida River Compression Facility and related assets, (ii)
certain natural gas liquids transportation and fractionation assets located in
southern Texas commonly called the Houston 8" Pipeline, the ▇▇▇▇▇▇▇
Terminal/Propane Pipeline, the Markham Butane Shuttle, the Texas City 6"
Pipeline/Terminal, the ▇▇▇▇▇▇ Fractionator and related storage assets, (iii) the
natural gas gathering system located in the offshore deep water region of the
Gulf of Mexico commonly called the Typhoon Gas Gathering System, and (iv) an oil
gathering system located in the offshore deep water region of the Gulf of Mexico
commonly called the Typhoon Oil Gathering System.
21
"Security Agreements": collectively, the Borrower Security Agreement,
the EPEPC Security Agreement and the Subsidiary Security Agreement.
"Security Documents": collectively, the Pledge Agreements and the
Security Agreements.
"Senior Subordinated Note Indentures": means (i) the Indenture dated as
of May 27, 1999 among the Borrower, the Co-Borrower, certain of their respective
Subsidiaries and the trustee named therein pursuant to which the 10-3/8% Senior
Subordinated Notes due 2009 were issued, (ii) the Indenture dated as of May 17,
2001 among the Borrower, the Co-Borrower, certain of their respective
Subsidiaries and the trustee named therein pursuant to which the 8-1/2% Senior
Subordinated Notes due 2011 were issued, (iii) the Indenture dated as of
November 27, 2002 among the Borrower, the Co-Borrower, certain of their
respective Subsidiaries and the trustee named therein pursuant to which the
10-5/8% Senior Subordinated Notes, due 2012 were issued and (iv) any other
Indenture pursuant to which Senior Subordinated Notes are issued, each together
with all instruments and other agreements entered into by the Borrower, the
Co-Borrower or such Subsidiaries in connection therewith, as each may be
amended, supplemented or otherwise modified from time to time in accordance with
Section 8.9.
"Senior Subordinated Notes" means, collectively, (i) the 10-3/8% Senior
Subordinated Notes due 2009, (ii) the 8-1/2% Senior Subordinated Notes due 2011,
(iii) the 10-5/8% Senior Subordinated Notes due 2012 and (iv) any other senior
subordinated notes having substantially similar subordination provisions to the
subordination provisions contained in the 8-1/2% Senior Subordinated Notes due
2011, in each case of the Borrower and the Co-Borrower issued pursuant to a
Senior Subordinated Note Indenture.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent": with respect to any Person on a particular date, the
condition that, on such date, (a) the fair value of the property and assets of
such Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
saleable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature, and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property and assets would constitute an
unreasonably small amount of capital. In computing the amount of contingent
liabilities at any time, such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Subject Properties": the Properties containing Petroleum in which
Borrower or any Restricted Subsidiary owns an interest, including, but not
limited to, those known as Viosca ▇▇▇▇▇ 817, Garden Banks 72 and Garden Banks
117 in the Gulf of Mexico.
22
"Subsidiaries Guarantee": the Consolidated Amended and Restated
Subsidiaries Guarantee made by the Subsidiary Guarantors in favor of the EPN
Group Administrative Agents, for the benefit of the EPN Group Lenders and the
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, in the form of Exhibit G hereto, as amended, supplemented
and modified by the Guarantees and Security Documents Confirmation, and as the
same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary": as to any Person, a corporation, partnership or other
Person of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership 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 corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"Subsidiary Guarantors": collectively, ANR Central, Argo, Argo I, Argo
II, Chaco, Crystal Holding, Delos, EP Deepwater, EP Operating, EP San ▇▇▇▇, EP
South Texas, EP Transport, EPN NGL, First Reserve, Flextrend, Green Canyon,
Hattiesburg Sales, Hattiesburg Storage, Manta Ray, Petal Gas Storage, Poseidon,
VK Deepwater, VK Main Pass, East Breaks, High Island, EPN GP Holding I, EPN
Holding Company I, EPN GP Holding, EPNHC, Intrastate, Pipeline GP Holding, EPGT
Texas Pipeline, Hub Services, Warwink I, Warwink II, Warwink Gathering and
Treating, Offshore Gathering & Transmission, Indian Basin, EPN Gathering and
Treating, EPN Gathering and Treating GP, each other Restricted Subsidiary and
any other Subsidiary of the Borrower which, from time to time, may become party
to the Subsidiaries Guarantee. Notwithstanding anything to the contrary in the
Loan Documents, El Paso Energy Partners Finance Corporation shall be the
Co-Borrower and not a Subsidiary Guarantor.
"Subsidiary Pledge Agreement": the Consolidated Amended and Restated
Subsidiary Pledge Agreement made by each of the Subsidiary Guarantors (including
any pledge agreement executed and delivered pursuant to Section 8.17) in favor
of the Collateral Agent for the ratable benefit of the EPN Group Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders, in the form of Exhibit H hereto, as amended, supplemented
and modified by the Guarantees and Security Documents Confirmation, and as the
same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary Security Agreement": the Consolidated Amended and Restated
Subsidiary Security Agreement made by each of the Subsidiary Guarantors
(including any security agreement executed and delivered pursuant to Section
8.17) in favor of the Collateral Agent for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, in the form of Exhibit I hereto, as amended,
supplemented and modified by the Guarantees and Security Documents Confirmation,
and as the same may be amended, supplemented or otherwise modified from time to
time.
"Total EPN Group Credit Percentage": as to any EPN Group Lender at any
time, the percentage of the aggregate EPN Revolving Credit Commitments, EPN Term
Loans, EPNHC
23
Term Loans and Loans then constituted by its EPN Revolving Credit Commitment,
its EPN Term Loans, EPNHC Term Loans and its Loans (it being agreed that in the
case of the termination or expiration of the EPN Revolving Credit Commitments,
the aggregate EPN Revolving Credit Commitment and such EPN Lender's EPN
Revolving Credit Commitment shall be determined by reference to the EPN
Aggregate Outstanding Revolving Credit Extensions of Credit of all EPN Group
Lenders and such EPN Group Lender's EPN Aggregate Outstanding Revolving Credit
Extensions of Credit).
"Tranche": the collective reference to Eurodollar Loans the Interest
Periods with respect to all of which begin on the same date and end on the same
later date.
"Transaction": collectively, (i) the Acquisition, (ii) the Equity
Investment, (iii) the Acquisition Offering, (iv) the entering into of the Loan
Documents and the incurrence of the Loans on the Closing Date and (v) the
payment of fees and expenses owing in connection with the foregoing.
"Transaction Documents": the Loan Documents and the Acquisition
Document.
"Transferee": any (i) Participant or (ii) assignee of this Agreement
pursuant to Section 11.6(b).
"Type": as to any Loan, its nature as an Alternate Base Rate Loan or a
Eurodollar Loan.
"Unit": a Common Unit, a Preference Unit, or any other partnership
interest of a limited partner of the Borrower representing a fractional part of
the partnership interests of all limited partners of the Borrower.
"Unrestricted Subsidiary": any Subsidiary of the Borrower (a) which
becomes a Subsidiary of the Borrower after the date hereof and, at the time it
becomes a Subsidiary, is designated as an Unrestricted Subsidiary, in each case
pursuant to a written notice from the Borrower to the Administrative Agent, (b)
which has not acquired any assets (other than cash made available pursuant to
this Agreement) from the Borrower or any Restricted Subsidiary, (c) which has no
Indebtedness, Guarantee Obligations or other obligations other than Non-Recourse
Obligations and (d) which has not guaranteed the Senior Subordinated Notes. Any
Subsidiary designated as a Restricted Subsidiary may be redesignated as an
Unrestricted Subsidiary with the consent of the Required Lenders as long as,
after giving effect thereto, no Default or Event of Default has occurred and is
continuing and the Borrower would be in pro forma compliance with the financial
covenants in Section 8.1 after giving effect thereto. Notwithstanding the
foregoing, Arizona Gas, EPN Arizona and MIAGS shall each be deemed to be an
Unrestricted Subsidiary unless redesignated as a Restricted Subsidiary in
accordance with this Agreement.
"VK Deepwater": VK Deepwater Gathering Company, L.L.C., a Delaware
limited liability company.
"VK Main Pass": VK-Main Pass Gathering Company, L.L.C., a Delaware
limited liability company.
24
"Warwink I": El Paso Energy Warwink I Company, L.P., a Delaware limited
partnership.
"Warwink II": El Paso Energy Warwink II Company, L.P., a Delaware
limited partnership.
"Warwink Gathering and Treating": Warwink Gathering and Treating
Company, a Texas general partnership.
"Working Day": any Business Day on which dealings in foreign currencies
and exchange between banks may be carried on in London, England.
Section 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined
in this Agreement shall have the defined meanings when used in the Notes or any
certificate or other document made or delivered pursuant hereto.
(b) 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 (i) 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), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
assigns (subject to any restrictions on assignments set forth herein), (iii) 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, and (iv) all references herein to Articles, Sections,
subsections, Exhibits, Annexes and Schedules shall be construed to refer to
Articles, Sections and subsections of, and Exhibits, Annexes and Schedules to,
this Agreement.
(c) Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with
GAAP; provided that, if the Borrower notifies the Administrative Agent that the
Borrower 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 such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders 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.
25
ARTICLE II
AMOUNT AND TERMS OF LOANS
Section 2.1 Loans.
(a) Subject to the terms and conditions hereof, each
Lender severally agrees to make, on the Closing Date, a senior secured
acquisition term loan (collectively, the "Loans") to the Borrower in an
aggregate principal amount not to exceed such ▇▇▇▇▇▇'s Commitment. Once repaid,
Loans may not be reborrowed.
(b) The Loans may from time to time be (i) Eurodollar
Loans, (ii) Alternate Base Rate Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.3 and 4.2, provided that no Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Maturity Date.
Section 2.2 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay
to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan on the Maturity Date (or such earlier date on
which the Loans become due and payable pursuant to Article IX).
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such ▇▇▇▇▇▇, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder; the Type
thereof; and the Interest Period applicable to each Loan made or maintained
hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the account
of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant
to paragraph (b) or (c) of this Section 2.2 shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note substantially in the form
of Exhibit A hereto (a "Note"), as applicable, payable to the order of such
Lender. Thereafter, the Loans evidenced by any such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 11.6)
be represented by one or more promissory notes in such form payable to the order
of the payee named ▇▇▇▇▇▇▇.
26
Section 2.3 Procedure for Borrowing. The Borrower may borrow
under the Commitments on the Closing Date, provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, one Business
Day prior to the Closing Date), specifying (i) the amount to be borrowed, (ii)
that such Loans shall be incurred on the Closing Date, and (iii) that such
borrowing is to be of Alternate Base Rate Loans. Upon receipt of such notice
from the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share of the borrowing
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in Section 11.2 prior to 2:00 P.M.,
New York City time, on the Closing Date in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
Section 2.4 Limitation on Loans. No requested Loan shall be
made if (after giving effect to such requested Loan and all other Loans
comprising the borrowing of which it is a part) the Loans would exceed the
aggregate Commitments.
Section 2.5 Termination of Commitments. Any and all of the
Commitments remaining unused shall automatically terminate at 5:00 P.M., New
York City time, on the Closing Date.
ARTICLE III
[RESERVED]
ARTICLE IV ARTICLE IV
GENERAL PROVISIONS FOR LOANS
Section 4.1 Optional and Mandatory Prepayments.
(a) The Borrower may on the last day of any Interest
Period with respect thereto (or at other times with the payment of applicable
breakage costs), in the case of Eurodollar Loans, or at any time and from time
to time, in the case of Alternate Base Rate Loans, prepay the Loans, in whole or
in part, without premium or penalty, upon at least four Business Days'
irrevocable notice to the Administrative Agent, specifying (i) the date and
amount of prepayment and (ii) whether the prepayment is of Eurodollar Loans,
Alternate Base Rate Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, with accrued interest to such date on the amount
prepaid in the case of prepayment of the Loans. Partial prepayments of the Loans
shall be in an aggregate principal amount of $5,000,000 or a whole multiple
thereof.
(b) Subject to subsection (d) below, at any time after
the Closing Date that the Co-Borrower, the Borrower or any of its Restricted
Subsidiaries shall receive cash Net Equity Proceeds from any issuance or sale of
Capital Stock or i-shares or Net Proceeds from any
27
issuance or sale of debt securities issued by the Borrower or its Restricted
Subsidiaries pursuant to existing or future Senior Subordinated Notes Indentures
or any senior notes indentures, the Borrower shall repay the Loans on the date
such proceeds are received in an amount equal to 100% of such cash Net Equity
Proceeds or Net Proceeds, as the case may be.
(c) At any time the General Partner, the Borrower or any
Restricted Subsidiary of the Borrower shall receive net proceeds from any
Purchase Price Adjustment, the Borrower shall repay the Loans on the date such
proceeds are received in an amount equal to 100% of such net proceeds.
(d) For purposes of Section 4.1(b), Net Equity Proceeds
of any of the following issuances of Capital Stock by the Borrower or any of its
Restricted Subsidiaries shall not be required to be applied in prepayment of the
Loans:
(i) issuances in connection with the Equity
Investment;
(ii) issuances upon the exercise of any options
or warrants to purchase equity securities of the Borrower or its Restricted
Subsidiaries;
(iii) issuances to the management of (A) the
Borrower or (B) its Restricted Subsidiaries;
(iv) issuances made in connection with an
acquisition directly to the seller of the assets being acquired in such
acquisition; or
(v) issuances to the Borrower or its Restricted
Subsidiaries.
Section 4.2 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to Alternate Base Rate Loans by giving the Administrative Agent
at least two Business Days' prior irrevocable notice of such election, provided
that any such conversion of Eurodollar Loans may only be made on the last day of
an Interest Period with respect thereto. The Borrower may elect from time to
time to convert Alternate Base Rate Loans to Eurodollar Loans by giving the
Administrative Agent at least three Working Days' prior irrevocable notice of
such election. Any such notice of conversion to Eurodollar Loans shall specify
the length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
Lender thereof. All or any part of outstanding Eurodollar Loans and Alternate
Base Rate Loans may be converted as provided herein, provided that (i) no Loan
may be converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined that such a conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, Section 4.3 shall
not have been contravened and (iii) no Loan may be converted into a Eurodollar
Loan after the date that is one month prior to the Maturity Date.
(b) Any Eurodollar Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period"
28
set forth in Section 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan may be continued as
such (i) when any Default or Event of Default has occurred and is continuing and
the Administrative Agent has or the Required Lenders have determined that such a
continuation is not appropriate, (ii) if, after giving effect thereto, Section
4.3 would be contravened or (iii) after the date that is one month prior to the
Maturity Date, and provided, further, that if the Borrower shall fail to give
any required notice as described above in this paragraph or if such continuation
is not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to Alternate Base Rate Loans on the last day of such
then expiring Interest Period.
Section 4.3 Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, (a) the aggregate principal
amount of the Loans comprising each Tranche shall be equal to $2,000,000 or a
whole multiple of $100,000 in excess thereof, and (b) the number of Tranches
then outstanding shall not exceed eight.
Section 4.4 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each Alternate Base Rate Loan shall bear interest at
a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of
any Loan, (ii) any interest payable thereon or (iii) any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is the higher of (A) the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 4.4 plus
2% and (B) the Alternate Base Rate plus 1%, in each case from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, on any prepayment (on the amount prepaid) and at maturity (whether
by acceleration or otherwise), provided that interest accruing pursuant to
paragraph (c) of this Section 4.4 shall be payable from time to time on demand.
Section 4.5 Computation of Interest and Fees.
(a) Interest on Alternate Base Rate Loans and interest on
overdue interest and other amounts payable hereunder shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. Interest on Eurodollar Loans and fees shall be calculated on the basis
of a 360-day year for the actual days elapsed. The Administrative Agent shall as
soon as practicable notify the Borrower and the Lenders of each determination of
a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the
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opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
4.4(a).
Section 4.6 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice
from the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Alternate Base Rate Loans, (y) any Loans that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be converted to or continued as Alternate Base Rate Loans
and (z) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made
or continued as such, nor shall the Borrower have the right to convert Loans to
Eurodollar Loans.
Section 4.7 Pro Rata Treatment and Payments.
(a) Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made pro
rata according to the outstanding principal amounts of the Loans then held by
the Lenders. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without set off or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in Section 11.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such
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extension and with respect to payments of fees, such fees accruing during such
extension shall be payable on the next succeeding Business Day. If any payment
on a Eurodollar Loan becomes due and payable on a day other than a Working Day,
the maturity thereof shall be extended to the next succeeding Working Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Working Day.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to the Closing Date that such Lender
will not make the amount that would constitute its Applicable Percentage of the
borrowing on such date available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on the Closing Date, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is made available to the Administrative Agent on a date
after the Closing Date, such Lender shall pay to the Administrative Agent on
demand an amount equal to the product of (i) the daily average Federal Funds
Effective Rate during such period, times (ii) the amount of such Lender's
Applicable Percentage of such borrowing, times (iii) a fraction the numerator of
which is the number of days that elapse from and including the Closing Date to
the date on which such Lender's Applicable Percentage of such borrowing shall
have become immediately available to the Administrative Agent and the
denominator of which is 360. A certificate of the Administrative Agent submitted
to any Lender with respect to any amounts owing under this Section 4.7 shall be
conclusive in the absence of manifest error. If such Lender's Applicable
Percentage of such borrowing is not in fact made available to the Administrative
Agent by such Lender within three Business Days of the Closing Date, the
Administrative Agent shall be entitled to recover such amount with interest
thereon at the rate per annum applicable to Alternate Base Rate Loans hereunder,
on demand, from the Borrower.
Section 4.8 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Alternate Base Rate Loans to Eurodollar
Loans shall forthwith be cancelled and (b) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Alternate Base
Rate Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to Section
4.11.
Section 4.9 Requirements of Law.
(a) If the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof or compliance by any
Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
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(i) shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note, or any Eurodollar Loan
made by it, or change the basis of taxation of payments to such Lender in
respect thereof (except for taxes covered by Section 4.10 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination of
the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
Section 4.9, it shall promptly notify the Borrower, through the Administrative
Agent, of the event by reason of which it has become so entitled. A certificate
as to any additional amounts payable pursuant to this Section 4.9 submitted by
such ▇▇▇▇▇▇, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Notes, the Loans and all
other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, after submission by such Lender to the Borrower (with a
copy to the Administrative Agent) of a written request therefor, the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
Section 4.10 Taxes.
(a) All payments made by the Borrower under this
Agreement, the Notes and the other Loan Documents shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the case of
the Administrative Agent, the Collateral Agent and each Lender, net income taxes
and franchise taxes (imposed in lieu of
32
net income taxes) imposed on the Administrative Agent, the Collateral Agent or
such Lender, as the case may be, as a result of a present or former connection
between the jurisdiction of the government or taxing authority imposing such tax
and the Administrative Agent, the Collateral Agent or such Lender (excluding a
connection arising solely from the Administrative Agent, the Collateral Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement, the Notes or the other Loan
Documents) or any political subdivision or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
and withholdings being hereinafter called "Taxes"). If any Taxes are required to
be withheld from any amounts payable to the Administrative Agent, the Collateral
Agent or any Lender hereunder, under the Notes or the other Loan Documents, the
amounts so payable to the Administrative Agent, the Collateral Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent, the Collateral Agent or such Lender (after payment of all Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes. Whenever any Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account, for the account of the Collateral
Agent or for the account of such Lender, as the case may be, a certified copy of
an original official receipt received by the Borrower showing payment thereof.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent, the Collateral Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the Administrative
Agent, the Collateral Agent or any Lender as a result of any such failure. The
agreements in this Section 4.10 shall survive the termination of this Agreement
and the payment of the Notes, the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof shall:
(i) deliver to the Borrower and the
Administrative Agent (A) two duly completed copies of United States Internal
Revenue Service Form W8-ECI or W8-BEN, or successor applicable form, as the case
may be, and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(ii) deliver to the Borrower and the
Administrative Agent two further copies of any such form or certification on or
before the date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form W8-
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ECI or W8-BEN, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes and
(ii) in the case of a Form W-8 or W-9, that it is entitled to an exemption from
United States backup withholding tax. Each Person that shall become a Lender or
a Participant pursuant to Section 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this Section 4.10, provided that in the case of a
Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
Section 4.11 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
payment when due of the principal amount of or interest on any Eurodollar Loan,
(b) default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (c)
default by the Borrower in making any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (d) the
making of a prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. This covenant shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder.
Section 4.12 Lenders Obligation to Mitigate. Each Lender agrees
that, as promptly as practicable after it becomes aware that it has been or will
be affected by the occurrence of an event or the existence of a condition
described under Section 4.8 or subsection 4.9(a) or 4.10(a), it will, to the
extent not inconsistent with such ▇▇▇▇▇▇'s internal policies, use its best
efforts (a) to provide written notice to the Borrower describing such condition
and the anticipated effect thereof and (b) to make, fund or maintain the
affected Eurodollar Loans of such Lender through another lending office of such
Lender if as a result thereof the additional moneys which would otherwise be
required to be paid in respect of such Loans pursuant to Section 4.8 or
subsection 4.9(a) or 4.10(a) would be materially reduced or the illegality or
other adverse circumstances which would otherwise require such payment pursuant
to Section 4.8 or subsection 4.9(a) or 4.10(a) would cease to exist and if, as
determined by such Lender, in its sole discretion, the making, funding or
maintaining of such Loans through such other lending office would not otherwise
adversely affect such Loans or such Lender. The Borrower hereby agrees to pay
all reasonable expenses incurred by any Lender in utilizing another lending
office of such Lender pursuant to this Section 4.12.
Section 4.13 Acquisition; Disposition; Redesignation. If the
Borrower or any of its Restricted Subsidiaries acquires any Acquired Business or
makes any sale or disposition of any assets or property having a value in excess
of $20,000,000 pursuant to subsection 8.6(b) or 8.6(e) or there is a
Redesignation of any Subsidiary during any Calculation Period, Consolidated
EBITDA, Consolidated Tangible Net Worth, Consolidated Interest Expense,
Consolidated Total Senior Indebtedness and Consolidated Total Indebtedness for
such Calculation Period will be determined on a pro forma basis as if such
Acquired Business were acquired, such assets or property was sold or disposed of
or such Redesignation occurred, on the first day thereof. Such
34
pro forma adjustments will be subject to delivery to the Administrative Agent of
a certificate of a Responsible Officer of the Borrower. Such certificate may be
delivered at any time with respect to any Redesignation and at any time after
the last day of the first fiscal quarter of the Borrower to end after the
related acquisition date with respect to any Acquired Business or the related
disposition date with respect to any such sale or disposition. Each such
certificate shall be accompanied by supporting information and calculations with
respect to each such Acquired Business, sale or disposition or Redesignation and
such other information as any Lender, through the Administrative Agent, may
reasonably request.
Section 4.14 Redesignated Senior Indebtedness. The Borrower and
the Co-Borrower hereby designate all Obligations of the Borrower and its
Subsidiaries (including the Co-Borrower) under this Agreement and the other Loan
Documents as "Designated Senior Debt," as such term is defined in the Senior
Subordinated Note Indentures.
Section 4.15 Securities Demand. The Initial Lenders shall have the
right to make demand on the Borrower and the Co-Borrower to issue debt
securities pursuant to the terms and conditions of the Securities Demand Letter
Agreement dated as of the date hereof by and among the Borrower and the Initial
Lenders.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement, the Borrower hereby represents and warrants to the Administrative
Agent and each Lender that:
Section 5.1 Financial Condition.
(a) The consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at December 31, 2001, and the related
consolidated statements of operations and of cash flows for the fiscal year
ended December 31, 2001, reported on by PricewaterhouseCoopers LLP, copies of
which have heretofore been furnished to each Lender, present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the year then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at September 30, 2002 and the related consolidated statements of operations and
of cash flows for the nine months ended September 30, 2002, copies of which have
heretofore been furnished to each Lender, present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the nine-month period then ended. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such accountants and as disclosed therein and, with
respect to the September 30, 2002 financial statements, for the absence of
footnotes and year-end adjustments). Except as set forth on Schedule 5.1 or as
permitted by subsection 8.4(c), neither the Borrower nor any of its consolidated
Subsidiaries had, at the date of the most recent balance sheet referred to
above, any material Guarantee Obligation, contingent liability or liability for
taxes, or any long-term lease or unusual forward or long-term commitment,
including, without
35
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto.
Except as set forth on Schedule 5.1, during the period from September 30, 2002
to and including the Closing Date there has been no sale, transfer or other
disposition by the Borrower or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Borrower and
its consolidated Subsidiaries at September 30, 2002.
(b) The Projections delivered to the Administrative Agent
and the Lenders prior to the Closing Date have been prepared in good faith and
are based on assumptions believed by the Borrower to be reasonable at the time
made. On the Closing Date, ▇▇▇▇▇▇▇▇ believed that the Projections were
reasonable; it being recognized by the Administrative Agent and the Lenders,
however, that projections as to future events are not to be viewed as facts and
that the actual results during the period or periods covered by the Projections
may differ from the projected results and such differences may be material.
Section 5.2 No Change. Since September 30, 2002 (but for this
purpose, assuming that the Transaction had occurred immediately prior thereto),
(a) there has been no development or event which has had or could reasonably be
expected to have a Material Adverse Effect and (b) no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Borrower except as permitted by Section 8.7, nor has any of the Capital Stock of
the Borrower been redeemed, retired, purchased or otherwise acquired for value
by the Borrower or any of its Subsidiaries. For the avoidance of doubt, the
consummation of the Transaction does not give rise to a Material Adverse Effect.
Section 5.3 Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation, limited
partnership or limited liability company, as the case may be, and, where
applicable, in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.4 Power; Authorization; Enforceable Obligations.
(a) The Borrower has the power and authority, and the
legal right, to make, deliver and perform this Agreement, the Notes and the
other Loan Documents to which it is a party and to borrow hereunder and has
taken all necessary action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes and to authorize the execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or the Notes. This Agreement has been, and each Note has been or will be, duly
36
executed and delivered on behalf of the Borrower. This Agreement constitutes,
and each Note and each other Loan Document to which the Borrower is a party when
executed and delivered will constitute, a legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(b) Each of the Subsidiary Guarantors has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and has taken all necessary action to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which such
Subsidiary Guarantor is a party. Each of the Loan Documents to which such
Subsidiary Guarantor is a party will be duly executed and delivered on behalf of
such Subsidiary Guarantor. Each Loan Document to which such Subsidiary Guarantor
is a party will, when executed and delivered, constitute a legal, valid and
binding obligation of such Subsidiary Guarantor enforceable against such
Subsidiary Guarantor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
Section 5.5 No Legal Bar. The execution, delivery and performance
of this Agreement, the Notes and the other Loan Documents, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or Contractual Obligation of any Loan Party, or, to the best knowledge of
the Borrower, any Joint Venture any of the interests in which is owned by the
Borrower or a Restricted Subsidiary, and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation.
Section 5.6 No Material Litigation. Except as set forth on
Schedule 5.6, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries, or,
to the best knowledge of the Borrower, any Joint Venture any of the interests in
which is owned by the Borrower or a Restricted Subsidiary, or against any of its
or their respective properties or revenues (a) with respect to this Agreement,
the Notes or any of the other Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
Section 5.7 No Default. No Loan Party, and, to the best knowledge
of the Borrower, no Joint Venture any of the interests in which is owned by the
Borrower or a Restricted Subsidiary, is in default under or with respect to any
of its Contractual Obligations in any respect which could reasonably be expected
to have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.
37
Section 5.8 Ownership of Property; Liens. Each of the Borrower
and its Restricted Subsidiaries has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its real property necessary for
its operations as then conducted, and good title to, or a valid leasehold
interest in, all its other property, and none of such property necessary for its
operations as then conducted is subject to any Lien except as permitted by
Section 8.3.
Section 5.9 Intellectual Property. The Borrower and each of its
Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not have a Material Adverse Effect (the "Intellectual Property"). No
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property, nor does the Borrower know of any valid basis
for any such claim. The use of such Intellectual Property by the Borrower and
its Restricted Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, do not have a
Material Adverse Effect.
Section 5.10 No Burdensome Restrictions. The Borrower, in good
faith, does not believe any Requirement of Law or Contractual Obligation of the
Borrower or any of its Restricted Subsidiaries could reasonably be expected to
have a Material Adverse Effect.
Section 5.11 Taxes. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
Section 5.12 Federal Regulations. No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of such Board of Governors. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
Section 5.13 ERISA. No Loan Party has or is a party to, or has any
matured or contingent obligations under, any Plans.
Section 5.14 Investment Company Act; Other Regulations. The
Borrower is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not subject to
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regulation under any Federal or State statute or regulation which limits its
ability to incur Indebtedness.
Section 5.15 Subsidiaries. The Persons set forth on Schedule 5.15
constitute all of the Subsidiaries of the Borrower and all Joint Ventures in
which the Borrower owns any direct or indirect interest, as of the Closing Date
(both before and after the Reorganization Transactions as indicated in such
Schedule) and the percentage of the equity interests owned by the Borrower in
each such Person as of such date (both before and after the Reorganization
Transactions as indicated in such Schedule). Except for Arizona Gas, EPN Arizona
and MIAGS, each of the Subsidiaries listed on Schedule 5.15 is as of the Closing
Date a Restricted Subsidiary.
Section 5.16 Purpose of Loans. All proceeds of the Loans shall be
used on the Closing Date by the Borrower to finance a portion of the Acquisition
and to pay related fees and expenses.
Section 5.17 Environmental Matters. Except as set forth on
Schedule 5.17:
(a) To the best knowledge of the Borrower, the Properties
do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute or
constituted a violation of, or (ii) give rise to liability under, any
Environmental Law, except in either case insofar as such violation or liability,
or any aggregation thereof, could not reasonably be expected to result in the
payment of a Material Environmental Amount.
(b) To the best knowledge of the Borrower, the Properties
and all operations at the Properties are in compliance, and have in the period
commencing six months prior to the date hereof been in compliance, in all
material respects with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated by the
Borrower or any of its Subsidiaries or any Joint Venture (the "Business") which
could materially interfere with the continued operation of any material Property
or which could reasonably be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries nor,
to the best knowledge of the Borrower, any Joint Venture has received any notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor does the Borrower have
knowledge or reason to believe that any such notice will be received or is being
threatened except insofar as such notice or threatened notice, or any
aggregation thereof, does not involve a matter or matters that is or could
reasonably be expected to result in the payment of a Material Environmental
Amount.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties in violation of, or in a
manner that
39
could reasonably be expected to give rise to liability under, any applicable
Environmental Law except insofar as any such violation or liability referred to
in this paragraph, or any aggregation thereof, could not reasonably be expected
to result in the payment of a Material Environmental Amount.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the Borrower,
threatened, under any Environmental Law to which the Borrower or any Subsidiary,
or, to the best knowledge of the Borrower, any Joint Venture, is or will be
named as a party with respect to the Properties or the Business, nor are there
any consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements outstanding under
any Environmental Law with respect to the Properties or the Business except
insofar as such proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to result in the payment
of a Material Environmental Amount.
(f) To the best knowledge of the Borrower, there has been
no release or threat of release of Materials of Environmental Concern at or from
the Properties, or arising from or related to the operations of the Borrower or
any Subsidiary or any Joint Venture, in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws except insofar
as any such violation or liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to result in the payment
of a Material Environmental Amount.
(g) There are no Liens arising under or pursuant to any
Environmental Laws on any of the real properties or properties owned or leased
by any Loan Party, and no government actions have been taken or are in process
which could subject any of such properties to such Liens and no Loan Party would
be required to place any notice or restriction relating to the presence of
Hazardous Materials at any properties owned by it in any deed to such
properties.
(h) There have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or which are in
the possession of any Loan Party in relation to any properties or facility now
or previously owned or leased by any Loan Party which have not been made
available to the Lenders.
Section 5.18 Accuracy and Completeness of Information. The factual
statements contained in the financial statements (other than financial
projections) referred to in Section 5.1, the Loan Documents, the Offering
Memorandum with respect to the Acquisition Offering dated as of November 22,
2002 and any other certificates or documents furnished or to be furnished (but
only, with respect to documents furnished after the Closing Date, documents
provided pursuant to subsection 7.2(d)) to the Administrative Agent or the
Lenders from time to time in connection with this Agreement, taken as a whole,
do not and will not, to the knowledge of the Borrower, as of the date when made,
contain any untrue statement of a material fact or omit to state a material fact
(other than omissions that pertain to matters of a general economic nature,
matters generally known to the Administrative Agent or matters of public
knowledge that generally affect any of the industry segments included in the
Business of the Borrower, its Subsidiaries or any Joint Venture) necessary in
order to make the statements contained therein not misleading in light of the
circumstances in which the same were made, such knowledge
40
qualification being given only with respect to factual statements made by
Persons other than the Borrower, and all financial projections contained in any
such document or certificate have been prepared in good faith based upon
assumptions believed by the Borrower to be reasonable.
Section 5.19 Security Documents. The Pledge Agreements are each
effective to create in favor of the Collateral Agent, for the ratable benefit of
the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a legal, valid and enforceable
security interest in the respective "Interests" defined therein and proceeds
thereof, and the Pledge Agreements each constitute a fully perfected first Lien
on, and security interest in, all right, title and interest of the Borrower and
the Subsidiary Guarantors, respectively, in such Interests and Pledged
Certificates described therein and in proceeds thereof superior in right to any
other Person (subject to the Liens permitted pursuant to Section 8.3). Each
Security Agreement is effective to create in favor of the Collateral Agent, for
the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a
legal, valid and enforceable security interest in the respective collateral
described therein and proceeds thereof, and the Security Agreements constitute
fully perfected, first priority Liens on, and security interests in (subject to
the Liens permitted pursuant to Section 8.3), all right, title and interest of
the Borrower, the Co-Borrower, EPEPC and the Subsidiary Guarantors,
respectively, in such collateral and the proceeds thereof superior in right to
any other Person other than Liens permitted hereby.
Section 5.20 Joint Venture Charters, G&A Agreement, etc.
(a) As of the Closing Date, the Administrative Agent has
received, with a copy for each Lender, a complete copy of each of the Joint
Venture Charters of each Joint Venture any of the interests in which is owned by
the Borrower or a Restricted Subsidiary and all amendments thereto, waivers
relating thereto and other side letters or agreements affecting the terms
thereof.
(b) As of the Closing Date, the Administrative Agent has
received a complete copy of the Partnership Agreement, the G&A Agreement and
each credit agreement to which any Joint Venture any of the interests in which
is owned by the Borrower or a Restricted Subsidiary is a party (including all
exhibits, schedules and disclosure letters referred to therein or delivered
pursuant thereto, if any) and all amendments thereto, waivers, relating thereto
and other side letters or agreements affecting the terms thereof (collectively,
such agreements and documents described in paragraphs (a) and (b) of this
Section 5.20 are referred to as the "Documents"). None of the Documents has been
amended or supplemented, nor have any of the provisions thereof been waived,
except (i) pursuant to a written agreement or instrument which has heretofore
been consented to in writing by the Required Lenders or (ii) in accordance with
the provisions of this Agreement.
(c) Except as disclosed on Schedule 5.6, each of the
Documents has been duly executed and delivered by each of the Borrower and its
Subsidiaries party thereto and, to the Borrower's knowledge, by each of the
other parties thereto, is in full force and effect and constitutes a legal,
valid and binding enforceable obligation of each of the Borrower and its
Subsidiaries party thereto and, to the Borrower's knowledge, each other party
thereto. None of the Borrower or any of its Subsidiaries party to any of the
Documents, is in default in the performance of any of its obligations thereunder
in any material respect which would give any
41
other party to such Document a right to accelerate payment of amounts due under,
or terminate, such Document.
Section 5.21 Senior Debt. The Obligations constitute "Senior Debt"
of the Borrower under and as defined in the Senior Subordinated Note Indentures.
The obligations of each Subsidiary Guarantor under the Loan Documents to which
it is a party constitute "Guarantor Senior Debt" of such Subsidiary Guarantor
under and as defined in the Senior Subordinated Note Indentures.
Section 5.22 Solvency. The Borrower and its Subsidiaries, on a
consolidated basis, both before and after giving effect to the Transaction, are
Solvent.
Section 5.23 Transaction. At the time of the consummation thereof,
the Transaction was consummated in all material respects in accordance with the
terms of the respective Transaction Documents and all applicable laws. All
actions taken by any Loan Party pursuant to or in furtherance of the Transaction
have been taken in all material respects in compliance with the respective
Transaction Documents and all applicable laws.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 Conditions to Extensions of Credit. The agreement of
each Lender to make the extension of credit requested to be made by it was
subject to the satisfaction, immediately prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of the Borrower and the Co-Borrower, (ii) for the account of each Lender which
requests the same, a Note executed and delivered by a duly authorized officer of
the Borrower and the Co-Borrower, (iii) the Guarantees and the Security
Documents Confirmation, executed and delivered by a duly authorized officer of
each Loan Party thereto and (iv) the Securities Demand Letter Agreement
referenced in Section 4.15.
(b) Related Agreements. The Administrative Agent shall
have received true and correct copies, certified as to authenticity by the
Borrower, of the Partnership Agreement, the certificate of limited partnership
of the Borrower, the G&A Agreement, the limited liability company agreement,
limited partnership agreement, or other equivalent governance documents, as the
case may be, of each Subsidiary, the Joint Venture Charter of each Joint Venture
and each agreement evidencing or securing or under which is issued Indebtedness
of any of the Joint Ventures under their respective credit facilities, and such
other documents or instruments as may be reasonably requested by the
Administrative Agent or any of the Initial Lenders, including, without
limitation, a copy of any debt instrument, security agreement or other material
contract to which any Joint Venture may be a party.
(c) Borrowing Certificate. The Administrative Agent shall
have received a certificate of the Borrower, dated the Closing Date,
substantially in the form of Exhibit N hereto, with appropriate insertions and
attachments, satisfactory in form and substance to the
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Administrative Agent and the Initial Lenders, executed by the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Treasurer
or any Vice President of the Borrower and the Secretary or any Assistant
Secretary of the Borrower.
(d) Partnership Proceedings of the Borrower. The
Administrative Agent shall have received a copy of the resolutions, in form and
substance satisfactory to the Administrative Agent, of the board of directors of
the General Partner authorizing on behalf of the Borrower (i) the execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which the Borrower is a party, (ii) the borrowings contemplated
hereunder and (iii) the granting by the Borrower of the Liens created pursuant
to the Security Documents to which it is a party, certified by the Secretary or
an Assistant Secretary of the General Partner on behalf of the Borrower as of
the Closing Date, which certificate shall be in form and substance satisfactory
to the Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(e) Borrowers' Incumbency Certificate. The Administrative
Agent shall have received a certificate of the Borrower and the Co-Borrower,
dated as of the Closing Date, as to the incumbency and signature of the officers
of the Borrower and the Co-Borrower executing any Loan Document, satisfactory in
form and substance to the Administrative Agent, executed by the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President, Treasurer
or any Vice President and the Secretary or any Assistant Secretary of the
Borrower and the Co-Borrower, respectively.
(f) Corporate Proceedings of Co-Borrower. The
Administrative Agent shall have received a copy of the resolutions, in form and
substance satisfactory to the Administrative Agent, of the board of directors of
the Co-Borrower authorizing (i) the execution, delivery and performance of the
Loan Documents to which the Co-Borrower is a party and (ii) the granting by it
of the Liens created pursuant to the Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of the Co-Borrower as of
the Closing Date, which certificate shall be in form and substance satisfactory
to the Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(g) Corporate Proceedings of EPEPC. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the board of directors of EPEPC
authorizing (i) the execution, delivery and performance of the Loan Documents to
which EPEPC is a party and (ii) the granting by it of the Liens created pursuant
to the Security Documents to which it is a party, certified by the Secretary or
an Assistant Secretary of EPEPC as of the Original Closing Date, which
certificate shall be in form and substance satisfactory to the Administrative
Agent and shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
(h) EPEPC Incumbency Certificate. The Administrative
Agent shall have received a certificate of EPEPC, dated as of the Closing Date,
as to the incumbency and signature of the officers of EPEPC executing any Loan
Document, satisfactory in form and substance to the Administrative Agent,
executed by the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Treasurer or any Vice President and the Secretary
or any Assistant Secretary of EPEPC.
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(i) Proceedings of Subsidiaries. The Administrative Agent
shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the managing member(s), the board
of directors, or the managing members of the general partner, as applicable, of
each Subsidiary of the Borrower which is a party to a Loan Document authorizing
(i) the execution, delivery and performance of the Loan Documents to which it is
a party and (ii) the granting by it of the Liens created pursuant to the
Security Documents to which it is a party, certified by the Secretary or an
Assistant Secretary of such Subsidiary as of the Closing Date, which certificate
shall be in form and substance satisfactory to the Administrative Agent and
shall state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded (except in connection with the Reorganization
Transactions).
(j) Subsidiary Incumbency Certificates. The
Administrative Agent shall have received a certificate of each Subsidiary of the
Borrower which is a Loan Party, dated as of the Closing Date, as to the
incumbency and signature of the officers of such Subsidiary executing any Loan
Document, satisfactory in form and substance to the Administrative Agent,
executed by the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Treasurer or any Vice President and the Secretary
or any Assistant Secretary of each such Subsidiary.
(k) Corporate Documents. The Administrative Agent shall
have received true and complete copies of the certificate of incorporation and
by-laws of EPEPC and the Co-Borrower and the certificate of formation,
certificate of limited partnership, certificate of incorporation or equivalent
document, as the case may be, of each Subsidiary of the Borrower, certified as
of the Closing Date as complete and correct copies thereof by the Secretary or
an Assistant Secretary of EPEPC, the Co-Borrower or such Subsidiary, as the case
may be.
(l) Consummation of the Transaction.
(i) There shall have been delivered to the
Administrative Agent and the Initial Lenders true and correct copies of the
Acquisition Document. The Acquisition Document shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Initial Lenders and
shall not have been amended in any material respect without the consent of the
Administrative Agent and the Initial Lenders. All material conditions precedent
to the consummation of the Acquisition as set forth in the Acquisition Document
shall have been satisfied (and not waived, unless consented to by the
Administrative Agent and the Initial Lenders) to the reasonable satisfaction of
the Administrative Agent and the Initial Lenders. The Acquisition shall,
substantially contemporaneously with the funding of the Loans, be consummated in
all material respects in accordance with the terms and conditions of the
Acquisition Document and all applicable laws. The Administrative Agent and each
of the Initial Lenders shall have received satisfactory evidence as to the title
of the Borrower and its Restricted Subsidiaries in and to the material assets
included in the San ▇▇▇▇ Assets. In addition, all of the San ▇▇▇▇ Assets and all
equity interests acquired by the Borrower and its Restricted Subsidiaries
pursuant to the Acquisition shall be free and clear from any Liens, other than
Liens permitted under Section 8.3 hereof.
44
(ii) (A) The Equity Investment shall have been
paid or otherwise effected in form and in substance reasonably satisfactory to
the Administrative Agent and the Initial Lenders and (B) the proceeds of the
cash portion of the Equity Investment, if any, shall have been used to make
payments owing in connection with the Transaction, and the remaining portion of
the Equity Investment shall have been credited to the account of the Borrower in
connection with the consummation of the Transaction, substantially
contemporaneously with the use of the proceeds of the Loans incurred on the
Closing Date for such purpose. The Equity Investment shall have been consummated
in all material respects in accordance terms of the Acquisition Document and
with all applicable laws.
(iii) The Acquisition Offering shall have been
consummated and delivered and the net proceeds thereof shall have been made
available to the Borrower for the purpose of consummating the Transaction,
substantially contemporaneously with the use of the proceeds of the Loans
incurred on the Closing Date. The Acquisition Offering shall have been
consummated in accordance with all applicable laws.
(m) Consents, Licenses and Approvals. The Administrative
Agent shall have received, with a counterpart for each Lender, a certificate of
a Responsible Officer of the Borrower (i) attaching copies of all consents,
authorizations and filings referred to in Section 5.4, if any, and (ii) stating
that such consents, licenses and filings are in full force and effect, and each
such consent, authorization and filing shall be in form and substance
satisfactory to the Administrative Agent.
(n) Fees. The Administrative Agent and each Lender shall
have received the fees to be received on or before the Closing Date as
separately agreed to between each of them and the Borrower.
(o) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, (i) the executed legal opinion of
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel to the Borrower and the other
Loan Parties, and (ii) the executed legal opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., in
house counsel to the Borrower and the other Loan Parties as to certain matters,
each addressed to the Administrative Agent, the Collateral Agent and each
Lender, in form and substance reasonably satisfactory to the Administrative
Agent and the Initial Lenders.
(p) Pledged Stock; Stock Powers. The Collateral Agent
shall have received the certificates not previously delivered, if any,
representing the limited partnership interests, limited liability company
interests and general partnership interests pledged pursuant to each of the
Pledge Agreements, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof.
(q) Lien Searches. The Administrative Agent shall have
received lien searches reflecting no prior Liens on the Collateral to be
acquired as part of the Acquisition, except for Liens permitted by Section 8.3
hereof or the Administrative Agent shall have received adequate assurances that
any Lien that exists and is not permitted will be released as of the Closing
Date.
45
(r) Actions to Perfect Liens. The Collateral Agent shall
have received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly completed financing statements on form UCC-1 and
amendments to financing statements on form UCC-3, necessary or, in the opinion
of the Collateral Agent, desirable to perfect the Liens created by the Security
Documents shall have been completed (subject only to filings thereof to be
completed within 10 days of the Closing Date).
(s) Insurance.
(i) The Administrative Agent shall have received
evidence in form and substance satisfactory to it that all of the requirements
of Section 7.5 shall have been satisfied.
(ii) The Administrative Agent and the Initial
Lenders shall have received a schedule detailing, and shall be satisfied with,
the amount, coverage and carriers of the insurance carried by the Borrower, the
Restricted Subsidiaries and EPEPC.
(t) Good Standing Certificates. The Administrative Agent
shall have received copies of certificates dated as of a recent date from the
Secretary of State or other appropriate authority of such jurisdiction,
evidencing the good standing of the Borrower and each other Loan Party in each
state where the ownership, lease or operation of property or the conduct of
business requires it to qualify as a foreign corporation, partnership or limited
liability company, as the case may be.
(u) Litigation, Etc. Except as set forth on Schedule 5.6,
no suit, action, investigation, inquiry or other proceeding (including, without
limitation, the enactment or promulgation of a statute or rule) by or before any
arbitrator or any Governmental Authority shall be pending and no preliminary or
permanent injunction, order, or judgment by a state or federal court shall have
been entered (i) in connection with any Loan Document or any of the transactions
contemplated hereby or thereby or (ii) which, in any such case could reasonably
be expected to have a Material Adverse Effect.
(v) Consents. All material governmental and third party
approvals (or arrangements satisfactory to the Initial Lenders in lieu of such
approvals) necessary or advisable in connection with the Transaction or the
financings or other transactions contemplated hereby and by the other Loan
Documents and the continuing operations of the Borrower, the Restricted
Subsidiaries and the Joint Ventures (including, without limitation, any consents
of any other partners or lenders to any Joint Venture) shall have been obtained
and be in full force and effect, and all material applicable waiting periods
shall have expired without any action being taken by any competent authority
which restrains, prevents, or imposes materially adverse conditions upon, the
consummation of the Transaction or the financings or other transactions
contemplated hereby. No judgment, order, injunction or other restraint
prohibiting or imposing materially adverse conditions upon, or making
economically unfeasible, the consummation of the Transaction or the transactions
contemplated by the Transaction shall have been entered.
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(w) Material Adverse Effect. No event which has or could
have a Material Adverse Effect shall have occurred.
(x) No Default. No Default or Event of Default shall have
occurred and be continuing on the Closing Date or after giving effect to the
extensions of credit requested to be made on the Closing Date and there shall
exist no event of default (or condition which would constitute an event of
default with the giving of notice or the passage of time) under any material
capital stock, financing agreements, lease agreements or other material
contracts of any of the Borrower or its Restricted Subsidiaries, including,
without limitation, the EPN Credit Agreement and the EPNHC Credit Agreement.
(y) Financial Statements. The Administrative Agent shall
have received, with a counterpart for each Initial Lender, and the
Administrative Agent and the Initial Lenders shall be satisfied with, complete
copies of the financial statements and Projections described in Section 5.1 and
an opening pro forma balance sheet and related pro forma income statements and
cash flow statements of the Borrower and its Subsidiaries, including pro forma
income and cash flow generated by the SJB Assets.
(z) Subsidiaries. Except EPEPC, each of the Loan Parties
shall be a wholly-owned, direct or indirect subsidiary of the Borrower.
(aa) Financial Covenants. At the time of and immediately
after giving effect to the Transaction and the extension of Loans, (i) the ratio
of (A) Consolidated Total Senior Indebtedness at such date to (B) the
Consolidated EBITDA for the most recent Calculation Period shall not exceed 3.25
to 1.0. and (ii) the ratio of (X) Consolidated Total Indebtedness at such date
to (Y) the Consolidated EBITDA for the most recent Calculation Period shall not
exceed 5.25 to 1.0.
(bb) EPN Credit Agreement and EPNHC Credit Agreement. The
Administrative Agent shall have received a certified copy of each of (i) the EPN
Credit Agreement, (ii) the First Amendment to Sixth Amended and Restated Credit
Agreement relating to the EPN Credit Agreement, (iii) the EPNHC Credit
Agreement, (iv) the First Amendment to Amended and Restated Credit Agreement
relating to the EPNHC Credit Agreement, and (v) the Borrower Guarantee.
(cc) Intercreditor Agreement. The Administrative Agent
shall have received the Intercreditor Agreement, substantially in the form of
Exhibit K hereto, executed and delivered by a duly authorized officer of each
party thereto.
(dd) Senior Subordinated Notes. The Borrower shall have
reasonably demonstrated to the Administrative Agent, in a certificate delivered
by a Responsible Officer of the Borrower, that the Obligations and the
guarantees thereof under the Loan Documents are permitted under the Senior
Subordinated Note Indentures and constitute "Senior Debt" or "Guarantor Senior
Debt," as applicable, under the Senior Subordinated Note Indentures.
(ee) Commodity Hedging Program. The Administrative Agent
shall have received, with a counterpart for each Initial Lender, a report on the
status of the Commodity Hedging Programs of the Borrower covering the Borrower's
interest in production from the
47
Subject Properties in amounts and for periods reasonably satisfactory to the
Administrative Agent and the Initial Lenders.
(ff) Fairness Opinion. The Administrative Agent shall have
received a copy of the completed and signed fairness opinion that was provided
to the board of directors of El Paso related to the value of the San ▇▇▇▇ Assets
and the consideration received by El Paso for the Acquisition.
(gg) Senior, Secured Long-Term Bank Debt Ratings. The
Administrative Agent and the Initial Lenders shall have received satisfactory
confirmation from each of S&P and ▇▇▇▇▇'▇ that the Borrower's senior, secured
long-term bank debt rating is equal to or greater than BB+ and Ba1,
respectively.
(hh) Investment Bank. The Administrative Agent and the
Initial Lenders shall have received satisfactory evidence that the Borrower has
engaged the Investment Bank to underwrite, place or purchase the Securities
after the Closing Date.
(ii) Representations and Warranties. Each of the
representations and warranties made by the Borrower and the other Loan Parties
in or pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date (unless such
representations and warranties are stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date).
(jj) Additional Matters. All corporate, company,
partnership and other proceedings, and all documents, instruments and other
legal matters in connection with the transactions contemplated by this Agreement
and the other Loan Documents shall be reasonably satisfactory in form and
substance to the Initial Lenders, and the Initial Lenders shall have received
such other documents and legal opinions in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as any of them shall
reasonably request.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Obligation remains
outstanding and unpaid or any other amount is owing any Lender or the
Administrative Agent hereunder, the Borrower shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Restricted Subsidiaries and, with respect to Section 7.11, each of its
Unrestricted Subsidiaries, to:
Section 7.1 Financial Statements. Furnish to the Administrative
Agent, with copies for the Lenders and the Collateral Agent:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a "going
concern" or like
48
qualification or exception, or qualification arising out of the scope of the
audit, by PricewaterhouseCoopers LLP or other independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated and consolidating
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated and consolidating statements
of income and retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects when considered in relation to the
consolidated and consolidating financial statements of the Borrower and its
consolidated Subsidiaries (subject to normal year-end audit adjustments);
(c) concurrently with the delivery of the financial
statements for any fiscal year described in paragraph (a) of this Section 7.1,
the unaudited consolidating balance sheets of the Borrower and its consolidated
Subsidiaries as at the end of such fiscal year and the related unaudited
consolidating statements of income and retained earnings and of cash flows of
the Borrower and its consolidated Subsidiaries for such fiscal year, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects when considered in relation to the consolidating financial statements
of the Borrower and its consolidated Subsidiaries;
(d) as soon as available, but in any event within 120
days after the end of each fiscal year of each material Joint Venture any of the
interests in which is owned by the Borrower or a Restricted Subsidiary, a copy
of the audited balance sheet of such Joint Venture, as at the end of such year
and the related unaudited statements of income and retained earnings and of cash
flows of such Joint Venture, for such year, setting forth in each case in a
comparative form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out of the
scope of the audit, by independent certified public accountants of nationally
recognized standing; and
(e) concurrently with the delivery of the financial
statements referred to in subsection 7.1(b), the unaudited balance sheet of each
Joint Venture any of the interests in which is owned by the Borrower or a
Restricted Subsidiary, as at the end of each such quarter of such Joint Venture,
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of such Joint Venture, for such month and the portion
of the fiscal year through the end of such month, setting forth in each case in
comparative form the figures for the previous year, in each case received by the
Borrower or any of its Subsidiaries during such fiscal quarter;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and (except for the
financial statements of any Joint Venture) in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
49
disclosed therein and, with respect to unaudited interim financial statements,
for the absence of footnotes and year-end adjustments).
Section 7.2 Certificates; Other Information. Furnish to the
Administrative Agent, with copies for the Lenders and the Collateral Agent:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating that
in making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default relating to accounting issues, except as specified
in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and 7.1(b), a certificate of a
Responsible Officer of the Borrower, (i) stating that, to the best of such
Officer's knowledge, the Borrower and its Subsidiaries during such period have
observed or performed all of their respective covenants and other agreements,
and satisfied every condition, contained in this Agreement, the Notes and the
other Loan Documents to be observed, performed or satisfied by them, and that
such Officer has obtained no knowledge of any Default or Event of Default except
as specified in such certificate, and (ii) setting forth in reasonable detail
the calculation of the covenants set forth in Section 8.1 for the Calculation
Period ending on the last day of such fiscal quarter;
(c) not later than thirty days after the beginning of
each fiscal year of the Borrower, a copy of the projections by the Borrower of
the operating budget and cash flow budget of the Borrower for such fiscal year,
such projections to be accompanied by a certificate of a Responsible Officer to
the effect that such projections have been prepared on the basis of sound
financial planning practice and that such Officer has no reason to believe they
are incorrect or misleading in any material respect;
(d) within five days after the same are sent, copies of
all financial statements and reports which the Borrower sends to the holders of
its Capital Stock, and within five days after the same are filed, copies of all
financial statements and reports, if any, which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(e) upon the request of any Lender, and to the extent the
same have been received by the Borrower or any of its Subsidiaries, a copy of
the projections by each Joint Venture any of the interests in which is owned by
the Borrower or a Restricted Subsidiary, as the case may be, of the operating
budget and cash flow budget of such Joint Venture for the succeeding fiscal
year;
(f) upon the request of any Lender, and to the extent the
same have been received by the Borrower or any of its Subsidiaries, within
thirty days of the end of each of the quarterly periods of each fiscal year of
each Joint Venture any of the interests in which is owned by the Borrower or a
Restricted Subsidiary, a list of all shippers that have used such Joint Venture
during such quarterly period and the volumes and revenues attributable to each
such shipper;
50
(g) upon the request of any Lender, and to the extent the
same have been received by the Borrower or any of its Subsidiaries, copies of
all compliance certificates delivered by each Joint Venture any of the interests
in which is owned by the Borrower or a Restricted Subsidiary, pursuant to any
credit agreement to which such Joint Venture is a party;
(h) upon the request of any Lender, within five days
after the same are received by the Borrower, a copy of any FERC Form 2 for any
Joint Venture any of the interests in which is owned by the Borrower or a
Restricted Subsidiary;
(i) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate signed by the
President, Chief Executive Officer, Chief Operating Officer or Chief Financial
Officer of the Borrower in the form of Exhibit M hereto. Further, if requested
by the Required Lenders (by notice to the Administrative Agent, which will give
notice of such request to the Borrower and each Lender), the Borrower shall
permit and cooperate with an environmental and safety review made in connection
with the operations of Borrower's properties once during each fiscal year of the
Borrower, by independent environmental consultants chosen by the Borrower and
acceptable to the Required Lenders, which review shall, if requested by such
Lender or Lenders, be arranged and supervised by environmental legal counsel for
the Lenders, all at the Borrower's cost and expense. The consultant shall render
a verbal or written report, as specified by the Lenders, based upon such review,
at the Borrower's cost and expense. Notwithstanding anything in this paragraph
(i) to the contrary, the maximum amount of cost and expense for which the
Borrower shall be responsible with respect to any such review in any fiscal year
shall be $25,000;
(j) promptly upon the knowledge of any Responsible
Officer of the Borrower, a notice of any material change in EPEPC's percentage
ownership of the Capital Stock of the Borrower, including, without limitation,
any change resulting from any contribution by or on behalf of EPEPC for which it
receives equity or any issuance of additional Units (other than the issuance of
Units pursuant to exercises of options or other derivative securities granted to
current or former employees of the Borrower or the El Paso Group);
(k) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and 7.1(b), a throughput report
setting forth the throughputs of each pipeline owned by the Borrower or any
Restricted Subsidiary; and
(l) promptly, such additional financial and other
information concerning any Loan Party, any Unrestricted Subsidiary or any Joint
Venture as any Lender may from time to time reasonably request.
Section 7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be, and except
where the failure to so pay, discharge or satisfy such obligations could not
reasonably be expected to have a Material Adverse Effect.
51
Section 7.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by it
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business; and comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
Section 7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property and its business in at least such amounts and against at least
such risks (but including in any event fire, casualty, public liability,
environmental liability and product liability) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to each Lender, upon written request, full information as to the
insurance carried. Upon demand by any Lender (by notice to the Administrative
Agent, which shall give notice of such demand to the Borrower and each Lender)
any insurance policies covering Collateral shall be endorsed to provide that
such policies may not be cancelled or reduced or affected in any material manner
for any reason without 15 days prior notice to the Lenders. The Borrower shall,
and shall cause each of its Restricted Subsidiaries to, at all times maintain
liability and other insurance in accordance with and in the amounts set forth on
the schedule delivered pursuant to subsection 6.1(s)(ii), which insurance shall
be by financially sound and reputable insurers.
Section 7.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and accounts in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Borrower and its Restricted Subsidiaries with officers and employees of the
Borrower and its Restricted Subsidiaries and with its independent certified
public accountants.
Section 7.7 Notices. Promptly give notice to the Administrative
Agent, the Collateral Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower
or any of its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which injunctive or similar relief is sought;
52
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or the
Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan; and
(e) any development or event which could reasonably be
expected to have a Material Adverse Effect or cause the incurrence of an
environmental liability in excess of the Material Environmental Amount.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
Section 7.8 Environmental Laws.
(a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply with and maintain, and ensure that all tenants and subtenants obtain and
comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws except to the extent
that the same are being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not reasonably be expected to have a
Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the
Administrative Agent, the Collateral Agent and the Lenders, and their respective
employees, agents, officers and directors, from and against any and all claims,
demands, penalties, fines, liabilities, settlements and damages, and reasonable
costs and expenses, of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries or the Properties, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorney's and consultant's fees, investigation
and laboratory fees, response costs, court costs and litigation expenses,
REGARDLESS OF WHETHER OR NOT SUCH INDEMNIFIED LIABILITIES ARE IN ANY WAY OR TO
ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF THE
PARTY SEEKING INDEMNIFICATION THEREFOR; provided that the Borrower shall have no
obligation hereunder to the extent that any of the foregoing arise out of the
gross negligence or willful misconduct of the party seeking
53
indemnification therefor. The agreements in this paragraph shall survive
repayment of the Notes and all other amounts payable hereunder.
Section 7.9 Maintenance of Liens of the Security Documents.
Promptly, upon the request of the Collateral Agent, at the Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgement and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the Collateral Agent necessary or desirable for the
continued validity, perfection and priority of the Liens on the collateral
covered thereby.
Section 7.10 Pledge of After-Acquired Property.
(a) With respect to any right, title or interest of any
Loan Party in any Capital Stock or other property of a type subject to the
Security Documents and acquired after the Closing Date, promptly grant or cause
to be granted to the Collateral Agent, for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, a first Lien of record on all such Capital
Stock and property (other than such Capital Stock and property subject to (i)
prior Liens in existence at the time of acquisition thereof and not created in
anticipation of such acquisition, in which case the Lien of the Lenders shall be
of such priority as is permitted by such prior Lien and (ii) other Liens that
are expressly permitted by this Agreement), upon terms substantially the same as
those set forth in the Security Documents, and satisfy the conditions with
respect thereto set forth in Section 6.1. The Borrower, at its own expense,
shall execute, acknowledge and deliver, or cause its Restricted Subsidiaries to
execute, acknowledge and deliver, and thereafter register, file or record, or
cause its Restricted Subsidiaries to register, file or record, in an appropriate
governmental office, any document or instrument deemed by the Collateral Agent
to be necessary or desirable for the creation and perfection of the foregoing
Liens and deliver Uniform Commercial Code searches in jurisdictions requested by
the Collateral Agent with respect to such Capital Stock and other property and
legal opinions requested by the Collateral Agent and shall pay, or cause to be
paid, all taxes and fees related to such registration, filing or recording.
(b) With respect to any new Restricted Subsidiary created
or acquired after the Closing Date by the Borrower, promptly cause such
Restricted Subsidiary to execute and deliver to the Administrative Agent the
Subsidiary Guarantee, and, if requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to such Restricted Subsidiary
and the Subsidiary Guarantee, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
(c) Notwithstanding anything to the contrary in any Loan
Document, neither the Borrower nor any Restricted Subsidiary shall be obligated
to (i) pledge under the Loan Documents any of its equity interest in any Joint
Venture if such pledge is prohibited by any Contractual Obligation or (ii)
pledge under the Loan Documents any of its real property except to the extent of
any fixtures as and to the extent specified in the Security Agreements.
(d) Notwithstanding anything to the contrary in any Loan
Document, if the Borrower or any Restricted Subsidiary has pledged its interest
in any Joint Venture and the
54
Borrower or such Restricted Subsidiary desires to make a contribution of or
investment with such interest to or in a second Joint Venture in accordance with
subsection 8.8(f), the Lien held by the Lenders upon such interest shall
terminate as long as the interest held by the Borrower or such Restricted
Subsidiary in the second Joint Venture shall be subject to a Lien under the Loan
Documents in accordance with subsection 8.8(f) unless otherwise agreed by the
Required Lenders.
Section 7.11 Agreements Respecting Unrestricted Subsidiaries.
(a) Operate each Unrestricted Subsidiary in such a manner
as to make it apparent to all creditors of such Unrestricted Subsidiary that
such Unrestricted Subsidiary is a legal entity separate and distinct from the
Borrower or any Restricted Subsidiary and as such is solely responsible for its
debts, and such manner shall include, but shall not be limited to, the
maintenance of a separate board of directors for such Unrestricted Subsidiary.
(b) In connection with any Indebtedness, Guarantee
Obligations or other obligations incurred by each Unrestricted Subsidiary, (i)
incur such Indebtedness only on a basis which does not permit, allow or provide
for recourse to the Borrower or any Restricted Subsidiary, and (ii) incur any
such Indebtedness, Guarantee Obligations or other obligations in excess of
$500,000 only under a loan agreement, note, lease, instrument or other
contractual obligation that expressly states that such Indebtedness is being
incurred by such Unrestricted Subsidiary on a basis which is non-recourse to the
Borrower and its Restricted Subsidiaries, provided that no such agreement, note,
lease, instrument or other Obligation shall be required to include such
statement if such agreement, note, lease, instrument or other obligation was in
effect on the date such Subsidiary became an Unrestricted Subsidiary.
(c) Notwithstanding any provision of the Loan Documents
to the contrary (i) the Borrower and the Restricted Subsidiaries may incur
Guarantee Obligations supporting obligations of (A) Gateway that were assumed by
it from Delos in connection with its formation and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
(B) Cameron Highway that were assumed by it from the Borrower and its
Subsidiaries in connection with its formation and the Cameron Highway Financing
and (ii) the Borrower and the Restricted Subsidiaries may incur Guarantee
Obligations (including Guarantee Obligations of which any lenders under the
▇▇▇▇▇ ▇▇▇▇ Financing Documents and the Cameron Highway Financing Documents are
the beneficiaries) consisting of guarantees of performance obligations of
Unrestricted Subsidiaries as long as such guarantees do not constitute
guarantees of payment.
Section 7.12 Joint Venture Charters, G&A Agreement, etc. Deliver
to the Administrative Agent (a) any amendments to the Documents previously
delivered, written waivers relating thereto and other side letters or agreements
in writing affecting the terms thereof and (b) any Documents relating to any new
Joint Venture any of the interests in which is owned by the Borrower or a
Restricted Subsidiary.
Section 7.13 Use of Proceeds. Use the proceeds of the Loans only
as provided in Section 5.16.
55
Section 7.14 Undertaking with respect to the EPN Revolving Credit
Commitments. Agree to undertake all reasonable commercial efforts to ensure the
refinancing or extension of the EPN Revolving Credit Commitments so that such
obligations under the EPN Credit Agreement will not be classified as a current
liability on the Borrower's June 30, 2003 financial statements.
ARTICLE VIII
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any Obligation remains
outstanding and unpaid, the Borrower shall not, and (except with respect to
Section 8.1) shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:
Section 8.1 Financial Condition Covenants.
(a) Tangible Net Worth. Permit Consolidated Tangible Net
Worth at any time to be less than $447,000,000 plus 75% of the Net Equity
Proceeds received by the Borrower from the sale or issuance of any equity
securities (including Units and any Series C units) by the Borrower on and after
the Closing Date;
(b) Interest Coverage Ratio. Permit for any Calculation
Period the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated
Interest Expense for such period to be less than 2.0 to 1.0;
(c) Senior Leverage Ratio. Permit, on the last day of any
fiscal quarter of the Borrower, the ratio of (x) Consolidated Total Senior
Indebtedness at such date to (y) the Consolidated EBITDA for the Calculation
Period ending on such date to exceed 3.25 to 1.0; or
(d) Leverage Ratio. Permit, on the last day of any fiscal
quarter of the Borrower, the ratio of (x) the Consolidated Total Indebtedness at
such date to (y) the Consolidated EBITDA for the Calculation Period ending on
such date to exceed (i) on or prior to December 31, 2003, 5.25 to 1.0 or (ii)
after December 31, 2003, 5.0 to 1.0.
Section 8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower and its Subsidiaries
under the Loan Documents;
(b) Indebtedness of the Borrower to any Subsidiary
Guarantor, and of any Subsidiary Guarantor to the Borrower or any other
Subsidiary Guarantor;
(c) Indebtedness permitted pursuant to Sections 8.3 and
8.8;
(d) Indebtedness of the Borrower and the Co-Borrower in
respect of the Senior Subordinated Notes;
56
(e) Indebtedness incurred pursuant to any Hedge Agreement
to the extent permitted by Section 8.22;
(f) Indebtedness (i) of any other Person existing at the
time such other Person is merged with or into or became a Subsidiary of the
Borrower or any Restricted Subsidiary or (ii) to which any asset is subject
existing at the time such asset is acquired by the Borrower or any Restricted
Subsidiary; provided that (A) no Default shall have occurred and be continuing
at the time of, or after giving effect to, the incurring of such Indebtedness
and (B) after giving effect to the incurrence of such Indebtedness the Borrower
would be in pro forma compliance with the covenants set forth in Section 8.1;
(g) other unsecured Indebtedness of the Borrower in an
aggregate principal amount not to exceed $10,000,000 outstanding at any time
less the aggregate amount of Guarantee Obligations incurred pursuant to
subsection 8.4(f) then outstanding;
(h) Indebtedness consisting of Guarantee Obligations
permitted by subsections 8.4(e), (f) and (g);
(i) Indebtedness of EPNHC consisting of the EPNHC Loan
Obligations, including term loans evidenced by and pursuant to the EPNHC Credit
Agreement in an aggregate principal amount not to exceed $160,000,000; and
(j) Indebtedness of the Borrower and the Co-Borrower
consisting of the EPN Loan Obligations evidenced by, and pursuant to the terms
and conditions of, the EPN Loan Documents.
Section 8.3 Limitation on Liens. Create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower or its
Restricted Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
57
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower or such Restricted
Subsidiary;
(f) Liens created pursuant to construction, operating,
farmout and maintenance agreements, space lease agreements, Joint Venture
Charters and related documents (to the extent requiring a Lien on the equity
interest of the Borrower or any Restricted Subsidiary, as the case may be, in
the applicable Joint Venture is required thereunder), division orders, contracts
for sale, transportation or exchange of oil and natural gas, unitization and
pooling declarations and agreements, area of mutual interest agreements and
other similar agreements, in each case having ordinary and customary terms and
entered into in the ordinary course of business by the Borrower and its
Restricted Subsidiaries;
(g) additional Liens securing Indebtedness and other
obligations not to exceed $1,000,000 at any one time outstanding;
(h) the Borrower and its Restricted Subsidiaries may
pledge on a non-recourse basis (i) their equity interest in Gateway to secure
Indebtedness of Gateway under the ▇▇▇▇▇ ▇▇▇▇ Financing Documents and (ii) their
equity interest in Cameron Highway to secure Indebtedness of Cameron Highway
under the Cameron Highway Financing Documents;
(i) Liens on the Collateral securing (i) the EPNHC Loan
Obligations permitted by Section 8.2(i), (ii) the Guarantee Obligations
permitted by subsections 8.4(g) and 8.4(i), (iii) the EPN Loan Obligations
permitted by Section 8.2(j), and (iv) the Guarantee Obligations permitted by
subsections 8.4(j), in each case on a pari passu basis with the Liens on the
Collateral securing the Obligations and guarantees thereof, subject to the terms
and provisions of the Intercreditor Agreement;
(j) ▇▇▇▇▇ created pursuant to the Loan Documents;
(k) Liens securing Indebtedness permitted under Section
8.2(b) to the extent that such Liens arise as a result of the consummation by
the Borrower and its Subsidiaries of the Chaco Transactions; and
(l) Liens securing Indebtedness permitted under Section
8.2(f), provided that (i) such Liens are not created in contemplation of or in
connection with (A) any Person being merged with or into or becoming a
Subsidiary of the Borrower or any Restricted Subsidiary as described in Section
8.2(f)(i),or (B) any asset being acquired by the Borrower or any Restricted
Subsidiary as described in Section 8.2(f)(ii), as the case may be, (ii) such
Liens shall secure only those obligations which such Liens secure on the date on
which (A) such Person merges into or becomes a Subsidiary of the Borrower or any
Restricted Subsidiary or (B) such asset is acquired by the Borrower or any
Restricted Subsidiary, as the case may be, and any refinancing, refunding or
replacement of such obligations (provided that such refinancing, refunding or
replacement does not result in an increase in the amount of such obligations),
and (iii) such Liens shall not apply to any property or assets of the Borrower
or any of its Subsidiaries or any Restricted
58
Subsidiary other than property or assets as to which a Lien has been granted
prior to the date on which (A) such Person merges into or becomes a Subsidiary
or the Borrower or any Restricted Subsidiary or (B) such asset is acquired by
the Borrower or any Restricted Subsidiary, as the case may be, and the proceeds
thereof.
This Section 8.3 shall not restrict the ability of any Joint Venture or
Unrestricted Subsidiary to create, incur, assume or suffer to exist any Lien on
any of its property.
Section 8.4 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations created pursuant to the Loan
Documents in respect of the Obligations;
(b) Guarantee Obligations of the Borrower or any
Restricted Subsidiary incurred after the Closing Date in an aggregate amount not
to exceed $1,000,000 at any one time outstanding;
(c) Guarantee Obligations constituting performance
guarantees provided in the ordinary course of business by the Borrower and its
Restricted Subsidiaries supporting obligations of the Borrower and/or Restricted
Subsidiaries which obligations have been incurred in the ordinary course of
business (including in connection with the operation, construction or
acquisition of pipelines, platforms and related facilities);
(d) Guarantee Obligations of any Subsidiary Guarantor in
respect of the Senior Subordinated Notes, provided that such Guarantee
Obligations are subordinated to such Subsidiary Guarantor's obligations under
the Loan Documents to the same extent as the obligations of the Borrower in
respect of the Senior Subordinated Notes;
(e) Guarantee Obligations in an aggregate amount not to
exceed $11,500,000 at any one time outstanding incurred pursuant to clawback and
other similar arrangements;
(f) Guarantee Obligations, in addition to those described
in clauses (e) and (g) of this Section 8.4, incurred pursuant to clawback and
other similar arrangements in an aggregate amount not to exceed $10,000,000
outstanding at any time less the aggregate amount of Indebtedness incurred
pursuant to subsection 8.2(g) then outstanding;
(g) Guarantee Obligations, in addition to those described
in clauses (e) and (f) of this Section 8.4, of (i) up to $22,500,000 in the
aggregate incurred pursuant to the ▇▇▇▇▇ ▇▇▇▇ Clawback and (ii) up to
$50,000,000 in the aggregate incurred pursuant to the Cameron Highway Clawback;
(h) Guarantee Obligations permitted by subsection
7.11(c);
(i) Guarantee Obligations of the Borrower created
pursuant to the Borrower Guarantee and of its Subsidiaries created pursuant to
the Guarantees, in each case with respect to the EPNHC Loan Obligations; and
59
(j) Guarantee Obligations of any Subsidiary Guarantor
with respect to the EPN Loan Obligations.
Section 8.5 Limitations on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or make any material change in its
present method of conducting business, except:
(a) any Restricted Subsidiary may be merged or
consolidated with or into the Borrower (as long as the Borrower is the surviving
entity) or any one or more Restricted Subsidiaries which is a Subsidiary
Guarantor (provided that, if any of such Restricted Subsidiaries is not wholly
owned by the Borrower and the General Partner, the Restricted Subsidiary or
Restricted Subsidiaries in which the Borrower owns the greatest interest shall
be the continuing or surviving corporation);
(b) any Restricted Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any other Restricted Subsidiary which is a
Subsidiary Guarantor and in which, if not wholly owned by the Borrower and the
General Partner, the Borrower owns at least the same percentage interests as the
Borrower owns in the transferor Restricted Subsidiary; and
(c) the Borrower or any Restricted Subsidiary may enter
into a merger, consolidation or share exchange with any other Person so long as:
(i) such transaction is permitted under Section
8.8;
(ii) such transaction shall be effected in such
manner so that (A) if the Borrower is a party to such transaction, the Borrower
is the surviving entity and (B) otherwise, the Restricted Subsidiary shall be
the continuing or surviving entity or the continuing or surviving entity shall
become a Restricted Subsidiary;
(iii) at the time of such acquisition and after
giving effect thereto, no Default or Event of Default shall have occurred and
shall be continuing; and
(d) solely to effect any transaction permitted by
subsection 8.6(b).
The transactions permitted under this Section 8.5 shall be permitted
notwithstanding anything to the contrary in subsection 4(j) of the Borrower
Pledge Agreement and subsection 4(j) of the Subsidiary Pledge Agreement.
Section 8.6 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) as permitted by Section 8.5;
(b) as long as no Default or Event of Default has
occurred and is continuing or would result therefrom the Borrower and the
Restricted Subsidiaries may sell or otherwise
60
dispose of property in any fiscal year having an aggregate value not in excess
of 5% of Consolidated Tangible Net Worth calculated on the last day of the prior
fiscal quarter;
(c) the Borrower and its Restricted Subsidiaries may
enter into customary farmout and operating agreements and customary agreements
for exchanges of working interests;
(d) the Borrower and its Restricted Subsidiaries may sell
or otherwise dispose of any or all of their oil and gas interests;
(e) the Borrower and its Restricted Subsidiaries may
during the period commencing on the Closing Date to and including the Maturity
Date exchange assets with El Paso (or a Subsidiary thereof) having a fair market
value not to exceed $20,000,000 in the aggregate for other assets as long as (i)
each such exchange is for fair market value and is on fair and reasonable terms
no less favorable to the Borrower or the applicable Restricted Subsidiary, as
the case may be, than it would obtain in an arm's length transaction and (ii)
the assets received in each such exchange become Collateral to the extent
required by the Loan Documents;
(f) the Borrower and its Restricted Subsidiaries may sell
or otherwise dispose of any Unrestricted Subsidiary;
(g) as permitted by Section 8.8; and
(h) the Borrower and its Restricted Subsidiaries may sell
or otherwise dispose of any equity interest in Cameron Highway, provided that
following any such sale or other disposition, the Borrower and its Restricted
Subsidiaries, in the aggregate, continue to hold at least 30% of the outstanding
equity interest in Cameron Highway.
The transactions permitted under this Section 8.6 shall be permitted
notwithstanding anything to the contrary in subsection 4(j) of the Borrower
Pledge Agreement and subsection 4(j) of the Subsidiary Pledge Agreement.
Section 8.7 Limitation on Dividends. Declare or pay any dividend
or distribution on (other than dividends, including splits, payable solely in
non-mandatorily redeemable Capital Stock or mandatorily redeemable Capital Stock
that does not require redemption prior to the first anniversary of the Maturity
Date), or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of Capital Stock of the Borrower
or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower or any Restricted Subsidiary (such declarations, payments, setting
apart, purchases, redemptions, defeasances, retirements, acquisitions and
distributions being herein called "Restricted Payments"), except that as long as
no Default or Event of Default has occurred and is continuing or would result
therefrom, the Borrower may make Restricted Payments once each fiscal quarter
consisting of cash distributions in accordance with the terms of the Partnership
Agreement on its Units and the General Partnership Interest. Notwithstanding
anything in this Agreement to the contrary, the Borrower may purchase, redeem,
defease, retire or otherwise acquire, or make a distribution in respect of, any
of its Series B Preference Units in
61
exchange for, or out of the net cash proceeds of, an issuance of Common Units
occurring within 120 days of such purchase, redemption, defeasance, retirement,
acquisition, or distribution.
Section 8.8 Limitation on Investments, Loans and Advances. Make
any advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) capital contributions, loans or other investments
made by the Borrower to any Restricted Subsidiary which is a Subsidiary
Guarantor and by any Restricted Subsidiary to the Borrower or any Restricted
Subsidiary which is a Subsidiary Guarantor;
(d) capital contributions, loans or other investments by
Subsidiaries of the Borrower or any Joint Venture to or in the Borrower or any
Restricted Subsidiary, provided that no Default or Event of Default shall have
occurred and be continuing, or would occur as a result of such investment;
(e) other non-hostile acquisitions of equity securities
of, or assets constituting a business unit of, any Person (an "Acquired
Business"), provided that (i) immediately prior to and after giving effect to
any such acquisition, no Default or Event of Default shall have occurred or be
continuing (whether under Section 8.17 or otherwise), (ii) such acquisition is
consummated in accordance with applicable law, (iii) if such acquisition is of
equity securities of a Person, such Person becomes a Restricted Subsidiary, (iv)
the Borrower shall be in pro forma compliance with the covenants set forth in
Section 8.1 after giving effect to such acquisition and (v) the Acquired
Business shall not be subject to any material liabilities which would be
expressly prohibited by this Agreement after such acquisition;
(f) the contribution by the Borrower or any Restricted
Subsidiary of the equity interests owned by it in a Joint Venture to another
Joint Venture or the investment by the Borrower or any Restricted Subsidiary in
another Joint Venture to the extent made with equity interests in a Joint
Venture owned by it as long as (i) the Borrower or such Restricted Subsidiary
receives in exchange equity interests in such transferee Joint Venture and (ii)
unless otherwise agreed by the Required Lenders, if the transferred equity
interests are subject to a Lien under the Loan Documents, the equity interests
received in exchange become subject to a Lien under the Loan Documents;
(g) capital contributions, loans or other investments, in
addition to those otherwise permitted by subsections 8.8(a) through (f) and
8.8(h)-(i), in an aggregate amount not to exceed $25,000,000 during any fiscal
year of the Borrower beginning with the fiscal year commencing on January 1,
2002;
(h) capital contributions, loans, or other investments to
or in Gateway consisting of up to $41,000,000, in the aggregate, of cash and
other assets related to the ▇▇▇▇▇ ▇▇▇▇ Platform; and
62
(i) capital contributions, loans, or other investments to
or in Cameron Highway consisting of up to $95,000,000, in the aggregate, of cash
and other assets related to the Cameron Highway Oil Pipeline.
Section 8.9 Limitation on Optional Payments and Modifications of
Certain Agreements. (a) Make any optional payment or prepayment on, redemption
of or purchase of, or voluntarily defease, or directly or indirectly voluntarily
or optionally purchase, redeem, retire or otherwise acquire, the Senior
Subordinated Notes or any other Indebtedness or Guarantee Obligations (other
than the Obligations, the EPNHC Loan Obligations or the EPN Loan Obligations),
or make any payment under or on account of the G&A Agreement except as required
pursuant to the terms thereof, (b) amend, modify or change, or consent or agree
to any amendment, modification or change to, any of the terms of the Senior
Subordinated Notes or the Senior Subordinated Note Indentures (other than any
such amendment, modification or change which would extend the maturity or reduce
the amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon), (c) amend, modify or change,
or consent or agree to any amendment, modification or change to, any of the
terms of the EPNHC Loan Documents or the EPN Loan Documents without the written
consent of the Required Lenders (other than any such amendment, modification or
change which would extend the maturity or reduce the amount of any payment of
principal thereof or which would reduce the rate or extend the date for payment
of interest thereon), (d) amend, modify or change, or consent or agree to any
amendment, modification or change to, any of the terms of any Indebtedness or
Guarantee Obligations with respect to any Indebtedness (other than the Senior
Subordinated Notes, the EPNHC Loan Obligations and the EPN Loan Obligations,
which Indebtedness may be amended, modified or changed only as permitted by
clauses (b) and (c) above, and the Obligations, which Indebtedness may be
amended, modified or changed only as permitted by Section 11.1 hereof), other
than any such amendment, modification or change the effect of which (1) would be
to extend the maturity or reduce the amount of any payment of principal thereof
or reduce the rate or extend the date for payment of interest with respect to
such Indebtedness or Guarantee Obligations and (2) otherwise could not
reasonably be expected to have a Material Adverse Effect, (e) amend, modify or
change, or consent to any amendment, modification or change to, any of the terms
of, the Partnership Agreement, the Borrower's certificate of limited
partnership, the G&A Agreement or any Joint Venture Charter, except to the
extent the same could not reasonably be expected to have a Material Adverse
Effect, (f) waive or otherwise relinquish any of its rights or causes of action
arising out of the Partnership Agreement, the Borrower's certificate of limited
partnership, the G&A Agreement or any Joint Venture Charter, except to the
extent the same could not reasonably be expected to have a Material Adverse
Effect or (g) designate any Indebtedness as "Designated Senior Indebtedness"
under the Senior Subordinated Note Indentures without the consent of the
Administrative Agent (other than the Obligations, the EPNHC Loan Obligations or
the EPN Loan Obligations). Notwithstanding any provision contained in this
Section 8.9, the Borrower and its Restricted Subsidiaries shall have the
absolute right to amend any Joint Venture Charter to the extent necessary or
reasonably appropriate to evidence the substitution, replacement or other
changes of partners, members or owners in any Joint Venture not in violation of
Section 8.19 or Section 8.21.
Section 8.10 Limitation on Transactions with Affiliates. Subject
to the rights set forth in Section 8.13, enter into any transaction, including,
without limitation, any purchase, sale, lease
63
or exchange of property or the rendering of any service, with any Affiliate
unless such transaction is (a) otherwise permitted under this Agreement, the EPN
Credit Agreement or the EPNHC Credit Agreement, and (b) except for the G&A
Agreement, upon fair and reasonable terms no less favorable to the Borrower or
such Restricted Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate.
Section 8.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Restricted Subsidiary of real or personal property which has been or is to be
sold or transferred by the Borrower or such Restricted Subsidiary to such Person
or to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of the Borrower or
such Restricted Subsidiary, except that Petal Gas Storage may enter into a sale
and leaseback arrangement of the Petal Gas Storage Facilities and the intended
improvements to be made thereto in connection with the Firm Storage Services
Agreement dated as of December 22, 2000 by and between Petal Gas Storage and
Southern Company Services, Inc.; provided, that the obligations incurred (or
guaranteed) under such sale and leaseback arrangement shall not exceed in the
aggregate $140,000,000.
Section 8.12 Limitation on Changes in Fiscal Year. Permit the
fiscal year of the Borrower to end on a day other than December 31.
Section 8.13 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary or Joint Venture, except for
(a) gathering, transporting (by barge, pipeline, ship, truck or other modes of
hydrocarbon transportation), terminalling, storing, producing, acquiring,
developing, exploring for, processing, dehydrating, fractionating and otherwise
handling hydrocarbons, including, without limitation, constructing pipeline,
platform, dehydration, processing and other energy-related facilities, and
activities or services reasonably related or ancillary thereto and (b) other
businesses as long as the consolidated total assets principally relating to such
other businesses do not exceed 3% of the consolidated total assets of the
Borrower and its Restricted Subsidiaries at any time.
Section 8.14 Governing Documents. Permit the amendment or
modification of the limited liability company agreement, limited partnership
agreement, or equivalent governance document, or certificate of limited
partnership, certificate of formation, or equivalent formation document, as the
case may be, of any Restricted Subsidiary if such amendment could reasonably be
expected to have a Material Adverse Effect, or would authorize or issue any
Capital Stock not authorized or issued on the Closing Date, except to the extent
such authorization or issuance would have the same substantive effect as any
transaction permitted by Sections 8.5 or 8.6.
Section 8.15 Compliance with ERISA. (a) Terminate any Plan so as
to result in any material liability to PBGC, (b) engage in any "prohibited
transaction" (as defined in Section 4975 of the Code) involving any Plan which
could result in a material liability for an excise tax or civil penalty in
connection therewith, (c) incur or suffer to exist any material "accumulated
funding deficiency" (as defined in Section 302 of ERISA), whether or not waived,
involving any Plan, or (d) allow or suffer to exist any event or condition,
which presents a material risk of incurring a material liability to PBGC by
reason of termination of any such Plan.
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Section 8.16 Limitation on Restrictions Affecting Subsidiaries.
Enter into, or suffer to exist, any agreement with any Person, other than the
Lenders pursuant hereto, the EPN Lenders pursuant to the EPN Loan Documents or
the EPNHC Lenders pursuant to the EPNHC Loan Documents and other than the
arrangements described in subsections 8.2(c) and 8.4(d) or which exist on the
Closing Date, which prohibits or limits the ability of any Restricted Subsidiary
to (a) pay dividends or make other distributions or pay any Indebtedness owed to
the Borrower or any Restricted Subsidiary, (b) make loans or advances to or make
other investments in the Borrower or any Restricted Subsidiary, (c) transfer any
of its properties or assets to the Borrower or any Restricted Subsidiary, (d)
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired.
Section 8.17 Creation of Restricted Subsidiaries. Create or
acquire any new Restricted Subsidiary of the Borrower or any of its Restricted
Subsidiaries, unless, immediately upon the creation or acquisition of any such
Restricted Subsidiary, (a) such Restricted Subsidiary shall become party to the
Subsidiaries Guarantee as a Subsidiary Guarantor pursuant to an addendum thereto
or other documentation in form and substance reasonably satisfactory to the
Administrative Agent, (b) such Restricted Subsidiary shall become party to the
Subsidiary Security Agreement as a grantor pursuant to an addendum thereto or
other documentation in form and substance reasonably satisfactory to the
Collateral Agent, and all actions required to perfect the Liens granted thereby,
all filings required thereunder and all consents necessitated thereby shall have
been taken, made or obtained, (c) all Capital Stock issued by such Restricted
Subsidiary owned by the Borrower or any other Restricted Subsidiary shall have
been pledged to the Collateral Agent pursuant to an addendum or amendment to the
Borrower Pledge Agreement, the Subsidiary Pledge Agreement or other
documentation in form and substance satisfactory to the Collateral Agent, (d)
all corporate, company, partnership or other proceedings, and all documents,
instruments and other legal matters in connection with the creation of such
Restricted Subsidiary and the transactions contemplated by this Section 8.17
shall be reasonably satisfactory in form and substance to the Administrative
Agent, and the Administrative Agent and the Collateral Agent shall have received
such other documents and legal opinions in respect of any aspect or consequence
of such creation or such transactions as it shall reasonably request and (e) no
Default or Event of Default shall have occurred and be continuing after giving
effect thereto.
Section 8.18 Hazardous Materials. Except to the extent that the
same could not reasonably be expected to have a Material Adverse Effect, permit
the manufacture, storage, transmission or presence of any Hazardous Materials
over or upon any of its properties except in accordance with all applicable
Requirements of Law or release, discharge or otherwise dispose of any Hazardous
Materials on any of its properties except that the Borrower and its Restricted
Subsidiaries may treat, store and transport petroleum, its derivatives,
by-products and other hydrocarbons, hydrogen sulfide and sulfur dioxide in the
ordinary course of their business.
Section 8.19 Holding Companies. Notwithstanding any other
provisions of this Agreement and the other Loan Documents, permit any Restricted
Subsidiary which is a general partner in or owner of a general partnership
interest in a Joint Venture to incur or suffer to exist any obligations or
indebtedness of any kind, whether contingent or fixed (excluding any contingent
liability of such Restricted Subsidiary to creditors of such Joint Venture
arising solely as a result of its status as a general partner or owner of such
Joint Venture and Guarantee
65
Obligations referred to in subsections 8.4(d), 8.4(e), 8.4(f), 8.4(g) and
8.4(h)) or create or suffer to exist any Liens, in each case except to the
extent any such obligations, indebtedness or Liens arise under or pursuant to
the Joint Venture Charter for such Joint Venture as in effect on the Closing
Date (or, if later, the date of acquisition or formation of such Joint Venture)
or the Loan Documents or are otherwise permitted by the Loan Documents; or
permit any Restricted Subsidiary which is a general partner in or owner of a
general partnership interest in a Joint Venture to acquire any property or asset
after the Closing Date (or, if later, the date of acquisition or formation of
such Joint Venture) except for distributions made to it by such Joint Venture;
or permit any Restricted Subsidiary which is a general partner in or owner of a
general partnership interest in a Joint Venture to engage in any business or
activity other than holding the general partnership interest in (or other
ownership interest) such Joint Venture held by it on the Closing Date (or, if
later, the date of formation of such Joint Venture).
Section 8.20 No Voluntary Termination of Joint Venture Charters.
Voluntarily terminate or permit any Restricted Subsidiary that is a partner in,
or owner of any interest in, any Joint Venture to voluntarily terminate any
Joint Venture Charter and liquidate such Joint Venture to the extent permitted
thereunder.
Section 8.21 Actions by Joint Ventures. (a) Consent or agree to or
acquiesce in any Joint Venture the interests in which are owned by a Restricted
Subsidiary adversely changing its policy of making distributions of available
cash to partners, or (b) so long as any interest therein is owned by the
Borrower or a Restricted Subsidiary, consent or agree to or acquiesce in any
Joint Venture's taking any actions that could reasonably be expected to have a
Material Adverse Effect.
Section 8.22 Hedging Transactions. Enter into any interest rate,
cross-currency, commodity, equity or other security, swap, collar or similar
hedging agreement or purchase any option to purchase or sell or to cap any
interest rate, cross-currency, commodity, equity or other security, in any such
case, other than to hedge risk exposures in the operation of its business,
ownership of assets or the management of its liabilities; provided, however,
that such permitted hedging agreements, including, without limitation, any
Commodity Hedging Programs, shall not exceed 80% of annual production, volumes,
throughput and any other similar measures related to processing, transportation,
fractionation, compression, gathering and treating or any other business
activities engaged in by the Borrower and its Subsidiaries as a whole in their
normal course of business.
ARTICLE IX
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Note or Loan when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to pay any interest on any Note or Loan, or any other amount
payable hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
66
(b) Any representation or warranty made or deemed made by
the Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other statement
furnished at any time under or in connection with this Agreement shall prove to
have been incorrect in any material respect on or as of the date made or deemed
made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Article VIII (other than subsection
8.1(a)) or in Section 7.11; or any Loan Party shall default in the observance or
performance of any agreement contained in Section 5(h), (i), (j) or (o) of the
Borrower Security Agreement or the Subsidiary Security Agreement, or Section
5(h), (i), (j) or (l) of the EPEPC Security Agreement, Section 9(j) of the EPEPC
Guarantee, Section 4(b) of the Borrower Pledge Agreement or Section 4(b) of the
Subsidiary Pledge Agreement; or the Borrower shall default in the observance or
performance of any agreement contained in subsection 8.1(a) and such default
shall continue uncured for a period of 15 days; or
(d) The Borrower or any other Loan Party shall default in
the observance or performance of any other agreement contained in this Agreement
or any other Loan Document (other than as provided in paragraphs (a) through (c)
of this Article IX), and such default shall continue unremedied for a period of
30 days after the earlier of receipt of written notice thereof from the
Administrative Agent or any Lender and the date upon which the Borrower was
required to give notice of such default as contained in Section 7.7(a); or
(e) (i) Any "Event of Default" under and as defined in
the EPNHC Credit Agreement shall occur and be continuing; (ii) any "Event of
Default" under and as defined in the EPN Credit Agreement shall occur and be
continuing; or (iii) any Loan Party or any Restricted Subsidiary of the Borrower
shall (A) default in any payment of principal of or interest on any Indebtedness
(other than the Loans) or in the payment of any Guarantee Obligation, beyond the
period of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created; or
(B) default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that the aggregate principal
amount of Indebtedness and Guarantee Obligations with respect to which such
defaults shall have occurred shall equal or exceed $5,000,000; or
(f) (i) Any Loan Party shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee,
67
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Loan Party shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Loan Party any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against any
Loan Party any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any Loan Party
shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Loan Party shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could have a Material
Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Borrower or any of its Restricted Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of $5,000,000 or
more, and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) Except with respect to the matters disclosed on
Schedule 5.17, which matters shall not, in the aggregate, incur remediation
and/or environmental compliance expenses and/or fines, penalties or other
charges in excess of $35,000,000, if at any time any Loan Party shall become
liable for remediation and/or environmental compliance expenses and/or fines,
penalties or other charges which, in the aggregate, are in excess of the
Material Environmental Amount for any Loan Party and the Subsidiaries of the
Borrower; or
(j) For any reason (other than any act on the part of the
Administrative Agent, the EPN Administrative Agent, the EPNHC Administrative
Agent, the Collateral Agent or the EPN Group Lenders) (i) any Security Document
ceases to be in full force and effect or any party
68
thereto (other than the Administrative Agent, the EPN Administrative Agent, the
EPNHC Administrative Agent, the Collateral Agent or the EPN Group Lenders) shall
so assert in writing or the Lien intended to be created by any Security Document
ceases to be or is not a valid and perfected Lien having the priority
contemplated thereby; or (ii) any Guarantee ceases to be in full force and
effect or any party thereto (other than the Administrative Agent, the EPN
Administrative Agent, the EPNHC Administrative Agent, the Collateral Agent or
the EPN Group Lenders) shall so assert in writing; or
(k) A Change of Control shall occur; or
(l) Except in connection with transactions permitted by
Section 8.5 and subsection 8.6(b), the Borrower shall cease to own legally and
beneficially at least the percentage of the managing limited liability company
or other equity interest in each Restricted Subsidiary of the Borrower which is
a limited liability company owned by it on the date hereof (or, if later, the
date of acquisition or formation of such Subsidiary); or EPEPC and the Borrower
together shall cease to own legally and beneficially the percentage of the
equity interest in each Restricted Subsidiary of the Borrower owned by it on the
date hereof (or, if later, the date of acquisition or formation of such
Subsidiary); or
(m) Any Person that owns an equity interest in any Joint
Venture shall exercise its rights and remedies (other than dilution of the
equity interests owned by the Borrower and its Restricted Subsidiaries in any
Joint Venture pursuant to contractual dilution provisions existing with respect
to the Joint Ventures) with respect to its Lien on any equity interest in such
Joint Venture the equity interest in which has been pledged to such Person;
provided that the amount of claims secured by such Lien shall equal or exceed
$5,000,000 and such claim shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(n) (i) The G&A Agreement shall cease to be in full force
and effect prior to the end of the initial term thereof substantially as in
effect on the date hereof; or (ii) DeepTech International, Inc. or El Paso or
any of its wholly-owned Subsidiaries shall default in the observance or
performance of any material provision of the G&A Agreement; or
(o) the Senior Subordinated Notes or the guarantees
thereof shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors under the Loan
Documents to which they are parties, as the case may be, as provided in the
Senior Subordinated Note Indentures, or any Loan Party, any Affiliate of any
Loan Party, the trustee in respect of the Senior Subordinated Notes or the
holders of at least 25% in aggregate principal amount of a series of such Senior
Subordinated Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes shall immediately become due
and payable, and (B) if such event is any other Event of Default, with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and
69
the Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in this Section,
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration and all other notices of any kind are hereby expressly waived.
ARTICLE X
THE ADMINISTRATIVE AGENT
Section 10.1 Appointment. Each Lender hereby irrevocably
designates and appoints JPMorgan as the Administrative Agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes JPMorgan, as the Administrative Agent for such Lender, to
take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
Section 10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
Section 10.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, the Notes or any
other Loan Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower.
Section 10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent
70
or made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement, the Notes and the other Loan Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
Section 10.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
Section 10.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereafter taken, including any review of the affairs
of the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness
71
of the Borrower which may come into the possession of the Administrative Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
Section 10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Loan Percentages in effect on the date on
which indemnification is sought under this Section, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes
and Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section 10.7 shall survive the payment of the Notes, Loans and all other
amounts payable hereunder.
Section 10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to its Loans made or renewed by it and any
Note issued to it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent. The terms
"Lender," "Lenders," and similar terms shall include the Administrative Agent in
its individual capacity.
Section 10.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 10 days' written notice to the
Lenders. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower, whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Notes. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement and the other Loan Documents.
Section 10.10 Other Agents. None of the Lenders identified on the
cover page or the preamble of this Agreement as a "co-syndication agent" or a
"documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
72
identified as a "co-syndication agent" or a "documentation agent" shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or in taking or not taking
any action hereunder.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Amendments and Waivers. None of this Agreement or any
other Loan Document and any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this Section 11.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower or
any other applicable Loan Party written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any manner the
rights of the Lenders or of the Borrower or any other Loan Party hereunder or
thereunder or (b) waive in writing, on such terms and conditions as the Required
Lenders or the Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall (i) reduce the amount or extend the scheduled date of maturity of any
Loan, or reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or increase the amount or
extend the expiration date of any Lender's Commitment, in each case without the
consent of each Lender affected thereby, or (ii) amend, modify or waive any
provision of this Section 11.1 or reduce the percentage specified in the
definition of Required Lenders, or consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the other
Loan Documents (except in a transaction permitted by Section 8.5), in each case
without the written consent of all the Lenders, or (iii) amend, modify or waive
any provision of Article X without the written consent of the then
Administrative Agent, or (iv) release the Lenders' Liens on all or substantially
all of the Collateral under the Security Documents without the consent of each
Lender or (v) except to the extent relating to the Redesignation of any
Restricted Subsidiary, the sale or other disposition of any Restricted
Subsidiary as otherwise permitted by this Agreement or any other transaction
permitted by this Agreement, release any Guarantee. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrower, the Lenders, the Administrative Agent
and all future holder of the Notes. In the case of any waiver, the Borrower, the
Lenders and the Administrative Agent shall be restored to their former position
and rights hereunder and under the outstanding Notes and any other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
Section 11.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower the Collateral Agent,
the
73
Administrative Agent and the Collateral Agent, and as set forth in Schedule I
hereto or in any Assignment and Assumption in the case of the other parties
hereto, or to such other address as may be hereafter notified by the respective
parties hereto and any future holders of the Notes or Lenders:
The Borrowers: El Paso Energy Partners, L.P.
El Paso Energy Partners Finance Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
constitute notice) to: ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
The Administrative Agent or the JPMorgan Chase Bank
Collateral Agent: Loan and Agency Services
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Collateral Agent shall not be effective until received, provided,
further, that the failure by the Administrative Agent, the Collateral Agent or
any Lender to provide a copy to the Borrower's counsel shall not cause any
notice to the Borrower to be ineffective.
Section 11.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative Agent,
the Collateral Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes.
Section 11.5 Payment of Expenses and Taxes. The Borrower agrees
(a) to pay or reimburse the Administrative Agent and the Collateral Agent for
all their respective reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and
74
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
fees and disbursements of counsel to the Administrative Agent and the Collateral
Agent, (b) to pay or reimburse each Lender, the Administrative Agent and the
Collateral Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the Notes, the
other Loan Documents and any such other documents, including, without
limitation, the fees and disbursements of counsel to the Administrative Agent,
to the Collateral Agent and to the several Lenders, (c) to pay, indemnify, and
hold each Lender, the Administrative Agent and the Collateral Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender, the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Documentation Agent, and their Affiliates, and their respective
directors, officers, employees, agents and advisors (each such person being
called an "Indemnified Party") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments and
suits, and reasonable costs, expenses or disbursements, of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Notes and the other Loan Documents, the
use of the proceeds of the Loans, including the use and reliance on electronic,
telecommunications or other information or transmission systems in connection
with the Loan Documents (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), REGARDLESS OF WHETHER OR NOT SUCH INDEMNIFIED
LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY AN INDEMNIFIED PARTY, provided, that
the Borrower shall have no obligation hereunder to an Indemnified Party with
respect to indemnified liabilities (i) arising from the gross negligence or
willful misconduct of such Indemnified Party or (ii) that are found by a final,
non-appealable judgment of a court to arise solely from the reliance by one or
more third-parties to their detriment on false or misleading information (the
"Delivered Information") provided directly to such third-party by such
Indemnified Party or its Affiliates, but such Delivered Information was not
provided by, or based on information provided by, the Borrower or its Affiliates
or advisors to such Indemnified Party nor was such Delivered Information
available to (or based on information available to) such Indemnified Party from
a publicly available source. The agreements in this Section shall survive
repayment of the Notes and the Loans and all other amounts payable hereunder.
Section 11.6 Successors and Assigns; Participations; Purchasing
Lenders.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the Borrower, the Lenders, the Administrative
Agent and the Collateral Agent and their respective successors and assigns
permitted hereby, except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or
75
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Collateral Agent, and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of the Loans at the time owing to it) with the prior written consent (such
consent not to be unreasonably withheld or delayed) of:
A. the Borrower, provided that no
consent of the Borrower shall be required for an assignment to an assignee that
is a Lender immediately prior to giving effect to such assignment, an Affiliate
of any Lender, or, if a Default or an Event of Default has occurred and is
continuing, any other assignee; and
B. the Administrative Agent, provided
that no consent of the Administrative Agent shall be required for an assignment
to an assignee that is a Lender immediately prior to giving effect to such
assignment.
(ii) Assignments shall be subject to the
following additional conditions:
A. each partial assignment shall be
made as an assignment of a proportionate part of all the assigning ▇▇▇▇▇▇'s
rights and obligations under this Agreement;
B. the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500;
C. no such assignment to an assignee
(other than any Lender, and Approved Fund or any Affiliate of any Lender) shall
be in an aggregate principal amount less than $2,000,000; and
D. the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.
(iii) Subject to acceptance and recording thereof
pursuant to paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 4.9, 4.10, 4.11 and 11.5 to the extent relating to matters
during the time it was a Lender). Any assignment or transfer by a Lender of
rights or
76
obligations under this Agreement that does not comply with this Section 11.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section to the extent complying with Section 11.6(c) or otherwise as void
and of no force and effect.
(iv) The Administrative Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices a copy
of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders and the principal amount
of the Loans owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent, the
Collateral Agent, and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed
Assignment and Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept
such Assignment and Assumption, give notice of such Assignment and Assumption to
the Borrower, and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c)
(i) Any Lender may, without the consent of the
Borrower, the Administrative Agent, or the Collateral Agent, sell participations
to one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement (including all or a
portion of the Loans owing to it); provided that (A) such Lender's obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent, the Collateral Agent, and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such ▇▇▇▇▇▇'s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement or any other Loan Document, and no Lender shall be entitled to
create in favor of any Participant any right to vote on, consent to or approve
any matter relating to any Loan Document; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clause
(i), (ii) or (v) of the proviso to Section 11.1 that directly affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 4.9, 4.10
and 4.11 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To
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the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.5 as though it were a Lender, provided such Participant
agrees to be subject to Section 11.7 as though it were a Lender.
(ii) A Participant shall not be entitled to
receive any greater payment under Section 4.9, 4.10 or 4.11 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 4.10 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 4.10(b) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 11.7 Adjustments; Set-off.
(a) If any Lender (a "benefited Lender") shall at any
time receive any payment of all or part of its Loans owing to it, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Article IX(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans of the same type owing to it, as the case may be,
or interest thereon, such benefited Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan owing to it, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder or under the Notes (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
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Section 11.8 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
Section 11.9 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 11.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Administrative Agent, the
Collateral Agent and the Lenders with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Administrative Agent, the Collateral Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
Section 11.11 Usury Savings Clause. It is the intention of the
parties hereto to comply with applicable usury laws (now or hereafter enacted);
accordingly, notwithstanding any provision to the contrary in this Agreement,
the Notes, any of the other Loan Documents or any other document related hereto,
in no event shall this Agreement or any such other document require the payment
or permit the collection of interest in excess of the maximum amount permitted
by such laws. If from any circumstances whatsoever, fulfillment of any provision
of this Agreement or of any other document pertaining hereto or thereto, shall
involve transcending the limit of validity prescribed by applicable law for the
collection or charging of interest, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if from any such
circumstances the Administrative Agent, the Collateral Agent and the Lenders
shall ever receive anything of value as interest or deemed interest by
applicable law under this Agreement, the Notes, any of the other Loan Documents
or any other document pertaining hereto or otherwise an amount that would exceed
the highest lawful rate, such amount that would be excessive interest shall be
applied to the reduction of the principal amount owing under the Notes and
hereunder or on account of any other indebtedness of the Borrower, and not to
the payment of interest, or if such excessive interest exceeds the unpaid
balance of principal of such indebtedness, such excess shall be refunded to the
Borrower. In determining whether or not the interest paid or payable with
respect to any indebtedness of the Borrower to the Administrative Agent and the
Lenders, under any specified contingency, exceeds the Highest Lawful Rate (as
hereinafter defined), the Borrower, the Administrative Agent and the Lenders
shall, to the maximum extent permitted by applicable law, (a) characterize any
non-principal payment as an expense, fee or premium rather than as interest, (b)
exclude voluntary prepayments and the effects thereof, (c) amortize, prorate,
allocate and spread the total amount of interest throughout the full term of
such indebtedness so that interest thereon does not exceed the maximum amount
permitted by applicable law, and/or (d) allocate interest between portions of
such indebtedness, to the end that no such portion shall bear interest at a rate
greater than that permitted by applicable law.
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To the extent that Article 5069-1D.001 et seq., as amended, of the
Texas Revised Civil Statutes is relevant to the Administrative Agent and the
Lenders for the purpose of determining the Highest Lawful Rate, the
Administrative Agent and the Lenders hereby elect to determine the applicable
rate ceiling under such Article by the indicated (weekly) rate ceiling from time
to time in effect. Nothing set forth in this Section 11.11 is intended to or
shall limit the effect or operation of Section 11.12. In no event shall Chapter
346 of the Texas Finance Code (which regulates certain revolving credit loan
accounts) apply to this Agreement or the Notes.
For purposes of this Section 11.11, "Highest Lawful Rate" shall mean
the maximum rate of nonusurious interest that may be contracted for, charged,
taken, reserved or received hereunder under laws applicable to the
Administrative Agent and the Lenders.
Section 11.12 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
Section 11.13 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of the
State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 11.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary or punitive damages
(including, without limitation, damages arising from the use of electronic,
telecommunications or other information transmissions systems in connection with
the Loan Documents).
Section 11.14 Acknowledgements. The Borrower hereby acknowledges
that:
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(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the Notes and the other Loan
Documents;
(b) none of the Administrative Agent, the Collateral
Agent nor any Lender has any fiduciary relationship with or duty to the Borrower
or any other Loan Party arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between Administrative
Agent, Collateral Agent and Lenders, on one hand, and the Borrower and the other
Loan Parties, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among
the Borrower and the other Loan Parties and the Lenders.
Section 11.15 Confidentiality. Each of the Administrative Agent,
the Collateral Agent and each Lender agrees that it will hold in confidence, any
information provided to such Person pursuant to this Agreement; provided, that
nothing in this Section 11.15 shall be deemed to prevent the disclosure by the
Administrative Agent, the Collateral Agent or any Lender of any such information
(a) to any employee, officer, director, accountant, attorney or consultant of
such Person, or any examiner or other Governmental Authority, (b) that has been
or is made public by EPEPC, the Borrower or any of its Subsidiaries or
Affiliates or by any third party without breach of this Agreement or that
otherwise becomes generally available to the public other than as a result of a
disclosure in violation of this Section 11.15, (c) that is or becomes available
to any such Person from a third party on a non-confidential basis, (d) that is
required to be disclosed by any Requirement of Law, including to any bank
examiners or regulatory authorities, (e) that is required to be disclosed by any
court, agency, arbitrator or legislative body, (f) to any Transferee or proposed
Transferee, or (g) to any rating agency to the extent required in connection
with any rating to be assigned to such Lender.
Section 11.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE CO-BORROWER,
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
Section 11.17 ACKNOWLEDGEMENT OF NO CLAIMS, OFFSETS OR DEFENSES;
RELEASE BY THE LOAN PARTIES. ▇▇▇▇▇▇▇▇, ON BEHALF OF ITSELF AND EACH OF THE OTHER
LOAN PARTIES, ACKNOWLEDGES THAT NO LOAN PARTY NOR ANY OF THEIR RESPECTIVE
OWNERS, DIRECTORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, EMPLOYEES, AND
REPRESENTATIVES (COLLECTIVELY, THE "BORROWER AFFILIATED PARTIES") HAS ANY CLAIM,
DEMAND, RIGHT OF OFFSET, CAUSE OF ACTION IN LAW OR IN EQUITY, LIABILITY OR
DAMAGES OF ANY NATURE WHATSOEVER, WHETHER FIXED OR CONTINGENT (HEREINAFTER
COLLECTIVE CALLED "CLAIMS") THAT COULD BE ASSERTED IN CONNECTION WITH, OR WHICH
WOULD IN ANY OTHER MANNER BE RELATED TO, THE EPN CREDIT AGREEMENT, THE EPNHC
CREDIT AGREEMENT OR ANY PROMISSORY NOTES OR OTHER AGREEMENTS, TRANSACTIONS OR
OTHER ACTIONS PRIOR TO THE DATE HEREOF INVOLVING ANY OF THE BORROWER AFFILIATED
PARTIES
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AND LENDERS ("THE PRIOR AGREEMENTS AND ACTIVITIES"). NOTWITHSTANDING THE
FOREGOING, HOWEVER, ▇▇▇▇▇▇▇▇ HEREBY AGREES THAT IN CONSIDERATION OF THE CREDIT
EXTENDED TO BORROWER UNDER THE LOAN DOCUMENTS AND AS A MATERIAL INDUCEMENT TO
THE LENDERS TO ENTER INTO SUCH LOAN DOCUMENTS AND EXTEND SUCH CREDIT TO
BORROWER, BORROWER, ON BEHALF OF ITSELF AND ALL OF THE OTHER BORROWER AFFILIATED
PARTIES HEREBY RELEASES AND FOREVER DISCHARGES, EACH LENDER, EACH SUBSEQUENT
HOLDER OF ANY OF THE NOTES, AND EACH AND ALL OF THEIR PARENT, SUBSIDIARY AND
AFFILIATED CORPORATIONS PAST AND PRESENT, AS WELL AS THEIR RESPECTIVE OWNERS,
DIRECTORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, EMPLOYEES, AND REPRESENTATIVES
(COLLECTIVELY, THE "RELEASED PARTIES"), OF AND FROM ANY AND ALL CLAIMS WHICH
BORROWER AND THE OTHER BORROWER AFFILIATED PARTIES MAY HAVE OR HEREAFTER ACQUIRE
AGAINST ANY OR ALL OF THE RELEASED PARTIES BY REASON OF, OR RELATED IN ANY WAY
TO, THE PRIOR AGREEMENTS AND ACTIVITIES.
Section 11.18 Releases.
(a) At such time as the Loans and any other obligations
under this Agreement shall have been paid in full, the Collateral shall be
released from the Liens created by the Loan Documents, and all obligations
(other than those expressly stated to survive such termination) of the
Administrative Agent, the Collateral Agent and each Loan Party thereunder and
under the other Loan Documents shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the respective Loan Parties. At the request and
expense of any Loan Party following any such termination, the Collateral Agent
shall deliver to such Loan Party any Collateral held by the Collateral Agent
under the Security Documents, and execute and deliver to such Loan Party such
documents as such Loan Party shall reasonably request to evidence such
termination.
(b) If any of the Collateral shall be sold, transferred
or otherwise disposed of by any Loan Party in a transaction permitted by this
Agreement or such Loan Party is designated as an Unrestricted Subsidiary in
accordance with the terms of this Agreement, then the Lenders authorize the
Collateral Agent, at the request and expense of such Loan Party, to execute and
deliver to such Loan Party all releases or other documents reasonably necessary
or desirable for the release of the Liens created by the applicable Security
Documents on such Collateral. At the request and sole expense of the Borrower,
the Lenders authorize the Collateral Agent to release a Loan Party from its
obligations under the applicable Security Document in the event that all the
Capital Stock of such Loan Party shall be sold, transferred or otherwise
disposed of in a transaction permitted by this Agreement or such Loan Party is
designated as an Unrestricted Subsidiary in accordance with the terms of this
Agreement, provided that the Borrower shall have delivered to the Collateral
Agent, at least five Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Loan Party and the terms of
the sale or other disposition in reasonable detail, including the price thereof
and any expenses in connection therewith, together with a certification by the
Borrower stating that such transaction is in compliance with this Agreement and
the other Loan Documents.
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Section 11.19 Co-Borrower's Obligations. The Co-Borrower is a party
hereto for purposes of providing co-extensive obligors (on a joint and several
basis) for the Obligations, although the parties acknowledge that the
Co-Borrower shall not have any substantial assets or other property. All
references in this Agreement and the other Loan Documents to the "Borrower"
shall be deemed to include a reference to the Co-Borrower, mutatis mutandis,
whether or not actual reference is made thereto; provided, that, without
limiting the generality of the foregoing, any obligations by any of the parties
hereto to the Borrower shall be deemed fulfilled with respect to the Co-Borrower
when fulfilled with respect to the Borrower.
Section 11.20 Intercreditor Agreement. Each Lender (including each
assignee which becomes a Lender pursuant to Section 11.6) consents and agrees to
the provisions of the Intercreditor Agreement, including the indemnity
provisions set forth in Section 7 thereof. The Lenders also hereby authorize and
appoint the Administrative Agent to act as their agent with respect to the
execution and delivery of the Intercreditor Agreement.
Section 11.21 Certain Reorganization Transactions. Notwithstanding
any provision in the Loan Documents and without increasing the obligations of
the Lenders under Article II of this Agreement, the Borrower shall be permitted
to effect the merger of EP San ▇▇▇▇ and ANR Central with and into Delos, such
that Delos will be the survivor of such merger (the "Reorganization
Transactions"). The Borrower and its Restricted Subsidiaries intend that during
and after the consummation of the Reorganization Transactions, the Security
Documents shall continue to be effective to create in favor of the Collateral
Agent, for the ratable benefit of the EPN Group Lenders, a legal, valid
enforceable, and first perfected security interest in the Collateral covered
thereby prior to the Reorganization Transactions that is affected by the
Reorganization Transactions (as the nature of such Collateral may change
pursuant to the Reorganization Transactions). The Loan Parties and the
Administrative Agent shall enter into such amendments to the Security Documents
or other instruments that are necessary or that may otherwise be advisable to
reflect the Reorganization Transactions and effect or continue such perfected
security interests in such Collateral.
Section 11.22 Certain Permitted Transactions. Notwithstanding any
provision in the Loan Documents and without increasing the obligations of the
Lenders under Article II of this Agreement, EPEPC, the Borrower and its
Subsidiaries shall have the right to consummate the following transactions:
(a) Petal Gas Storage Facilities. A sale leaseback
arrangement with respect to the Petal Gas Storage Facilities and intended
improvements to be made thereto in connection with the Firm Storage Services
Agreement dated as of December 22, 2000 by and between Petal Gas Storage and
Southern Company Services, Inc., provided that the obligations under such
arrangement or guarantee shall not exceed $140,000,000.
(b) El Paso Energy Management Offering. The transactions
and matters described in the El Paso Energy Management Registration Statements
(collectively, the "i-share Transactions"), including: (i) the offering and sale
to the public and El Paso of shares representing limited liability company
interests; (ii) the offering and sale by the Borrower to El Paso Energy
Management of limited partnership units designated as "i-units"; (iii) the
delegation by the General Partner of its authority (subject to certain approval
rights) to direct the
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management of the Borrower; (iv) the payment by El Paso Energy Management of
$0.5 million to El Paso for certain tax indemnity obligations assumed by El Paso
in connection with the i-share Transactions; (v) the splitting, from time to
time, of the outstanding i-units contemporaneously with the payment of cash
distributions to the holders of Common Units; (vi) the distribution of
additional shares to the holders of El Paso Energy Management shares in
connection with the unit splits described in (b)(v) above; (vii) the amendment
of the G&A Agreement to, among other things, add El Paso Energy Management as a
party and beneficiary; and (viii) the offering and sale, from time to time, of
additional i-units by the Borrower and of additional shares by El Paso Energy
Management as described in the El Paso Energy Management Registration
Statements.
(c) Cameron Highway Transactions.
(i) the contribution by the Borrower and the
Restricted Subsidiaries to Cameron Highway of up to $95,000,000, in the
aggregate, of cash and other assets related to the Cameron Highway Oil Pipeline;
(ii) the pledge by the Borrower and the
Restricted Subsidiaries of their equity interests in Cameron Highway to secure
Indebtedness of Cameron Highway incurred in connection with the Cameron Highway
Financing;
(iii) the incurrence by the Borrower of the
Cameron Highway Clawback, and the securing of the Cameron Highway Clawback
obligations by the Collateral on a pari passu basis with the Obligations, the
EPNHC Loan Obligations, the ▇▇▇▇▇ ▇▇▇▇ Clawback obligations and the Senior
Secured Acquisition Term Loan Obligations, subject to the terms and provisions
of the Intercreditor Agreement; and
(iv) the sale or otherwise disposition of any
equity interest in Cameron Highway, provided that following any such sale or
other disposition, the Borrower and its Restricted Subsidiaries, in the
aggregate, continue to hold at least 30% of the outstanding equity interest in
Cameron Highway.
ARTICLE XII
THE COLLATERAL AGENT
Section 12.1 Appointment. Each Lender hereby irrevocably
designates and appoints JPMorgan as the Collateral Agent of such Lender under
this Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes JPMorgan, as the Collateral Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Collateral Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Collateral Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Collateral Agent.
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Section 12.2 Delegation of Duties. The Collateral Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Collateral Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
Section 12.3 Exculpatory Provisions. Neither the Collateral Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Collateral Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Collateral Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
Section 12.4 Reliance by Collateral Agent. The Collateral Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Collateral Agent. The
Collateral Agent may deem and treat the payee of any Note as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent. The Collateral
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required EPN
Group Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
Section 12.5 Notice of Default. The Collateral Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Collateral Agent has received notice from the
Administrative Agent, a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Collateral Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the EPN
Group Administrative Agents acting jointly or the Required EPN Group Lenders;
provided that unless and until the
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Collateral Agent shall have received such directions, the Collateral Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the EPN Group Lenders.
Section 12.6 Indemnification. The Lenders agree to indemnify the
Collateral Agent in its capacity as such (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), ratably
according to their respective Total EPN Group Credit Percentages in effect on
the date on which indemnification is sought under this Section, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Collateral Agent in any way relating to or arising out of this Agreement, any of
the other Loan Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by the Collateral Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Collateral
Agent's gross negligence or willful misconduct. The agreements in this Section
12.6 shall survive the payment of the Loans and all other amounts payable
hereunder.
Section 12.7 Successor Collateral Agent. The Collateral Agent may
resign as Collateral Agent upon 10 days' written notice to the Lenders. If the
Collateral Agent shall resign as Collateral Agent under this Agreement and the
other Loan Documents, then the Required EPN Group Lenders shall appoint from
among the EPN Group Lenders a successor agent for the EPN Group Lenders, which
successor agent shall be approved by the Borrower, whereupon such successor
agent shall succeed to the rights, powers and duties of the Collateral Agent,
and the term "Collateral Agent" shall mean such successor agent effective upon
such appointment and approval, and the former Collateral Agent's rights, powers
and duties as Collateral Agent shall be terminated, without any other or further
act or deed on the part of such former Collateral Agent or any of the parties to
this Agreement. After any retiring Collateral Agent's resignation as Collateral
Agent, the provisions of this Section shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent under
this Agreement and the other Loan Documents.
Section 12.8 Amendment. None of the terms or provisions of this
Article XII may be amended, modified or waived without the written consent of
the then Collateral Agent.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the Closing Date.
THE BORROWER:
EL PASO ENERGY PARTNERS, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
THE CO-BORROWER:
EL PASO ENERGY PARTNERS FINANCE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
SENIOR SECURED ACQUISITION TERM LOAN CREDIT AGREEMENT
SIGNATURE PAGE
THE ADMINISTRATIVE AGENT AND THE LENDERS:
JPMORGAN CHASE BANK,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SENIOR SECURED ACQUISITION TERM LOAN CREDIT AGREEMENT
SIGNATURE PAGE
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
By: [SIGNATURE ILLEGIBLE]
--------------------------------------------
Authorized Signatory
SENIOR SECURED ACQUISITION TERM LOAN CREDIT AGREEMENT
SIGNATURE PAGE
UBS AG, STAMFORD BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Director
Region Americas Legal
SENIOR SECURED ACQUISITION TERM LOAN CREDIT AGREEMENT
SIGNATURE PAGE
WACHOVIA BANK,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SENIOR SECURED ACQUISITION TERM LOAN CREDIT AGREEMENT
SIGNATURE PAGE
ANNEX I
APPLICABLE MARGIN
-----------------------------------------------------------------------------------
Rating Levels* EURODOLLAR LOANS ALTERNATE BASE RATE LOANS
-----------------------------------------------------------------------------------
RATING LEVEL I 3.50% 2.25%
-----------------------------------------------------------------------------------
RATING LEVEL II 4.50% 3.25%
-----------------------------------------------------------------------------------
RATING LEVEL III 5.00% 3.75%
-----------------------------------------------------------------------------------
*Rating Levels are described below (the relevant Rating Level is determined by
the higher of the S&P and Moody's ratings):
RATING LEVEL I: If the Borrower's senior, secured long-term bank debt
is rated equal to or greater than BB+ by S&P or Ba1
by ▇▇▇▇▇'▇;
RATING LEVEL II: If the Borrower's senior, secured long-term bank debt
is rated equal to BB by S&P or Ba2 by Moody's but
less than Rating Level I;
RATING LEVEL III: If the Borrower's senior, secured long-term bank debt
is rated equal to or less than BB- by S&P or Ba3 by
Moody's.
Annexes and Schedules-1
SCHEDULE I
Lenders, Commitments and Loan Percentages
-------------------------------------------------------------------------------------------------------------
LENDER NAME AND ADDRESS TITLE LOANS LOAN PERCENTAGE
-------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank Administrative Agent $59,375,000.00 25.00%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to
JPMorgan Chase Bank
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. Documentation Agent $59,375,000.00 25.00%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------
UBS AG, Stamford Branch Co-Syndication Agent $59,375,000.00 25.00%
UBS Warburg LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
Stamford, CT 06901
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------
Wachovia Bank, National Association Co-Syndication Agent $59,375,000.00 25.00%
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-------------------------------------------------------------------------------------------------------------
TOTAL $237,500,000.00 100.00%
-------------------------------------------------------------------------------------------------------------
Annexes and Schedules-2
SCHEDULE 5.1
GUARANTEE OBLIGATIONS,
CONTINGENT LIABILITIES AND DISPOSITIONS
I. Guarantee Obligations and Contingent Liabilities:
Clawbacks
The Borrower is party to a sponsor agreement under the terms
of the Deepwater Gateway, L.L.C. Credit Agreement, as amended,
restated or otherwise modified through the date of this
Agreement. The Borrower's obligations under such agreement are
capped at $30.0 million.
The Borrower is party to a sponsor agreement under the
Poseidon Oil Pipeline Company, L.L.C. Credit Agreement, as
amended, restated or otherwise modified through the date of
this Agreement pursuant to which the Borrower guarantees the
performance of Poseidon Pipeline Company L.L.C.'s obligations
under the limited liability company agreement of Poseidon Oil
Pipeline Company, L.L.C.
II. Dispositions or Acquisitions of Business Properties since
September 30, 2002:
Other than the Transaction, none.
Annexes and Schedules-4
SCHEDULE 5.6
MATERIAL LITIGATION
In 1997, the Borrower, along with several subsidiaries of El Paso
Corporation, were named defendants in actions brought by ▇▇▇▇ ▇▇▇▇▇▇▇▇ on behalf
of the U.S. Government under the False Claims Act. Generally, these complaints
allege an industry-wide conspiracy to under report the heating value as well as
the volumes of the natural gas produced from federal and Native American lands,
which deprived the U.S. Government of royalties. These matters have been
consolidated for pretrial purposes (In re: Natural Gas Royalties Qui Tam
Litigation, U.S. District Court for the District of Wyoming, filed June 1997).
In May 2001, the court denied the defendants' motions to dismiss.
The Borrower has also been named a defendant in Quinque Operating
Company, et al v. Gas Pipelines and Their Predecessors, et al, filed in 1999 in
the District Court of ▇▇▇▇▇▇▇ County, Kansas. This class action complaint
alleges that the defendants mismeasured natural gas volumes and heating content
of natural gas on non-federal and non-Native American lands. The Quinque
complaint was transferred to the same court handling the Grynberg complaint and
has now been sent back to Kansas State Court for further proceedings. A motion
to dismiss this case is pending.
Under the terms of the Borrower's agreement to acquire the EPNHC
assets, subsidiaries of El Paso Corporation have agreed to indemnify the
Borrower against all obligations related to existing legal matters at the
acquisition date, including the legal matters involving Leapartners, L.P., City
of Edinburg (the "City") and Houston Pipe Line Company LP discussed below.
During 2000, Leapartners, L.P. filed a suit against an affiliate of El
Paso Corporation and others in the District Court of Loving County, Texas,
alleging a breach of contract to gather and process gas in areas of western
Texas related to an asset now owned by EPNHC. In May 2001, the court ruled in
favor of ▇▇▇▇▇▇▇▇▇▇▇, L.P. and entered a judgment against El Paso Field
Services, L.P. of approximately $10 million. El Paso Field Services, L.P. has
filed an appeal with the Eighth Court of Appeals in El Paso, Texas.
Also, EPGT Texas Pipeline, now owned by EPNHC, is involved in
litigation with the City concerning the City's claim that EPGT Texas Pipeline
was required to pay pipeline franchise fees under a contract the City had with
Rio Grande Valley Gas Company, which was previously owned by EPGT Texas Pipeline
and is now owned by Southern Union Gas Company ("Southern Union"). An adverse
judgment against Southern Union and EPGT Texas Pipeline was rendered in December
1998 and upheld for breach of contract, holding both EPGT Texas Pipeline and
Southern Union jointly and severally liable to the City for approximately $4.7
million. The judgment relies on the single business enterprise doctrine to
impose contractual obligations on EPGT Texas Pipeline and Southern Union's
entities that were not parties to the contract with the City. EPGT Texas
Pipeline has appealed this case to the Texas Supreme Court seeking reversal of
the judgment rendered against EPGT Texas Pipeline. The City seeks a remand to
the trial court of its claim of tortious interference against EPGT Texas
Pipeline. The briefing before the Texas Supreme Court is complete.
Annexes and Schedules-5
In December 2000, a 30-inch natural gas pipeline jointly owned now by
EPNHC and Houston Pipe Line Company LP ruptured in Mont Belvieu, Texas, near
Baytown, resulting in substantial property damage and minor physical injury.
EPNHC is the operator of the pipeline. Lawsuits have been filed in state
district court in ▇▇▇▇▇▇▇▇ County, Texas. An additional landowner has intervened
in the ▇▇▇▇▇▇▇▇ County suits, as well as the homeowners' insurers. The suits
seek recovery for physical pain and suffering, mental anguish, physical
impairment, medical expenses, and property damage. Houston Pipe Line Company LP
has been added as an additional defendant. In accordance with the terms of the
operating agreement, EPNHC has agreed to assume the defense of and to indemnify
Houston Pipe Line Company LP in the litigated cases. Discovery is proceeding and
trial is set for November 2002. As discussed above, any obligation to Houston
Pipe Line Company LP incurred by EPNHC is indemnified by subsidiaries of El Paso
Corporation.
Annexes and Schedules-6
SCHEDULE 5.15
SUBSIDIARIES AND JOINT VENTURES
Subsidiaries (all owned 100%) unless otherwise noted:
(All Delaware limited liability companies and limited partnerships unless
otherwise noted)
1. ANR Central Gulf Gathering Company, L.L.C.
2. ▇▇▇▇, L.L.C.
3. ▇▇▇▇ I, L.L.C.
4. Argo II, L.L.C.
5. Arizona Gas Storage, L.L.C. (60.00%)
6. Crystal Holding, L.L.C.
7. Delos Offshore Company, L.L.C.
8. East Breaks Gathering Company L.L.C.
9. El Paso Energy Intrastate, L.P.
10. El Paso Energy Partners Finance Corporation (Co-Borrower), a
Delaware corporation
11. El Paso Energy Partners Deepwater, L.L.C.
12. El Paso Energy Partners Operating Company, L.L.C.
13. El Paso Energy Partners Oil Transport, L.L.C.
14. El Paso Energy Warwink I Company, L.P.
15. El Paso Energy Warwink II Company, L.P.
16. El Paso Hub Services Company, L.L.C.
17. El Paso Indian Basin, L.P.
18. El Paso Offshore Gathering & Transmission, L.P.
19. El Paso San ▇▇▇▇, L.L.C.
20. El Paso South Texas, L.P.
21. EPGT Texas Pipeline, L.P.
22. EPN Arizona Gas, L.L.C.
23. EPN Gathering and Treating Company, L.P.
24. EPN Gathering and Treating GP Holding, L.L.C.
25. EPN GP Holding, L.L.C.
26. EPN GP Holding I, L.L.C.
27. EPN Holding Company, L.P.
28. EPN Holding Company I, L.P.
29. EPN NGL Storage, L.L.C.
30. EPN Pipeline GP Holding, L.L.C.
31. First Reserve Gas, L.L.C.
32. Flextrend Development Company, L.L.C.
33. Green Canyon Pipe Line Company, L.P.
34. Hattiesburg Industrial Gas Sales, L.L.C.
35. Hattiesburg Gas Storage Company, a Delaware general partnership
36. High Island Offshore System, L.L.C.
37. Manta Ray Gathering Company, L.L.C.
38. Matagorda Island Area Gathering System, a Texas joint venture (83.00%)
Annexes and Schedules-7
39. Petal Gas Storage, L.L.C.
40. Poseidon Pipeline Company, L.L.C.
41. Chaco Liquids Plant Trust, a Massachusetts business trust
42. VK Deepwater Gathering Company, L.L.C.
43. VK-Main Pass Gathering Company, L.L.C.
44. Warwink Gathering and Treating Company, a Texas general partnership
Pursuant to the Reorganization Transactions as contemplated in Section 11.21 of
the Credit Agreement, ANR Central Gulf Gathering Company, L.L.C. and El Paso San
▇▇▇▇, L.L.C. shall be merged with and into Delos Offshore Company, L.L.C. and
Delos Offshore Company, L.L.C. shall be the surviving entity.
Joint Ventures (All Delaware limited liability companies unless noted):
---------------------------------------------------------------------------------------------------------------------
1. Atlantis Offshore, L.L.C. 50.00% owned by Arizona Gas, which
is only 60% owned by the Borrower
---------------------------------------------------------------------------------------------------------------------
2. Copper Eagle Gas Storage, L.L.C. 50.00%
---------------------------------------------------------------------------------------------------------------------
3. Poseidon Oil Pipeline Company, L.L.C. 36.00%
---------------------------------------------------------------------------------------------------------------------
4. Deepwater Gateway, L.L.C. 50.00%
---------------------------------------------------------------------------------------------------------------------
5. Coyote Gas Treating, LLC (a Colorado limited liability company) 50.00%
---------------------------------------------------------------------------------------------------------------------
Annexes and Schedules-8
SCHEDULE 5.17
ENVIRONMENTAL MATTERS
1. Mercury contamination has been identified along the PG&E/GTT Pipeline
system (which now comprises a part of the EPGT Pipeline system) where
mercury meters are located or were previously located.
2. El Paso Corporation commissioned ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Harza in 2001 to
perform an evaluation of the GTT Pipeline System to evaluate potential
environmental issues and liabilities associated with 18 gas
treatment/processing/storage facilities and 92 compressor stations
within the GTT Pipeline System.
3. El Paso Corporation commissioned The IT Group in 2001 to perform a
pilot study within the GTT Pipeline System to identify and assess
remediation issues associated with mercury-containing manometers used
on the GTT pipeline system.
Annexes and Schedules-9
EXHIBIT A
FORM OF NOTE
$_________ New York, New York
November 27, 2002
FOR VALUE RECEIVED, the undersigned, EL PASO ENERGY PARTNERS,
L.P., a Delaware limited partnership (the "Borrower") and EL PASO ENERGY
PARTNERS FINANCE CORPORATION, a Delaware corporation (the "Co-Borrower"), hereby
jointly and severally unconditionally promise to pay to the order of
[_______________] (the "Lender") at the office of JPMorgan Chase Bank located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in lawful money of the United States
of America and in immediately available funds, the principal amount of
[________________] ($___________) on the Maturity Date (as defined in the Credit
Agreement identified below), such principal to be paid on the date and in the
amounts set forth in Section 2.2 of the Credit Agreement and on such other dates
and in such other amounts set forth in the Credit Agreement.
Each of the undersigned further agrees to pay interest in like
money at such office on the unpaid principal amount hereof from time to time
from the date hereof at the applicable rate per annum set forth in Section 4.4
of the Credit Agreement until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 4.4(c) of
said Credit Agreement until paid in full (both before and after judgment).
Interest shall be payable in arrears on each Interest Payment Date commencing on
the first such date to occur after the date hereof, provided that interest
accruing pursuant to subsection 4.4(c) of the Credit Agreement shall be payable
on demand. In no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum interest which, under applicable law, may be
charged on this Note, and this Note is expressly made subject to the provisions
of the Credit Agreement which more fully set out the limitations on how interest
accrues hereon.
The holder of this Note is authorized to record the date, type
and amount of each Loan made by the Lender pursuant to Section 2.1 of said
Credit Agreement, each continuation thereof, each conversion of all or a portion
thereof to another type, the date and amount of each payment or prepayment of
principal with respect thereto, and, in the case of Eurodollar Loans, the length
of each Interest Period with respect thereto, on the schedules annexed hereto
and made a part hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof, which recordation shall constitute prima facie
evidence of the accuracy of the information recorded in the absence of manifest
error; provided that failure by the Lender to make any such recordation on this
Note shall not affect the obligations of the Borrower under this Note or said
Credit Agreement.
This Note is one of the Notes referred to in the Senior
Secured Acquisition Term Loan Credit Agreement, dated as of November 27, 2002
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Co-Borrower, the Lender, the other
financial institutions parties thereto and JPMorgan Chase Bank, as
Administrative Agent, is entitled to the benefits thereof, is secured as
provided therein and is
Exhibit A-1
subject to optional and mandatory prepayment in whole or in part as provided
therein. Terms used herein which are defined in the Credit Agreement shall have
such defined meanings unless otherwise defined herein or unless the context
otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in said Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable
all as provided therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
EL PASO ENERGY PARTNERS, L.P.
By: ________________________________________
Name:
Title:
EL PASO ENERGY PARTNERS
FINANCE COMPANY
By: ________________________________________
Name:
Title:
Exhibit A-2
SCHEDULE A
TO
NOTE
EURODOLLAR LOANS AND CONVERSIONS AND PAYMENTS WITH RESPECT TO EURODOLLAR LOANS
Amount of Amount of
Eurodollar Loans Made Eurodollar Loans Paid
or Converted from Interest Period and or Converted into Unpaid Principal
Alternate Base Eurodollar Rate with Alternate Base Distribution Balance of Eurodollar Notation
Date Rate Loans Respect Thereto Rate Loans Loan (Yes/No) Loans Made By
---- ---------- --------------- ---------- ------------- ----- -------
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______ _______
Exhibit A (Schedule A)-1
SCHEDULE B
TO
NOTE
ALTERNATE BASE RATE LOANS AND CONVERSIONS AND PAYMENTS
WITH RESPECT TO ALTERNATE BASE RATE LOANS
Amount of
Alternate Base Amount of
Rate Loans Made Alternate Base
or Converted Rate Loans Paid Unpaid Principal
from Eurodollar or Converted into Distribution Balance of Alternate Base
Date Loans Eurodollar Loans Loan (Yes/No) Rate Loans Notation Made By
---- ----- ---------------- ------------- ---------- ----------------
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
_______ _______ _______ _______ _______ _______
Exhibit A (Schedule B)-1
EXHIBIT B
FORM OF EPEPC GUARANTEE
AMENDED AND RESTATED EPEPC GUARANTEE
AMENDED AND RESTATED EPEPC GUARANTEE, dated as of October 10,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Guarantee"), made by El Paso Energy Partners Company, formerly known as
Leviathan Gas Pipeline Company, a Delaware corporation ("Guarantor") in favor of
the EPN Group Administrative Agents (as defined below) for the ratable benefit
of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders (each as defined below).
W I T N E S S E T H :
WHEREAS, El Paso Energy Partner, L.P., a Delaware limited
partnership ("EPN"), and El Paso Energy Partners Finance Corporation, a Delaware
corporation ("El Paso Finance") are parties to that certain Amended and Restated
Credit Agreement, dated as of March 23, 1995 and as amended and restated as of
May 16, 2001 and October 10, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among EPN, El Paso Finance,
JPMORGAN CHASE BANK, as administrative agent (in such capacity, the "EPN
Administrative Agent")and the banks and other financial institutions parties
thereto (the "EPN Lenders");
WHEREAS, EPN Holding Company, L.P., a Delaware limited
partnership ("EPNHC"; EPN, El Paso Finance and EPNHC herein collectively
referred to as the "EPN Group Borrowers") is a party to that certain Amended and
Restated Credit Agreement, dated as of April 8, 2002 and as amended and restated
as of October 10, 2002 (as amended, supplemented or otherwise modified from time
to time, the "EPNHC Credit Agreement") among EPNHC, JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "EPNHC Administrative Agent"; the
EPN Administrative Agent and the EPNHC Administrative Agent herein collectively
referred to as the "EPN Group Administrative Agents") and the banks and other
financial institutions parties thereto (the "EPNHC Lenders"; the EPN Lenders and
the EPNHC Lenders herein collectively referred to as the "EPN Group Lenders");
WHEREAS, the Guarantor and the EPN Administrative Agent are
parties to that Leviathan Guarantee, dated as of February 24, 1993, as amended
and restated March 23, 1995 (as amended, supplemented and otherwise modified
prior to the date hereof, the "Existing Guarantee");
WHEREAS, pursuant to the provisions of Section 7.9 of the
Credit Agreement and Section 7.9 of the EPNHC Credit Agreement, each of the EPN
Group Borrowers agreed that the Guarantor would be required to guarantee all of
the "Obligations" of EPN and El Paso Finance under and as defined in the Credit
Agreement and all of the "Obligations" of EPNHC under and as defined in the
EPNHC Credit Agreement;
NOW, THEREFORE, in consideration of the premises and to induce
the EPN Lenders to comply with the requirements of Section 7.9 of the Credit
Agreement and the EPNHC
Exhibit B-1
Lenders to comply with the requirements of Section 7.9 of the EPNHC Credit
Agreement, the Guarantor hereby agrees with the EPN Group Administrative Agents,
for the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
that the Existing Guarantee is hereby amended and restated to read in its
entirety as follows:
1. Defined Terms. Unless otherwise defined herein, terms which
are defined in the Credit Agreement and used herein are so used as so
defined and the following terms shall have the following meanings:
"Commitments": (a) the "Revolving Loan Commitments" and the
"Term Loan Commitments" as defined in the Credit Agreement, and (b) the
"Commitments" as defined in the EPNHC Credit Agreement.
"Obligations": (i) the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to EPN or El Paso Finance, whether or not a
claim for post filing or post petition interest is allowed in such
proceeding) the Notes and all other obligations and liabilities of EPN
and El Paso Finance to the EPN Administrative Agent or the EPN Lenders,
whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may arise under, out of,
or in connection with, the Credit Agreement, the other Loan Documents
or any other document made, delivered or given in connection therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to the EPN Administrative Agent or
any of the EPN Lenders) or otherwise, (ii) the unpaid principal of and
interest on (including, without limitation, interest accruing after the
maturity of the EPNHC Term Loans and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to EPNHC, whether or not a
claim for post filing or post petition interest is allowed in such
proceeding) and all other obligations and liabilities of EPNHC to the
EPNHC Administrative Agent or the EPNHC Lenders, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection
with, the EPNHC Credit Agreement, the other EPNHC Loan Documents or any
other document made, delivered or given in connection therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to the EPNHC Administrative Agent or
any of the EPNHC Lenders) or otherwise, and (iii) the ▇▇▇▇▇ ▇▇▇▇
Clawback.
2. Guarantee. The Guarantor hereby unconditionally and
irrevocably guarantees to the EPN Group Administrative Agents, for the ratable
benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, the prompt and
complete payment and performance by each of the EPN Group Borrowers when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations of such EPN Group Borrower. The Guarantor further agrees to pay any
and all expenses (including, without limitation, all fees and disbursements of
counsel) which may be paid or incurred by the EPN Group Administrative Agents or
by the EPN Group Lenders in
Exhibit B-2
enforcing, or obtaining advice of counsel in respect of, any of their rights
under this Guarantee. This Guarantee shall remain in full force and effect until
the Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto the EPN Group Borrowers may
be free from any Obligations.
The Guarantor agrees that whenever, at any time, or from time
to time, it shall make any payment to the EPN Group Administrative Agents or any
of the EPN Group Lenders on account of its liability hereunder, it will notify
the EPN Group Administrative Agents and such EPN Group Lender in writing that
such payment is made under this Guarantee for such purpose. No payment or
payments made by the EPN Group Borrowers or any other Person or received or
collected by the EPN Group Administrative Agents or any of the EPN Group Lenders
from any of the EPN Group Borrowers or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application, at any time or
from time to time, in reduction of or in payment of the Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or payments
received or collected from the Guarantor in respect of the Obligations, remain
liable for the Obligations until the Obligations are paid in full the
Commitments are terminated.
3. Right of Set-off. The EPN Group Administrative Agents and
each of the EPN Group Lenders are hereby irrevocably authorized at any time and
from time to time without notice to the Guarantor, any such notice being hereby
waived by the Guarantor, to set off and appropriate and apply any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the EPN Group Administrative Agents or
such EPN Group Lenders to or for the credit or the account of the Guarantor, or
any part thereof in such amounts as the EPN Group Administrative Agents or such
EPN Group Lenders may elect, on account of the liabilities of the Guarantor
hereunder and claims of every nature and description of the EPN Group
Administrative Agents or such EPN Group Lenders against the Guarantor, in any
currency, whether arising hereunder, under the Credit Agreement, any Note or
otherwise, as the EPN Group Administrative Agents or such EPN Group Lenders may
elect, whether or not the EPN Group Administrative Agents or such EPN Group
Lenders have made any demand for payment. The EPN Group Administrative Agents
and each of the EPN Group Lenders shall notify the Guarantor promptly of any
such set-off made by it and the application made by it of the proceeds thereof,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the EPN Group Administrative Agents
and each of the EPN Group Lenders under this paragraph are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the EPN Group Administrative Agents or such EPN Group Lenders may have.
4. No Subrogation. Notwithstanding any payment or payments
made by the Guarantor hereunder, or any set-off or application of funds of the
Guarantor by the EPN Group Administrative Agents or any of the EPN Group
Lenders, the Guarantor shall not be entitled to be subrogated to any of the
rights of the EPN Group Administrative Agents or any of the EPN Group Lenders
against the EPN Group Borrowers or any other Loan Party or against any
collateral security or guarantee or right of offset held by the EPN Group
Administrative Agents
Exhibit B-3
or any of the EPN Group Lenders for the payment of the Obligations, nor shall
the Guarantor seek or be entitled to seek any contribution or reimbursement from
the EPN Group Borrowers or any other Loan Party in respect of payments made by
the Guarantor hereunder, until all amounts owing to the EPN Group Administrative
Agents and the EPN Group Lenders by the EPN Group Borrowers or any other Loan
Party on account of the Obligations are paid in full and the Commitments are
terminated. So long as the Obligations remain outstanding, if any amount shall
be paid by or on behalf of the EPN Group Borrowers or any Loan Party to the
Guarantor on account of any of such subrogation rights, such amount shall be
held by the Guarantor in trust, segregated from other funds of such Guarantor,
and shall, forthwith upon receipt by such Guarantor, be turned over to the EPN
Group Administrative Agents in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the EPN Group Administrative Agents, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as the EPN Group Administrative Agents may determine. The provisions of
this paragraph shall survive the term of this Guarantee and the payment in full
of the Obligations and the termination of the Commitments.
5. Amendments, etc. with respect to the Obligations. The
Guarantor shall remain obligated hereunder and under the other Loan Documents to
which it is a party notwithstanding that, without any reservation of rights
against the Guarantor, and without notice to or further assent by the Guarantor,
any demand for payment of any of the Obligations made by the EPN Group
Administrative Agents or any of the EPN Group Lenders may be rescinded by the
EPN Group Administrative Agents or such EPN Group Lenders, and any of the
Obligations continued, and the Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the EPN Group Administrative Agents or any of the EPN
Group Lenders, and the Credit Agreement, any Notes, any other Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the EPN
Group Lenders (or the Required Lenders, as the case may be) may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the EPN Group Administrative Agents or any of the EPN Group
Lenders for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the EPN Group Administrative Agents nor any of
the EPN Group Lenders shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Guarantee or any property subject thereto.
6. Guarantee Absolute and Unconditional. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the EPN Group Administrative
Agents or any of the EPN Group Lenders upon this Guarantee or any other Loan
Document or acceptance of this Guarantee or any other Loan Document; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this Guarantee and the other Loan
Documents to which the Guarantor is a party; and all dealings between the EPN
Group Borrowers or the Guarantor, on the one hand, and the EPN Group
Administrative Agents and the EPN Group Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee and the other Loan Documents to which the Guarantor is a party.
Exhibit B-4
The Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon the EPN Group Borrowers or the
Guarantor with respect to the Obligations. This Guarantee shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement, any Note, any of the
other Loan Documents, any of the Obligations or any collateral security therefor
or guarantee or right of offset with respect thereto at any time or from time to
time held by the EPN Group Administrative Agents or any of the EPN Group
Lenders, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the EPN Group Borrowers against the EPN Group Administrative Agents or any of
the EPN Group Lenders, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the EPN Group Borrowers or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of any of the EPN Group Borrowers for the Obligations, or of the
Guarantor under this Guarantee or under any other Loan Document, in bankruptcy
or in any other instance. When the EPN Group Administrative Agents are pursuing
their rights and remedies hereunder or any other Loan Document against the
Guarantor, the EPN Group Administrative Agents or any of the EPN Group Lenders
may, but shall be under no obligation to, pursue such rights and remedies as it
may have against the EPN Group Borrowers or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the EPN Group Administrative Agents or any
of the EPN Group Lenders to pursue such other rights or remedies or to collect
any payments from the EPN Group Borrowers or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of the EPN Group Borrowers or any such other Person or of
any such collateral security, guarantee or right of offset, shall not relieve
the Guarantor of any liability hereunder or under any other Loan Document to
which it is a party, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the EPN Group
Administrative Agents and the EPN Group Lenders against the Guarantor.
7. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the EPN Group Administrative Agents or any of the EPN
Group Lenders upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the EPN Group Borrowers or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the EPN Group Borrowers or any substantial part of its property, or
otherwise, all as though such payments had not been made.
8. Payments. The Guarantor hereby agrees that the Obligations
will be paid to the EPN Group Administrative Agents without set-off or
counterclaim in U.S. Dollars at the office of the EPN Group Administrative
Agents located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
9. Representations, Warranties and Covenants. The Guarantor
represents and warrants to the EPN Group Administrative Agents and the EPN Group
Lenders, and agrees, that:
(a) the Guarantor (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the corporate
Exhibit B-5
power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged and (iii) is in
compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect;
(b) the Guarantor has the corporate power and authority and
the legal right to execute and deliver, and to perform its obligations
under, the Loan Documents to which it is a party, and has taken all
necessary corporate action to authorize its execution, delivery and
performance of the Loan Documents to which it is a party;
(c) each of the Loan Documents to which the Guarantor is a
party constitutes a legal, valid and binding obligation of the
Guarantor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(d) the execution, delivery and performance of each of the
Loan Documents to which the Guarantor is a party will not violate any
provision of any Requirement of Law or Contractual Obligation of the
Guarantor and will not result in or require the creation or imposition
of any Lien on any of the properties or revenues of the Guarantor
pursuant to any Requirement of Law or Contractual Obligation of the
Guarantor;
(e) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any
stockholder or creditor of the Guarantor) is required in connection
with the execution, delivery, performance, validity or enforceability
of any of the Loan Documents to which the Guarantor is a party;
(f) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or
against any of its properties or revenues (i) with respect to any of
the Loan Documents to which the Guarantor is a party or any of the
transactions contemplated thereby, (ii) which could have a material
adverse effect on the business, operations, property or financial or
other condition of the Guarantor or (iii) which could have a Material
Adverse Effect;
(g) the Guarantor owns no material property other than the
General Partnership Interest, the Common Units owned by it, its limited
liability company interests in the Subsidiaries that are limited
liability companies, the Management Agreement and cash distributions
received in respect of the aforementioned interests; the Guarantor has
good title to all property;
(h) the Guarantor has filed or caused to be filed all tax
returns required to be filed by it and has paid all taxes due on said
returns or on any assessments made against it (other than those being
contested in good faith by appropriate proceedings for which adequate
reserves have been provided on its books);
Exhibit B-6
(i) the representations and warranties contained in
subsections 5.1 and 5.21 of the Credit Agreement are true and correct,
and are incorporated herein by reference as if set forth here in full;
and
(j) the Guarantor shall not take or cause to occur any action,
or agree or consent to the taking or causing to occur of any action,
which would cause or constitute an Event of Default under Section 9(n)
of the Credit Agreement.
10. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11. Paragraph Headings. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
12. No Waiver; Cumulative Remedies. Neither the EPN Group
Administrative Agents nor any of the EPN Group Lenders shall by any act (except
by a written instrument pursuant to paragraph 13 hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the EPN Group Administrative Agents or any of the EPN
Group Lenders, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the EPN Group Administrative
Agents or any of the EPN Group Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
EPN Group Administrative Agents or such EPN Group Lenders would otherwise have
on any future occasion. The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any rights or
remedies provided by law.
13. Waivers and Amendments; Successors and Assigns; Governing
Law. None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantor and the EPN Group Administrative Agents, provided that any
provision of this Guarantee may be waived by the EPN Group Administrative Agents
in a letter or agreement executed by the EPN Group Administrative Agents or by
facsimile transmission from the EPN Group Administrative Agents. This Guarantee
shall be binding upon the successors and assigns of the Guarantor and shall
inure to the benefit of the EPN Group Administrative Agents and the EPN Group
Lenders and their successors and assigns. This Guarantee shall be governed by,
and construed and interpreted in accordance with, the laws of the State of New
York.
14. Notices. All notices, requests and demands to or upon the
Guarantor or the EPN Group Administrative Agents or any of the EPN Group Lenders
to be effective shall be in writing (including by telecopy) and, unless
otherwise expressly provided herein, shall be deemed
Exhibit B-7
to have been duly given or made when delivered by hand, or three days after
deposit in the mail, postage prepaid, or in the case of telecopy notice, when
received, addressed to a party at the address provided for such party in
subsection 11.2 of the Credit Agreement or Subsection 11.2 of the EPNHC Credit
Agreement or the signature page hereto, as the case may be.
15. Authority of EPN Group Administrative Agents. The
Guarantor acknowledges that the rights and responsibilities of the EPN Group
Administrative Agents under this Guarantee with respect to any action taken by
the EPN Group Administrative Agents or the exercise or non-exercise by the EPN
Group Administrative Agents of any option, right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the EPN Group Administrative Agents and the EPN
Group Lenders, be governed by the Credit Agreement and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the EPN Group Administrative Agents and the Guarantor, the EPN Group
Administrative Agents shall be conclusively presumed to be acting as agent for
the EPN Group Lenders with full and valid authority so to act or refrain from
acting, and the Guarantor shall not be under any obligation, or entitlement, to
make any inquiry respecting such authority.
16. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. THE
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF MAY BE BROUGHT AGAINST IT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY, THE GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE GUARANTOR AT ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY HOLDER
OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY OTHER
JURISDICTION.
17. WAIVERS. (a) THE GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY ACTION DESCRIBED IN PARAGRAPH 16, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE SAME.
Exhibit B-8
(b) EACH OF THE GUARANTOR AND THE ADMINISTRATIVE AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER ARISING
DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS AGREEMENT.
18. Counterparts. This Guarantee may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed and delivered as of the date first above written.
EL PASO ENERGY PARTNERS COMPANY
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Address for Notices:
Four Greenway Plaza
Houston, Texas 77046
Attn: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit B-9
Agreed to:
JPMorgan Chase Bank,
as EPN Administrative Agent
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
JPMorgan Chase Bank,
as EPNHC Administrative Agent
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Exhibit B-10
EXHIBIT C
FORM OF EPEPC SECURITY AGREEMENT
(G&A AGREEMENT)
AMENDED AND RESTATED EPEPC SECURITY AGREEMENT
(G&A AGREEMENT)
AMENDED AND RESTATED EPEPC SECURITY AGREEMENT (G&A AGREEMENT),
dated as of October 10, 2002, made by EL PASO ENERGY PARTNERS COMPANY, a
Delaware corporation (the "Grantor"), in favor of JPMORGAN CHASE BANK, as
collateral agent (in such capacity, the "Collateral Agent"), for the ratable
benefit of (a) the banks and other financial institutions (the "EPN Lenders")
parties to the Amended and Restated Credit Agreement, dated as of March 23, 1995
and as amended and restated as of October 10, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") among El Paso
Energy Partners, L.P., a Delaware limited partnership, as the borrower ("EPN"),
El Paso Energy Partners Finance Corporation, a Delaware corporation, as the
co-borrower ("El Paso Finance"), the EPN Lenders and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "EPN Administrative Agent"), (b) the
banks and other financial institutions (the "EPNHC Lenders"; the EPN Lenders and
EPNHC Lenders herein collectively referred to as the "EPN Group Lenders")
parties to the Amended and Restated Credit Agreement, dated as of April 8, 2002
and as amended and restated as of October 10, 2002 (as amended, supplemented or
otherwise modified from time to time, the "EPNHC Credit Agreement") among EPN
Holding Company, L.P., a Delaware limited partnership, as the borrower ("EPNHC";
EPN, El Paso Finance and EPNHC herein collectively referred to as the "EPN Group
Borrowers"), the EPNHC Lenders and JPMORGAN CHASE BANK, as administrative agent
(in such capacity, the "EPNHC Administrative Agent"; the EPN Administrative
Agent and the EPNHC Administrative Agent herein collectively referred to as the
"EPN Group Administrative Agents"), and (c) the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (as defined
in the Credit Agreement).
W I T N E S S E T H :
WHEREAS, the Grantor and Collateral Agent are parties to that
certain January 2002 Amended and Restated EPEPC Security Agreement (Management
Agreement) dated as of January 31, 2002 (as amended, supplemented and otherwise
modified prior to the date hereof, the "Existing Security Agreement");
WHEREAS, pursuant to the provisions of Section 7.9 of the
Credit Agreement, the Borrower agreed that it would deliver, and would cause
each Person that is a party (or is required to be a party) to any Security
Document, other than the Collateral Agent, to deliver, amended and restated
Security Documents, together with supplemented and corrected schedules, exhibits
or other documents, if any, that are necessary to accurately reflect the
collateral existing as of the Closing Date that is pledged as security for the
Obligations (as hereinafter defined)
WHEREAS, the making of this Agreement by Grantor is necessary
or convenient to the conduct, promotion, or attainment of the business of
Grantor;
Exhibit C-1
NOW, THEREFORE, in consideration of the premises and to comply
with the requirements of Section 7.9 of the Credit Agreement, the Grantor hereby
agrees with the Collateral Agent, for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, that the Existing Security Agreement is
hereby amended and restated to read in its entirety as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
defined in the Credit Agreement and used herein are so used as so defined; the
following terms which are defined in the Uniform Commercial Code in effect in
the State of New York on the date hereof are used herein as so defined: Chattel
Paper, Farm Products, Supporting Obligations, and Proceeds; and the following
terms shall have the following meanings:
"Collateral": as defined in Section 2 of this Security Agreement. The
obligations of the Grantor to provide Collateral are limited by paragraphs (c)
and (d) of subsection 7.10 of the Credit Agreement and by paragraphs (c) and (d)
of subsection 7.10 of the EPNHC Credit Agreement.
"Obligations": all obligations, liabilities and indebtedness of the
Grantor under and pursuant to the EPEPC Guarantee.
"Security Agreement": this Amended and Restated EPEPC Security
Agreement (G&A Agreement), as amended, supplemented or otherwise modified from
time to time.
"UCC": the Uniform Commercial Code as from time to time in effect in
the State of New York.
2. Grant of Security Interest. As collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of the Obligations, the Grantor hereby grants to
the Collateral Agent for the ratable benefit of the EPN Group Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders a security interest in all right, title and interest of the
Grantor in, to and under the G&A Agreement, whether now owned by the Grantor or
in which the Grantor at any time in the future may acquire any right, title or
interest, and, to the extent not otherwise included, all Supporting Obligations
that support the payment or performance of the G&A Agreement, and all Proceeds
and products of the foregoing (collectively, the "Collateral").
3. Rights of Collateral Agent and EPN Group Lenders; Limitations on
Collateral Agent's and EPN Group Lenders' Obligations.
(a) Grantor Remains Liable under G&A Agreement. Anything herein to the
contrary notwithstanding, the Grantor shall remain liable under the G&A
Agreement to observe and perform all the conditions and obligations to be
observed and performed by it thereunder. Neither the Collateral Agent nor any of
the EPN Group Lenders shall have any obligation or liability under the G&A
Agreement by reason of or arising out of this Security Agreement, nor shall the
Collateral Agent or any of the EPN Group Lenders be obligated in any manner to
perform any of the obligations of the Grantor under or pursuant to the G&A
Agreement.
Exhibit C-2
(b) Notice to Contracting Parties. Upon the request of the Collateral
Agent at any time after the occurrence and during the continuance of an Event of
Default, the Grantor shall notify parties to the G&A Agreement that the G&A
Agreement has been assigned to the Collateral Agent for the ratable benefit of
the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders and that payments in respect
thereof shall be made directly to the Collateral Agent. The Collateral Agent may
in its own name or in the name of others communicate with parties to the G&A
Agreement to verify with them to its satisfaction the existence, amount and
terms of the G&A Agreement.
4. Representations and Warranties. The Grantor hereby represents and
warrants that:
(a) Title; No Other Liens. Except for the Lien granted to the
Collateral Agent for the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders pursuant to this Security Agreement, the Grantor owns each item of
the Collateral free and clear of any and all Liens or claims of others. No
security agreement, financing statement or other public notice with respect to
all or any part of the Collateral is on file or of record in any public office,
except such as may have been filed in favor of the Collateral Agent, for the
ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, pursuant to
this Security Agreement.
(b) Perfected First Priority Liens. The Liens granted pursuant to this
Security Agreement constitute perfected Liens on the Collateral in favor of the
Collateral Agent, for the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders, which are (except for any Liens on the Collateral which are
permitted to exist pursuant to the Credit Agreement or the EPNHC Credit
Agreement) prior to all other Liens on the Collateral created by the Grantor and
in existence on the date hereof and which are enforceable as such against all
creditors of and purchasers from the Grantor. All action necessary or desirable
to perfect such security interest in the Collateral requested by the Collateral
Agent, including the filing of financing statements, has been or will be duly
taken.
(c) G&A Agreement. No consent of any party (other than the Grantor) to
the G&A Agreement is required, or purports to be required, in connection with
the execution, delivery and performance of this Security Agreement. The G&A
Agreement is in full force and effect and constitutes a valid and legally
enforceable obligation of the parties thereto, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditor's rights generally. No consent or
authorization of, filing with or other act by or in respect of any Governmental
Authority is required in connection with the execution, delivery, performance,
validity or enforceability of the G&A Agreement by any party thereto other than
those which have been duly obtained, made or performed, are in full force and
effect and do not subject the scope of the G&A Agreement to any material adverse
limitation, either specific or general in nature. Neither the Grantor nor (to
the best of the Grantor's knowledge) any other party to the G&A Agreement is in
default or is likely to become in default in the performance or observance of
any of the terms thereof. The Grantor has fully performed all its obligations
under the G&A Agreement. The right, title and interest of the Grantor in, to and
under the G&A Agreement are not subject to any defense, offset, counterclaim or
claim which would materially adversely affect the value of such G&A Agreement as
Collateral, nor have any of the foregoing been asserted or alleged against the
Grantor as to the G&A Agreement. The Grantor has delivered to the Collateral
Agent and each of the EPN Group
Exhibit C-3
Lenders a complete and correct copy of the G&A Agreement, including all
amendments, supplements and other modifications thereto.
(d) Name of Grantor, etc. The name of the Grantor as indicated on the
public record of the Grantor's jurisdiction of organization, which shows the
Grantor to have been organized, is "El Paso Energy Partners Company." The
Grantor's mailing address is Four Greenway Plaza, Houston, Texas 77046. The
Grantor is a Delaware corporation, and the Grantor's organizational
identification number in the State of Delaware is 2218885. The Grantor was
formerly known as "Leviathan Gas Pipeline Company." Other than this name, the
Grantor has not used any other name or trade name.
(e) Farm Products. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
(f) Governmental Obligors. None of the parties to the G&A Agreement is
a Governmental Authority.
(g) Power and Authority; Authorization. The Grantor has the corporate
power and authority and the legal right to execute and deliver, to perform its
obligations under, and to grant the Lien on the Collateral pursuant to, this
Security Agreement and has taken all necessary corporate action to authorize its
execution, delivery and performance of, and grant of the Lien on the Collateral
pursuant to, this Security Agreement.
(h) Enforceability. This Security Agreement constitutes a legal, valid
and binding obligation of the Grantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
(i) No Conflict. The execution, delivery and performance of this
Security Agreement will not violate any provision of any Requirement of Law or
Contractual Obligation of the Grantor and will not result in the creation or
imposition of any Lien on any of the properties or revenues of the Grantor
pursuant to any Requirement of Law or Contractual Obligation of the Grantor,
except as contemplated hereby.
(j) No Consents, etc. No consent or authorization of, filing with, or
other act by or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any stockholder or
creditor of the Grantor), is required in connection with the execution,
delivery, performance, validity or enforceability of this Security Agreement.
(k) No Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Grantor, threatened by or against the Grantor or against any of its
properties or revenues with respect to this Security Agreement or any of the
transactions contemplated hereby.
5. Covenants. The Grantor covenants and agrees with the Collateral
Agent and the EPN Group Lenders that, from and after the date of this Security
Agreement until the Obligations are paid in full and the Commitments are
terminated:
Exhibit C-4
(a) Further Documentation; Pledge of Instruments and Chattel Paper. At
any time and from time to time, upon the written request of the Collateral
Agent, and at the sole expense of the Grantor, the Grantor will promptly and
duly execute and deliver such further instruments and documents and take such
further action as the Collateral Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Security Agreement and of the
rights and powers herein granted, including, without limitation, the filing of
any financing or continuation statements under the Uniform Commercial Code in
effect in any jurisdiction with respect to the Liens created hereby. The Grantor
hereby authorizes the Collateral Agent, its counsel or its representative, at
any time and from time to time, to file financing statements and amendments to
financing statements that describe the Collateral, in such jurisdictions as the
Collateral Agent may deem necessary or desirable in order to perfect or maintain
the perfection of the security interests granted by the Grantor under this
Security Agreement. The Grantor hereby further authorizes the Collateral Agent,
its counsel or its representative, at any time and from time to time, to file
continuation statements with respect to previously filed financing statements. A
carbon, photographic or other reproduction of this Security Agreement shall be
sufficient as a financing statement for filing in any jurisdiction. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument or Chattel Paper, such Instrument or Chattel
Paper shall be immediately delivered to the Collateral Agent, duly endorsed in a
manner satisfactory to the Collateral Agent, to be held as Collateral pursuant
to this Security Agreement.
(b) Indemnification. The Grantor agrees to pay, and to save the
Collateral Agent and the EPN Group Lenders harmless from, any and all
liabilities, and reasonable costs and expenses (including, without limitation,
legal fees and expenses), (i) with respect to, or resulting from, any delay in
paying, any and all excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral, (ii) with
respect to, or resulting from, any delay in complying with any Requirement of
Law applicable to any of the Collateral or (iii) in connection with any of the
transactions contemplated by this Security Agreement. In any suit, proceeding or
action brought by the Collateral Agent or any of the EPN Group Lenders under the
G&A Agreement for any sum owing thereunder, or to enforce any provisions of the
G&A Agreement, the Grantor will save, indemnify and keep the Collateral Agent
and such EPN Group Lender harmless from and against all reasonable expense, loss
or damage suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction or liability whatsoever of the account debtor or obligor thereunder,
arising out of a breach by the Grantor of any obligation thereunder or arising
out of any other agreement, indebtedness or liability at any time owing to or in
favor of such account debtor or obligor or its successors from the Grantor.
(c) Maintenance of Records. The Grantor will keep and maintain at its
own cost and expense satisfactory and complete records of the Collateral,
including, without limitation, a record of all payments received and all credits
granted with respect to the G&A Agreement. The Grantor will mark its books and
records pertaining to the Collateral to evidence this Security Agreement and the
security interests granted hereby. For the Collateral Agent's and the EPN Group
Lenders' further security, the Collateral Agent, for the ratable benefit of the
EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, shall have a security interest in
all of the Grantor's books and records pertaining to the Collateral, and the
Grantor shall turn over any such books and records to the Collateral Agent or to
its representatives during normal business hours at the request of the
Collateral Agent.
Exhibit C-5
(d) Right of Inspection. The Collateral Agent and the EPN Group Lenders
shall at all times have full and free access during normal business hours to all
the books, correspondence and records of the Grantor, and the Collateral Agent
and the EPN Group Lenders and their respective representatives may examine the
same, take extracts therefrom and make photocopies thereof, and the Grantor
agrees to render to the Collateral Agent and the EPN Group Lenders, at the
Grantor's cost and expense, such clerical and other assistance as may be
reasonably requested with regard thereto.
(e) Compliance with Laws, etc. The Grantor will comply in all material
respects with all Requirements of Law applicable to the Collateral or any part
thereof or to the operation of the Grantor's business; provided, however, that
the Grantor may contest any Requirement of Law in any reasonable manner which
shall not, in the sole opinion of the Collateral Agent, adversely affect the
Collateral Agent's or the EPN Group Lenders' rights or the priority of their
Liens on the Collateral.
(f) Compliance with Terms of G&A Agreement. The Grantor will perform
and comply in all material respects with all its obligations under the G&A
Agreement and all its other Contractual Obligations relating to the Collateral.
(g) Payment of Obligations. The Grantor will pay promptly when due all
taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if (i) the validity thereof is being contested in good faith
by appropriate proceedings, (ii) such proceedings do not involve any material
danger of the sale, forfeiture or loss of any of the Collateral or any interest
therein and (iii) such charge is adequately reserved against on the Grantor's
books in accordance with GAAP.
(h) Limitation on Liens on Collateral. The Grantor will not create,
incur or permit to exist, will defend the Collateral against, and will take such
other action as is necessary to remove, any Lien or claim on or to the
Collateral, other than the Liens created hereby and will defend the right, title
and interest of the Collateral Agent and the EPN Group Lenders in and to any of
the Collateral against the claims and demands of all Persons whomsoever.
(i) Limitations on Dispositions of Collateral. The Collateral Agent and
the EPN Group Lenders do not authorize, and the Grantor agrees, not sell,
transfer, lease or otherwise dispose of any of the Collateral, or attempt, offer
or contract to do so except in the ordinary course of its business.
(j) Limitations on Modifications, Waivers, Extensions of the G&A
Agreement. The Grantor will not (i) amend, modify, terminate or waive any
provision of the G&A Agreement in any manner which could reasonably be expected
to materially adversely affect the value of such Management Contract as
Collateral, (ii) fail to exercise promptly and diligently each and every
material right which it may have under such G&A Agreement or (iii) fail to
deliver to the Collateral Agent a copy of each material demand, notice or
document received by it relating in any way to the G&A Agreement.
Exhibit C-6
(k) Limitations on Discounts, Compromises, Extensions. Other than in
the ordinary course of business as generally conducted by the Grantor over a
period of time, the Grantor will not grant any extension of the time of payment
on or performance under the G&A Agreement, compromise, compound or settle the
same for less than the full amount thereof, release, wholly or partially, any
Person liable for the payment or performance thereof, or allow any credit or
discount whatsoever thereon.
(l) Notices. The Grantor will advise the Collateral Agent and the EPN
Group Lenders promptly, in reasonable detail, at their respective addresses set
forth in the Credit Agreement, (i) of any Lien (other than Liens created hereby
or permitted under the Credit Agreement or the EPNHC Credit Agreement) on, or
claim asserted against, any of the Collateral and (ii) of the occurrence of any
other event which could reasonably be expected to have a material adverse effect
on the aggregate value of the Collateral or on the Liens created hereunder.
(m) Changes in Locations, Name, etc. The Grantor recognizes that
financing statements pertaining to the Collateral have been or may be filed
where the Grantor maintains any Collateral or is organized. Without limitation
of any other covenant herein, the Grantor will not cause or permit (i) any
change to be made in its name, identity or corporate structure or (ii) any
change to (A) the identity of any warehouseman, common carrier, other
third-party transporter, bailee or any agent or processor in possession or
control of any Collateral or (B) the Grantor's jurisdiction of organization,
unless the Grantor shall have first (1) notified the Collateral Agent and the
EPN Group Lenders of such change at least thirty (30) days prior to the
effective date of such change, and (2) taken all action reasonably requested by
the Collateral Agent or any of the EPN Group Lenders for the purpose of
maintaining the perfection and priority of the Collateral Agent's security
interests under this Security Agreement. In any notice furnished pursuant to
this subsection, the Grantor will expressly state that the notice is required by
this Security Agreement and contains facts that may require additional filings
of financing statements or other notices for the purposes of continuing
perfection of the Collateral Agent's security interest in the Collateral.
6. Collateral Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Grantor hereby irrevocably constitutes and appoints the
Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Grantor and in the name of the
Grantor or in its own name, from time to time in the Collateral Agent's
discretion, for the purpose of carrying out the terms of this Security
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Security Agreement, and, without limiting the generality of the
foregoing, the Grantor hereby gives the Collateral Agent the power and right, on
behalf of the Grantor, without notice to or assent by the Grantor, to do the
following:
(i) to pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, to effect any repairs or any insurance called
for by the terms of this Security Agreement and to pay all or any part of the
premiums therefor and the costs thereof; and
Exhibit C-7
(ii) upon the occurrence and during the continuance of any Event of
Default, (A) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due thereunder
directly to the Collateral Agent or as the Collateral Agent shall direct; (B) to
ask or demand for, collect, receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in respect of
or arising out of any Collateral; (C) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any thereof and to enforce any other
right in respect of any Collateral; (D) to defend any suit, action or proceeding
brought against the Grantor with respect to any Collateral; (E) to settle,
compromise or adjust any suit, action or proceeding described in clause (D)
above and, in connection therewith, to give such discharges or releases as the
Collateral Agent may deem appropriate; and (F) generally, to sell, transfer,
pledge and make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and to do, at the Collateral Agent's
option and the Grantor's expense, at any time, or from time to time, all acts
and things which the Collateral Agent deems necessary to protect, preserve or
realize upon the Collateral and the Collateral Agent's and the EPN Group
Lenders' Liens thereon and to effect the intent of this Security Agreement, all
as fully and effectively as the Grantor might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
(b) Other Powers. The Grantor also authorizes the Collateral Agent and
the EPN Group Lenders, at any time and from time to time, to execute, in
connection with the sale provided for in Section 9 hereof, any endorsements,
assignments or other instruments of conveyance or transfer with respect to the
Collateral.
(c) No Duty on Collateral Agent or EPN Group Lenders' Part. The powers
conferred on the Collateral Agent and the EPN Group Lenders hereunder are solely
to protect the Collateral Agent's and the EPN Group Lenders' interests in the
Collateral and shall not impose any duty upon the Collateral Agent or any of the
EPN Group Lenders to exercise any such powers. The Collateral Agent and the EPN
Group Lenders shall be accountable only for amounts that they actually receive
as a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to the Grantor for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
7. Performance by Collateral Agent of ▇▇▇▇▇▇▇'s Obligations. If the
Grantor fails to perform or comply with any of its agreements contained herein
and the Collateral Agent, as provided for by the terms of this Security
Agreement, shall itself perform or comply, or otherwise cause performance or
compliance, with such agreement, the expenses of the Collateral Agent incurred
in connection with such performance or compliance, together with interest
thereon at a rate per annum 3-1/2% above the Alternate Base Rate, shall be
payable by the Grantor to the Collateral Agent on demand and shall constitute
Obligations secured hereby.
8. Proceeds. It is agreed that if an Event of Default shall occur and
be continuing (a) all Proceeds received by the Grantor consisting of cash,
checks and other near-cash items shall be held by the Grantor in trust for the
Collateral Agent for the ratable benefit of the EPN Group
Exhibit C-8
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, segregated from other funds of the Grantor,
and shall, forthwith upon receipt by the Grantor, be turned over to the
Collateral Agent in the exact form received by the Grantor (duly indorsed by the
Grantor to the Collateral Agent, if required), and (b) any and all such Proceeds
received by the Collateral Agent (whether from the Grantor or otherwise) may, in
the sole discretion of the Collateral Agent, be held by the Collateral Agent for
the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders as
collateral security for, and/or then or at any time thereafter may be applied by
the Collateral Agent against, the Obligations (whether matured or unmatured),
such application to be in such order as the Collateral Agent shall elect. Any
balance of such Proceeds remaining after the Obligations shall have been paid in
full and the Commitments shall have been terminated shall be paid over to the
Grantor or to whomsoever may be lawfully entitled to receive the same.
9. Remedies. If an Event of Default shall occur and be continuing, the
Collateral Agent, on behalf of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
may exercise, in addition to all other rights and remedies granted to them in
this Security Agreement and in any other instrument or agreement securing,
evidencing or relating to the Obligations, all rights and remedies of a secured
party under the UCC. Without limiting the generality of the foregoing, the
Collateral Agent, without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice required by law
referred to below) to or upon the Grantor or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Collateral Agent or any of the EPN Group Lenders or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Collateral Agent or any of the EPN Group
Lenders shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Grantor, which right or equity is hereby waived or released.
The Grantor further agrees, at the Collateral Agent's request, to assemble the
Collateral and make it available to the Collateral Agent at places which the
Collateral Agent shall reasonably select, whether at the Grantor's premises or
elsewhere. The Collateral Agent shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Collateral Agent and the EPN
Group Lenders hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the Obligations,
in such order as the Collateral Agent may elect, and only after such application
and after the payment by the Collateral Agent of any other amount required by
any provision of law, including, without limitation, Section 9-615 of the UCC,
need the Collateral Agent account for the surplus, if any, to the Grantor. To
the extent permitted by applicable law, the Grantor waives all claims, damages
and demands it may acquire against the Collateral Agent or any of the EPN Group
Lenders arising out of the exercise by them of any rights hereunder except to
the extent any thereof arise solely from the willful misconduct of the
Collateral Agent. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be
Exhibit C-9
deemed reasonable and proper if given at least 10 days before such sale or other
disposition. The Grantor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay the
Obligations and the fees and disbursements of any attorneys employed by the
Collateral Agent or any of the EPN Group Lenders to collect such deficiency.
10. Limitation on Duties Regarding Preservation of Collateral. The
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. Neither the
Collateral Agent, any of the EPN Group Lenders, nor any of their respective
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Grantor or otherwise.
11. Powers Coupled with an Interest. All authorizations and agencies
herein contained with respect to the Collateral are irrevocable and powers
coupled with an interest.
12. Severability. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Paragraph Headings. The paragraph headings used in this Security
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
14. No Waiver; Cumulative Remedies. Neither the Collateral Agent nor
any of the EPN Group Lenders shall by any act (except by a written instrument
pursuant to Section 15 hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent or any of the EPN Group Lenders, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Collateral Agent or any of the EPN Group Lenders of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Collateral Agent or such EPN Group Lenders would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
15. Waivers and Amendments; Successors and Assigns; Governing Law. None
of the terms or provisions of this Security Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Grantor and the Collateral Agent, provided that any provision of this
Security Agreement may be waived by the Collateral Agent in a written letter or
agreement executed by the Collateral Agent or by facsimile
Exhibit C-10
transmission from the Collateral Agent. This Security Agreement shall be binding
upon the successors and assigns of the Grantor and shall inure to the benefit of
the Collateral Agent and the EPN Group Lenders and their respective successors
and assigns. This Security Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
16. Notices. Notices hereunder may be given by mail or by facsimile
transmission, addressed or transmitted to the Person to which it is being given
at such Person's address or transmission number set forth, in the case of the
Collateral Agent and the EPN Group Lenders, in the Credit Agreement, and in the
case of the Grantor, under its signature below, and shall be effective (a) in
the case of mail, 3 days after deposit in the postal system, first class postage
pre-paid and (b) in the case of facsimile notices, when sent. The Grantor may
change its address and transmission number by written notice to the Collateral
Agent, and the Collateral Agent or any of the EPN Group Lenders may change its
address and transmission number by written notice to the Grantor and, in the
case of a any of the EPN Group Lenders, to the Collateral Agent.
17. Authority of Collateral Agent. The Grantor acknowledges that the
rights and responsibilities of the Collateral Agent under this Security
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any option, right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Security Agreement shall, as among the Collateral Agent, the EPN
Group Lenders, and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, be governed by the Credit Agreement,
EPNHC Credit Agreement and the ▇▇▇▇▇ ▇▇▇▇ Financing Documents, and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Agent and the Grantor, the Collateral Agent shall be
conclusively presumed to be acting as agent for the EPN Group Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation, or entitlement, to
make any inquiry respecting such authority.
Exhibit C-11
IN WITNESS WHEREOF, the Grantor has caused this Security Agreement to
be duly executed and delivered as of the date first above written.
[SIGNATURE PAGES FOLLOW]
Exhibit C-12
EL PASO ENERGY PARTNERS COMPANY
By _____________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
Address for Notices:
Four Greenway Plaza
Houston, Texas 77046
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit C Signature Page-1
Agreed to:
JPMorgan Chase Bank,
as Collateral Agent
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Consented to pursuant to Section 15 of the
Existing Security Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Exhibit C Signature Page-2
EXHIBIT D
FORM OF BORROWER GUARANTEE
GUARANTEE
GUARANTEE, dated as of October 10, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee"), made by EL PASO ENERGY
PARTNERS, L.P., a Delaware limited partnership, and EL PASO ENERGY PARTNERS
FINANCE CORPORATION, a Delaware corporation (together with El Paso Energy
Partners, L.P., each a "Guarantor"), in favor of JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "EPNHC Administrative Agent") for
the banks and other financial institutions (the "EPNHC Lenders") parties to the
Amended and Restated Credit Agreement, dated as of April 8, 2002 and as amended
and restated as of October 10, 2002 (as amended, supplemented or otherwise
modified from time to time, the "EPNHC Credit Agreement") among EPN Holding
Company, L.P., a Delaware limited partnership ("EPNHC"), the EPNHC Lenders and
the EPNHC Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the EPNHC Credit Agreement, the EPNHC Lenders have
severally agreed to make Loans to EPNHC upon the terms and subject to the
conditions set forth therein; it is a condition precedent to the obligation of
the EPNHC Lenders to make their respective loans to EPNHC under the EPNHC Credit
Agreement that the Guarantor shall have executed this Guarantee for the benefit
of the EPNHC Administrative Agent and the EPNHC Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
EPNHC Administrative Agent and the EPNHC Lenders to enter into the EPNHC Credit
Agreement and to induce the EPNHC Lenders to make their respective Loans to
EPNHC under the EPNHC Credit Agreement, the Guarantor hereby agrees with the
EPNHC Administrative Agent, for the ratable benefit of the EPNHC Lenders, as
follows:
1. Defined Terms. Unless otherwise defined herein, terms which
are defined in the EPNHC Credit Agreement and used herein are so used as so
defined. As used herein, "Obligations" shall mean the unpaid principal of and
interest on (including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to EPNHC, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Notes and all other
obligations and liabilities of EPNHC to the EPNHC Administrative Agent or the
EPNHC Lenders, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, the EPNHC Credit Agreement, the other Loan Documents
and any other document made, delivered or given in connection therewith or
herewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel to the EPNHC
Exhibit D-1
Administrative Agent or the EPNHC Lenders that are required to be paid by EPNHC
pursuant to the terms of the EPNHC Credit Agreement) or otherwise.
2. Guarantee. The Guarantor hereby unconditionally and
irrevocably guarantees to the EPNHC Administrative Agent, for the ratable
benefit of the EPNHC Lenders, the prompt and complete payment and performance by
EPNHC when due (whether at the stated maturity, by acceleration or otherwise) of
the Obligations. The Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the EPNHC Administrative Agent or by the EPNHC Lenders in
enforcing, or obtaining advice of counsel in respect of, any of their rights
under this Guarantee. This Guarantee shall remain in full force and effect until
the Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto EPNHC may be free from any
Obligations.
The Guarantor agrees that whenever, at any time, or from time to time,
it shall make any payment to the EPNHC Administrative Agent or any of the EPNHC
Lenders on account of its liability hereunder, it will notify the EPNHC
Administrative Agent and such EPNHC Lenders in writing that such payment is made
under this Guarantee for such purpose. No payment or payments made by EPNHC or
any other Person or received or collected by the EPNHC Administrative Agent or
any of the EPNHC Lenders from EPNHC or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application, at any time or
from time to time, in reduction of or in payment of the Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of the
Guarantor hereunder which shall, notwithstanding any such payment or payments
received or collected from the Guarantor in respect of the Obligations, remain
liable for the Obligations until the Obligations are paid in full the
Commitments are terminated.
3. Right of Set-off. The EPNHC Administrative Agent and each of
the EPNHC Lenders are hereby irrevocably authorized at any time and from time to
time without notice to the Guarantor, any such notice being hereby waived by the
Guarantor, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the EPNHC Administrative Agent or such EPNHC Lenders to or for the
credit or the account of the Guarantor, or any part thereof in such amounts as
the EPNHC Administrative Agent or such EPNHC Lenders may elect, on account of
the liabilities of the Guarantor hereunder and claims of every nature and
description of the EPNHC Administrative Agent or such EPNHC Lenders against the
Guarantor, in any currency, whether arising hereunder, under the EPNHC Credit
Agreement, any Note or otherwise, as the EPNHC Administrative Agent or such
EPNHC Lenders may elect, whether or not the EPNHC Administrative Agent or such
EPNHC Lenders has made any demand for payment. The EPNHC Administrative Agent
and each of the EPNHC Lenders shall notify the Guarantor promptly of any such
set-off made by it and the application made by it of the proceeds thereof,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the EPNHC Administrative Agent and
each of the EPNHC Lenders under this paragraph are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which the
EPNHC Administrative Agent or such EPNHC Lenders may have.
Exhibit D-2
4. No Subrogation. Notwithstanding any payment or payments made
by the Guarantor hereunder, or any set-off or application of funds of the
Guarantor by the EPNHC Administrative Agent or any of the EPNHC Lenders, the
Guarantor shall not be entitled to be subrogated to any of the rights of the
EPNHC Administrative Agent or any of the EPNHC Lenders against EPNHC or any
other Loan Party or against any collateral security or guarantee or right of
offset held by the EPNHC Administrative Agent or any of the EPNHC Lenders for
the payment of the Obligations, nor shall the Guarantor seek or be entitled to
seek any contribution or reimbursement from EPNHC or any other Loan Party in
respect of payments made by the Guarantor hereunder, until all amounts owing to
the EPNHC Administrative Agent and the EPNHC Lenders by EPNHC or any other Loan
Party on account of the Obligations are paid in full and the Commitments are
terminated. So long as the Obligations remain outstanding, if any amount shall
be paid by or on behalf of EPNHC or any Loan Party to the Guarantor on account
of any of such subrogation rights, such amount shall be held by the Guarantor in
trust, segregated from other funds of such Guarantor, and shall, forthwith upon
receipt by such Guarantor, be turned over to the EPNHC Administrative Agent in
the exact form received by the Guarantor (duly indorsed by the Guarantor to the
EPNHC Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the EPNHC Administrative Agent
may determine. The provisions of this paragraph shall survive the term of this
Guarantee and the payment in full of the Obligations and the termination of the
Commitments.
5. Amendments, etc. with respect to the Obligations. The
Guarantor shall remain obligated hereunder and under the other Loan Documents to
which it is a party notwithstanding that, without any reservation of rights
against the Guarantor, and without notice to or further assent by the Guarantor,
any demand for payment of any of the Obligations made by the EPNHC
Administrative Agent or any of the EPNHC Lenders may be rescinded by the EPNHC
Administrative Agent or such EPNHC Lenders, and any of the Obligations
continued, and the Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the EPNHC Administrative Agent or any of the EPNHC
Lenders, and the EPNHC Credit Agreement, any Notes, any other Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the EPNHC
Lenders (or the Required EPNHC Lenders, as the case may be) may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the EPNHC Administrative Agent or any of the EPNHC Lenders for
the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the EPNHC Administrative Agent nor any of the EPNHC Lenders
shall have any obligation to protect, secure, perfect or insure any Lien at any
time held by it as security for the Obligations or for this Guarantee or any
property subject thereto.
6. Guarantee Absolute and Unconditional. The Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the EPNHC Administrative Agent
or any of the EPNHC Lenders upon this Guarantee or any other Loan Document or
acceptance of this Guarantee or any other Loan Document; the Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Guarantee and the other Loan Documents to which
the Guarantor
Exhibit D-3
is a party; and all dealings between EPNHC or the Guarantor, on the one hand,
and the EPNHC Administrative Agent and the EPNHC Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Guarantee and the other Loan Documents to which the Guarantor is a
party. The Guarantor waives diligence, presentment, protest, demand for payment
and notice of default or nonpayment to or upon EPNHC or the Guarantor with
respect to the Obligations. This Guarantee shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the EPNHC Credit Agreement, any Note, any of the
other Loan Documents, any of the Obligations or any collateral security therefor
or guarantee or right of offset with respect thereto at any time or from time to
time held by the EPNHC Administrative Agent or any of the EPNHC Lenders, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by EPNHC
against the EPNHC Administrative Agent or any of the EPNHC Lenders, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of EPNHC
or the Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of EPNHC for the Obligations, or of the Guarantor
under this Guarantee or under any other Loan Document, in bankruptcy or in any
other instance. When the EPNHC Administrative Agent is pursuing its rights and
remedies hereunder or any other Loan Document against the Guarantor, the EPNHC
Administrative Agent or any of the EPNHC Lenders may, but shall be under no
obligation to, pursue such rights and remedies as it may have against EPNHC or
any other Person or against any collateral security or guarantee for the
Obligations or any right of offset with respect thereto, and any failure by the
EPNHC Administrative Agent or any of the EPNHC Lenders to pursue such other
rights or remedies or to collect any payments from EPNHC or any such other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of EPNHC or any such other
Person or of any such collateral security, guarantee or right of offset, shall
not relieve the Guarantor of any liability hereunder or under any other Loan
Document to which it is a party, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the EPNHC
Administrative Agent and the EPNHC Lenders against the Guarantor.
7. Reinstatement. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the EPNHC Administrative Agent or any of the EPNHC Lenders upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of EPNHC or
upon or as a result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, EPNHC or any substantial part of its
property, or otherwise, all as though such payments had not been made.
8. Payments. The Guarantor hereby agrees that the Obligations
will be paid to the EPNHC Administrative Agent without set-off or counterclaim
in U.S. Dollars at the office of the EPNHC Administrative Agent located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
9. Representations, Warranties and Covenants. The Guarantor
represents and warrants to the EPNHC Administrative Agent and the EPNHC Lenders,
and agrees, that:
Exhibit D-4
(a) the Guarantor (i) is a limited partnership validly
existing and in good standing under the laws of the jurisdiction of its
formation, (ii) has the power and authority and the legal right to own
and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged and (iii)
is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect;
(b) the Guarantor has the power and authority and the
legal right to execute and deliver, and to perform its obligations
under, the Loan Documents to which it is a party, and has taken all
necessary action to authorize its execution, delivery and performance
of the Loan Documents to which it is a party;
(c) each of the Loan Documents to which the Guarantor is
a party constitutes a legal, valid and binding obligation of the
Guarantor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally;
(d) the execution, delivery and performance of each of
the Loan Documents to which the Guarantor is a party will not violate
any provision of any Requirement of Law or Contractual Obligation of
the Guarantor and will not result in or require the creation or
imposition of any Lien on any of the properties or revenues of the
Guarantor pursuant to any Requirement of Law or Contractual Obligation
of the Guarantor;
(e) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and
no consent of any other Person (including, without limitation, any
stockholder or creditor of the Guarantor) is required in connection
with the execution, delivery, performance, validity or enforceability
of any of the Loan Documents to which the Guarantor is a party;
(f) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or
against any of its properties or revenues (i) with respect to any of
the Loan Documents to which the Guarantor is a party or any of the
transactions contemplated thereby, (ii) which could have a material
adverse effect on the business, operations, property or financial or
other condition of the Guarantor or (iii) which could have a Material
Adverse Effect; and
(g) the Guarantor has filed or caused to be filed all tax
returns required to be filed by it and has paid all taxes due on said
returns or on any assessments made against it (other than those being
contested in good faith by appropriate proceedings for which adequate
reserves have been provided on its books).
10. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Exhibit D-5
11. Paragraph Headings. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
12. No Waiver; Cumulative Remedies. Neither the EPNHC
Administrative Agent nor any of the EPNHC Lenders shall by any act (except by a
written instrument pursuant to paragraph 13 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the EPNHC Administrative Agent or any of the EPNHC
Lenders, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the EPNHC Administrative
Agent or any of the EPNHC Lenders of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the EPNHC
Administrative Agent or such EPNHC Lenders would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
13. Waivers and Amendments; Successors and Assigns; Governing Law.
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantor and the EPNHC Administrative Agent, provided that any provision of
this Guarantee may be waived by the EPNHC Administrative Agent in a letter or
agreement executed by the EPNHC Administrative Agent or by facsimile
transmission from the EPNHC Administrative Agent. This Guarantee shall be
binding upon the successors and assigns of the Guarantor and shall inure to the
benefit of the EPNHC Administrative Agent and the EPNHC Lenders and their
successors and assigns. This Guarantee shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
14. Notices. All notices, requests and demands to or upon the
Guarantor or the EPNHC Administrative Agent or any of the EPNHC Lenders to be
effective shall be in writing (including by telecopy) and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or three days after deposit in the mail, postage prepaid, or,
in the case of telecopy notice, when received, addressed to a party at the
address provided for such party in subsection 11.2 of the EPNHC Credit Agreement
or the signature page hereto, as the case may be.
15. Authority of EPNHC Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the EPNHC Administrative
Agent under this Guarantee with respect to any action taken by the EPNHC
Administrative Agent or the exercise or non-exercise by the EPNHC Administrative
Agent of any option, right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Guarantee shall, as between the
EPNHC Administrative Agent and the EPNHC Lenders, be governed by the EPNHC
Credit Agreement and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the EPNHC Administrative Agent and
the Guarantor, the EPNHC Administrative Agent shall be conclusively presumed to
be acting as agent for the EPNHC
Exhibit D-6
Lenders with full and valid authority so to act or refrain from acting, and the
Guarantor shall not be under any obligation, or entitlement, to make any inquiry
respecting such authority.
16. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. THE GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF MAY BE BROUGHT AGAINST IT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY, THE GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE GUARANTOR AT ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY HOLDER
OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY OTHER
JURISDICTION.
17. WAIVERS. (a) THE GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY ACTION DESCRIBED IN PARAGRAPH 16, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE SAME.
(b) EACH OF THE GUARANTOR AND THE ADMINISTRATIVE AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER ARISING
DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS AGREEMENT.
[signature page follows]
Exhibit D-7
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
EL PASO ENERGY PARTNERS, L.P.
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
EL PASO ENERGY FINANCE CORPORATION
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Address for Notices:
Four Greenway Plaza
Houston, Texas 77046
Attn: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit D Signature Page-1
EXHIBIT E
FORM OF BORROWER PLEDGE AGREEMENT
AMENDED AND RESTATED
BORROWER PLEDGE AGREEMENT
AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT, dated as of
October 10, 2002, made by EL PASO ENERGY PARTNERS, L.P., a Delaware limited
partnership (the "Pledgor"), in favor of JPMORGAN CHASE BANK, as collateral
agent (in such capacity, the "Collateral Agent"), for the ratable benefit of (a)
the banks and other financial institutions (the "EPN Lenders") parties to the
Amended and Restated Credit Agreement, dated as of March 23, 1995 and as amended
and restated as of October 10, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among the Pledgor, El Paso
Energy Partners Finance Corporation, a Delaware corporation, as the co-borrower
("Co-Borrower"), the EPN Lenders and JPMORGAN CHASE BANK, as administrative
agent (in such capacity, the "EPN Administrative Agent"), (b) the banks and
other financial institutions (the "EPNHC Lenders"; the EPN Lenders and EPNHC
Lenders herein collectively referred to as the "EPN Group Lenders") parties to
the Amended and Restated Credit Agreement, dated as of April 8, 2002 and as
amended and restated as of October 10, 2002 (as amended, supplemented or
otherwise modified from time to time, the "EPNHC Credit Agreement") among EPN
Holding Company, L.P., a Delaware limited partnership, as the borrower ("EPNHC";
the Pledgor, the Co-Borrower and EPNHC herein collectively referred to as the
"EPN Group Borrowers"), the EPNHC Lenders and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "EPNHC Administrative Agent"; the
EPN Administrative Agent and the EPNHC Administrative Agent herein collectively
referred to as the "EPN Group Administrative Agents"), and (c) the ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ (as defined in the Credit Agreement).
W I T N E S S E T H :
WHEREAS, the Pledgor and the Collateral Agent are parties to
that certain January 2002 Amended and Restated Borrower Pledge Agreement dated
as of January 31, 2002 (as amended, supplemented and otherwise modified prior to
the date hereof, the "Existing Pledge Agreement");
WHEREAS, pursuant to the provisions of Section 7.9 of the
Credit Agreement, the Pledgor agreed that it would deliver, and would cause each
Person that is a party (or is required to be a party) to any Security Document,
other than the Collateral Agent, to deliver, amended and restated Security
Documents, together with supplemented and corrected schedules, exhibits or other
documents, if any, that are necessary to accurately reflect the collateral
existing as of the Closing Date that is pledged as security for the Obligations
(as hereinafter defined);
WHEREAS, the Pledgor is (a) the owner of a 100% limited
liability company interest in each of Argo II, a Delaware limited liability
company ("Argo II"), Crystal Holding, L.L.C., a Delaware limited liability
company ("Crystal Holding"), Delos Offshore Company, L.L.C., a Delaware limited
liability company ("Delos"), El Paso Energy Partners Deepwater,
Exhibit E-1
L.L.C., a Delaware limited liability company ("EP Deepwater"), El Paso Energy
Partners Operating Company, L.L.C., a Delaware limited liability company ("EP
Operating"), El Paso Energy Partners Oil Transport, L.L.C., a Delaware limited
liability company ("EP Transport"), Flextrend Development Company, L.L.C., a
Delaware limited liability company ("Flextrend"), Manta Ray Gathering Company,
L.L.C., a Delaware limited liability company ("Manta Ray"), Poseidon Pipeline
Company, L.L.C., a Delaware limited liability company ("Poseidon"), VK-Deepwater
Gathering Company, L.L.C., a Delaware limited liability company ("VK Deepwater")
and VK-Main Pass Gathering Company, L.L.C., a Delaware limited liability company
("VK Main Pass") (collectively, Argo II, Crystal Holding, Delos, EP Deepwater,
EP Operating, EP Transport, Flextrend, Manta Ray, Poseidon, VK Deepwater, and VK
Main Pass and any other limited liability company Subsidiary of the Pledgor
formed or acquired after the date of this Agreement whose ownership interests
are owned of record by the Pledgor and will be pledged to the Collateral Agent
hereunder are referred to herein as the "LLCs"); (b) the owner of all of the
limited partner interests in Green Canyon Pipe Line Company, L.P., a Delaware
limited partnership ("Green Canyon") (collectively, Green Canyon and any other
limited or general partnership Subsidiary of the Pledgor formed or acquired
after the date of this Agreement whose ownership interests are owned of record
by the Pledgor and will be pledged to the Collateral Agent hereunder are
referred to herein as the "Partnerships"); and (c) the legal and beneficial
owner of the shares of Pledged Stock (as hereinafter defined) issued by the
Co-Borrower (collectively, the Co-Borrower and any other corporate Subsidiary of
the Pledgor formed or acquired after the date of this Agreement whose ownership
interests are owned of record by the Pledgor and will be pledged to the
Collateral Agent hereunder are referred to herein as the "Corporations", and
collectively, the Corporations, the LLCs, the Partnerships and any other types
of Subsidiary of the Pledgor formed or acquired after the date of this Agreement
whose ownership interests are owned of record by the Pledgor and will be pledged
to the Collateral Agent hereunder are referred to herein as the "Subsidiaries");
NOW, THEREFORE, in consideration of the premises and to comply
with the requirements of Section 7.9 of the Credit Agreement, the Pledgor hereby
agrees with the Collateral Agent, for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, that the Existing Pledge Agreement is hereby
amended and restated to read in its entirety as follows:
1. Defined Terms: As used in this Agreement terms
defined in the Credit Agreement or in the recitals hereto shall have
their defined meanings when used herein and the following terms shall
have the following meanings:
"Account Debtor": A Person (other than the Borrower) obligated
on an Account, Chattel Paper, General Intangible, or the G&A Agreement.
"Agreement": This Amended and Restated Borrower Pledge
Agreement, as the same may from time to time be amended, supplemented
or otherwise modified.
"Certificate of Formation": With respect to any LLC or
Partnership that is a limited partnership, its certificate of
formation.
Exhibit E-2
"Collateral": The Interests (including, without limitation,
the Pledged Certificates), the Pledged Stock and all Proceeds. The
obligations of the Loan Parties to provide Collateral are limited by
paragraphs (c) and (d) of subsection 7.10 of the Credit Agreement.
"Commitments": (a) the "Revolving Loan Commitments" and "Term
Loan Commitments" as defined in the Credit Agreement and (b) the
"Commitments" as defined in the EPNHC Credit Agreement.
"Governing Documents": (a) with respect to any LLC, its
Certificate of Formation and its LLC Agreement; (b) with respect to any
Partnership that is a limited partnership, its Certificate of Formation
and limited partnership agreement; (c) with respect to any Partnership
that is a general partnership, its partnership agreement; and (d) with
respect to any other Non-Corporate Subsidiary, its declaration of trust
or other governing document.
"Interests":
(i) All right, title and interest, now existing
or hereafter acquired, of the Pledgor in the Non-Corporate
Subsidiaries but not any of its obligations from time to time
as a member or partner therein (unless the Collateral Agent
shall become a member or partner therein as a result of its
exercise of remedies pursuant to the terms hereof);
(ii) any and all moneys due and to become due to
the Pledgor now or in the future by way of a distribution made
to the Pledgor in its capacity as a member or partner of or
the owner of any limited liability company interest, limited
or general partner interest or other equity interest in any of
the Non-Corporate Subsidiaries or otherwise in respect of the
Pledgor's interest as a member of or partner in the
Non-Corporate Subsidiaries or the owner of any limited
liability company interests, limited or general partner
interests or other equity interests in any of the
Non-Corporate Subsidiaries;
(iii) any other property of any of the
Non-Corporate Subsidiaries to which the Pledgor now or in the
future may be entitled in its capacity as a member of, partner
in or owner of any limited liability company interest, limited
or general partner interest or other equity interest in any
such Non-Corporate Subsidiary by way of distribution, return
or otherwise;
(iv) any other claim which the Pledgor now has or
may in future acquire in its capacity as member of, partner in
or owner of any limited liability company interest, limited or
general partner interest or other equity interest in any of
the Non-Corporate Subsidiaries against any such Non-Corporate
Subsidiary and its property;
(v) to the extent not otherwise included, (A)
all Proceeds of any or all of the foregoing, and (B) all
Supporting Obligations (as such term is defined in the UCC)
with respect to the foregoing.
Exhibit E-3
"LLC Agreement": with respect to any LLC, its limited
liability company agreement.
"Non-Corporate Subsidiaries": All Subsidiaries other than the
Corporations.
"Obligations": (i) the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Pledgor or the Co-Borrower, whether or
not a claim for post filing or post petition interest is allowed in
such proceeding) the Notes and all other obligations and liabilities of
the Pledgor and Co-Borrower to the EPN Administrative Agent or the EPN
Lenders, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under,
out of, or in connection with, the Credit Agreement, the other Loan
Documents or any other document made, delivered or given in connection
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the EPN
Administrative Agent or any of the EPN Lenders) or otherwise, and (ii)
all obligations, liabilities and indebtedness of EPN or El Paso Finance
under and pursuant to the Borrower Guarantee.
"Pledged Certificates": the certificates of limited liability
company interests of the LLCs listed on Schedule I(A) hereto, together
with all limited liability company certificates, partnership interest
certificates, stock certificates, options or rights of any nature
whatsoever that may be issued or granted by any LLC to the Pledgor
while this Agreement is in effect.
"Pledged Stock": the shares of capital stock listed on
Schedule I(B) hereto, together with all stock certificates, options or
rights of any nature whatsoever that may be issued or granted by the
issue of such capital stock to the Pledgor while this Agreement is in
effect.
"Proceeds": All "proceeds" (as such term is defined in Section
9 102 of the Uniform Commercial Code in effect in the State of New York
on the date hereof) and, in any event, shall include, without
limitation, all income, gain, credit, distributions, dividends and
similar items from or with respect to the Interests (including, without
limitation, the Pledged Certificates) and the Pledged Stock,
collections thereon or distributions with respect thereto.
"UCC" or "Uniform Commercial Code": the Uniform Commercial
Code from time to time in effect in the State of New York.
2. Assignment and Grant of Security Interest. As
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of all the
Obligations, the Pledgor hereby delivers to the Collateral Agent all the Pledged
Certificates and all the Pledged Stock and sells, assigns, conveys, mortgages,
pledges, hypothecates and transfers to the Collateral Agent, and hereby grants
to the
Exhibit E-4
Collateral Agent, for the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, a first security interest in, to and under the Collateral. The
Pledgor will cause each of the Subsidiaries to execute an Acknowledgement and
Consent substantially in the form of Exhibit B hereto. Interests in certain of
the Non-Corporate Subsidiaries may not be evidenced by certificates. In the case
of such Non-Corporate Subsidiaries, the Collateral Agent agrees that it will not
give any instructions to the Non-Corporate Subsidiaries pursuant to the
provisions of such Acknowledgement and Consent except upon the occurrence and
during the continuance of an Event of Default.
3. Transfer Powers. Concurrently with the delivery to
the Collateral Agent of each Pledged Certificate and each certificate
representing one or more shares of Pledged Stock to the Collateral Agent, the
Pledgor shall deliver an undated transfer power covering each such certificate,
duly executed in blank by the Pledgor with, if the Collateral Agent so requests,
signature guaranteed.
4. Representations and Warranties. The Pledgor
represents and warrants that:
(a) the Pledgor has the power and authority and the legal
right to execute and deliver, to perform its obligations under, and to
grant the Lien on the Collateral pursuant to, this Agreement and has
taken all necessary action to authorize its execution, delivery and
performance of, and grant of the Lien on the Collateral pursuant to,
this Agreement;
(b) this Agreement constitutes a legal, valid and binding
obligation of the Pledgor enforceable against the Pledgor in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles;
(c) the execution, delivery and performance of this
Agreement will not violate any provision of any Requirement of Law or
Contractual Obligation of the Pledgor and will not result in the
creation or imposition of any Lien on any of the properties or revenues
of the Pledgor pursuant to any Requirement of Law or Contractual
Obligation of the Pledgor, except as contemplated hereby;
(d) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and
no consent of any other Person (including, without limitation, any
creditor of the Pledgor or any of the Subsidiaries), is required in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement;
(e) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of the Collateral with respect to this Agreement or any of
the transactions contemplated hereby;
(f) the Pledgor is the record and beneficial owner of,
and has good and legal title to, the Interests and the Pledged Stock,
free of any and all Liens or options in favor
Exhibit E-5
of, or claims of, any other Person, except the Liens created by this
Agreement, and (i) all the Pledged Certificates have been duly and
validly issued and (ii) all the shares of Pledged Stock have been duly
and validly issued and are fully paid and nonassessable;
(g) no security agreement, financing statement,
equivalent security or lien instrument or continuation statement
covering all or part of the Collateral is on file or of record in any
public office, except such as may have been or will be filed in favor
of the Collateral Agent pursuant to this Agreement or must have
otherwise been filed in favor of the Collateral Agent;
(h) upon delivery to the Collateral Agent of the Pledged
Certificates and the stock certificates evidencing the Pledged Stock
and upon the filing of the financing statements described on Schedule
II to this Agreement, the Lien granted pursuant to this Agreement will
constitute a valid, perfected first priority Lien on the Collateral,
prior to all other Liens, which will be enforceable as such as against
all creditors of the Pledgor and any Persons purporting to purchase any
Collateral from the Pledgor, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally.
All action necessary or desirable to perfect such security interest in
each item of the Collateral requested by the Collateral Agent,
including the filing of financing statements in the offices referred to
on Schedule II to this Agreement has been or will be duly taken;
(i) the name of the Borrower as indicated on the public
record of the Borrower's jurisdiction of organization, which shows the
Borrower to have been organized, is "El Paso Energy Partners, L.P.".
The Borrower's mailing address is Four Greenway Plaza, Houston, Texas
77046. The Borrower is a Delaware limited partnership, and the
Borrower's organizational identification number in the State of
Delaware is 2317845. The Borrower was formerly known as "Leviathan Gas
Pipeline Partners, L.P." Other than this name, the Borrower has not
used any other name or trade name. The Pledgor recognizes that
financing statements pertaining to the Collateral have been or may be
filed where the Pledgor maintains any Collateral or is organized.
Without limitation of any other covenant herein, the Pledgor will not
cause or permit (i) any change to be made in its name, identity or
corporate structure or (ii) any change to the Pledgor's jurisdiction of
organization, unless the Pledgor shall have first (1) notified the
Collateral Agent of such change at least thirty (30) days prior to the
effective date of such change, and (2) taken all action reasonably
requested by the Collateral Agent for the purpose of maintaining the
perfection and priority of the Collateral Agent's security interests
and rights under this Agreement. In any notice furnished pursuant to
this subsection, the Pledgor will expressly state that the notice is
required by this Agreement and contains facts that may require
additional filings of financing statements or other notices for the
purposes of continuing perfection of the Collateral Agent's security
interest in the Collateral;
(j) (i) each of the LLCs is a limited liability company
duly formed and validly existing under the laws of the State of
Delaware, (ii) each of the Partnerships is a general or limited
partnership (as the case may be) duly formed and validly existing under
the laws of the State of Delaware, (iii) the Co-Borrower is a
corporation duly organized,
Exhibit E-6
validly existing and in good standing under the laws of the State of
Delaware, and (iii) each of the Subsidiaries has all the requisite
power and authority to own and operate its properties, to lease the
properties it operates and to carry on its business as now conducted
and is duly qualified as a foreign limited liability company or a
foreign corporation and in good standing in each jurisdiction in which
the character of its properties owned or the nature of the activities
conducted by it makes such qualification or licensing necessary, except
where failure to be so qualified could not have a Material Adverse
Effect. Except to the extent set forth on Schedule I(A) hereto, the
Pledgor is the sole owner of each of the LLCs and Partnerships, and the
nature of the Pledgor's interest in each of the LLCs and Partnerships
is as set forth on Schedule I(A) hereto. The shares of Pledged Stock
constitutes the Pledgor's percentage interest of all the issued and
outstanding shares of all classes of the capital stock of each
Corporation, as such percentage is set forth on Schedule I(B) hereto.
The list of certificates set forth on (i) Schedule I(A) constitutes a
full and complete list of all the certificates of limited liability
company interests of the LLCs owned by the Pledgor and (ii) Schedule
I(B) constitutes a full and complete list of all of the issued and
outstanding shares of capital stock of any class of each corporate or
other Subsidiary beneficially owned by the Pledgor on the date hereof
(whether or not registered in the name of the Pledgor) and said
Schedule I(B) correctly identifies, as at the date hereof, the
respective class and par value of the shares comprising such Pledged
Stock and the respective number of shares (and registered owners
thereof) represented by each such certificate. Complete and correct
copies of the Governing Documents of each Subsidiary have been
delivered to the Collateral Agent. Transactions permitted by
subsections 8.5, 8.6 and 11.22 of the Credit Agreement shall be
permitted notwithstanding anything to the contrary in this subsection
4(j); and
(k) the execution and delivery of this Agreement will not
result in any violation of or be in conflict with or constitute a
default under any term of the Governing Documents of any Subsidiary, or
to the best knowledge of the Pledgor, of any agreement or instrument of
or judgment, decree, order, statute, rule or governmental regulation
applicable to the Pledgor, or result in the creation of any Lien upon
any of the properties or assets of the Pledgor (including, without
limitation, the Collateral) pursuant to any such term other than the
Lien in favor of the Collateral Agent created pursuant to this
Agreement.
5. Covenants. The Pledgor covenants and agrees with the
Collateral Agent that, from and after the date of this Agreement until the
Obligations are paid in full:
(a) If the Pledgor shall, as a result of its ownership of
the Collateral, become entitled to receive or shall receive any limited
liability company interest, any stock certificate or other certificate
(including, without limitation, any certificate representing a stock
dividend or distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights, whether in
addition to, in substitution of, as a conversion of, or in exchange for
Interests or any shares of the Pledged Stock, or otherwise in respect
thereof, the Pledgor shall accept the same as the Collateral Agent's
agent, hold the same in trust for the Collateral Agent and deliver the
same forthwith to the Collateral Agent in the exact form received, duly
indorsed by the Pledgor to the Collateral Agent, if required,
Exhibit E-7
together with an undated stock power covering such certificate duly
executed in blank and with, if the Collateral Agent so requests,
signature guaranteed, to be held by the Collateral Agent hereunder as
additional collateral security for the Obligations. Any sums paid upon
or in respect of the Pledged Stock upon the liquidation or dissolution
of any corporate or other Subsidiary, such payments shall be paid over
to the Collateral Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any distribution
of capital shall be made on or in respect of the Collateral or any
property shall be distributed upon or with respect to the Collateral
pursuant to the recapitalization or reclassification of the capital of
any of the Subsidiaries, or pursuant to the reorganization thereof, the
property so distributed shall be delivered to the Collateral Agent to
be held by it, subject to the terms hereof, as additional collateral
security for the Obligations. If any sums of money or property so paid
or distributed in respect of the Collateral shall be received by the
Pledgor, the Pledgor shall, until such money or property is paid or
delivered to the Collateral Agent, hold such money or property in trust
for the Collateral Agent, segregated from other funds of the Pledgor,
as additional collateral security for the Obligations.
(b) Except as permitted under the Credit Agreement or the
EPNHC Credit Agreement, without the prior written consent of the
Collateral Agent, the Pledgor will not (i) sell, assign, transfer,
exchange or otherwise dispose of, or grant any option with respect to,
the Collateral, (ii) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of
the Collateral, or any interest therein, except for the Lien provided
for by this Agreement or (iii) vote to enable, or take any other action
to permit, any corporate or other Subsidiary to issue any stock or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock or other equity securities of any nature of such Subsidiary. The
Pledgor will defend the right, title and interest of the Collateral
Agent in and to the Collateral against the claims and demands of all
Persons whomsoever. The Pledgor will not sell, transfer or otherwise
dispose of any of the Collateral, or attempt, offer or contract to do
so.
(c) At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of the
Pledgor, the Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Collateral Agent may reasonably request for the purposes of obtaining
or preserving the full benefits of this Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code
in effect in any jurisdiction with respect to the Lien granted hereby.
The Pledgor hereby authorizes the Collateral Agent, its counsel or its
representative, at any time and from time to time, to file financing
statements and amendments to financing statements that describe the
Collateral, in such jurisdictions as the Collateral Agent may deem
necessary or desirable in order to perfect or maintain the perfection
of the security interests granted by the Pledgor under this Agreement.
The Pledgor hereby further authorizes the Collateral Agent, its counsel
or its representative, at any time and from time to time, to file
continuation statements with respect to previously filed financing
statements. If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any promissory
Exhibit E-8
note or other instrument, such note or instrument shall be immediately
pledged hereunder to the Collateral Agent, duly endorsed in a manner
satisfactory to the Collateral Agent.
(d) The Pledgor will advise the Collateral Agent
promptly, in reasonable detail, of any Lien or claim made or asserted
against any of the Collateral.
(e) The Pledgor agrees to pay, and to save the Collateral
Agent harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(f) Promptly, but in no case later than 30 days after the
Pledgor forms or acquires a Subsidiary that is to be a Restricted
Subsidiary, the Pledgor shall provide to the Collateral Agent a
supplement to this Agreement in the form of Exhibit A hereto, which
shall include a schedule supplementing Schedule I or Schedule II, as
the case may be, to pledge its ownership interests in such Restricted
Subsidiary to the Collateral Agent.
(g) Cash Distributions; Cash Dividends; Voting Rights.
Unless an Event of Default shall have occurred and be continuing, the Pledgor
shall be permitted to receive (a) all cash distributions paid in the normal
course of business of the LLCs and to exercise all voting, member and manager
rights with respect to the Interests, and (b) all cash dividends paid in the
normal course of business of any corporate or other Subsidiary and consistent
with past practice, in respect of the Pledged Stock and to exercise all voting
and corporate rights with respect to the Pledged Stock; provided, however, that
no vote shall be cast or right exercised or other action taken which, in the
Collateral Agent's reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in a breach of any provision of the Credit
Agreement or the EPNHC Credit Agreement, the Notes, any other Loan Document or
this Agreement.
7. Rights of the Collateral Agent.
(a) If an Event of Default shall occur and be continuing,
(i) the Collateral Agent shall have the right to receive and shall
receive any and all cash distributions or dividends paid in respect of
the Collateral and make application thereof to the Obligations in such
order as it may determine, and (ii) to the extent permitted by
applicable law, all shares or certificates of or evidencing the
Interests and the Pledged Stock shall be registered in the name of the
Collateral Agent or its nominee, and (whether or not so registered) the
Collateral Agent or its nominee may thereafter exercise (A) all voting,
corporate, member, manager and other rights pertaining to the Interests
or the shares of the Pledged Stock, as the case may be, and (B) any and
all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to the Interests or such shares of the
Pledged Stock, as the case may be, as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its
discretion any and all of the Interests or the Pledged Stock upon the
merger, consolidation, reorganization, recapitalization or other
fundamental change in the structure of any of the Subsidiaries, or upon
the exercise by the Pledgor or the Collateral Agent of any right,
privilege or option pertaining to such shares or certificates of or
Exhibit E-9
evidencing the Interests or the Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the
Interests or the Pledged Stock with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and
conditions as it may determine), all without liability except to
account for property actually received by it, but the Collateral Agent
shall have no duty to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
(b) The rights of the Collateral Agent hereunder shall
not be conditioned or contingent upon the pursuit by the Collateral
Agent of any right or remedy against any Subsidiary, or against any
other Person which may be or become liable in respect of all or any
part of the Obligations or against any other collateral security
therefor, guarantee thereof or right of offset with respect thereto.
The Collateral Agent shall not be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any
delay in doing so, nor shall it be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or
any other Person or to take any other action whatsoever with regard to
the Collateral or any part thereof.
8. Collateral Agent's Appointment as Attorney-in-Fact.
(a) The Pledgor hereby irrevocably constitutes and
appoints the Collateral Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of the
Pledgor and in the name of the Pledgor or in its own name, from time to
time in the Collateral Agent's discretion, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement
and, without limiting the generality of the foregoing, hereby gives the
Collateral Agent the power and right, on behalf of the Pledgor without
notice to or assent by the Pledgor to do the following:
(i) upon the occurrence and continuation of an
Event of Default to ask, demand, collect, receive and give
acceptances and receipts for any and all moneys due and to
become due with respect to the Collateral and, in the name of
the Pledgor or its own name or otherwise, to take possession
of, endorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of moneys due with
respect to the Collateral and to file any claim or to take any
other action or proceeding in any court of law or equity or
otherwise as deemed appropriate by the Collateral Agent for
the purpose of collecting any and all such moneys due with
respect to the Collateral or whenever payable;
(ii) to pay or discharge taxes, liens, security
interests or other encumbrances levied or placed on or
threatened against the Collateral; and
(iii) upon the occurrence and during the
continuance of an Event of Default, (A) to direct any Person
liable for any payment to the Pledgor with respect to the
Collateral to make payment of any and all moneys due and to
Exhibit E-10
become due thereunder directly to the Collateral Agent or as
the Collateral Agent shall direct; (B) to receive payment of
and receipt for any and all moneys, claims and other amounts
due and to become due at any time in respect of or arising out
of any Collateral; (C) to sign and indorse any invoices,
drafts against debtors, assignments, verifications and notices
in connection with accounts and other documents relating to
the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral and to
enforce any other right in respect of any Collateral; (E) to
defend any suit, action or proceeding brought against the
Pledgor with respect to any Collateral; (F) to settle,
compromise or adjust any suit, action or proceeding described
above and, in connection therewith, to give such discharges or
releases as the Collateral Agent may deem appropriate; and (G)
generally, to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral as
fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and to do, at the
Collateral Agent's option and the Pledgor's expense, at any
time, or from time to time, all acts and things which the
Collateral Agent deems necessary to protect, preserve or
realize upon the Collateral and the Collateral Agent's
security interest therein, in order to effect the intent of
this Agreement, all as fully and effectively as the Pledgor
might do.
The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof.
(b) The powers conferred on the Collateral Agent
hereunder are solely to protect its interests in the Collateral and
shall not impose any duty upon it to exercise any such powers. The
Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither it nor
any of its officers, directors, employees or agents shall be
responsible to the Pledgor, any Subsidiary or to any other member or
partner of or owner of any limited or general partner interest, limited
liability company interest or other equity interest in any
Non-Corporate Subsidiary for any act or failure to act.
(c) The Pledgor also authorizes the Collateral Agent, at
any time and from time to time, to execute, in connection with the sale
provided for in Section 9 of this Agreement, any endorsements,
assignments or other instruments of conveyance or transfer with respect
to the Collateral.
9. Remedies. If an Event of Default shall occur and be
continuing, the Collateral Agent may exercise, in addition to all other rights
and remedies granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the UCC. Without limiting the generality of the foregoing
and to the extent permitted by applicable law, the Collateral Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon the Pledgor, any of the Subsidiaries or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive,
Exhibit E-11
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give option or options to purchase or otherwise dispose
of and deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, in the
over the counter market, at any exchange, broker's board or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk. The Collateral Agent shall have the right upon any such public sale
or sales, and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of the Collateral so sold, free of any
right or equity of redemption in the Pledgor, which right or equity is hereby
waived or released. The Collateral Agent shall apply any Proceeds from time to
time held by it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred therein or incidental to the care or safekeeping
of any of the Collateral or in any way relating to the Collateral or the rights
of the Collateral Agent hereunder, including, without limitation, reasonable
attorneys' fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Collateral Agent may elect, and only after
such application and after the payment by the Collateral Agent of any other
amount required by any provision of law, including, without limitation, Section
9 615 of the UCC, need the Collateral Agent account for the surplus, if any, to
the Pledgor. To the extent permitted by applicable law, the Pledgor waives all
claims, damages and demands it may acquire against the Collateral Agent arising
out of the exercise by the Collateral Agent of any of its rights hereunder
except to the extent any thereof arise solely from the willful misconduct of the
Collateral Agent. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition. The
Pledgor shall remain liable for any deficiency if the proceeds of any sale or
other disposition of Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Collateral Agent or any
Lender to collect such deficiency.
10. Registration Rights; Private Sales.
(a) If the Collateral Agent shall determine to exercise
its right to sell any or all of the Interests or the Pledged Stock, as
the case may be, pursuant to paragraph 9 hereof, and if in the opinion
of the Collateral Agent it is necessary or advisable to have the
Interests or the Pledged Stock, as the case may be, or that portion
thereof to be sold, registered under the provisions of the Securities
Act of 1933, as amended (the "Securities Act"), the Pledgor will cause
the relevant Subsidiaries to (i) execute and deliver, and cause the
managers, directors or officers of the relevant Subsidiaries to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of the Collateral
Agent, necessary or advisable to register the Interests or the Pledged
Stock, as the case may be, or that portion thereof to be sold, under
the provisions of the Securities Act, (ii) use its best efforts to
cause the registration statement relating thereto to become effective
and to remain effective for a period of one year from the date of the
first public offering of the Interests, or that portion thereof to be
sold, and (iii) make all amendments thereto and/or to the related
prospectus which, in the opinion of the Collateral Agent, are necessary
or advisable, all in conformity with the requirements of the Securities
Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. The Pledgor agrees to cause the relevant
Exhibit E-12
Subsidiaries to comply with the provisions of the securities or "Blue
Sky" laws of any and all jurisdictions which the Collateral Agent shall
designate and to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which
will satisfy the provisions of Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Collateral Agent may
be unable to effect a public sale of any or all the Interests, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. The Pledgor
acknowledges and agrees that any such private sale may result in prices
and other terms less favorable to the Collateral Agent than if such
sale were a public sale and agrees that such circumstances shall not,
in and of themselves, result in a determination that such sale was not
made in a commercially reasonable manner. The Collateral Agent shall be
under no obligation to delay a sale of any of the Interests or the
Pledged Stock, as the case may be, for the period of time necessary to
permit any of the relevant Subsidiaries to register such securities for
public sale under the Securities Act, or under applicable state
securities laws, even if such Subsidiaries would agree to do so.
(c) The Pledgor further agrees to use its best efforts to
do or cause to be done all such other acts as may be necessary to make
any sale or sales of all or any portion of the Interests or the Pledged
Stock pursuant to this Section valid and binding and in compliance with
any and all other applicable Requirements of Law. The Pledgor further
agrees that a continuing breach of any of the covenants contained in
this Section will cause irreparable injury to the Collateral Agent, the
Co-Agent and the EPN Group Lenders, that the Collateral Agent, the
Co-Agent and the EPN Group Lenders have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every
covenant contained in this Section shall be specifically enforceable
against the Pledgor, and the Pledgor hereby waives and agrees not to
assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred.
11. Limitation on Duties Regarding Collateral. The
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9 207
of the UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar securities and property for its own account.
Neither the Collateral Agent nor any of its directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Pledgor or
otherwise.
12. Powers Coupled with an Interest. All authorizations
and agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
13. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
Exhibit E-13
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
14. Paragraph Headings. The paragraph headings used in
this Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
15. No Waiver; Cumulative Remedies; Integration. The
Collateral Agent shall not by any act (except by a written instrument pursuant
to this paragraph), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Collateral Agent,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Collateral Agent of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Collateral Agent would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law. This Agreement represents the agreement of the Pledgor and the
Collateral Agent with respect to the subject matter hereof and there are no
promises or representations by the Collateral Agent relative to the subject
matter hereof not reflected herein.
16. Waivers and Amendments; Successors and Assigns;
Governing Law. None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Pledgor and the Collateral Agent, provided that any provision of
this Agreement that imposes an obligation solely on the Pledgor or provides a
right in favor solely of the Collateral Agent may be waived by the Collateral
Agent in a letter or agreement executed by the Collateral Agent or by facsimile
transmission from the Collateral Agent. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the
Collateral Agent and its successors and assigns. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. THE
PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT AGAINST IT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE PLEDGOR
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE
PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
Exhibit E-14
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
PLEDGOR AT ITS ADDRESS SET FORTH IN THE CREDIT AGREEMENT. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE COLLATERAL AGENT OR ANY HOLDER OF A NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE PLEDGOR IN ANY OTHER JURISDICTION.
18. WAIVERS.
(a) THE PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY ACTION DESCRIBED IN PARAGRAPH 17, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE
SAME.
(b) EACH OF THE PLEDGOR AND THE COLLATERAL AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER
ARISING DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS
AGREEMENT.
19. Notices. All notices, requests and demands to or upon
the Collateral Agent, the Pledgor or the Subsidiaries to be effective shall be
in writing (including by facsimile transmission), and, unless otherwise
expressly provided herein, shall be deemed to have been given or made when
actually delivered or, in the case of notice by facsimile transmission, when
received, addressed as set forth in the Credit Agreement, in the case of the
Pledgor and the Collateral Agent, or as set forth under such party's signature
below, in the case of the Subsidiaries. The Pledgor and the Subsidiaries may
change their respective addresses and transmission numbers by written notice to
the Collateral Agent.
20. Irrevocable Authorization and Instruction to
Subsidiaries. The Pledgor hereby authorizes and instructs each of the
Subsidiaries to comply with any instruction received by it from the Collateral
Agent in writing that (a) states that an Event of Default has occurred and
describes such Event of Default and (b) is otherwise in accordance with the
terms of this Agreement, without any other or further instructions from the
Pledgor, and the Pledgor agrees that the Subsidiaries shall be fully protected
in so complying.
21. Release of Liens. Upon payment and satisfaction in
full of the Obligations, the Collateral Agent agrees, upon the written request
of the Pledgor and at the Pledgor's sole expense, to execute, record and file
such instruments and perform such acts as are necessary to release the
Collateral from the Lien and security interest of this Agreement or any
assignment or other security document entered into pursuant hereto.
Exhibit E-15
22. The Collateral Agent Not a Member. Nothing contained
in this Agreement shall be construed or interpreted (a) to transfer to the
Collateral Agent any of the obligations of a member, manager, partner or other
owner of any of the Subsidiaries or (b) to constitute the Collateral Agent a
member, manager, partner or other owner of any of the Subsidiaries.
23. Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
[SIGNATURE PAGES FOLLOW]
Exhibit E-16
EL PASO ENERGY PARTNERS, L.P.
By: El Paso Energy Partners Company,
its General Partner
By: ________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Vice President and Controller
Exhibit E Signature Page-1
Agreed to:
JPMorgan Chase Bank,
as Collateral Agent
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Consented to pursuant to Section 16 of the
Existing Pledge Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Exhibit E Signature Page-2
SCHEDULE I
(A) LIMITED LIABILITY COMPANY AND PARTNERSHIP INTERESTS
Issuer
Certificate
Number (if any)
Equity
Interest
LLCs
--------------------------------------------------------------------------------
Certificate Equity
Issuer Number (if any) Interest
--------------------------------------------------------------------------------
LLCs
--------------------------------------------------------------------------------
Argo II 100%
--------------------------------------------------------------------------------
Crystal Holding 100%
--------------------------------------------------------------------------------
Delos 100%
--------------------------------------------------------------------------------
EP Deepwater 100%
--------------------------------------------------------------------------------
EP Operating 100%
--------------------------------------------------------------------------------
EP Transport 100%
--------------------------------------------------------------------------------
Flextrend 100%
--------------------------------------------------------------------------------
Manta Ray 100%
--------------------------------------------------------------------------------
Poseidon 100%
--------------------------------------------------------------------------------
VK Deepwater 100%
--------------------------------------------------------------------------------
VK Main Pass 100%
--------------------------------------------------------------------------------
PARTNERSHIPS
--------------------------------------------------------------------------------
Green Canyon 99% (entire limited
partner interest)
--------------------------------------------------------------------------------
Exhibit E Schedules-1
(B) DESCRIPTION OF PLEDGED STOCK
Issuer Class of Stock* Stock Certificate No. of Shares
No.
El Paso Energy Partners All of its capital
Finance Corporation stock
*Stock is assumed to be common stock unless otherwise indicated.
Exhibit E Schedules-2
SCHEDULE II
UCC FILINGS
State Filing Office Document Filed
----- ------------- --------------
Delaware Secretary of State UCC-1
Exhibit E Schedules-3
Exhibit A to Borrower
Pledge Agreement
[FORM OF PLEDGE AGREEMENT SUPPLEMENT]
PLEDGE AGREEMENT SUPPLEMENT, dated as of ________, 20__ (this
"Supplement"), made by EL PASO ENERGY PARTNERS, L.P., a Delaware limited
partnership (the "Pledgor"), in favor of JPMORGAN CHASE BANK, as collateral
agent (in such capacity, the "Collateral Agent"), for the ratable benefit of (a)
the banks and other financial institutions (the "EPN Lenders") parties to the
Amended and Restated Credit Agreement, dated as of March 23, 1995 and as amended
and restated as of May 16, 2001 and October 10, 2002 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement") among the
Pledgor, El Paso Energy Partners Finance Corporation, a Delaware corporation, as
the co-borrower ("Co-Borrower"), the EPN Lenders and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "EPN Administrative Agent"), (b) the
banks and other financial institutions (the "EPNHC Lenders"; the EPN Lenders and
EPNHC Lenders herein collectively referred to as the "EPN Group Lenders")
parties to the Amended and Restated Credit Agreement, dated as of April 8, 2002
and as amended and restated as of October 10, 2002 (as amended, supplemented or
otherwise modified from time to time, the "EPNHC Credit Agreement") among EPN
Holding Company, L.P., a Delaware limited partnership, as the borrower ("EPNHC";
the Pledgor, the Co-Borrower and EPNHC herein collectively referred to as the
"EPN Group Borrowers"), the EPNHC Lenders and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "EPNHC Administrative Agent"), and
(c) the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (as defined in the Credit Agreement).
1. Reference is hereby made to that Amended and Restated
Borrower Pledge Agreement, dated as of October 10, 2002, between Pledgor and the
Collateral Agent (as amended, supplemented or modified as of the date hereof,
the "Pledge Agreement"). Terms defined in the Pledge Agreement are used herein
as therein defined.
2. Pledgor has acquired formed or acquired one or more
new Subsidiaries, as follows: [insert name, jurisdiction of formation, and type
of entity for each new Subsidiary] (whether one or more, the "New Issuer"). [ADD
ONLY IF NEW ISSUER IS A NON-CORPORATE SUBSIDIARY WITH UNCERTIFICATED EQUITY
INTERESTS: Pledgor owns a ___% [limited liability company/limited
partnership/general partnership/other interest in the New Issuer, and such
interest in the New Issuer is uncertificated.]
3. Pledgor hereby confirms and reaffirms the security
interest in the Collateral granted to the Collateral Agent for the ratable
benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders under the Pledge
Agreement. As additional collateral security for the prompt and complete payment
and performance when due (whether at the stated maturity, by acceleration or
otherwise) of all the Obligations(1) the Pledgor hereby (a) delivers to the
Collateral
------------------
(1) Conform the following description of the additional collateral as necessary,
depending on what type of entity the Pledgor is acquiring.
Exhibit E Schedules-4
Agent all the Additional Pledged Certificates (as such term is hereinafter
defined) and all the Additional Pledged Stock (as such term is hereinafter
defined), and (b) sells, assigns, conveys, mortgages, pledges, hypothecates and
transfers to the Collateral Agent, and hereby grants to the Collateral Agent,
for the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, a
first security interest in, to and under the Additional Collateral (as such term
is hereinafter defined). As used herein, the term "Additional Pledged
Certificates" means the certificates of [limited liability company/limited
partnership/general partnership/other] interests of the Non-Corporate
Subsidiaries (the "Additional Subsidiaries") named on Schedule I(A) hereto (to
the extent such interests are certificated), which interests are listed on
Schedule I(A) hereto, together with all limited liability company certificates,
partnership interest certificates, stock certificates, options or rights of any
nature whatsoever that may be issued or granted by any Additional Subsidiary to
the Pledgor while the Pledge Agreement is in effect. As used herein, the term
"Additional Pledged Stock" means the shares of capital stock listed on Schedule
I(B) hereto, together with all stock certificates, options or rights of any
nature whatsoever that may be issued or granted by the issuer of such shares of
capital stock to the Pledgor while the Pledge Agreement is in effect. As used
herein, the term "Additional Collateral" means the Additional Interests (as such
term is hereinafter defined) (including, without limitation, the Additional
Pledged Certificates), the Additional Pledged Stock, and all Additional Proceeds
(as such term is hereinafter defined). As used herein, the term "Additional
Interests" means, collectively, the following:
(i) all right, title and interest, now existing
or hereafter acquired, of Pledgor in the Additional
Subsidiaries, but not any of Pledgor's obligations from time
to time as a member, manager or general or limited partner
(unless the Collateral Agent shall become a member, manager or
general or limited partner as a result of this exercise of
remedies pursuant to the terms of the Pledge Agreement) in any
Additional Subsidiary;
(ii) any and all monies due and to become due to
Pledgor, now or in the future by way of a distribution made to
Pledgor in its capacity as a member or owner of any limited
liability company interest in the Additional Subsidiaries or
otherwise in respect of ▇▇▇▇▇▇▇'s interest as a member,
limited or general partner or other owner of any equity
interest in the Additional Subsidiaries;
(iii) any other property of any Additional
Subsidiary to which Pledgor now or in the future may be
entitled in its capacity as a member, limited or general
partner or other owner of any equity interest in such
Additional Subsidiary by way of distribution, return or
otherwise;
(iv) any other claim which Pledgor now has or may
in the future acquire in its capacity as a member, limited or
general partner or other owner of any equity interest in any
Additional Subsidiary and its property; and
(v) to the extent not otherwise included, all
(A) Additional Proceeds of any or all of the foregoing, and
(B) all Supporting Obligations (as such term is defined in the
UCC) with respect to the foregoing.
Exhibit E Schedules-5
As used herein, the term "Additional Proceeds" means all "proceeds" (as such
term is defined in Section 9 102 of the Uniform Commercial Code in effect in the
State of New York on the date hereof) and, in any event, shall include, without
limitation, all income, gain, credit, distributions, dividends and similar items
from or with respect to the Additional Interests (including, without limitation,
the Additional Pledged Certificates) and the Additional Pledged Stock,
collections thereon or distributions with respect thereto.
4. From and after the date of this Supplement, (a) the
term "Pledged Certificates" as used in the Pledge Agreement shall be amended to
include the Additional Pledged Certificates, (b) the term "Subsidiaries" as used
in the Pledge Agreement shall be amended to include the Additional Subsidiaries,
(c) the term "Pledged Stock" as used in the Pledge Agreement shall be amended to
include the Additional Pledged Stock, (d) the term "Collateral" as used in the
Pledge Agreement shall be amended to include the Additional Collateral, and (e)
the term "Proceeds" as used in the Pledge Agreement shall be amended to include
the Additional Proceeds.
5. The Pledgor will cause each of the New Issuers to
execute an Acknowledgement and Consent substantially in the form of Exhibit B to
the Pledge Agreement. Interests in certain of the Additional Subsidiaries may
not be evidenced by certificates. In the case of such Additional Subsidiaries,
the Collateral Agent agrees that it will not exercise its right under any such
Acknowledgement and Consent to give instructions to such Additional Subsidiaries
regarding the Pledgor's limited liability company, limited or general
partnership or other equity interest in such Additional Subsidiaries except upon
the occurrence and during the continuance of an Event of Default.
6. After giving effect to the amendments to the Pledge
Agreement set forth in the preceding paragraph, Pledgor hereby represents and
warrants that the representations and warranties contained in paragraph 4 of the
Pledge Agreement are true and correct on the date of this Supplement.
7. This Supplement is supplemental to the Pledge
Agreement, forms a part thereof and is subject to the terms thereof. [Schedule I
and/or Schedule II] to the Pledge Agreement shall hereby be deemed to include
each item listed on [Schedule I and/or Schedule II] to this Supplement.
IN WITNESS WHEREOF, Pledgor and the Collateral Agent have
caused this Supplement to be duly executed and delivered on the date first set
forth above.
EL PASO ENERGY PARTNERS, L.P.
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Address for Notices:
Four Greenway Plaza
Exhibit E Schedules-6
Houston, Texas 77046
Attn: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit E Schedules-7
Schedule I
To Pledge Agreement
Supplement
SCHEDULE I
(A) ADDITIONAL SUBSIDIARIES
Certificate Equity
Issuer Number Interest
------ ----- --------
(B) DESCRIPTION OF ADDITIONAL PLEDGED STOCK
Stock
Class Certificate No. of
Issuer of Stock* No. Shares
------ -------- -- ------
------------------
* Stock is assumed to be common stock unless otherwise indicated.
Exhibit E Schedules-8
Schedule II
To Pledge Agreement
Supplement
SCHEDULE II
ADDITIONAL UCC FILINGS
State Filing Office Document Filed
----- ------------- ---------------
Exhibit E Schedules-9
EXHIBIT B TO BORROWER
PLEDGE AGREEMENT
FORM OF ACKNOWLEDGEMENT AND CONSENT
[NAME OF NEW PLEDGED SUBSIDIARY] (the "Issuer") hereby acknowledges
receipt of a copy of the foregoing Supplement and the Pledge Agreement referred
to therein and agrees to be bound thereby and to comply with the terms thereof
insofar as such terms are applicable to it. The Issuer agrees to notify the
Collateral Agent promptly in writing of the occurrence of any of the events
described in paragraph 5(a) of the Pledge Agreement, as supplemented by such
Supplement. The Issuer further agrees that the terms of paragraph 10(c) of the
Pledge Agreement, as supplemented by such Supplement, shall apply to it, mutatis
mutandis, with respect to all actions that may be required of it under or
pursuant to or arising out of paragraph 10 of the Pledge Agreement, as
supplemented by such Supplement. The Issuer hereby also agrees that it will
comply with instructions originated by the Collateral Agent without the consent
of the Pledgor.
_______________, 2002
[NAME OF NEW PLEDGED SUBSIDIARY]
By: ___________________________
Title:
Exhibit E Schedules-10
EXHIBIT F
FORM OF BORROWER SECURITY AGREEMENT
AMENDED AND RESTATED
BORROWER SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of October
10, 2002, made by EL PASO ENERGY PARTNERS, L.P., a Delaware limited partnership
("EPN"), and EL PASO ENERGY PARTNERS FINANCE CORPORATION, a Delaware corporation
("El Paso Finance"; EPN and El Paso Finance herein collectively referred to as
the "Borrower") in favor of JPMORGAN CHASE BANK, as collateral agent (in such
capacity, the "Collateral Agent"), for the ratable benefit of (a) the banks and
other financial institutions (the "EPN Lenders") parties to the Amended and
Restated Credit Agreement, dated as of March 23, 1995 and as amended and
restated as of October 10, 2002 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among EPN, El Paso Finance, the EPN
Lenders and JPMORGAN CHASE BANK, as administrative agent (in such capacity, the
"EPN Administrative Agent"), (b) the banks and other financial institutions (the
"EPNHC Lenders"; the EPN Lenders and EPNHC Lenders herein collectively referred
to as the "EPN Group Lenders") parties to the Amended and Restated Credit
Agreement, dated as of April 8, 2002 and as amended and restated as of October
10, 2002 (as amended, supplemented or otherwise modified from time to time, the
"EPNHC Credit Agreement") among EPN Holding Company, L.P., a Delaware limited
partnership, as the borrower ("EPNHC"; EPN, El Paso Finance and EPNHC herein
collectively referred to as the "EPN Group Borrowers"), the EPNHC Lenders and
JPMORGAN CHASE BANK, as administrative agent (in such capacity, the "EPNHC
Administrative Agent"; the EPN Administrative Agent and the EPNHC Administrative
Agent herein collectively referred to as the "EPN Group Administrative Agents"),
and (c) the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (as defined in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, EPN and the Collateral Agent are parties to that
January 2002 Amended and Restated Borrower Security Agreement, dated as of
January 31, 2002 (as amended, supplemented and otherwise modified prior to the
date hereof, the "Existing Security Agreement");
WHEREAS, pursuant to the provisions of Section 7.9 of the
Credit Agreement, the Borrower agreed that it would deliver, and would cause
each Person that is a party (or is required to be a party) to any Security
Document, other than the Collateral Agent, to deliver, amended and restated
Security Documents, together with supplemented and corrected schedules, exhibits
or other documents, if any, that are necessary to accurately reflect the
collateral existing as of the Closing Date that is pledged as security for the
Obligations (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and to comply
with the requirements of Section 7.9 of the Credit Agreement, the Borrower
hereby agrees with the Collateral Agent, for the ratable benefit of the EPN
Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
Exhibit F-1
that the Existing Security Agreement is hereby amended and restated to read in
its entirety as follows:
1. Defined Terms. Unless otherwise defined herein, terms
which are defined in the Credit Agreement and used herein are so used
as so defined; the following terms which are defined in the Uniform
Commercial Code in effect in the State of New York on the date hereof
are used herein as so defined: Accounts, Chattel Paper, Commercial Tort
Claims, Deposit Accounts, Documents, Electronic Chattel Paper,
Equipment, Farm Products, General Intangibles, Instruments, Inventory,
Investment Property, Letter-of-Credit Rights, Payment Intangibles,
Supporting Obligations, Promissory Notes, Proceeds; and the following
terms shall have the following meanings:
"Account Debtor": a Person (other than the Borrower) obligated
on an Account, Chattel Paper, General Intangible, or the G&A Agreement.
"Collateral": as defined in Section 2 of this Security
Agreement. The obligations of the Loan Parties to provide Collateral
are limited by paragraphs (c) and (d) of subsection 7.10 of the Credit
Agreement.
"Commitments": (a) the "Revolving Loan Commitments" and "Term
Loan Commitments" as defined in the Credit Agreement and (b) the
"Commitments" as defined in the EPNHC Credit Agreement.
"Obligations": (i) the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to EPN or El Paso Finance, whether or not a
claim for post filing or post petition interest is allowed in such
proceeding) the Notes and all other obligations and liabilities of EPN
and El Paso Finance to the EPN Administrative Agent or the EPN Lenders,
whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may arise under, out of,
or in connection with, the Credit Agreement, the other Loan Documents
or any other document made, delivered or given in connection therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees and disbursements of counsel to the EPN Administrative Agent or
any of the EPN Lenders) or otherwise, and (ii) all obligations,
liabilities and indebtedness of EPN or El Paso Finance under and
pursuant to the Borrower Guarantee.
"Patents": (a) all letters patent of the United States and all
reissues and extensions thereof, including, without limitation, any
thereof referred to in Schedule I hereto, and (b) all applications for
letters patent of the United States and all divisions, continuations
and continuations-in-part thereof or any other country, including,
without limitation, any thereof referred to in Schedule I hereto.
Exhibit F-2
"Patent License": all agreements, whether written or oral,
providing for the grant by the Borrower of any right to manufacture,
use or sell any invention covered by a Patent, including, without
limitation, any thereof referred to in Schedule I hereto.
"Security Agreement": this Amended and Restated Borrower
Security Agreement, as amended, supplemented or otherwise modified from
time to time.
"Trademarks": (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and the
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule II hereto, and (b) all renewals
thereof.
"Trademark License": any agreement, written or oral, providing
for the grant by the Borrower of any right to use any Trademark,
including, without limitation, any thereof referred to in Schedule II
hereto.
"UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Vehicles": all cars, trucks, trailers, construction and earth
moving equipment and other vehicles covered by a certificate of title
law of any state and, in any event, shall include, without limitation,
the vehicles listed on Schedule III hereto and all tires and other
appurtenances to any of the foregoing.
2. Grant of Security Interest. As collateral security
for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of the
Obligations, the Borrower hereby grants to the Collateral Agent for the
ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, a
security interest in all of the following property now owned or at any
time hereafter acquired by the Borrower or in which the Borrower now
has or at any time in the future may acquire any right, title or
interest (collectively, the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper (including, without
limitation, all Electronic Chattel Paper and all Tangible
Chattel Paper);
(iii) in the case of EPN, the G&A Agreement;
(iv) all Documents;
(v) all Equipment;
Exhibit F-3
(vi) all General Intangibles (including, without
limitation, all Payment Intangibles);
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property (but excluding any
such Investment Property that is subject to the security
interests granted by EPN in the Borrower Pledge Agreement);
(x) all Patents;
(xi) all Patent Licenses;
(xii) all Trademarks;
(xiii) all Trademark Licenses;
(xiv) all Vehicles;
(xv) all Deposit Accounts other than payroll,
withholding tax and other fiduciary Deposit Accounts;
(xvi) all Letter-of-Credit Rights;
(xvii) all Commercial Tort Claims;
(xviii) all Supporting Obligations;
(xix) with respect only to any Borrower that is a
"transmitting utility" (as defined in the Uniform Commercial
Code of the State of Texas (the "Texas UCC")), any fixtures
(as defined in the Texas UCC) physically located in the State
of Texas to the extent (but only to the extent) that the
filing in the Office of the Secretary of State of the State of
Texas a financing statement substantially in the form of
Exhibit A hereto would, under the Texas UCC, result in the
perfection of a security interest in such fixtures;
(xx) with respect only to any Borrower that is a
"transmitting utility" (as defined in the Uniform Commercial
Code of the State of New Mexico (the "New Mexico UCC")), any
fixtures (as defined in the New Mexico UCC) physically located
in the State of New Mexico to the extent (but only to the
extent) that the filing in the Office of the New Mexico
Secretary of State of a financing statement substantially in
the form of Exhibit A hereto would, under the New Mexico UCC,
result in the perfection of a security interest in such
fixtures; and
Exhibit F-4
(xxi) to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing;
except, in each case of clauses (i) - (xxi) above, to the extent that (I) any
consent of any affiliate of the Borrower (other than a Subsidiary thereof) is
required for the grant of such security interest and such consent has not been
obtained after the Borrower has made a reasonable effort to seek such consent
and (II) any consent of any non-affiliated third party (other than a
Governmental Authority) is required for the grant of such security interest and
such consent has not been obtained (provided that the Borrower is under no duty
to seek such third-party consents); provided that (x) upon the receipt of any
such consent referred to in clauses (I) and (II) above, the security interest
granted herein shall automatically attach on such property and (y)
notwithstanding the foregoing, Accounts, Chattel Paper, Payment Intangibles and
Promissory Notes constitute Collateral in which the Borrower is granting a
security interest, as permitted by Sections 9-406 and 9-408 of the Uniform
Commercial Code in effect in the State of New York on the date hereof.
3. Rights of Collateral Agent and EPN Group Lenders;
Limitations on Collateral Agent's and EPN Group Lenders' Obligations.
(a) Borrower Remains Liable under Accounts and
G&A Agreement. Anything herein to the contrary
notwithstanding, the Borrower shall remain liable under each
of the Accounts, Chattel Paper, Payment Intangibles and the
G&A Agreement to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all
in accordance with the terms of any agreement giving rise to
each such Account, Chattel Paper or Payment Intangible and in
accordance with and pursuant to the terms and provisions of
the G&A Agreement. Neither the Collateral Agent nor any of the
EPN Group Lenders shall have any obligation or liability under
any Account, Chattel Paper or Payment Intangible (or any
agreement giving rise thereto) or under the G&A Agreement by
reason of or arising out of this Security Agreement or the
receipt by the Collateral Agent or any such EPN Group Lenders
of any payment relating to such Account, Chattel Paper or
Payment Intangible, or the G&A Agreement pursuant hereto, nor
shall the Collateral Agent or any of the EPN Group Lenders be
obligated in any manner to perform any of the obligations of
the Borrower under or pursuant to any Account, Chattel Paper
or Payment Intangible (or any agreement giving rise thereto)
or under or pursuant to the G&A Agreement, to make any
payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the
sufficiency of any performance by any party under any Account,
Chattel Paper or Payment Intangible (or any agreement giving
rise thereto) or under the G&A Agreement, to present or file
any claim, to take any action to enforce any performance or to
collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or
times.
(b) Notice to Account Debtors and Contracting
Parties. Upon the request of the Collateral Agent at any time
after the occurrence and during the continuance of an Event of
Default, the Borrower shall notify the Account Debtors that
the applicable Accounts, Chattel Paper, Payment Intangibles
and the
Exhibit F-5
G&A Agreement have been assigned to the Collateral Agent for
the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders and that payments in respect thereof shall be
made directly to the Collateral Agent. The Collateral Agent
may in its own name or in the name of others communicate with
the Account Debtors to verify with them to its satisfaction
the existence, amount and terms of any Accounts, Chattel
Paper, Payment Intangibles or G&A Agreement.
(c) Analysis of Accounts, Etc. The Collateral
Agent shall have the right to make test verifications of the
Accounts, Chattel Paper and Payment Intangibles in any manner
and through any medium that it reasonably considers advisable,
and the Borrower shall furnish all such assistance and
information as the Collateral Agent may require in connection
therewith. At any time and from time to time, upon the
Collateral Agent's request and at the expense of the Borrower,
the Borrower shall furnish to the Collateral Agent reports
showing reconciliations, aging and test verifications of, and
trial balances for, the Accounts, Chattel Paper and Payment
Intangibles.
(d) Collections on Account, Etc. The Collateral
Agent hereby authorizes the Borrower to collect the Accounts,
Chattel Paper and Payment Intangibles subject to the
Collateral Agent's direction and control, and the Collateral
Agent may curtail or terminate said authority at any time
after the occurrence and during the continuance of an Event of
Default. If required by the Collateral Agent at any time after
the occurrence and during the continuance of an Event of
Default, any payments of Accounts, Chattel Paper and Payment
Intangibles, when collected by the Borrower, shall be
forthwith (and, in any event, within two Business Days)
deposited by the Borrower in the exact form received, duly
indorsed by the Borrower to the Collateral Agent if required,
in a special collateral account maintained by the Collateral
Agent, subject to withdrawal by the Collateral Agent for the
ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders only, as hereinafter provided, and, until so turned
over, shall be held by the Borrower in trust for the
Collateral Agent for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, segregated from other
funds of the Borrower. Each deposit of any such Proceeds shall
be accompanied by a report identifying in reasonable detail
the nature and source of the payments included in the deposit.
All Proceeds constituting collections of Accounts while held
by the Collateral Agent (or by the Borrower in trust for the
Collateral Agent for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders) shall continue to be
collateral security for all of the Obligations and shall not
constitute payment thereof until applied as hereinafter
provided. At such intervals as may be agreed upon by the
Borrower and the Collateral Agent, or, if an Event of Default
shall have occurred and be continuing, at any time at the
Collateral Agent's election, the Collateral Agent shall apply
all or any part of the funds on deposit in said special
collateral account on account of the Obligations in such order
as the Collateral Agent may elect, and any part of such funds
which the Collateral Agent elects not so to apply and deems
not required as collateral security for the Obligations shall
be paid over from time to time by the Collateral Agent to the
Borrower or to whomsoever may be lawfully entitled to receive
the
Exhibit F-6
same. At the Collateral Agent's request, the Borrower shall
deliver to the Collateral Agent all original and other
documents evidencing, and relating to, the agreements and
transactions which gave rise to the Accounts, including,
without limitation, all original orders, invoices and shipping
receipts.
4. Representations and Warranties. The Borrower hereby
represents and warrants that:
(a) Title; No Other Liens. Except for the Lien
granted to the Collateral Agent for the ratable benefit of the
EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders pursuant to this
Security Agreement and the other Liens permitted to exist on
the Collateral pursuant to the Credit Agreement or the EPNHC
Credit Agreement, the Borrower owns each item of the
Collateral free and clear of any and all Liens or claims of
others. No security agreement, financing statement or other
public notice with respect to all or any part of the
Collateral is on file or of record in any public office,
except such as may have been filed in favor of the Collateral
Agent, for the ratable benefit of the EPN Group Lenders and
the ▇▇▇▇▇ ▇▇▇▇ Lenders, pursuant to this Security Agreement or
as may be permitted pursuant to the Credit Agreement or the
EPNHC Credit Agreement.
(b) Perfected First Priority Liens. The Liens
granted pursuant to this Security Agreement constitute
perfected Liens on the Collateral in favor of the Collateral
Agent, for the ratable benefit of the EPN Group Lenders and
the ▇▇▇▇▇ ▇▇▇▇ Lenders, which are (except for any Liens on the
Collateral which are permitted to exist pursuant to the Credit
Agreement or the EPNHC Credit Agreement) prior to all other
Liens on the Collateral created by the Borrower and in
existence on the date hereof and which are enforceable as such
against all creditors of and purchasers from the Borrower and
against any owner or purchaser of the real property where any
of the Equipment is located and any present or future creditor
obtaining a Lien on such real property. All actions necessary
or desirable to perfect such security interest in each item of
Collateral requested by the Collateral Agent have been or will
be duly taken.
(c) Accounts. The amount represented by the
Borrower to the EPN Group Lenders from time to time as owing
by each Account Debtor or by all Account Debtors in respect of
the Accounts, Chattel Paper, and Payment Intangibles will at
such time be, to the Borrower's best knowledge, the correct
amount actually owing by such Account Debtor or Account
Debtors thereunder. No amount payable to the Borrower under or
in connection with any Account is evidenced by any Instrument
or Chattel Paper which has not been delivered to the
Collateral Agent. The place where the Borrower keeps its
records concerning the Accounts, Chattel Paper and Payment
Intangibles is Four Greenway Plaza, Houston, Texas 77046.
(d) G&A Agreement. No consent of any party to
the G&A Agreement is required, or purports to be required, in
connection with the execution, delivery and performance of
this Security Agreement. The G&A Agreement is in full
Exhibit F-7
force and effect and constitutes a valid and legally
enforceable obligation of the parties thereto, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditor's rights generally. No consent or
authorization of, filing with or other act by or in respect of
any Governmental Authority is required in connection with the
execution, delivery, performance, validity or enforceability
of the G&A Agreement by any party thereto other than those
which have been duly obtained, made or performed, are in full
force and effect and do not subject the scope of the G&A
Agreement to any material adverse limitation, either specific
or general in nature. To the best of the Borrower's knowledge,
no party to the G&A Agreement is in default or is likely to
become in default in the performance or observance of any of
the terms thereof. The right, title and interest of the
Borrower in, to and under the G&A Agreement are not subject to
any defense, offset, counterclaim or claim which would
materially adversely affect the value of the Collateral, nor
have any of the foregoing been asserted or alleged against the
Borrower as to the G&A Agreement. No amount payable to the
Borrower under or in connection with the G&A Agreement is
evidenced by any Instrument or Chattel Paper which has not
been delivered to the Collateral Agent.
(e) Borrower's Name, Etc. The name of EPN as
indicated on the public record of EPN's jurisdiction of
organization, which shows EPN to have been organized, is "El
Paso Energy Partners, L.P.". The name of El Paso Finance as
indicated on the public record of the El Paso Finance's
jurisdiction of organization, which shows El Paso Finance to
have been organized, is "El Paso Energy Partners Finance
Corporation." The mailing address of each of ENP and El Paso
Finance is Four Greenway Plaza, Houston, Texas 77046. EPN is a
Delaware limited partnership, and EPN's organizational
identification number in the State of Delaware is 2317845. El
Paso Finance is a Delaware corporation, and El Paso Finance's
organizational identification number in the State of Delaware
is 3036960. EPN was formerly known as "Leviathan Gas Pipeline
Partners, L.P." EL Paso Finance was formerly known as
"Leviathan Finance Corporation." Other than these names,
neither EPN nor El Paso Finance has used any other name or
trade name.
(f) Farm Products. None of the Collateral
constitutes, or is the Proceeds of, Farm Products.
(g) Patents and Trademarks. Schedule I hereto
includes all Patents and Patent Licenses owned by the Borrower
in its own name as of the date hereof. Schedule II hereto
includes all Trademarks and Trademark Licenses owned by the
Borrower in its own name as of the date hereof. To the best of
the Borrower's knowledge, each Patent and Trademark is valid,
subsisting, unexpired, enforceable and has not been abandoned.
Except as set forth in either such Schedule, none of such
Patents and Trademarks is the subject of any licensing or
franchise agreement. No holding, decision or judgment has been
rendered by any Governmental Authority which would limit,
cancel or question the validity of any Patent or Trademark. No
action or proceeding is pending (i) seeking to limit,
Exhibit F-8
cancel or question the validity of any Patent or Trademark, or
(ii) which, if adversely determined, would have a material
adverse effect on the value of any Patent or Trademark.
(h) Vehicles. Schedule III is a complete and
correct list of all Vehicles owned by the Borrower.
(i) Governmental Obligors. None of the obligors
on any of Borrower's Accounts, Chattel Paper or Payment
Intangibles, and none of the parties to any of Borrower's
Contracts, is a Governmental Authority.
(j) No Chapter 35 Filings. ▇▇▇▇▇▇▇▇ has not
filed a security instrument with the Secretary of State of the
State of Texas electing to be covered by, or is otherwise
subject to the requirements and benefits of, Subchapter A of
Chapter 35 of the Texas Business and Commerce Code.
5. Covenants. The Borrower covenants and agrees with
the Collateral Agent and the EPN Group Lenders that, from and after the
date of this Security Agreement until the Obligations are paid in full
and the Commitments are terminated:
(a) Further Documentation; Pledge of Instruments
and Chattel Paper. At any time and from time to time, upon the
written request of the Collateral Agent, and at the sole
expense of the Borrower, the Borrower will promptly and duly
execute and deliver such further instruments and documents and
take such further action as the Collateral Agent may
reasonably request for the purpose of obtaining or preserving
the full benefits of this Security Agreement and of the rights
and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the
Uniform Commercial Code in effect in any jurisdiction with
respect to the Liens created hereby. The Borrower hereby
authorizes the Collateral Agent, its counsel or its
representative, at any time and from time to time, to file
financing statements and amendments to financing statements
that describe the collateral covered by such financing
statements as "all assets of the Borrower", "all personal
property of the Borrower", or words of similar effect, in such
jurisdictions as the Collateral Agent may deem necessary or
desirable in order to perfect or maintain the perfection of
the security interests granted by the Borrower under this
Security Agreement. The Borrower hereby further authorizes the
Collateral Agent, its counsel or its representative, at any
time and from time to time, to file continuation statements
with respect to previously filed financing statements. A
photographic or other reproduction of this Security Agreement
shall be sufficient as a financing statement for filing in any
jurisdiction. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any
Instrument or Chattel Paper, such Instrument or Chattel Paper
shall be immediately delivered to the Collateral Agent, duly
endorsed in a manner satisfactory to the Collateral Agent, to
be held as Collateral pursuant to this Security Agreement.
Upon the request of the Collateral Agent or any of the EPN
Group Lenders, the Borrower shall take or cause to be taken
all actions (other
Exhibit F-9
than any actions required to be taken by the Collateral Agent
or any of the EPN Group Lenders) necessary to cause the
Collateral Agent to have "control" (within the meaning of
Sections 9-104, 9-105, 9-106, and 9-107 of the UCC) over any
Collateral constituting Deposit Accounts, Electronic Chattel
Paper, Investment Property, or Letter-of-Credit Rights, and
the Borrower shall promptly notify the Collateral Agent and
the EPN Group Lenders of the Borrower's acquisition of any
such Collateral. With respect to any goods constituting
Collateral that are in the possession of a "bailee" (within
the meaning of Section 9-312 of the UCC), the Borrower shall
take or cause to be taken all actions (other than any actions
required to be taken by the Collateral Agent or any of the EPN
Group Lenders) necessary to cause the Collateral Agent to have
a perfected security interest in such Collateral pursuant to
the provisions of Section 9-312 of the UCC, and the Borrower
shall provide prompt notice to the Collateral Agent and the
EPN Group Lenders of any such Collateral then in the
possession of such a "bailee".
(b) Indemnification. The Borrower agrees to pay
and to save the Collateral Agent and the EPN Group Lenders
harmless from any and all liabilities and reasonable costs and
expenses (including, without limitation, legal fees and
expenses), (i) with respect to, or resulting from, any delay
in paying, any and all excise, sales or other taxes which may
be payable or determined to be payable with respect to any of
the Collateral, (ii) with respect to, or resulting from, any
delay in complying with any Requirement of Law applicable to
any of the Collateral or (iii) in connection with any of the
transactions contemplated by this Security Agreement. In any
suit, proceeding or action brought by the Collateral Agent or
any of the EPN Group Lenders under any Account, Chattel Paper,
Payment Intangibles or G&A Agreement, for any sum owing
thereunder, or to enforce any provisions of any Account,
Chattel Paper, Payment Intangible or G&A Agreement, the
Borrower will save, indemnify and keep the Collateral Agent
and such EPN Group Lenders harmless from and against all
reasonable expense, loss or damage suffered by reason of any
defense, setoff, counterclaim, recoupment or reduction or
liability whatsoever of the Account Debtor or obligor
thereunder, arising out of a breach by the Borrower of any
obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of
such Account Debtor or obligor or its successors from the
Borrower.
(c) Maintenance of Records. The Borrower will
keep and maintain at its own cost and expense satisfactory and
complete records of the Collateral, including, without
limitation, a record of all payments received and all credits
granted with respect to the Accounts. For the Collateral
Agent's and the EPN Group Lenders' further security, the
Collateral Agent, for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, shall have a security
interest in all of the Borrower's books and records pertaining
to the Collateral, and the Borrower shall turn over any such
books and records to the Collateral Agent or to its
representatives during normal business hours at the request of
the Collateral Agent.
Exhibit F-10
(d) Right of Inspection. The Collateral Agent
and the EPN Group Lenders shall at all times have full and
free access during normal business hours to all the books,
correspondence and records of the Borrower, and the Collateral
Agent and the EPN Group Lenders and their respective
representatives may examine the same, take extracts therefrom
and make photocopies thereof, and the Borrower agrees to
render to the Collateral Agent and the EPN Group Lenders, at
the Borrower's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto.
The Collateral Agent and the EPN Group Lenders and their
respective representatives shall at all times also have the
right to enter into and upon any premises where any of the
Inventory or Equipment is located for the purpose of
inspecting the same, observing its use or otherwise protecting
its interests therein.
(e) Compliance with Laws, etc. The Borrower will
comply in all material respects with all Requirements of Law
applicable to the Collateral or any part thereof or to the
operation of the Borrower's business; provided, however, that
the Borrower may contest any Requirement of Law in any
reasonable manner which shall not, in the sole opinion of the
Collateral Agent, adversely affect the Collateral Agent's or
the EPN Group Lenders' rights or the priority of their Liens
on the Collateral.
(f) Compliance with Terms of the G&A Agreement,
etc. The Borrower will perform and comply in all material
respects with all its obligations under the G&A Agreement, if
any, and all its other Contractual Obligations relating to the
Collateral.
(g) Payment of Obligations. The Borrower will
pay promptly when due all taxes, assessments and governmental
charges or levies imposed upon the Collateral or in respect of
its income or profits therefrom, as well as all claims of any
kind (including, without limitation, claims for labor,
materials and supplies) against or with respect to the
Collateral, except that no such charge need be paid if (i) the
validity thereof is being contested in good faith by
appropriate proceedings, (ii) such proceedings do not involve
any material danger of the sale, forfeiture or loss of any of
the Collateral or any interest therein and (iii) such charge
is adequately reserved against on the Borrower's books in
accordance with GAAP.
(h) Limitation on Liens on Collateral. The
Borrower will not create, incur or permit to exist, will
defend the Collateral against, and will take such other action
as is necessary to remove, any Lien or claim on or to the
Collateral, other than the Liens created hereby and other than
as permitted pursuant to the Credit Agreement or the EPNHC
Credit Agreement, and will defend the right, title and
interest of the Collateral Agent and the EPN Group Lenders in
and to any of the Collateral against the claims and demands of
all Persons whomsoever.
(i) Limitations on Dispositions of Collateral.
The Collateral Agent and the EPN Group Lenders do not
authorize, and the Borrower agrees not to sell, transfer,
lease or otherwise dispose of any of the Collateral, or
attempt, offer or
Exhibit F-11
contract to do so except to the extent expressly permitted by
the Credit Agreement or the EPNHC Credit Agreement.
(j) Limitations on Modifications, Waivers,
Extensions of the G&A Agreement and Agreements Giving Rise to
Accounts. The Borrower will not (i) amend, modify, terminate
or waive any provision of the G&A Agreement or any Chattel
Paper or any agreement giving rise to an Account or Payment
Intangible in any manner which could reasonably be expected to
materially adversely affect the value of the G&A Agreement,
Chattel Paper, Payment Intangible or Account as Collateral,
(ii) fail to exercise promptly and diligently each and every
material right which it may have under the G&A Agreement or
any Chattel Paper and each agreement giving rise to an Account
or Payment Intangible (other than any right of termination) or
(iii) fail to deliver to the Collateral Agent a copy of each
material demand, notice or document received by it relating in
any way to the G&A Agreement or any Chattel Paper or any
agreement giving rise to an Account, or Payment Intangible.
(l) Limitations on Discounts, Compromises,
Extensions of Accounts. Other than in the ordinary course of
business as generally conducted by the Borrower over a period
of time, the Borrower will not grant any extension of the time
of payment of any of the Accounts, Chattel Paper or Payment
Intangibles, compromise, compound or settle the same for less
than the full amount thereof, release, wholly or partially,
any Person liable for the payment thereof, or allow any credit
or discount whatsoever thereon.
(m) Maintenance of Equipment. The Borrower will
maintain each item of Equipment in good operating condition,
ordinary wear and tear and immaterial impairments of value and
damage by the elements excepted, and will provide all
maintenance, service and repairs necessary for such purpose.
(n) Further Identification of Collateral. The
Borrower will furnish to the Collateral Agent and the EPN
Group Lenders from time to time statements and schedules
further identifying and describing the Collateral and such
other reports in connection with the Collateral as the
Collateral Agent may reasonably request, all in reasonable
detail.
(o) Notices. The Borrower will advise the
Collateral Agent and the EPN Group Lenders promptly, in
reasonable detail, at their respective addresses set forth in
the Credit Agreement, (i) of any Lien (other than Liens
created hereby or permitted under the Credit Agreement or the
EPNHC Credit Agreement) on, or claim asserted against, any of
the Collateral and (ii) of the occurrence of any other event
which could reasonably be expected to have a material adverse
effect on the aggregate value of the Collateral or on the
Liens created hereunder.
(p) Changes in Locations, Name, etc. The
Borrower recognizes that financing statements pertaining to
the Collateral have been or may be filed where the Borrower
maintains any Collateral or is organized. Without limitation
of any
Exhibit F-12
other covenant herein, the Borrower will not cause or permit
(i) any change to be made in its name, identity or corporate
structure or (ii) any change to (A) the identity of any
warehouseman, common carrier, other third-party transporter,
bailee or any agent or processor in possession or control of
any Collateral or (B) the Borrower's jurisdiction of
organization, unless the Borrower shall have first (1)
notified the Collateral Agent and the EPN Group Lenders of
such change at least thirty (30) days prior to the effective
date of such change, and (2) taken all action reasonably
requested by the Collateral Agent or any of the EPN Group
Lenders for the purpose of maintaining the perfection and
priority of the Collateral Agent's security interests under
this Security Agreement. In any notice furnished pursuant to
this subsection, the Borrower will expressly state that the
notice is required by this Security Agreement and contains
facts that may require additional filings of financing
statements or other notices for the purposes of continuing
perfection of the Collateral Agent's security interest in the
Collateral.
(q) Patents and Trademarks.
(i) The Borrower (either itself or
through licensees) will, except with respect to any
Trademark that the Borrower shall reasonably
determine is of negligible economic value to it, (i)
continue to use each Trademark on each and every
trademark class of goods applicable to its current
line as reflected in its current catalogs, brochures
and price lists in order to maintain such Trademark
in full force free from any claim of abandonment for
non-use, (ii) maintain as in the past the quality of
products and services offered under such Trademark,
(iii) employ such Trademark with the appropriate
notice of registration, (iv) not adopt or use any
mark which is confusingly similar or a colorable
imitation of such Trademark unless the Collateral
Agent, for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, shall obtain a
perfected security interest in such mark pursuant to
this Security Agreement, and (v) not (and not permit
any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any Trademark
may become invalidated.
(ii) The Borrower will not, except with
respect to any Patent that the Borrower shall
reasonably determine is of negligible economic value
to it, do any act, or omit to do any act, whereby any
Patent may become abandoned or dedicated.
(iii) The Borrower will notify the
Collateral Agent and the EPN Group Lenders
immediately if it knows, or has reason to know, that
any application or registration relating to any
Patent or Trademark may become abandoned or
dedicated, or of any adverse determination or
development (including, without limitation, the
institution of, or any such determination or
development in, any proceeding in the United States
Patent and Trademark Office or any court or tribunal
in any country)
Exhibit F-13
regarding the Borrower's ownership of any Patent or
Trademark or its right to register the same or to
keep and maintain the same.
(iv) Whenever the Borrower, either by
itself or through any agent, employee, licensee or
designee, shall file an application for the
registration of any Patent or Trademark with the
United States Patent and Trademark Office or any
similar office or agency in any other country or any
political subdivision thereof, the Borrower shall
report such filing to the Collateral Agent and the
EPN Group Lenders within five Business Days after the
last day of the fiscal quarter in which such filing
occurs. Upon request of the Collateral Agent, the
Borrower shall execute and deliver any and all
agreements, instruments, documents, and papers as the
Collateral Agent may request to evidence the
Collateral Agent's and the EPN Group Lenders'
security interest in any Patent or Trademark and the
goodwill and general intangibles of the Borrower
relating thereto or represented thereby, and the
Borrower hereby constitutes the Collateral Agent its
attorney-in-fact to execute and file all such
writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such
power being coupled with an interest is irrevocable
until the Obligations are paid in full and the
Commitments are terminated.
(v) The Borrower will take all
reasonable and necessary steps, including, without
limitation, in any proceeding before the United
States Patent and Trademark Office, or any similar
office or agency in any other country or any
political subdivision thereof, to maintain and pursue
each application (and to obtain the relevant
registration) and to maintain each registration of
the Patents and Trademarks, including, without
limitation, filing of applications for renewal,
affidavits of use and affidavits of incontestability.
(vi) In the event that any Patent or
Trademark included in the Collateral is infringed,
misappropriated or diluted by a third party, the
Borrower shall promptly notify the Collateral Agent
and the EPN Group Lenders after it learns thereof and
shall, unless the Borrower shall reasonably determine
that such Patent or Trademark is of negligible
economic value to the Borrower which determination
the Borrower shall promptly report to the Collateral
Agent and the EPN Group Lenders, promptly sue for
infringement, misappropriation or dilution, to seek
injunctive relief where appropriate and to recover
any and all damages for such infringement,
misappropriation or dilution, or take such other
actions as the Borrower shall reasonably deem
appropriate under the circumstances to protect such
Patent or Trademark.
(r) Vehicles. The Borrower will maintain each
Vehicle in good operating condition, ordinary wear and tear
and immaterial impairments of value and damage by the elements
excepted, and will provide all maintenance, service and
repairs necessary for such purpose. No Vehicle shall be
removed from the
Exhibit F-14
state which has issued the certificate of title or ownership
therefor for a period in excess of 60 days.
(s) Commercial Tort Claims. If the Borrower
shall at any time hold or acquire a Commercial Tort Claim that
satisfies the requirements of the following sentence, then the
Borrower shall, within thirty (30) days after such Commercial
Tort Claim satisfies such requirements, notify the Collateral
Agent and the EPN Group Lenders in a writing signed by the
Borrower containing a brief description thereof, and granting
to the Collateral Agent in such writing (for the benefit of
the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders) a security
interest therein and in the Proceeds thereof, all upon the
terms of this Security Agreement, with such writing to be in
form and substance satisfactory to the Collateral Agent and
the EPN Group Lenders. The provisions of the preceding
sentence shall apply only to a Commercial Tort Claim that
satisfies the following requirements: (i) the monetary value
claimed by or payable to the Borrower in connection with such
Commercial Tort Claim shall exceed $5,000,000, and either (ii)
(A) the Borrower shall have filed a law suit or counterclaim
or otherwise commenced legal proceedings (including, without
limitation, arbitration proceedings) against the Person
against whom such Commercial Tort Claim is made, or (B) the
Borrower and the Person against whom such Commercial Tort
Claim is asserted shall have entered into a settlement
agreement with respect to such Commercial Tort Claim. In
addition, to the extent that the existence of any Commercial
Tort Claim held or acquired by the Borrower is disclosed by
the Borrower in any public filing with the Securities Exchange
Commission or any successor thereto or analogous Governmental
Authority, or to the extent that the existence of any such
Commercial Tort Claim is disclosed in any press release issued
by the Borrower, then, upon the request of the Collateral
Agent, the Borrower shall, within thirty (30) days after such
request is made, transmit to the Collateral Agent and the EPN
Group Lenders a writing signed by the Borrower containing a
brief description of such Commercial Tort Claim and granting
to the Collateral Agent in such writing (for the benefit of
the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇) a security
interest therein and in the Proceeds thereof, all upon the
terms of this Security Agreement, with such writing to be in
form and substance satisfactory to the Collateral Agent and
the EPN Group Lenders.
6. Collateral Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Borrower hereby irrevocably
constitutes and appoints the Collateral Agent and any officer
or agent thereof, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Borrower and in the
name of the Borrower or in its own name, from time to time in
the Collateral Agent's discretion, for the purpose of carrying
out the terms of this Security Agreement, to take any and all
appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish
the purposes of this Security Agreement, and, without limiting
the generality of the foregoing, the Borrower
Exhibit F-15
hereby gives the Collateral Agent the power and right, on
behalf of the Borrower, without notice to or assent by the
Borrower, to do the following:
(i) in the case of any Account, Chattel
Paper or Payment Intangible, at any time when the
authority of the Borrower to collect the Accounts,
Chattel Paper or Payment Intangible has been
curtailed or terminated pursuant to the first
sentence of Section 3(d) hereof, or in the case of
any other Collateral, at any time when any Event of
Default shall have occurred and is continuing, in the
name of the Borrower or its own name, or otherwise,
to take possession of and indorse and collect any
checks, drafts, notes, acceptances or other
instruments for the payment of moneys due under any
Account, Instrument, General Intangible, Chattel
Paper, Payment Intangible or the G&A Agreement, or
with respect to any other Collateral and to file any
claim or to take any other action or proceeding in
any court of law or equity or otherwise deemed
appropriate by the Collateral Agent for the purpose
of collecting any and all such moneys due under any
Account, Instrument, General Intangible or the G&A
Agreement or with respect to any other Collateral
whenever payable;
(ii) to pay or discharge taxes and Liens
levied or placed on or threatened against the
Collateral, to effect any repairs or any insurance
called for by the terms of this Security Agreement
and to pay all or any part of the premiums therefor
and the costs thereof; and
(iii) upon the occurrence and during the
continuance of any Event of Default, (A) to direct
any Person liable for any payment under any of the
Collateral to make payment of any and all moneys due
or to become due thereunder directly to the
Collateral Agent or as the Collateral Agent shall
direct; (B) to ask or demand for, collect, receive
payment of and receipt for, any and all moneys,
claims and other amounts due or to become due at any
time in respect of or arising out of any Collateral;
(C) to sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments,
verifications, notices and other documents in
connection with any of the Collateral; (D) to
commence and prosecute any suits, actions or
proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or
any thereof and to enforce any other right in respect
of any Collateral; (E) to defend any suit, action or
proceeding brought against the Borrower with respect
to any Collateral; (F) to settle, compromise or
adjust any suit, action or proceeding described in
clause (E) above and, in connection therewith, to
give such discharges or releases as the Collateral
Agent may deem appropriate; (G) to assign any Patent
or Trademark (along with the goodwill of the business
to which any such Trademark pertains), throughout the
world for such term or terms, on such conditions, and
in such manner, as the Collateral Agent shall in its
sole discretion determine; and (H) generally, to
sell, transfer, pledge and make
Exhibit F-16
any agreement with respect to or otherwise deal with
any of the Collateral as fully and completely as
though the Collateral Agent were the absolute owner
thereof for all purposes, and to do, at the
Collateral Agent's option and the Borrower's expense,
at any time, or from time to time, all acts and
things which the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and
the Collateral Agent's and the EPN Group Lenders'
Liens thereon and to effect the intent of this
Security Agreement, all as fully and effectively as
the Borrower might do.
The Borrower hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
(b) Other Powers. The Borrower also authorizes
the Collateral Agent and the EPN Group Lenders, at any time
and from time to time, to execute, in connection with the sale
provided for in Section 9 hereof, any endorsements,
assignments or other instruments of conveyance or transfer
with respect to the Collateral.
(c) No Duty on Collateral Agent or EPN Group
Lenders' Part. The powers conferred on the Collateral Agent
and the EPN Group Lenders hereunder are solely to protect the
Collateral Agent's and the EPN Group Lenders' interests in the
Collateral and shall not impose any duty upon the Collateral
Agent or any of the EPN Group Lenders to exercise any such
powers. The Collateral Agent and the EPN Group Lenders shall
be accountable only for amounts that they actually receive as
a result of the exercise of such powers, and neither they nor
any of their officers, directors, employees or agents shall be
responsible to the Borrower for any act or failure to act
hereunder, except for their own gross negligence or willful
misconduct.
7. Performance by Collateral Agent of ▇▇▇▇▇▇▇▇'s
Obligations. If the Borrower fails to perform or comply with any of its
agreements contained herein and the Collateral Agent, as provided for
by the terms of this Security Agreement, shall itself perform or
comply, or otherwise cause performance or compliance, with such
agreement, the expenses of the Collateral Agent incurred in connection
with such performance or compliance, together with interest thereon at
a rate per annum 3-1/2 % above the Alternate Base Rate, shall be
payable by the Borrower to the Collateral Agent on demand and shall
constitute Obligations secured hereby.
8. Proceeds. In addition to the rights of the Collateral
Agent and the EPN Group Lenders specified in Section 3(d) with respect
to payments of Accounts, it is agreed that if an Event of Default shall
occur and be continuing (a) all Proceeds received by the Borrower
consisting of cash, checks and other near-cash items shall be held by
the Borrower in trust for the Collateral Agent for the ratable benefit
of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, segregated from
other funds of the Borrower, and shall, forthwith upon receipt by the
Borrower, be turned over to the Collateral Agent in the exact form
received by the Borrower (duly indorsed by the Borrower to the
Collateral
Exhibit F-17
Agent, if required), and (b) any and all such Proceeds received by the
Collateral Agent (whether from the Borrower or otherwise) may, in the
sole discretion of the Collateral Agent, be held by the Collateral
Agent for the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders as collateral security for, and/or then or at any time
thereafter may be applied by the Collateral Agent against, the
Obligations (whether matured or unmatured), such application to be in
such order as the Collateral Agent shall elect. Any balance of such
Proceeds remaining after the Obligations shall have been paid in full
and the Commitments shall have been terminated shall be paid over to
the Borrower or to whomsoever may be lawfully entitled to receive the
same.
9. Remedies. If an Event of Default shall occur and be
continuing, the Collateral Agent, on behalf of the EPN Group Lenders
and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, may exercise, in addition to all other
rights and remedies granted to them in this Security Agreement and in
any other instrument or agreement securing, evidencing or relating to
the Obligations, all rights and remedies of a secured party under the
UCC. Without limiting the generality of the foregoing, the Collateral
Agent, without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Borrower or any other
Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), may in such circumstances forthwith
collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give option or
options to purchase, or otherwise dispose of and deliver the Collateral
or any part thereof (or contract to do any of the foregoing), in one or
more parcels at public or private sale or sales, at any exchange,
broker's board or office of the Collateral Agent or any of the EPN
Group Lenders or elsewhere upon such terms and conditions as it may
deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk.
The Collateral Agent or any of the EPN Group Lenders shall have the
right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of
redemption in the Borrower, which right or equity is hereby waived or
released. The Borrower further agrees, at the Collateral Agent's
request, to assemble the Collateral and make it available to the
Collateral Agent at places which the Collateral Agent shall reasonably
select, whether at the Borrower's premises or elsewhere. The Collateral
Agent shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the Collateral or in
any way relating to the Collateral or the rights of the Collateral
Agent and the EPN Group Lenders hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the
payment in whole or in part of the Obligations, in such order as the
Collateral Agent may elect, and only after such application and after
the payment by the Collateral Agent of any other amount required by any
provision of law, including, without limitation, Section 9-615 of the
UCC, need the Collateral Agent account for the surplus, if any, to the
Borrower. To the extent permitted by applicable law, the Borrower
waives all claims, damages and demands it may acquire against the
Collateral Agent or any of the EPN Group Lenders arising out of the
exercise by them of any rights hereunder except to the extent any
thereof arise solely from the willful misconduct of the Collateral
Agent. If any notice of
Exhibit F-18
a proposed sale or other disposition of Collateral shall be required by
law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. The Borrower shall
remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the Obligations
and the fees and disbursements of any attorneys employed by the
Collateral Agent or any of the EPN Group Lenders to collect such
deficiency.
10. Limitation on Duties Regarding Preservation of
Collateral. The Collateral Agent's sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the UCC or otherwise, shall be to
deal with it in the same manner as the Collateral Agent deals with
similar property for its own account. Neither the Collateral Agent, any
of the EPN Group Lenders, nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand,
collect or realize upon all or any part of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Borrower or
otherwise.
11. Powers Coupled with an Interest. All authorizations
and agencies herein contained with respect to the Collateral are
irrevocable and powers coupled with an interest.
12. Severability. Any provision of this Security
Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
13. Paragraph Headings. The paragraph headings used in
this Security Agreement are for convenience of reference only and are
not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
14. No Waiver; Cumulative Remedies. Neither the
Collateral Agent nor any of the EPN Group Lenders shall by any act
(except by a written instrument pursuant to Section 15 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent or any of the EPN Group Lenders, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by the Collateral Agent or
any of the EPN Group Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy
which the Collateral Agent or such EPN Group Lenders would otherwise
have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
Exhibit F-19
15. Waivers and Amendments; Successors and Assigns;
Governing Law. None of the terms or provisions of this Security
Agreement may be waived, amended, supplemented or otherwise modified
except by a written instrument executed by the Borrower and the
Collateral Agent, provided that any provision of this Security
Agreement may be waived by the Collateral Agent in a written letter or
agreement executed by the Collateral Agent or by facsimile transmission
from the Collateral Agent. This Security Agreement shall be binding
upon the successors and assigns of the Borrower and shall inure to the
benefit of the Collateral Agent and the EPN Group Lenders and their
respective successors and assigns. This Security Agreement shall be
governed by, and construed and interpreted in accordance with, the laws
of the State of New York.
16. Notices. Notices hereunder may be given by mail or by
facsimile transmission, addressed or transmitted to the Person to which
it is being given at such Person's address or transmission number set
forth in the Credit Agreement and shall be effective (a) in the case of
mail, 3 days after deposit in the postal system, first class postage
pre-paid and (b) in the case of facsimile notices, when sent. The
Borrower may change its address and transmission number by written
notice to the Collateral Agent, and the Collateral Agent or any of the
EPN Group Lenders may change its address and transmission number by
written notice to the Borrower and, in the case of a any of the EPN
Group Lenders, to the Collateral Agent.
17. Authority of Collateral Agent. The Borrower
acknowledges that the rights and responsibilities of the Collateral
Agent under this Security Agreement with respect to any action taken by
the Collateral Agent or the exercise or non-exercise by the Collateral
Agent of any option, right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Security
Agreement shall, as among the Collateral Agent, the EPN Group Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders be governed by the Credit Agreement, the
▇▇▇▇▇ ▇▇▇▇ Financing Documents, and by such other agreements with
respect thereto as may exist from time to time among them, but, as
between the Collateral Agent and the Borrower, the Collateral Agent
shall be conclusively presumed to be acting as agent for the EPN Group
Lenders, and the ▇▇▇▇▇ ▇▇▇▇ Lenders with full and valid authority so to
act or refrain from acting, and the Borrower shall not be under any
obligation, or entitlement, to make any inquiry respecting such
authority.
[SIGNATURE PAGES FOLLOW]
Exhibit F-20
IN WITNESS WHEREOF, each of EPN and El Paso Finance has caused this
Security Agreement to be duly executed and delivered as of the date first above
written.
EL PASO ENERGY PARTNERS, L.P.
By: El Paso Energy Partners Company,
its General Partner
By: _______________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
EL PASO ENERGY PARTNERS FINANCE CORPORATION
By: ________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
Exhibit F Signature Page-1
Agreed to:
JPMorgan Chase Bank,
as Collateral Agent
By: ______________________________________
Name: ______________________________________
Title:______________________________________
Consented to pursuant to Section 15 of the
Existing Security Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: ______________________________________
Name: ______________________________________
Title:______________________________________
Exhibit F Signature Page-2
Schedule I to Borrower
Security Agreement
Patents and Patent Licenses
[None]
Exhibit F Signature Page-3
Schedule II to Borrower
Security Agreement
Trademarks and Trademark Licenses
[None]
Exhibit F Signature Page-4
Schedule III to Borrower
Security Agreement
Vehicles
[None]
Exhibit F Signature Page-5
EXHIBIT G
FORM OF SUBSIDIARIES GUARANTEE
CONSOLIDATED AMENDED AND RESTATED
SUBSIDIARIES GUARANTEE
CONSOLIDATED AMENDED AND RESTATED SUBSIDIARIES GUARANTEE, dated as of
October 10, 2002, by each of the corporations, limited liability companies,
partnerships and other entities, as the case may be, that are from time to time
signatories hereto (the "Guarantors") in favor of the EPN Group Administrative
Agents (as defined below) for the ratable benefit of the EPN Group Lenders and
the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (each as defined below).
W I T N E S S E T H :
WHEREAS, El Paso Energy Partner, L.P., a Delaware limited partnership
("EPN"), and El Paso Energy Partners Finance Corporation, a Delaware corporation
("El Paso Finance") are parties to that certain Amended and Restated Credit
Agreement, dated as of March 23, 1995 and as amended and restated as of October
10, 2002 (as amended, supplemented or otherwise modified from time to time, the
"EPN Credit Agreement") among EPN, El Paso Finance, JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "EPN Administrative Agent")and the
banks and other financial institutions parties thereto (the "EPN Lenders");
WHEREAS, EPN Holding Company, L.P., a Delaware limited partnership
("EPNHC"; EPN, El Paso Finance and EPNHC herein collectively referred to as the
"EPN Group Borrowers") is a party to that certain Amended and Restated Credit
Agreement, dated as of April 8, 2002 and as amended and restated as of October
10, 2002 (as amended, supplemented or otherwise modified from time to time, the
"EPNHC Credit Agreement") among EPNHC, JPMORGAN CHASE BANK, as administrative
agent (in such capacity, the "EPNHC Administrative Agent"; the EPN
Administrative Agent and the EPNHC Administrative Agent herein collectively
referred to as the "EPN Group Administrative Agents")and the banks and other
financial institutions parties thereto (the "EPNHC Lenders"; the EPN Lenders and
the EPNHC Lenders herein collectively referred to as the "EPN Group Lenders");
WHEREAS, certain of the Guarantors and the EPN Administrative Agent are
parties to the Amended and Restated Subsidiaries Guarantee, dated as of March
23, 1995 (as amended, supplemented and otherwise modified prior to the date
hereof, the "Existing EPN Subsidiary Guarantee");
WHEREAS, EPN GP Holding, L.L.C. and the EPNHC Administrative Agent are
parties to that certain Parent Guarantee (G.P.), dated as of April 8, 2002 (as
amended, supplemented and otherwise modified prior to the date hereof, the
"Existing EPNHC Parent GP Guarantee");
WHEREAS, EPN Holding Company I, L.P. and the EPNHC Administrative Agent
are parties to that certain Parent Guarantee (L.P.), dated as of April 8, 2002
(as amended, supplemented and otherwise modified prior to the date hereof, the
"Existing EPNHC Parent LP Guarantee");
Exhibit G-1
WHEREAS, certain of the Guarantors and the EPNHC Administrative Agent
are parties to that certain Subsidiary Guarantee, dated as of April 8, 2002 (as
amended, supplemented and otherwise modified prior to the date hereof, the
"Existing EPNHC Subsidiary Guarantee");
WHEREAS, pursuant to the terms of the EPN Credit Agreement and the
EPNHC Credit Agreement and the other Loan Documents (as defined in the EPN
Credit Agreement), the EPN Group Lenders have agreed to make certain Extensions
of Credit (as hereinafter defined) to or for the benefit of the EPN Group
Borrowers;
WHEREAS, the EPN Group Borrowers are members of an affiliated group of
entities that includes each Guarantor;
WHEREAS, the EPN Group Borrowers and the Guarantors are engaged in
related businesses, and each Guarantor will derive substantial direct and
indirect benefit from the making of the Extensions of Credit;
WHEREAS, pursuant to the provisions of Section 7.9 of the EPN Credit
Agreement and Section 7.9 of the ENPHC Credit Agreement, each of the EPN Group
Borrowers agreed that each Guarantor would be required to guarantee all of the
"Obligations" of EPN and El Paso Finance under and as defined in the EPN Credit
Agreement and all of the "Obligations" of EPNHC under and as defined in the
EPNHC Credit Agreement.;
NOW, THEREFORE, in consideration of the premises and to induce the EPN
Lenders to comply with the requirements of Section 7.9 of the EPN Credit
Agreement and the EPNHC Lenders to comply with the requirements of Section 7.9
of the ENPHC Credit Agreement, each Guarantor hereby agrees with the EPN Group
Administrative Agents, for the ratable benefit of the EPN Group Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders, that each of the Existing EPN Subsidiary Guarantee, Existing
EPNHC Parent GP Guarantee, Existing EPNHC Parent LP Guarantee and Existing EPNHC
Subsidiary Guarantee is hereby consolidated, amended and restated as a single
instrument to read in its entirety as follows:
1. Defined Terms. As used in this Guarantee, terms defined in the
EPN Credit Agreement are used herein as therein defined, and the following terms
shall have the following meanings:
"Adjusted Net Worth": of any Guarantor shall mean, as of any
date of determination thereof, the excess of (i) the amount of the
"present fair saleable value" of the assets of such Guarantor as of the
date of such determination, over (ii) the amount of all "liabilities of
such Guarantor, contingent or otherwise", as of the date of such
determination, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors.
"Commitments": (a) the "Revolving Loan Commitments" and "Term
Loan Commitments" as defined in the EPN Credit Agreement and (b) the
"Commitments" as defined in the EPNHC Credit Agreement.
"Determination Date": with respect to any Guarantor, the
earlier of (a) the date of commencement of a case under Title 11 of the
United States Code in which such
Exhibit G-2
Guarantor is a debtor and (b) the date enforcement hereunder is sought
with respect to such Guarantor.
"Extension of Credit": (i) all loans or advances made to the
any of the EPN Group Borrowers under any Loan Document, (ii) all
letters of credit issued for the account of any of the EPN Group
Borrowers under any Loan Document, (iii) all bankers' acceptances
created for the account of any of the EPN Group Borrowers under any
Loan Document and (iv) all other extensions of credit to or for the
benefit of any of the EPN Group Borrowers under any Loan Document.
"Loan Documents": (i) the "Loan Documents" under and as
defined in the EPN Credit Agreement and (ii) the "Loan Documents" under
and as defined in the EPNHC Credit Agreement.
"Maximum Guaranteed Amount": for any Guarantor, as of the
Determination Date for such Guarantor, the sum of (i) an amount equal
to the sum of each Extension of Credit (or portion thereof) the
proceeds of which are used to make a Valuable Transfer (as defined
below) to such Guarantor plus interest on such amount at the rate
specified in the EPN Credit Agreement or the EPNHC Credit Agreement, as
applicable, plus (ii) the greater of (I) ninety-five percent (95%) of
the Adjusted Net Worth of such Guarantor at the date of the execution
of this Guarantee before giving effect to any Extensions of Credit made
on such date and (II) ninety-five percent (95%) of the Adjusted Net
Worth of such Guarantor at the Determination Date for such Guarantor.
For purposes hereof, the proceeds of an Extension of Credit (or portion
thereof) are considered to be used to make a "Valuable Transfer" to a
Guarantor if such proceeds are used to (i) make a loan, advance or
capital contribution to such Guarantor, (ii) acquire from such
Guarantor debt securities or other obligations of such Guarantor, (iii)
acquire property, any interest in which is transferred to such
Guarantor (but only to the extent of the economic benefit to such
Guarantor of the interest so transferred), (iv) purchase equity
securities of such Guarantor or (v) otherwise confer, directly or
indirectly, an economic benefit on such Guarantor (but only to the
extent of such benefit).
"Obligations": (i) the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to EPN or El Paso Finance, whether or not a
claim for post filing or post petition interest is allowed in such
proceeding) the Notes and all other obligations and liabilities of EPN
or El Paso Finance to the EPN Administrative Agent or the EPN Lenders,
whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may arise under, out of,
or in connection with, the EPN Credit Agreement, the other Loan
Documents or any other document made, delivered or given in connection
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the EPN
Administrative Agent or any of the EPN Lenders) or otherwise, (ii) the
unpaid principal of and interest on (including, without limitation,
interest accruing after the maturity of the EPNHC Term Loans and
interest accruing after the filing of any petition in bankruptcy,
Exhibit G-3
or the commencement of any insolvency, reorganization or like
proceeding, relating to EPNHC, whether or not a claim for post filing
or post petition interest is allowed in such proceeding) and all other
obligations and liabilities of EPNHC to the EPNHC Administrative Agent
or the EPNHC Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the EPNHC Credit
Agreement, the other EPNHC Loan Documents or any other document made,
delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and
disbursements of counsel to the EPNHC Administrative Agent or any of
the EPNHC Lenders) or otherwise, and (iii) the ▇▇▇▇▇ ▇▇▇▇ Clawback.
2. Guarantee. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the EPN Group
Administrative Agents and the EPN Group Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment by each of
the EPN Group Borrowers when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations of such EPN Group Borrower, and
each Guarantor further agrees to pay any and all expenses (including, without
limitation, all fees and disbursements of counsel) which may be paid or incurred
by the EPN Group Administrative Agents or any of the EPN Group Lenders in
enforcing, or obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, such Guarantor under this Guarantee;
provided, however, that, anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed such Guarantor's Maximum
Guaranteed Amount as determined at the Determination Date for such Guarantor;
and further provided, that the Maximum Guaranteed Amount for each Guarantor
hereunder shall in no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws relating to the insolvency of
debtors.
(b) Each Guarantor agrees that the Obligations may at any
time and from time to time exceed the Maximum Guaranteed Amount of such
Guarantor or of all of the Guarantors without impairing this Guarantee or
affecting the rights and remedies of the EPN Group Administrative Agents and the
EPN Group Lenders hereunder.
(c) No payment or payments made by the EPN Group
Borrowers, any of the Guarantors, any other guarantor or any other Person or
received or collected by the EPN Group Administrative Agents or any of the EPN
Group Lenders from the EPN Group Borrowers, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment or payments other than payments made by
such Guarantor in respect of the Obligations or payments received or collected
from such Guarantor in respect of the Obligations, remain liable for the
Obligations up to its Maximum Guaranteed Amount until the Obligations are paid
in full and the Commitments are terminated.
Exhibit G-4
(d) Each Guarantor agrees that whenever, at any time, or
from time to time, it shall make any payment to the EPN Group Administrative
Agents or any of the EPN Group Lenders on account of its liability hereunder, it
will notify the EPN Group Administrative Agents in writing that such payment is
made under this Guarantee for such purpose.
3. Right of Contribution. Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Paragraph 5 hereof. The
provisions of this Paragraph 3 shall in no respect limit the obligations and
liabilities of any Guarantor to the EPN Group Administrative Agents and the EPN
Group Lenders, and each Guarantor shall remain liable to the EPN Group
Administrative Agents and the EPN Group Lenders for the full amount guaranteed
by such Guarantor hereunder.
4. Right of Set-off. Each Guarantor hereby irrevocably authorizes
the EPN Group Administrative Agents and each of the EPN Group Lenders at any
time and from time to time without notice to such Guarantor or any other
Guarantor, any such notice being expressly waived by each Guarantor, to set-off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the EPN Group Administrative Agents or such EPN Group Lender to or for
the credit or the account of such Guarantor, or any part thereof in such amounts
as the EPN Group Administrative Agents or such EPN Group Lenders may elect,
against and on account of the obligations and liabilities of such Guarantor to
the EPN Group Administrative Agents and the EPN Group Lenders hereunder and
claims of every nature and description of the EPN Group Administrative Agents
and the EPN Group Lenders against such Guarantor, in any currency, whether
arising hereunder, under the EPN Credit Agreement, the EPNHC Credit Agreement,
the Notes, the other Loan Documents or otherwise, as such EPN Group Lenders may
elect, whether or not the EPN Group Administrative Agents or any of the EPN
Group Lenders has made any demand for payment. Each of the EPN Group Lenders
agrees to notify such Guarantor promptly of any such set-off and the application
made by such EPN Group Lenders or the EPN Group Administrative Agents, as the
case may be, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each of the EPN Group
Lenders and the EPN Group Administrative Agents under this paragraph are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such EPN Group Lenders may have.
5. No Subrogation. Notwithstanding any payment or payments made
by any of the Guarantors hereunder or under any other Loan Document or any
set-off or application of funds of any of the Guarantors by any of the EPN Group
Lenders or the EPN Group Administrative Agents, no Guarantor shall be entitled
to be subrogated to any of the rights of the EPN Group Administrative Agents or
any of the EPN Group Lenders against the EPN Group Borrowers or any other
Guarantor or any collateral security or guarantee or right of offset held by any
of the EPN Group Lenders or the EPN Group Administrative Agents for the payment
of the Obligations or any guarantee thereof, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the EPN Group Borrowers
or any other Guarantor in respect
Exhibit G-5
of payments made by such Guarantor hereunder or under any other Loan Document,
until all amounts owing to the EPN Group Administrative Agents and the EPN Group
Lenders by the EPN Group Borrowers on account of the Obligations are paid in
full and the Commitments are terminated. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the EPN Group Administrative Agents and the EPN Group
Lenders, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the EPN Group Administrative
Agents in the exact form received by such Guarantor (duly indorsed by such
Guarantor to the EPN Group Administrative Agents, if required), to be applied
against the Obligations, whether matured or unmatured, in such order as the EPN
Group Administrative Agents may determine.
6. Amendments, etc. with respect to the Obligations; Waiver of
Rights. Each Guarantor shall remain obligated hereunder and under the other Loan
Documents to which it is a party notwithstanding that, without any reservation
of rights against any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Obligations or any guarantees
thereof made by the EPN Group Administrative Agents or any of the EPN Group
Lenders may be rescinded by such Person and any of the Obligations or any
guarantees thereof continued, and the Obligations, or the liability of any other
Person upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the EPN Group Administrative
Agents or any of the EPN Group Lenders and the EPN Credit Agreement, the EPNHC
Credit Agreement, the Notes, the other Loan Documents, any other collateral
security document or other guarantee or document in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, as the EPN
Group Administrative Agents and/or any of the EPN Group Lenders may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the EPN Group Administrative Agents or any of the EPN
Group Lenders for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the EPN Group Administrative Agents nor any of
the EPN Group Lenders shall have any obligation to protect, secure, perfect or
insure any Lien at any time held as security for the Obligations or any
guarantees thereof or for this Guarantee or any other Loan Document or any
property subject thereto. When making any demand hereunder or under any other
Loan Document against any of the Guarantors, the EPN Group Administrative Agents
or any of the EPN Group Lenders may, but shall be under no obligation to, make a
similar demand on the EPN Group Borrowers or any other Guarantor or guarantor,
and any failure by the EPN Group Administrative Agents or any of the EPN Group
Lenders to make any such demand or to collect any payments from the EPN Group
Borrowers or any such other Guarantor or guarantor or any release of the EPN
Group Borrowers or such other Guarantor or guarantor shall not relieve any of
the Guarantors in respect of which a demand or collection is not made or any of
the Guarantors not so released of their several obligations or liabilities
hereunder and under the other Loan Documents, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the EPN Group
Administrative Agents or any of the EPN Group Lenders against any of the
Guarantors. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
Exhibit G-6
7. Guarantee Absolute and Unconditional. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the EPN Group Administrative
Agents or any of the EPN Group Lenders upon this Guarantee or acceptance of this
Guarantee or any other Loan Document, the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Guarantee; and all dealings
between the EPN Group Borrowers or any of the Guarantors and the EPN Group
Administrative Agents or any of the EPN Group Lenders shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee and the other Loan Documents. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the EPN Group Borrowers or any of the Guarantors with respect to the
Obligations or any guarantee thereof. Each Guarantor understands and agrees that
this Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the EPN Credit Agreement, the EPNHC Credit Agreement, the
Notes, any of the other Loan Documents, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the EPN Group Administrative
Agents or any of the EPN Group Lenders, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the EPN Group Borrowers against the EPN Group
Administrative Agents or any of the EPN Group Lenders, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the EPN Group
Borrowers or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the EPN Group Borrowers for the
Obligations, or of such Guarantor under this Guarantee or any other Loan
Document, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against any Guarantor, the EPN Group Administrative Agents
and any of the EPN Group Lenders may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the EPN Group Borrowers
or any other Person or against any collateral security or guarantee for the
Obligations or any right of offset with respect thereto, and any failure by the
EPN Group Administrative Agents or any of the EPN Group Lenders to pursue such
other rights or remedies or to collect any payments from the EPN Group Borrowers
or any such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the EPN
Group Borrowers or any such other Person or any such collateral security,
guarantee or right of offset, shall not relieve such Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the EPN Group
Administrative Agents or any of the EPN Group Lenders against such Guarantor.
This Guarantee shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon each Guarantor and the
successors and assigns thereof, and shall inure to the benefit of the EPN Group
Administrative Agents and the EPN Group Lenders, and their respective
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of each Guarantor under this Guarantee shall have been satisfied
by payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of the EPN Credit Agreement and the EPNHC
Credit Agreement the EPN Group Borrowers may be free from any Obligations.
8. Reinstatement. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is
Exhibit G-7
rescinded or must otherwise be restored or returned by the EPN Group
Administrative Agents or any of the EPN Group Lenders upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any of the EPN Group
Borrowers or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
of the EPN Group Borrowers or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
9. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the EPN Group Administrative Agents without set-off or
counterclaim in U.S. Dollars at the office of the EPN Group Administrative
Agents located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
10. Representations and Warranties. Each Guarantor hereby
represents and warrants that:
(a) such Guarantor is duly organized, validly existing
and, as applicable, in good standing under the laws of the jurisdiction of its
organization and has the power and authority and the legal right to own and
operate its property, to lease the property it operates and to conduct the
business in which it is currently engaged;
(b) such Guarantor has the power and authority and the
legal right to execute and deliver, and to perform its obligations under, this
Guarantee, and has taken all necessary action to authorize its execution,
delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of such Guarantor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally;
(d) the execution, delivery and performance of this
Guarantee will not violate any provision of any Requirement of Law or
Contractual Obligation of such Guarantor and will not result in or require the
creation or imposition of any Lien on any of the properties or revenues of such
Guarantor pursuant to any Requirement of Law or Contractual Obligation of such
Guarantor;
(e) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and no consent
of any other Person (including, without limitation, any stockholder, member of,
owner of any limited liability company interest of or creditor of such
Guarantor) is required in connection with the execution, delivery, performance,
validity or enforceability of this Guarantee;
(f) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of such Guarantor, threatened by or against such Guarantor or any of its
properties or revenues (i) with respect to this Guarantee or any of the
transactions contemplated hereby or (ii) which could have a material adverse
effect on the business, operations, property or financial or other condition of
such Guarantor;
Exhibit G-8
(g) such Guarantor has filed or caused to be filed all
tax returns required to be filed by it and has paid all taxes due on said
returns or on any assessments made against it (other than those being contested
in good faith by appropriate proceedings for which adequate reserves have been
provided on its books); and
(h) On the date of execution of this Guarantee and upon
each Borrowing Date (i) the amount of the "present fair saleable value" of the
assets of each Guarantor will, as of each such date, exceed the amount of all
"liabilities of such Guarantor, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (ii) the present
fair saleable value of the assets of each Guarantor will, as of such date, be
greater than the amount that will be required to pay the liability of such
Guarantor on its debts as such debts become absolute and matured, (iii) each
Guarantor will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business, and (iv) each Guarantor will be able
to pay its debts as they mature. For purposes of this subsection 10(i) "debt"
means "liability on a claim", and "claim" means any (x) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured; or (y) right to an equitable remedy for payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
Each of the Guarantors shall be deemed to make the representation contained in
this subsection 10(h) on each Borrowing Date.
Each Guarantor agrees that the foregoing representations and warranties
shall be deemed to have been made by such Guarantor on the date of each
borrowing by any of the EPN Group Borrowers under the EPN Credit Agreement or
the EPNHC Credit Agreement on and as of such date of borrowing as though made
hereunder on and as of such date.
11. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. Paragraph Headings. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
13. No Waiver; Cumulative Remedies. Neither the EPN Group
Administrative Agents nor any of the EPN Group Lenders shall by any act (except
by a written instrument pursuant to paragraph 14 hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the EPN Group Administrative Agents or any of the EPN
Group Lenders, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the EPN Group Administrative
Agents or any of the EPN Group Lenders of any right or remedy
Exhibit G-9
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the EPN Group Administrative Agents or such EPN Group Lenders would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
14. Integration; Waivers and Amendments; Successors and Assigns;
Governing Law. This Guarantee represents the agreement of each Guarantor with
respect to the subject matter hereof and there are no promises or
representations by the EPN Group Administrative Agents or any of the EPN Group
Lenders relative to the subject matter hereof not reflected herein. None of the
terms or provisions of this Guarantee may be waived, amended or supplemented or
otherwise modified except by a written instrument executed by each Guarantor and
the EPN Group Administrative Agents, provided that any provision of this
Guarantee may be waived by the EPN Group Administrative Agents and the EPN Group
Lenders in a letter or agreement executed by the EPN Group Administrative Agents
or by facsimile transmission from the EPN Group Administrative Agents. This
Guarantee shall be binding upon the successors and assigns of each Guarantor and
shall inure to the benefit of the EPN Group Administrative Agents and the EPN
Group Lenders and their respective successors and assigns. This Guarantee shall
be governed by and be construed and interpreted in accordance with the laws of
the State of New York.
15. Notices. All notices, requests and demands to or upon the
Guarantors or the EPN Group Administrative Agents or any of the EPN Group
Lenders to be effective shall be in writing (including by telecopy) and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered by hand, or three days after deposit in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed to a party
at the address provided for such party in subsection 11.2 of the EPN Credit
Agreement or subsection 11.2 of the EPNHC Credit Agreement or Schedule I hereto,
as the case may be.
16. Authority of EPN Group Administrative Agents. Each Guarantor
acknowledges that the rights and responsibilities of the EPN Group
Administrative Agents under this Guarantee with respect to any action taken by
the EPN Group Administrative Agents or the exercise or non-exercise by the EPN
Group Administrative Agents of any option, right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the EPN Group Administrative Agents and the EPN
Group Lenders, be governed by the EPN Credit Agreement and the EPNHC Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the EPN Group Administrative Agents and
such Guarantor, the EPN Group Administrative Agents shall be conclusively
presumed to be acting as agent for the EPN Group Lenders with full and valid
authority so to act or refrain from acting, and no Guarantor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT AGAINST IT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF
Exhibit G-10
THIS AGREEMENT, SUCH GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO SUCH GUARANTOR AT ITS ADDRESS SET FORTH IN SCHEDULE I HERETO.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE EPN GROUP ADMINISTRATIVE AGENTS OR
ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST SUCH GUARANTOR IN ANY
OTHER JURISDICTION.
18. WAIVERS. (a) EACH GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY ACTION DESCRIBED IN PARAGRAPH 17, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE SAME.
(b) EACH OF EACH GUARANTOR AND THE EPN GROUP
ADMINISTRATIVE AGENTS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO
A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO
ANY MATTER ARISING DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS
AGREEMENT.
19. Counterparts. This Guarantee may be executed by one or more of
the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[signature page follows]
Exhibit G-11
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
HATTIESBURG GAS STORAGE COMPANY
By: Hattiesburg Industrial Gas Sales, L.L.C.
First Reserve Gas, L.L.C.
its General Partners
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
By: El Paso Energy Partners Deepwater, L.L.C.
its Sole Member
EAST BREAKS GATHERING COMPANY, L.L.C.
By: El Paso Energy Partners Deepwater, L.L.C.
its Sole Member
▇▇▇▇, ▇.▇.▇.
▇▇▇▇ I, L.L.C.
ARGO II, L.L.C.
CRYSTAL HOLDING, L.L.C.
EL PASO ENERGY PARTNERS DEEPWATER, L.L.C.
EL PASO ENERGY PARTNERS OIL TRANSPORT, L.L.C.
FIRST RESERVE GAS, L.L.C.
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.
PETAL GAS STORAGE, L.L.C.
GREEN CANYON PIPE LINE COMPANY, L.P.
EL PASO ENERGY PARTNERS OPERATING COMPANY, L.L.C.
DELOS OFFSHORE COMPANY, L.L.C.
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
MANTA RAY GATHERING COMPANY, L.L.C.
POSEIDON PIPELINE COMPANY, L.L.C.
VK DEEPWATER GATHERING COMPANY, L.L.C.
VK-MAIN PASS GATHERING COMPANY, L.L.C.
EPN NGL STORAGE, L.L.C.
By: ________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
Exhibit G Signature Page-1
EPN HOLDING COMPANY, L.P.
By: EPN GP Holding, L.L.C.
its General Partner
EL PASO ENERGY INTRASTATE, L.P.
By: EPN Pipeline GP Holding, L.L.C.
its General Partner
EPGT TEXAS PIPELINE, L.P.
By: EPN Pipeline GP Holding, L.L.C.
its General Partner
EL PASO INDIAN BASIN, L.P.
By: El Paso Indian Basin GP, L.L.C.
its General Partner
EPN GATHERING AND TREATING COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
WARWINK GATHERING AND TREATING COMPANY
By: El Paso Energy Warwink I Company, L.P.
and El Paso Energy Warwink II Company,
L.P., its General Partners
By: EPN Gathering and Treating GP
Holding, L.L.C., their General
Partner
EPN PIPELINE GP HOLDING, L.L.C.
EPN GP HOLDING, L.L.C.
EPN GP HOLDING I, L.L.C.
EPN HOLDING COMPANY I, L.P.
EL PASO HUB SERVICES COMPANY, L.L.C.
EL PASO ENERGY WARWINK I COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO ENERGY WARWINK II COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO OFFSHORE GATHERING & TRANSMISSION, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO INDIAN BASIN GP, L.L.C.
Exhibit G Signature Page-2
EPN GATHERING AND TREATING GP HOLDING, L.L.C.
By:________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President & Chief Financial Officer
Exhibit G Signature Page-3
THE CHACO LIQUIDS PLANT TRUST
By: El Paso Energy Partners Operating
Company, L.L.C.
its Trustee
By:____________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
Exhibit G Signature Page-4
Consented to pursuant to Section 14 of the
Existing EPN Subsidiary Guarantee:
JPMorgan Chase Bank,
as Administrative Agent
By: _______________________________________
Name: _______________________________________
Title:_______________________________________
Consented to pursuant to Section 13 of the
Existing EPNHC Parent GP Guarantee:
JPMorgan Chase Bank,
as Administrative Agent
By: _______________________________________
Name: _______________________________________
Title:_______________________________________
Consented to pursuant to Section 13 of the
Existing EPNHC Parent LP Guarantee:
JPMorgan Chase Bank,
as Administrative Agent
By: _______________________________________
Name: _______________________________________
Title:_______________________________________
Consented to pursuant to Section 14 of the
Existing EPNHC Subsidiary Guarantee:
JPMorgan Chase Bank,
as Administrative Agent
By: _______________________________________
Name: _______________________________________
Title:_______________________________________
Exhibit G Signature Page-5
SCHEDULE I
Addresses of Guarantors
Four Greenway Plaza
Houston, Texas 77046
Attn: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit G Schedules-1
Exhibit A to
Subsidiaries Guarantee
ADDENDUM TO SUBSIDIARIES GUARANTEE
ADDENDUM, dated as of _____________, 200_ (this "Addendum"), to that
Consolidated Amended and Restated Subsidiaries Guarantee, dated as of October
10, 2002 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Subsidiaries Guarantee"), made by each of the Guarantors listed
below in favor of the EPN Group Administrative Agents for the ratable benefit of
the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (each as defined in the
Subsidiaries Guarantee). Unless otherwise defined herein, terms defined in the
Subsidiaries Guarantee are used herein as therein defined.
W I T N E S S E T H :
WHEREAS, [NAME OF NEW GUARANTOR], [a _________ limited liability
company] [a _________________ corporation] [a __________________ partnership]
(the "New Guarantor"), has become a Subsidiary of one of the EPN Group
Borrowers; and
WHEREAS, pursuant to subsection 8.17 of the EPN Credit Agreement [or
Section 8.17 of the EPNHC Credit Agreement], the New Guarantor is required to
become a party to the Subsidiaries Guarantee;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the New Guarantor hereby:
(i) agrees to all of the provisions of the Subsidiaries
Guarantee, and
(ii) effective on the date hereof, becomes a party to the
Subsidiaries Guarantee, as a Guarantor, with the same effect as if the
New Guarantor were an original signatory thereto (with the
representations and warranties contained therein being deemed to be
made by the New Guarantor as of the date hereof).
IN WITNESS WHEREOF, the New Guarantor has caused this Addendum to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
[NAME OF NEW GUARANTOR]
By:_________________________________
Title:
Address:
Exhibit G Schedules (Exhibit A)-1
Each of the undersigned Guarantors hereby ratifies and confirms its
respective obligations under the Subsidiaries Guarantee, as supplemented by this
Addendum:
[List Names Existing Subsidiary Guarantors]
By:________________________________________
________________________________________
________________________________________
Exhibit G Schedules (Exhibit A)-2
EXHIBIT H
FORM OF SUBSIDIARIES PLEDGE AGREEMENT
CONSOLIDATED AMENDED AND RESTATED
SUBSIDIARY PLEDGE AGREEMENT
CONSOLIDATED AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT,
dated as of October 10, 2002, made by each Pledgor named on Schedule III hereto,
(individually a "Pledgor" and collectively the "Pledgors"), in favor of JPMORGAN
CHASE BANK, as collateral agent (in such capacity, the "Collateral Agent") for
the ratable benefit of (a) the banks and other financial institutions (the "EPN
Lenders") parties to the Amended and Restated Credit Agreement, dated as of
March 23, 1995 and as amended and restated as of October 10, 2002 (as amended,
supplemented or otherwise modified from time to time, the "EPN Credit
Agreement") among El Paso Energy Partner, L.P., a Delaware limited partnership
("EPN"), El Paso Energy Partners Finance Corporation, a Delaware corporation
("El Paso Finance"), the EPN Lenders and JPMORGAN CHASE BANK, as administrative
agent (in such capacity, the "EPN Administrative Agent"), (b) the banks and
other financial institutions (the "EPNHC Lenders"; the EPN Lenders and EPNHC
Lenders herein collectively referred to as the "EPN Group Lenders") parties to
the Amended and Restated Credit Agreement, dated as of April 8, 2002 and as
amended and restated as of October 10, 2002 (as amended, supplemented or
otherwise modified from time to time, the "EPNHC Credit Agreement") among EPN
Holding Company, L.P., a Delaware limited partnership, as the borrower ("EPNHC";
EPN, El Paso Finance and EPNHC herein collectively referred to as the "EPN Group
Borrowers"), the EPNHC Lenders and JPMORGAN CHASE BANK, as administrative agent
(in such capacity, the "EPNHC Administrative Agent"; the EPN Administrative
Agent and the EPNHC Administrative Agent herein collectively referred to as the
"EPN Group Administrative Agents"), and (c) the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (as defined
in the EPN Credit Agreement).
W I T N E S S E T H :
WHEREAS, certain of the Pledgors and the Collateral Agent are
parties to the January 2002 Subsidiary Pledge Agreement, dated as of January 31,
2002 (as amended, supplemented and otherwise modified prior to the date hereof,
the "Existing EPN Subsidiary Pledge Agreement");
WHEREAS, EPNHC and the Collateral Agent are parties to that
certain Borrower Pledge Agreement, dated as of April 8, 2002 (as amended,
supplemented and otherwise modified prior to the date hereof, the "Existing
EPNHC Pledge Agreement");
WHEREAS, certain of the Pledgors and the Collateral Agent are
parties to that certain Subsidiary Security Agreement, dated as of April 8, 2002
(as amended, supplemented and otherwise modified prior to the date hereof, the
"Existing EPNHC Subsidiary Pledge Agreement");
WHEREAS, pursuant to the provisions of Section 7.9 of the EPN
Credit Agreement, EPN and El Paso Finance agreed that they would deliver, and
would cause each
Exhibit H-1
Person that is a party (or is required to be a party) to any Security Document,
other than the Collateral Agent, to deliver, amended and restated Security
Documents, together with supplemented and corrected schedules, exhibits or other
documents, if any, that are necessary to accurately reflect the collateral
existing as of the Closing Date that is pledged as security for EPN and El Paso
Finance's obligations under the EPN Credit Agreement;
WHEREAS, pursuant to the provisions of Section 7.9 of the
EPNHC Credit Agreement, EPNHC agreed that it would deliver, and would cause each
Person that is a party (or is required to be a party) to any Security Document,
other than the Collateral Agent, to deliver, amended and restated Security
Documents, together with supplemented and corrected schedules, exhibits or other
documents, if any, that are necessary to accurately reflect the collateral
existing as of the Closing Date that is pledged as security for EPNHC's
obligations under the EPNHC Credit Agreement;
WHEREAS, pursuant to the provisions of Section 7.9 of the EPN
Credit Agreement and Section 7.9 of the EPNHC Credit Agreement, the Pledgors
have entered into and delivered to the Collateral Agent, this Agreement;
WHEREAS, the relevant Pledgor named on Schedule III hereto (a)
owns the limited liability company interests described on Schedule I hereto in
the limited liability companies described thereon (collectively referred to
herein, together with any other limited liability company interest owned or
required by any Pledgor after the date of this Agreement whose ownership
interests are, pursuant to the provisions of the EPN Credit Agreement or the
EPNHC Credit Agreement, required to be pledged to the Collateral Agent
hereunder, as the "LLCs"), (b) owns the general partnership interests described
on Schedule I hereto in the general and limited partnerships described thereon
(collectively referred to herein, together with any other general or limited
partnership interest owned or acquired by any Pledgor after the date of this
Agreement whose partnership interests are, pursuant to the provisions of the EPN
Credit Agreement or the EPNHC Credit Agreement, required to be pledged to the
Collateral Agent hereunder, as the "Partnerships") and (c) owns all of the
interests in the Chaco Trust as described on Schedule I hereto;
WHEREAS, the EPN Credit Agreement requires that the Capital
Stock of certain Subsidiaries of EPN that are controlled indirectly, through one
or more intermediaries, by EPN, be pledged to the Collateral Agent;
WHEREAS, the EPNHC Credit Agreement requires that the Capital
Stock of certain Subsidiaries of EPNHC that are controlled indirectly, through
one or more intermediaries, by EPNHC, be pledged to the Collateral Agent;
WHEREAS, the Pledgors own interests in certain of the
Subsidiaries; and
WHEREAS, the making of this Agreement by the Pledgors are
necessary or convenient to the conduct, promotion, or attainment of the business
of the Pledgors;
NOW, THEREFORE, in consideration of the premises and to comply
with the requirements of Section 7.9 of the EPN Credit Agreement and Section 7.9
of the EPNHC Credit Agreement, the Pledgors hereby agree with the Collateral
Agent, for the ratable benefit of the
Exhibit H-2
EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, that each of the Existing EPN
Subsidiary Pledge Agreement, Existing EPNHC Pledge Agreement and Existing EPNHC
Subsidiary Pledge Agreement is hereby consolidated, amended and restated as a
single instrument to read in its entirety as follows:
1. Defined Terms. As used in this Agreement terms
defined in the EPN Credit Agreement or in the recitals hereto shall have their
defined meanings when used herein and the following terms shall have the
following meanings:
"Account Debtor": A Person (other than the Pledgors) obligated
on an Account, Chattel Paper, General Intangible, or the Contract.
"Agreement": This Consolidated Amended and Restated Subsidiary
Pledge Agreement, as the same may from time to time be amended,
supplemented or otherwise modified.
"Certificate of Formation": With respect to any LLC or
Partnership that is a limited partnership, its certificate of
formation.
"Collateral": The Interests (including, without limitation,
the Pledged Certificates), the Pledged Stock and all Proceeds. The
obligations of the Pledgors to provide Collateral are limited by
paragraphs (c) and (d) of subsection 7.10 of the EPN Credit Agreement
and by paragraphs (c) and (d) of subsection 7.10 of the EPNHC Credit
Agreement.
"Corporations": any corporate Subsidiary of EPN or EPNHC in
which any Pledgor owns Capital Stock and such Capital Stock is required
to be pledged to the Collateral Agent hereunder pursuant to the
provisions of the EPN Credit Agreement or the EPNHC Credit Agreement.
"Interests":
(i) All right, title and interest, now existing
or hereafter acquired, of each Pledgor in the Non-Corporate
Subsidiaries but not any of its obligations from time to time
as a member or partner therein (unless the Collateral Agent
shall become a member or partner therein as a result of its
exercise of remedies pursuant to the terms hereof);
(ii) any and all moneys due and to become due to
the each Pledgor now or in the future by way of a distribution
made to such Pledgor in its capacity as a member or partner of
or the owner of any limited liability company interest,
limited or general partner interest or other equity interest
in any of the Non-Corporate Subsidiaries or otherwise in
respect of the each Pledgor's interest as a member of or
partner in the Non-Corporate Subsidiaries or the owner of any
limited liability company interests, limited or general
partner interests or other equity interests in any of the
Non-Corporate Subsidiaries;
Exhibit H-3
(iii) any other property of any of the
Non-Corporate Subsidiaries to which any Pledgor now or in the
future may be entitled in its capacity as a member of, partner
in or owner of any limited liability company interest, limited
or general partner interest or other equity interest in any
such Non-Corporate Subsidiary by way of distribution, return
or otherwise;
(iv) any other claim which any Pledgor now has or
may in future acquire in its capacity as member of, partner in
or owner of any limited liability company interest, limited or
general partner interest or other equity interest in any of
the Non-Corporate Subsidiaries against any such Non-Corporate
Subsidiary and its property;
(v) to the extent not otherwise included, (A)
all Proceeds of any or all of the foregoing, and (B) all
Supporting Obligations (as such term is defined in the UCC)
with respect to the foregoing.
"Governing Documents": (a) with respect to any LLC, its
Certificate of Formation and its LLC Agreement; (b) with respect to any
Partnership that is a limited partnership, its Certificate of Formation
and limited partnership agreement; (c) with respect to any Partnership
that is a general partnership, its partnership agreement; and (d) with
respect to any other Non-Corporate Subsidiary, its declaration of trust
or other governing document.
"LLC Agreement": with respect to any LLC, its limited
liability company agreement.
"Non-Corporate Subsidiaries": All Subsidiaries (other than the
Corporations) of EPN or EPNHC in which any Pledgor owns of record
Capital Stock and such Capital Stock is required to be pledged to the
Collateral Agent hereunder pursuant to the provisions of the EPN Credit
Agreement or the EPNHC Credit Agreement.
"Obligations": (i) with respect to any Pledgor, all
obligations, liabilities and indebtedness of such Pledgor under and
pursuant to the Subsidiaries Guarantee, and (ii) solely with respect to
EPNHC, the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the EPNHC Term
Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to EPNHC, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
and all other obligations and liabilities of EPNHC to the EPNHC
Administrative Agent or the EPNHC Lenders, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
EPNHC Credit Agreement, the other EPNHC Loan Documents or any other
document made, delivered or given in connection therewith, whether on
account of principal, interest, reimbursement of obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees
and disbursements of counsel to the EPNHC Administrative Agent or any
of the EPNHC Lenders) or otherwise.
Exhibit H-4
"Pledged Certificates": the certificates of limited liability
company interests of the LLCs, certificates of partnership interests of
the Partnerships, and certificates of equity interests of the other
Non-Corporate Subsidiaries listed on Schedule I(A) hereto (if any),
together with all limited liability company certificates, partnership
interest certificates, stock certificates, equity interest
certificates, options or rights of any nature whatsoever that may be
issued or granted by any LLC to any Pledgor while this Agreement is in
effect.
"Pledged Stock": the shares of capital stock listed on
Schedule I(B) hereto (if any), together with all stock certificates,
options or rights of any nature whatsoever that may be issued or
granted by the issue of such capital stock to the Pledgors while this
Agreement is in effect.
"Proceeds": All "proceeds" (as such term is defined in Section
9 102 of the Uniform Commercial Code in effect in the State of New York
on the date hereof) and, in any event, shall include, without
limitation, all income, gain, credit, distributions, dividends and
similar items from or with respect to the Interests (including, without
limitation, the Pledged Certificates) and the Pledged Stock,
collections thereon or distributions with respect thereto.
"Subsidiaries": collectively, the Corporations and the
Non-Corporate Subsidiaries.
"UCC" or "Uniform Commercial Code": the Uniform Commercial
Code from time to time in effect in the State of New York.
2. Assignment and Grant of Security Interest. As
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations of the relevant Pledgor, each Pledgor hereby delivers to the
Collateral Agent all the Pledged Certificates and all the Pledged Stock and
sells, assigns, conveys, mortgages, pledges, hypothecates and transfers to the
Collateral Agent, and hereby grants to the Collateral Agent, for the ratable
benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, a first security
interest in, to and under the Collateral of such Pledgor. The Pledgors will
cause each of the Subsidiaries to execute an Acknowledgement and Consent
substantially in the form of Exhibit B hereto. Interests in certain of the
Non-Corporate Subsidiaries may not be evidenced by certificates. In the case of
such Non-Corporate Subsidiaries, the Collateral Agent agrees that it will not
give any instructions to the Non-Corporate Subsidiaries pursuant to the
provisions of such Acknowledgement and Consent except upon the occurrence and
during the continuance of an Event of Default.
3. Transfer Powers. Concurrently with the delivery to
the Collateral Agent of each Pledged Certificate and each certificate
representing one or more shares of Pledged Stock to the Collateral Agent, each
Pledgor shall deliver an undated transfer power covering each such certificate,
duly executed in blank by such Pledgor with, if the Collateral Agent so
requests, signature guaranteed.
Exhibit H-5
4. Representations and Warranties. Each Pledgor
represents and warrants that:
(a) each Pledgor has the power and authority and the
legal right to execute and deliver, to perform its obligations under,
and to grant the Lien on the Collateral pursuant to, this Agreement and
has taken all necessary action to authorize its execution, delivery and
performance of, and grant of the Lien on the Collateral pursuant to,
this Agreement;
(b) this Agreement constitutes a legal, valid and binding
obligation of each Pledgor enforceable against such Pledgor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles;
(c) the execution, delivery and performance of this
Agreement will not violate any provision of any Requirement of Law or
Contractual Obligation of any Pledgor and will not result in the
creation or imposition of any Lien on any of the properties or revenues
of any Pledgor pursuant to any Requirement of Law or Contractual
Obligation of such Pledgor, except as contemplated hereby;
(d) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and
no consent of any other Person (including, without limitation, any
creditor of any Pledgor or any of the Subsidiaries), is required in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement;
(e) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the
knowledge of any Pledgor, threatened by or against any Pledgor or
against any of the Collateral with respect to this Agreement or any of
the transactions contemplated hereby;
(f) each Pledgor is the record and beneficial owner of,
and has good and legal title to, the Interests and the Pledged Stock,
free of any and all Liens or options in favor of, or claims of, any
other Person, except the Liens created by this Agreement, and (i) all
the Pledged Certificates have been duly and validly issued and (ii) all
the shares of Pledged Stock have been duly and validly issued and are
fully paid and nonassessable;
(g) no security agreement, financing statement,
equivalent security or lien instrument or continuation statement
covering all or part of the Collateral is on file or of record in any
public office, except such as may have been or will be filed in favor
of the Collateral Agent pursuant to this Agreement or must have
otherwise been filed in favor of the Collateral Agent;
(h) upon delivery to the Collateral Agent of the Pledged
Certificates and the stock certificates evidencing the Pledged Stock
and upon the filing of the financing statements described on Schedule
II to this Agreement, the Lien granted pursuant to this Agreement will
constitute a valid, perfected first priority Lien on the Collateral,
prior to
Exhibit H-6
all other Liens, which will be enforceable as such as against all
creditors of the Pledgors and any Persons purporting to purchase any
Collateral from the Pledgors, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally.
All action necessary or desirable to perfect such security interest in
each item of the Collateral requested by the Collateral Agent,
including the filing of financing statements in the offices referred to
on Schedule II to this Agreement has been or will be duly taken;
(i) the name of each Pledgor as indicated on the public
record of the Pledgors' jurisdiction of organization, which shows the
Pledgor to have been organized, is as set forth on Schedule III hereto.
The mailing address of each Pledgor is Four Greenway Plaza, Houston,
Texas 77046. With respect to each Pledgor, the type of entity of such
Pledgor and the organizational identification number in the State of
Delaware for such Pledgor is correctly set forth on Schedule III
hereto. To the extent indicated on Schedule III hereto, the Pledgors
therein identified were formerly known by the names set forth on
Schedule III hereto. Other than such names, no Pledgor has used any
other name or trade name. The Pledgors recognize that financing
statements pertaining to the Collateral have been or may be filed where
the Pledgors maintain any Collateral or are organized. Without
limitation of any other covenant herein, the Pledgors will not cause or
permit (i) any change to be made in their names, identities or
corporate structures or (ii) any changes to the Pledgors' jurisdictions
of organization, unless the Pledgors shall have first (1) notified the
Collateral Agent of such change at least thirty (30) days prior to the
effective date of such change, and (2) taken all action reasonably
requested by the Collateral Agent for the purpose of maintaining the
perfection and priority of the Collateral Agent's security interests
and rights under this Agreement. In any notice furnished pursuant to
this subsection, each Pledgor will expressly state that the notice is
required by this Agreement and contains facts that may require
additional filings of financing statements or other notices for the
purposes of continuing perfection of the Collateral Agent's security
interest in the Collateral;
(j) (i) each of the LLCs is a limited liability company
duly formed and validly existing under the laws of the State of
Delaware, (ii) each of the Partnerships is a general or limited
partnership (as the case may be) duly formed and validly existing under
the laws of the State of Delaware, except for Warwink Gathering and
Treating, which is duly formed and validly existing under the laws of
the State of Texas, (iii) each of the other Non-Corporate Subsidiaries
is duly formed and validly existing under the laws of its jurisdiction
of formation, (iv) each of the Corporations is duly organized and
validly existing under the laws of the State of Delaware, and (v) each
of the Subsidiaries has all the requisite power and authority to own
and operate its properties, to lease the properties it operates and to
carry on its business as now conducted and is duly qualified as a
foreign limited liability company or a foreign corporation and in good
standing in each jurisdiction in which the character of its properties
owned or the nature of the activities conducted by it makes such
qualification or licensing necessary, except where failure to be so
qualified could not have a Material Adverse Effect. Except as set forth
on Schedule I, each Pledgor is the sole owner (directly or through one
or more wholly-owned Subsidiaries) of each of the relevant LLCs,
Partnerships, and other Non-Corporate Subsidiaries, and the nature of
each Pledgor's interest in each of the LLCs, Partnerships
Exhibit H-7
and other Non-Corporate Subsidiaries is as set forth on Schedule I(A)
hereto. The shares of Pledged Stock constitutes each Pledgor's
percentage interest of all the issued and outstanding shares of all
classes of the capital stock of each Corporation, as such percentage is
set forth on Schedule I(B) hereto. The list of certificates set forth
on (i) Schedule I(A) constitutes a full and complete list of all the
certificates of limited liability company interests of the LLCs, the
certificates of partnership interests of the Partnerships, and the
certificates of equity interests of the other Non-Corporate
Subsidiaries, in each case owned by each Pledgor, (ii) Schedule I(B)
constitutes a full and complete list of all of the issued and
outstanding shares of capital stock of any class of each corporate or
other Subsidiary beneficially owned by each Pledgor on the date hereof
(whether or not registered in the name of such Pledgor) and said
Schedule I(B) correctly identifies, as at the date hereof, the
respective class and par value of the shares comprising such Pledged
Stock and the respective number of shares (and registered owners
thereof) represented by each such certificate, and correct copies of
the Governing Documents of each Subsidiary have been delivered to the
Collateral Agent; and
(k) the execution and delivery of this Agreement will not
result in any violation of or be in conflict with or constitute a
default under any term of the Governing Documents of any Subsidiary, or
to the best knowledge of each Pledgor, of any agreement or instrument
of or judgment, decree, order, statute, rule or governmental regulation
applicable to such Pledgor, or result in the creation of any Lien upon
any of the properties or assets of such Pledgor (including, without
limitation, the Collateral) pursuant to any such term other than the
Lien in favor of the Collateral Agent created pursuant to this
Agreement.
5. Covenants. Each Pledgor covenants and agrees with the
Collateral Agent that, from and after the date of this Agreement until the
Obligations are paid in full:
(a) If a Pledgor shall, as a result of its ownership of
the Collateral, become entitled to receive or shall receive any limited
liability company interest, any stock certificate or other certificate
(including, without limitation, any certificate representing a stock
dividend or distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights, whether in
addition to, in substitution of, as a conversion of, or in exchange for
Interests or any shares of the Pledged Stock, or otherwise in respect
thereof, such Pledgor shall accept the same as the Collateral Agent's
agent, hold the same in trust for the Collateral Agent and deliver the
same forthwith to the Collateral Agent in the exact form received, duly
indorsed by such Pledgor to the Collateral Agent, if required, together
with an undated stock power covering such certificate duly executed in
blank and with, if the Collateral Agent so requests, signature
guaranteed, to be held by the Collateral Agent hereunder as additional
collateral security for the Obligations. Any sums paid upon or in
respect of the Pledged Stock upon the liquidation or dissolution of any
corporate or other Subsidiary, such payments shall be paid over to the
Collateral Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital
shall be made on or in respect of the Collateral or any property shall
be distributed upon or with respect to the Collateral pursuant to the
recapitalization or reclassification of the capital of any of the
Subsidiaries, or pursuant to
Exhibit H-8
the reorganization thereof, the property so distributed shall be
delivered to the Collateral Agent to be held by it, subject to the
terms hereof, as additional collateral security for the Obligations. If
any sums of money or property so paid or distributed in respect of the
Collateral shall be received by any Pledgor, such Pledgor shall, until
such money or property is paid or delivered to the Collateral Agent,
hold such money or property in trust for the Collateral Agent,
segregated from other funds of such Pledgor, as additional collateral
security for the Obligations.
(b) Except as permitted under the EPN Credit Agreement
and the EPNHC Credit Agreement, without the prior written consent of
the Collateral Agent, Pledgors will not (i) sell, assign, transfer,
exchange or otherwise dispose of, or grant any option with respect to,
the Collateral, (ii) create, incur or permit to exist any Lien or
option in favor of, or any claim of any Person with respect to, any of
the Collateral, or any interest therein, except for the Lien provided
for by this Agreement or (iii) vote to enable, or take any other action
to permit, any corporate or other Subsidiary to issue any stock or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock or other equity securities of any nature of such Subsidiary. The
Pledgors will defend the right, title and interest of the Collateral
Agent in and to the Collateral against the claims and demands of all
Persons whomsoever. The Pledgors will not sell, transfer or otherwise
dispose of any of the Collateral, or attempt, offer or contract to do
so.
(c) At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of the
Pledgors, the Pledgors will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Collateral Agent may reasonably request for the purposes of obtaining
or preserving the full benefits of this Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code
in effect in any jurisdiction with respect to the Lien granted hereby.
Each Pledgor hereby authorizes the Collateral Agent, its counsel or its
representative, at any time and from time to time, to file financing
statements and amendments to financing statements that describe the
Collateral, in such jurisdictions as the Collateral Agent may deem
necessary or desirable in order to perfect or maintain the perfection
of the security interests granted by each Pledgor under this Agreement.
Each Pledgor hereby further authorizes the Collateral Agent, its
counsel or its representative, at any time and from time to time, to
file continuation statements with respect to previously filed financing
statements. If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any promissory note or
other instrument, such note or instrument shall be immediately pledged
hereunder to the Collateral Agent, duly endorsed in a manner
satisfactory to the Collateral Agent.
(d) The Pledgors will advise the Collateral Agent
promptly, in reasonable detail, of any Lien or claim made or asserted
against any of the Collateral.
(e) The Pledgors agree to pay, and to save the Collateral
Agent harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable
Exhibit H-9
with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(f) Promptly, but in no case later than 30 days after any
Pledgor forms or acquires a Subsidiary that is to be a Restricted
Subsidiary, such Pledgor shall provide to the Collateral Agent a
supplement to this Agreement in the form of Exhibit A hereto, which
shall include a schedule supplementing Schedule I, Schedule II, or
Schedule III, as the case may be, to pledge its ownership interests in
such Restricted Subsidiary to the Collateral Agent.
6. Cash Distributions; Cash Dividends; Voting Rights.
Unless an Event of Default shall have occurred and be continuing, each Pledgor
shall be permitted to receive (a) all cash distributions paid in the normal
course of business of the LLCs and to exercise all voting, member and manager
rights with respect to the Interests, and (b) all cash dividends paid in the
normal course of business of any corporate or other Subsidiary and consistent
with past practice, in respect of the Pledged Stock and to exercise all voting
and corporate rights with respect to the Pledged Stock; provided, however, that
no vote shall be cast or right exercised or other action taken which, in the
Collateral Agent's reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in a breach of any provision of the EPN
Credit Agreement or the EPNHC Credit Agreement, the Notes, any other Loan
Document or this Agreement.
7. Rights of the Collateral Agent.
(a) If an Event of Default shall occur and be continuing,
(i) the Collateral Agent shall have the right to receive and shall
receive any and all cash distributions or dividends paid in respect of
the Collateral and make application thereof to the Obligations in such
order as it may determine, and (ii) to the extent permitted by
applicable law, all shares or certificates of or evidencing the
Interests and the Pledged Stock shall be registered in the name of the
Collateral Agent or its nominee, and (whether or not so registered) the
Collateral Agent or its nominee may thereafter exercise (A) all voting,
corporate, member, manager and other rights pertaining to the Interests
or the shares of the Pledged Stock, as the case may be, and (B) any and
all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to the Interests or such shares of the
Pledged Stock, as the case may be, as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its
discretion any and all of the Interests or the Pledged Stock upon the
merger, consolidation, reorganization, recapitalization or other
fundamental change in the structure of any of the Subsidiaries, or upon
the exercise by any Pledgor or the Collateral Agent of any right,
privilege or option pertaining to such shares or certificates of or
evidencing the Interests or the Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the
Interests or the Pledged Stock with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and
conditions as it may determine), all without liability except to
account for property actually received by it, but the Collateral Agent
shall have no duty to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
Exhibit H-10
(b) The rights of the Collateral Agent hereunder shall
not be conditioned or contingent upon the pursuit by the Collateral
Agent of any right or remedy against any Subsidiary, or against any
other Person which may be or become liable in respect of all or any
part of the Obligations or against any other collateral security
therefor, guarantee thereof or right of offset with respect thereto.
The Collateral Agent shall not be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any
delay in doing so, nor shall it be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Pledgor or
any other Person or to take any other action whatsoever with regard to
the Collateral or any part thereof.
8. Collateral Agent's Appointment as Attorney-in-Fact.
(a) Each Pledgor hereby irrevocably constitutes and
appoints the Collateral Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of
such Pledgor and in the name of such Pledgor or in its own name, from
time to time in the Collateral Agent's discretion, for the purpose of
carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement and, without limiting the generality of the foregoing, hereby
gives the Collateral Agent the power and right, on behalf of such
Pledgor without notice to or assent by such Pledgor to do the
following:
(i) upon the occurrence and continuation of an
Event of Default to ask, demand, collect, receive and give
acceptances and receipts for any and all moneys due and to
become due with respect to the Collateral and, in the name of
such Pledgor or its own name or otherwise, to take possession
of, endorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of moneys due with
respect to the Collateral and to file any claim or to take any
other action or proceeding in any court of law or equity or
otherwise as deemed appropriate by the Collateral Agent for
the purpose of collecting any and all such moneys due with
respect to the Collateral or whenever payable;
(ii) to pay or discharge taxes, liens, security
interests or other encumbrances levied or placed on or
threatened against the Collateral; and
(iii) upon the occurrence and during the
continuance of an Event of Default, (A) to direct any Person
liable for any payment to any Pledgor with respect to the
Collateral to make payment of any and all moneys due and to
become due thereunder directly to the Collateral Agent or as
the Collateral Agent shall direct; (B) to receive payment of
and receipt for any and all moneys, claims and other amounts
due and to become due at any time in respect of or arising out
of any Collateral; (C) to sign and indorse any invoices,
drafts against debtors, assignments, verifications and notices
in connection with accounts and other documents relating to
the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral and to
enforce any other right in respect of any Collateral;
Exhibit H-11
(E) to defend any suit, action or proceeding brought against
any Pledgor with respect to any Collateral; (F) to settle,
compromise or adjust any suit, action or proceeding described
above and, in connection therewith, to give such discharges or
releases as the Collateral Agent may deem appropriate; and (G)
generally, to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral as
fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and to do, at the
Collateral Agent's option and a Pledgors' expense, at any
time, or from time to time, all acts and things which the
Collateral Agent deems necessary to protect, preserve or
realize upon the Collateral and the Collateral Agent's
security interest therein, in order to effect the intent of
this Agreement, all as fully and effectively as the Pledgors
might do.
Each Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof.
(b) The powers conferred on the Collateral Agent
hereunder are solely to protect its interests in the Collateral and
shall not impose any duty upon it to exercise any such powers. The
Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither it nor
any of its officers, directors, employees or agents shall be
responsible to Pledgors, any Subsidiary or to any other member or
partner of or owner of any limited or general partner interest, limited
liability company interest or other equity interest in any
Non-Corporate Subsidiary for any act or failure to act.
(c) Each Pledgor also authorizes the Collateral Agent, at
any time and from time to time, to execute, in connection with the sale
provided for in Section 9 of this Agreement, any endorsements,
assignments or other instruments of conveyance or transfer with respect
to the Collateral.
9. Remedies. If an Event of Default shall occur and be
continuing, the Collateral Agent may exercise, in addition to all other rights
and remedies granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the UCC. Without limiting the generality of the foregoing
and to the extent permitted by applicable law, the Collateral Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon any Pledgor, any of the Subsidiaries or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give option
or options to purchase or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over the counter market, at any
exchange, broker's board or elsewhere upon such terms and conditions as it may
deem advisable and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. The Collateral Agent
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any
Exhibit H-12
right or equity of redemption in any Pledgor, which right or equity is hereby
waived or released. The Collateral Agent shall apply any Proceeds from time to
time held by it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred therein or incidental to the care or safekeeping
of any of the Collateral or in any way relating to the Collateral or the rights
of the Collateral Agent hereunder, including, without limitation, reasonable
attorneys' fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Collateral Agent may elect, and only after
such application and after the payment by the Collateral Agent of any other
amount required by any provision of law, including, without limitation, Section
9 615 of the UCC, need the Collateral Agent account for the surplus, if any, to
any Pledgor. To the extent permitted by applicable law, each Pledgor waives all
claims, damages and demands it may acquire against the Collateral Agent arising
out of the exercise by the Collateral Agent of any of its rights hereunder
except to the extent any thereof arise solely from the willful misconduct of the
Collateral Agent. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition. The
Pledgors shall remain liable for any deficiency if the proceeds of any sale or
other disposition of Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Collateral Agent or any
of the EPN Group Lenders to collect such deficiency.
10. Registration Rights; Private Sales.
(a) If the Collateral Agent shall determine to exercise
its right to sell any or all of the Interests or the Pledged Stock, as
the case may be, pursuant to paragraph 9 hereof, and if in the opinion
of the Collateral Agent it is necessary or advisable to have the
Interests or the Pledged Stock, as the case may be, or that portion
thereof to be sold, registered under the provisions of the Securities
Act of 1933, as amended (the "Securities Act"), each Pledgor will cause
the relevant Subsidiaries to (i) execute and deliver, and cause the
managers, directors or officers of the relevant Subsidiaries to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of the Collateral
Agent, necessary or advisable to register the Interests or the Pledged
Stock, as the case may be, or that portion thereof to be sold, under
the provisions of the Securities Act, (ii) use its best efforts to
cause the registration statement relating thereto to become effective
and to remain effective for a period of one year from the date of the
first public offering of the Interests, or that portion thereof to be
sold, and (iii) make all amendments thereto and/or to the related
prospectus which, in the opinion of the Collateral Agent, are necessary
or advisable, all in conformity with the requirements of the Securities
Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Pledgor agrees to cause the
relevant Subsidiaries to comply with the provisions of the securities
or "Blue Sky" laws of any and all jurisdictions which the Collateral
Agent shall designate and to make available to its security holders, as
soon as practicable, an earnings statement (which need not be audited)
which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Each Pledgor recognizes that the Collateral Agent may
be unable to effect a public sale of any or all the Interests, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
Exhibit H-13
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. Each Pledgor
acknowledges and agrees that any such private sale may result in prices
and other terms less favorable to the Collateral Agent than if such
sale were a public sale and agrees that such circumstances shall not,
in and of themselves, result in a determination that such sale was not
made in a commercially reasonable manner. The Collateral Agent shall be
under no obligation to delay a sale of any of the Interests or the
Pledged Stock, as the case may be, for the period of time necessary to
permit any of the relevant Subsidiaries to register such securities for
public sale under the Securities Act, or under applicable state
securities laws, even if such Subsidiaries would agree to do so.
(c) Each Pledgor further agrees to use its best efforts
to do or cause to be done all such other acts as may be necessary to
make any sale or sales of all or any portion of the Interests or the
Pledged Stock pursuant to this Section valid and binding and in
compliance with any and all other applicable Requirements of Law. Each
Pledgor further agrees that a continuing breach of any of the covenants
contained in this Section will cause irreparable injury to the
Collateral Agent, the Co-Agent and the EPN Group Lenders, that the
Collateral Agent, the Co-Agent and the EPN Group Lenders have no
adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Section shall be
specifically enforceable against any Pledgor, and each Pledgor hereby
waives and agrees not to assert any defenses against an action for
specific performance of such covenants except for a defense that no
Event of Default has occurred.
11. Limitation on Duties Regarding Collateral. The
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9 207
of the UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar securities and property for its own account.
Neither the Collateral Agent nor any of its directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Pledgor or
otherwise.
12. Powers Coupled with an Interest. All authorizations
and agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
13. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
14. Paragraph Headings. The paragraph headings used in
this Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
Exhibit H-14
15. No Waiver; Cumulative Remedies; Integration. The
Collateral Agent shall not by any act (except by a written instrument pursuant
to this paragraph), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Collateral Agent,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Collateral Agent of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Collateral Agent would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law. This Agreement represents the agreement of the Pledgors and the
Collateral Agent with respect to the subject matter hereof and there are no
promises or representations by the Collateral Agent relative to the subject
matter hereof not reflected herein.
16. Waivers and Amendments; Successors and Assigns;
Governing Law. None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Pledgors and the Collateral Agent, provided that any provision
of this Agreement that imposes an obligation solely on a Pledgor or provides a
right in favor solely of the Collateral Agent may be waived by the Collateral
Agent in a letter or agreement executed by the Collateral Agent or by facsimile
transmission from the Collateral Agent. This Agreement shall be binding upon the
successors and assigns of the Pledgors and shall inure to the benefit of the
Collateral Agent and its successors and assigns. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH
PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT AGAINST IT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PLEDGOR
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH PLEDGOR AT THE
ADDRESS SET FORTH FOR EPN IN THE EPN CREDIT AGREEMENT. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE COLLATERAL AGENT OR ANY HOLDER OF A NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.
Exhibit H-15
18. WAIVERS.
(a) EACH PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY ACTION DESCRIBED IN PARAGRAPH 17, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE
SAME.
(b) EACH OF THE PLEDGORS AND THE COLLATERAL AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER
ARISING DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS
AGREEMENT.
19. Notices. All notices, requests and demands to or upon
the Collateral Agent, the Pledgors or the Subsidiaries to be effective shall be
in writing (including by facsimile transmission), and, unless otherwise
expressly provided herein, shall be deemed to have been given or made when
actually delivered or, in the case of notice by facsimile transmission, when
received, addressed as set forth in the EPN Credit Agreement or the EPNHC Credit
Agreement, in the case of the Pledgors and the Collateral Agent, or as set forth
under such party's signature below, in the case of the Subsidiaries. The
Pledgors and the Subsidiaries may change their respective addresses and
transmission numbers by written notice to the Collateral Agent.
20. Irrevocable Authorization and Instruction to
Subsidiaries. Each Pledgor hereby authorizes and instructs each of the
Subsidiaries to comply with any instruction received by it from the Collateral
Agent in writing that (a) states that an Event of Default has occurred and
describes such Event of Default and (b) is otherwise in accordance with the
terms of this Agreement, without any other or further instructions from any
Pledgor, and the Pledgors agrees that the Subsidiaries shall be fully protected
in so complying.
21. Release of Liens. Upon payment and satisfaction in
full of the Obligations, the Collateral Agent agrees, upon the written request
of each of the Pledgors and at the Pledgors' sole expense, to execute, record
and file such instruments and perform such acts as are necessary to release the
Collateral from the Lien and security interest of this Agreement or any
assignment or other security document entered into pursuant hereto.
22. The Collateral Agent Not a Member. Nothing contained
in this Agreement shall be construed or interpreted (a) to transfer to the
Collateral Agent any of the obligations of a member, manager, partner or other
owner of any of the Subsidiaries or (b) to constitute the Collateral Agent a
member, manager, partner or other owner of any of the Subsidiaries.
23. Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
Exhibit H-16
[SIGNATURE PAGES FOLLOW]
Exhibit H-17
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date first above written.
HATTIESBURG GAS STORAGE COMPANY
By: Hattiesburg Industrial Gas Sales, L.L.C.
First Reserve Gas, L.L.C.
its General Partners
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
By: El Paso Energy Partners Deepwater, L.L.C.
its Sole Member
EAST BREAKS GATHERING COMPANY, L.L.C.
By: El Paso Energy Partners Deepwater, L.L.C.
its Sole Member
▇▇▇▇, ▇.▇.▇.
▇▇▇▇ I, L.L.C.
ARGO II, L.L.C.
CRYSTAL HOLDING, L.L.C.
EL PASO ENERGY PARTNERS DEEPWATER, L.L.C.
EL PASO ENERGY PARTNERS OIL TRANSPORT, L.L.C.
FIRST RESERVE GAS, L.L.C.
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.
PETAL GAS STORAGE, L.L.C.
GREEN CANYON PIPE LINE COMPANY, L.P.
EL PASO ENERGY PARTNERS OPERATING COMPANY, L.L.C.
DELOS OFFSHORE COMPANY, L.L.C.
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
MANTA RAY GATHERING COMPANY, L.L.C.
POSEIDON PIPELINE COMPANY, L.L.C.
VK DEEPWATER GATHERING COMPANY, L.L.C.
VK-MAIN PASS GATHERING COMPANY, L.L.C.
EPN NGL STORAGE, L.L.C.
By: ________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
Exhibit H-18
EPN HOLDING COMPANY, L.P.
By: EPN GP Holding, L.L.C.
its General Partner
EL PASO ENERGY INTRASTATE, L.P.
By: EPN Pipeline GP Holding, L.L.C.
its General Partner
EPGT TEXAS PIPELINE, L.P.
By: EPN Pipeline GP Holding, L.L.C.
its General Partner
EL PASO INDIAN BASIN, L.P.
By: El Paso Indian Basin GP, L.L.C.
its General Partner
EPN GATHERING AND TREATING COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
WARWINK GATHERING AND TREATING COMPANY
By: El Paso Energy Warwink I Company, L.P.
and El Paso Energy Warwink II Company,
L.P., its General Partners
By: EPN Gathering and Treating GP
Holding, L.L.C., their General
Partner
EPN PIPELINE GP HOLDING, L.L.C.
EPN GP HOLDING, L.L.C.
EPN GP HOLDING I, L.L.C.
EPN HOLDING COMPANY I, L.P.
EL PASO HUB SERVICES COMPANY, L.L.C.
EL PASO ENERGY WARWINK I COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO ENERGY WARWINK II COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO OFFSHORE GATHERING & TRANSMISSION, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO INDIAN BASIN GP, L.L.C.
Exhibit H-19
EPN GATHERING AND TREATING GP HOLDING, L.L.C.
By: ________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President & Chief Financial Officer
Exhibit H-20
THE CHACO LIQUIDS PLANT TRUST
By: El Paso Energy Partners Operating Company,
L.L.C.
its Trustee
By: ________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
Exhibit H-21
Agreed to:
JPMorgan Chase Bank,
as Collateral Agent
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
Consented to pursuant to Section 16 of the
Existing EPN Subsidiary Pledge Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
Consented to pursuant to Section 16 of the
Existing EPNHC Subsidiary Pledge Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
Consented to pursuant to Section 16 of the
Existing EPNHC Subsidiary Pledge Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
Exhibit H-22
SCHEDULE I
(A) LIMITED LIABILITY COMPANY INTERESTS, PARTNERSHIP INTERESTS, AND
INTERESTS IN OTHER NON-CORPORATE SUBSIDIARIES
Description of Equity
Certificate Interest and Name of
Defined Term Type of Entity Number (if Pledgor owing Equity
Name of Issuer for Issuer of Issuer any) Interest
----------------------------------------------------------------------------------------------------------
LIMITED LIABILITY COMPANIES
----------------------------------------------------------------------------------------------------------
▇▇▇▇ I, L.L.C. "Argo I" Delaware limited 100% limited liability
liability company company interest directly
owned by Argo II
----------------------------------------------------------------------------------------------------------
EPN NGL Storage, L.L.C. "NGL Storage" Delaware limited 100% limited liability
liability company company interest directly
owned by Crystal Holding
----------------------------------------------------------------------------------------------------------
East Breaks Gathering "East Breaks" Delaware limited 100% limited liability
Company, L.L.C. liability company company interest directly
owned by EP Deepwater
----------------------------------------------------------------------------------------------------------
First Reserve Gas, "First Reserve" Delaware limited 100% limited liability
L.L.C. liability company company interest directly
owned by Crystal Holding
----------------------------------------------------------------------------------------------------------
Hattiesburg Industrial "Hattiesburg Delaware limited 100% limited liability
Gas Sales, L.L.C. Sales" liability company company interest directly
owned by First Reserve Gas
----------------------------------------------------------------------------------------------------------
High Island Offshore "HIOS" Delaware limited 100% limited liability
System, L.L.C. liability company company interest directly
owned by EP Deepwater
----------------------------------------------------------------------------------------------------------
Petal Gas Storage, "Petal Gas Delaware limited 100% limited liability
L.L.C. Storage" liability company company interest directly
owned by Crystal Holding
----------------------------------------------------------------------------------------------------------
EPN Pipeline GP "Pipeline GP Delaware limited 100% limited liability
Holding, L.L.C. Holding" liability company company interest directly
owned by EPNHC
----------------------------------------------------------------------------------------------------------
Exhibit H Schedules-1
----------------------------------------------------------------------------------------------------------
El Paso Hub Services "Hub Services" Delaware limited 100% limited liability
Company, L.L.C. liability company company interest directly
owned by EPNHC
----------------------------------------------------------------------------------------------------------
EPN Gathering and "EPN Gathering Delaware limited 100% limited liability
Treating GP Holding, and Treating GP liability company company interest directly
L.L.C. Holding" owned by EPNHC
----------------------------------------------------------------------------------------------------------
PARTNERSHIPS
----------------------------------------------------------------------------------------------------------
Green Canyon Pipeline "Green Canyon" Delaware limited 1% general partnership
Company, L.P. partnership interest owned directly by
EP Transport; 99% limited
partnership interest owned
by EPN
----------------------------------------------------------------------------------------------------------
Hattiesburg Gas "Hattiesburg Delaware general 50% general partnership
Storage Company Storage" partnership interest owned directly by
First Reserve; other 50%
general partnership
interest owned directly by
Hattiesburg Sales
----------------------------------------------------------------------------------------------------------
El Paso Energy "Intrastate" Delaware general 99% (entire limited partner
Intrastate, L.P. partnership interest) owned by EPNHC
and 1% general partnership
interest owned directly by
Pipeline GP Holding
----------------------------------------------------------------------------------------------------------
EPGT Texas Pipeline, "EPGT Texas Delaware general 99% (entire limited partner
L.P. Pipeline" partnership interest) owned by EPNHC
and 1% general partnership
interest owned directly by
Pipeline GP Holding
----------------------------------------------------------------------------------------------------------
El Paso Indian Basin, "Indian Basin" Delaware general 99% (entire limited partner
L.P. partnership interest) owned by EPNHC
and 1% general partnership
interest owned directly by
EPN Gathering and Treating
GP Holding
----------------------------------------------------------------------------------------------------------
EPN Gathering and "EPN Gathering Delaware general 99% (entire limited partner
Treating Company, L.P. and Treating" partnership interest) owned by EPNHC
and 1% general partnership
interest owned directly by
EPN Gathering and Treating
GP Holding
----------------------------------------------------------------------------------------------------------
Exhibit H Schedules-2
----------------------------------------------------------------------------------------------------------
El Paso Offshore "Offshore Delaware general 99% (entire limited partner
Gathering & Gathering & partnership interest) owned by EPNHC
Transmission, L.P. Transmission" and 1% general partnership
interest owned directly by
EPN Gathering and Treating
GP Holding
----------------------------------------------------------------------------------------------------------
El Paso Energy Warwink "Warwink I" Delaware general 99% (entire limited partner
I Company, L.P. partnership interest) owned by EPNHC
and 1% general partnership
interest owned directly by
EPN Gathering and Treating
GP Holding
----------------------------------------------------------------------------------------------------------
El Paso Energy Warwink "Warwink II" Delaware general 99% (entire limited partner
II Company, L.P. partnership interest) owned by EPNHC
and 1% general partnership
interest owned directly by
EPN Gathering and Treating
GP Holding
----------------------------------------------------------------------------------------------------------
Warwink Gathering and "Warwink Texas general 50% general partnership
Treating Company Gathering and partnership interest owned directly by
Treating" Warwink I; 50% general
partnership interest owned
directly by ▇▇▇▇▇▇▇ ▇▇
----------------------------------------------------------------------------------------------------------
OTHER NON-CORPORATE SUBSIDIARIES
----------------------------------------------------------------------------------------------------------
The Chaco Liquids "Chaco Trust" Massachusetts 100% of beneficial
Plant Trust business trust interests owned by Delos;
trustee is EP-Operating
----------------------------------------------------------------------------------------------------------
(B) DESCRIPTION OF PLEDGED STOCK
Stock Certificate
Issuer Class of Stock* No. No. of Shares
[None] N/A N/A N/A
Exhibit H Schedules-3
*Stock is assumed to be common stock unless otherwise indicated.
Exhibit H Schedules-4
SCHEDULE II
UCC FILINGS
State Filing Office Document Filed
----- ------------- --------------
Delaware Secretary of State UCC-1
(with respect to all Pledgors)
Exhibit H Schedules-5
SCHEDULE III
INFORMATION REGARDING THE PLEDGORS
Organizational
Identification
Name of each Pledgor on Public Number in
on Public Record of Pledgor's Defined Term for Jurisdiction of Former Name
Jurisdiction of Organization Type of Entity such Pledgor Organization if any)
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇, L.L.C. Delaware limited "Argo" 3253546
liability company
--------------------------------------------------------------------------------------------------------------------
Argo I, L.L.C. Delaware limited "Argo I" 3252501
liability company
--------------------------------------------------------------------------------------------------------------------
Argo II, L.L.C. Delaware limited "Argo II" 3253543
liability company
--------------------------------------------------------------------------------------------------------------------
Crystal Holding, L.L.C. Delaware limited "Crystal Holding" 3258369
liability company
--------------------------------------------------------------------------------------------------------------------
El Paso Energy Partners Delaware limited "EP Deepwater" ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇.▇. liability company Holdings, L.L.C.
--------------------------------------------------------------------------------------------------------------------
El Paso Energy Partners Oil Delaware limited "EP-Transport" 2408384 Leviathan Oil
Transport, L.L.C. liability company Transport
Systems, L.L.C.
--------------------------------------------------------------------------------------------------------------------
First Reserve Gas, L.L.C. Delaware limited "First Reserve" 2227809
liability company
--------------------------------------------------------------------------------------------------------------------
Hattiesburg Industrial Gas Delaware limited "Hattiesburg Sales" 2058929
Sales, L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
Hattiesburg Gas Storage Company Delaware general "Hattiesburg None
partnership Storage"
--------------------------------------------------------------------------------------------------------------------
Petal Gas Storage, L.L.C. Delaware limited "Petal Gas" 2310880
liability company
--------------------------------------------------------------------------------------------------------------------
Green Canyon Pipe Line Delaware limited "Green Canyon" 2324709 Green Canyon
Company, L.P. partnership Pipe Line
Company, L.L.C.
--------------------------------------------------------------------------------------------------------------------
El Paso Energy Partners Delaware limited "EP-Operating" 3063154 Leviathan
Operating Company, L.L.C. liability company Operating
Company, L.L.C.
--------------------------------------------------------------------------------------------------------------------
Exhibit H Schedules-6
--------------------------------------------------------------------------------------------------------------------
Delos Offshore Company, L.L.C. Delaware limited "Delos" 2747220
liability company
--------------------------------------------------------------------------------------------------------------------
Flextrend Development Company, Delaware limited "Flextrend" 2510310
L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
Manta Ray Gathering Company, Delaware limited "Manta Ray" 2324708
L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
Poseidon Pipeline Company, Delaware limited "Poseidon Pipeline" 2487652
L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
VK Deepwater Gathering Delaware limited "VK Deepwater" 2401981
Company, L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
VK-Main Pass Gathering Delaware limited "VK Main Pass" 2401983
Company, L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
High Island Offshore System, Delaware limited "HIOS" 2999070
L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
East Breaks Gathering Company, Delaware limited "East Breaks" 3340427
L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
The Chaco Liquids Plant Trust Massachusetts business "Chaco Trust" None
trust
--------------------------------------------------------------------------------------------------------------------
EPN NGL Storage, L.L.C. Delaware limited "EPN-NGL" 3151447 Crystal
liability company Properties and
Trading Company,
L.L.C.
--------------------------------------------------------------------------------------------------------------------
EPN Holding Company, L.P. Delaware limited "EPN Holding" 3499494
partnership
--------------------------------------------------------------------------------------------------------------------
EPN Pipeline GP Holding, L.L.C. Delaware limited "Pipeline GP 3499171
liability company Holding"
--------------------------------------------------------------------------------------------------------------------
El Paso Energy Intrastate, L.P. Delaware limited "Intrastate" 0931567
partnership
--------------------------------------------------------------------------------------------------------------------
EPGT Texas Pipeline, L.P. Delaware limited "EPGT Texas 2120073
partnership Pipeline"
--------------------------------------------------------------------------------------------------------------------
El Paso Hub Services Company, Delaware limited "Hub Services" 0919236
L.L.C. liability company
--------------------------------------------------------------------------------------------------------------------
El Paso Energy Warwink I Delaware limited "Warwink I" 3132001 El Paso Energy
Company, L.P. partnership Warwink I
Company, L.L.C.
--------------------------------------------------------------------------------------------------------------------
Exhibit H Schedules-7
--------------------------------------------------------------------------------------------------------------------
El Paso Energy Warwink II Delaware limited "Warwink II" 3132004 El Paso Energy
Company, L.P. partnership Warwink II
Company, L.L.C.
--------------------------------------------------------------------------------------------------------------------
El Paso Offshore Gathering & Delaware limited "Offshore Gathering 2527167 El Paso Offshore
Transmission, L.P. partnership & Transmission" Gathering &
Transmission,
L.L.C.
--------------------------------------------------------------------------------------------------------------------
El Paso Indian Basin, L.P. Delaware limited "Indian Basin" 3494592
partnership
--------------------------------------------------------------------------------------------------------------------
EPN Gathering and Treating GP Delaware limited "EPN Gathering and 3499170 El Paso Indian
Holding, L.L.C. liability company Treating GP Holding" Basin GP, L.L.C.
--------------------------------------------------------------------------------------------------------------------
EPN Gathering and Treating Delaware limited "EPN Gathering and 3499483
Company, L.P. partnership Treating"
--------------------------------------------------------------------------------------------------------------------
EPN GP Holding, L.L.C. Delaware limited "EPN GP Holding" 3499172
liability company
--------------------------------------------------------------------------------------------------------------------
EPN GP Holding I, L.L.C. Delaware limited "EPN GP Holding I" 3505818
liability company
--------------------------------------------------------------------------------------------------------------------
EPN Holding Company I, L.P. Delaware limited "EPN Holding 3505820
partnership Company I"
--------------------------------------------------------------------------------------------------------------------
Warwink Gathering and Treating Texas general "Warwink Gathering N/A
Company partnership and Treating
--------------------------------------------------------------------------------------------------------------------
Exhibit H Schedules-8
Exhibit A to Subsidiary
Pledge Agreement
[FORM OF SUBSIDIARY PLEDGE AGREEMENT SUPPLEMENT]
SUBSIDIARY PLEDGE AGREEMENT SUPPLEMENT, dated as of ________,
20__ (this "Supplement"), made by __________________(the "Pledgor"), in favor of
JPMORGAN CHASE BANK, as collateral agent (in such capacity, the "Collateral
Agent") for the ratable benefit of (a) the banks and other financial
institutions (the "EPN Lenders") parties to the Amended and Restated Credit
Agreement, dated as of March 23, 1995 and as amended and restated as of May 16,
2001 and October 10, 2002 (as amended, supplemented or otherwise modified from
time to time, the "EPN Credit Agreement") among El Paso Energy Partner, L.P., a
Delaware limited partnership ("EPN"), El Paso Energy Partners Finance
Corporation, a Delaware corporation ("El Paso Finance"), the EPN Lenders and the
JPMORGAN CHASE BANK, as administrative agent (in such capacity, the "EPN
Administrative Agent"), (b) the banks and other financial institutions (the
"EPNHC Lenders"; the EPN Lenders and EPNHC Lenders herein collectively referred
to as the "EPN Group Lenders") parties to the Amended and Restated Credit
Agreement, dated as of April 8, 2002 and as amended and restated as of October
10, 2002 (as amended, supplemented or otherwise modified from time to time, the
"EPNHC Credit Agreement") among EPN Holding Company, L.P., a Delaware limited
partnership, as the borrower ("EPNHC"; EPN, El Paso Finance and EPNHC herein
collectively referred to as the "EPN Group Borrowers"), the EPNHC Lenders and
JPMORGAN CHASE BANK, as administrative agent (in such capacity, the "EPNHC
Administrative Agent"), and (c) the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (as defined in the EPN
Credit Agreement).
1. Reference is hereby made to that certain Consolidated
Amended and Restated Subsidiary Pledge Agreement, dated as of October 10, 2002,
among the Pledgors therein identified and the Collateral Agent (as amended,
supplemented or modified as of the date hereof, the "Subsidiary Pledge
Agreement"). Terms defined in the Subsidiary Pledge Agreement are used herein as
therein defined.
2. Pledgor has formed or acquired one or more new
Subsidiaries, as follows: [insert name, jurisdiction of formation, and type of
entity for each new Subsidiary] (whether one or more, the "New Issuer"). [ADD
ONLY IF NEW ISSUER IS A NON-CORPORATE SUBSIDIARY WITH UNCERTIFICATED EQUITY
INTERESTS: Pledgor owns a ___% [limited liability company/limited
partnership/general partnership/other interest in the New Issuer, and such
interest in the New Issuer is uncertificated.]
3. Pledgor hereby confirms and reaffirms the security
interest in the Collateral granted to the Collateral Agent for the ratable
benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders under the Subsidiary
Pledge Agreement. As additional collateral security for the prompt and complete
payment and performance when due (whether at the stated
Exhibit H Schedules-9
maturity, by acceleration or otherwise) of all the Obligations(2) the Pledgor
hereby (a) delivers to the Collateral Agent all the Additional Pledged
Certificates (as such term is hereinafter defined) and all the Additional
Pledged Stock (as such term is hereinafter defined), and (b) sells, assigns,
conveys, mortgages, pledges, hypothecates and transfers to the Collateral Agent,
and hereby grants to the Collateral Agent, for the ratable benefit of the EPN
Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, a first security interest in, to and
under the Additional Collateral (as such term is hereinafter defined). As used
herein, the term "Additional Pledged Certificates" means the certificates of
[limited liability company/limited partnership/general partnership/other]
interests of the Non-Corporate Subsidiaries (the "Additional Subsidiaries")
named on Schedule I(A) hereto (to the extent such interests are certificated),
which interests are listed on Schedule I(A), together with all limited liability
company certificates, partnership interest certificates, stock certificates,
equity interest certificates, options or rights of any nature whatsoever that
may be issued or granted by any Additional Subsidiary to a Pledgor while the
Subsidiary Pledge Agreement is in effect. As used herein, the term "Additional
Pledged Stock" means the shares of capital stock listed on Schedule I(B) hereto,
together with all stock certificates, options or rights of any nature whatsoever
that may be issued or granted by the issuer of such shares of capital stock to a
Pledgor while the Subsidiary Pledge Agreement is in effect. As used herein, the
term "Additional Collateral" means the Additional Interests (as such term is
hereinafter defined) (including, without limitation, the Additional Pledged
Certificates), the Additional Pledged Stock, and all Additional Proceeds (as
such term is hereinafter defined). As used herein, the term "Additional
Interests" means, collectively, the following:
(i) all right, title and interest, now existing
or hereafter acquired, of Pledgor in the Additional
Subsidiaries, but not any of Pledgor's obligations from time
to time as a member, manager or general or limited partner
(unless the Collateral Agent shall become a member, manager or
general or limited partner as a result of this exercise of
remedies pursuant to the terms of the Subsidiary Pledge
Agreement) in any Additional Subsidiary;
(ii) any and all monies due and to become due to
Pledgor, now or in the future by way of a distribution made to
Pledgor in its capacity as a member or owner of any limited
liability company interest in the Additional Subsidiaries or
otherwise in respect of ▇▇▇▇▇▇▇'s interest as a member,
limited or general partner or other owner of any equity
interest in the Additional Subsidiaries;
(iii) any other property of any Additional
Subsidiary to which Pledgor now or in the future may be
entitled in its capacity as a member, limited or general
partner or other owner of any equity interest in such
Additional Subsidiary by way of distribution, return or
otherwise;
(iv) any other claim which Pledgor now has or may
in the future acquire in its capacity as a member, limited or
general partner or other owner of any equity interest in any
Additional Subsidiary and its property; and
---------------------------
(2) Conform the following description of the additional collateral as
necessary, depending on what type of entity the Pledgor is acquiring.
Exhibit H Schedules-10
(v) to the extent not otherwise included, all
(A) Additional Proceeds of any or all of the foregoing, and
(B) all Supporting Obligations (as such term is defined in the
UCC) with respect to the foregoing.
As used herein, the term "Additional Proceeds" means all "proceeds" (as such
term is defined in Section 9 102 of the Uniform Commercial Code in effect in the
State of New York on the date hereof) and, in any event, shall include, without
limitation, all income, gain, credit, distributions, dividends and similar items
from or with respect to the Additional Interests (including, without limitation,
the Additional Pledged Certificates) and the Additional Pledged Stock,
collections thereon or distributions with respect thereto.
4. From and after the date of this Supplement, (a) the
term "Pledged Certificates" as used in the Subsidiary Pledge Agreement shall be
amended to include the Additional Pledged Certificates, (b) the term
"Subsidiaries" as used in the Subsidiary Pledge Agreement shall be amended to
include the Additional Subsidiaries, (c) the term "Pledged Stock" as used in the
Subsidiary Pledge Agreement shall be amended to include the Additional Pledged
Stock, (d) the term "Collateral" as used in the Subsidiary Pledge Agreement
shall be amended to include the Additional Collateral, and (e) the term
"Proceeds" as used in the Subsidiary Pledge Agreement shall be amended to
include the Additional Proceeds.
5. The Pledgor will cause each of the New Issuers to
execute an Acknowledgement and Consent substantially in the form of Exhibit B to
the Subsidiary Pledge Agreement. Interests in certain of the Additional
Subsidiaries may not be evidenced by certificates. In the case of such
Additional Subsidiaries, the Collateral Agent agrees that it will not exercise
its right under any such Acknowledgement and Consent to give instructions to
such Additional Subsidiaries regarding such Pledgor's limited liability company,
limited or general partnership or other equity interest in such Additional
Subsidiaries except upon the occurrence and during the continuance of an Event
of Default.
6. After giving effect to the amendments to the
Subsidiary Pledge Agreement set forth in the preceding paragraph, Pledgor hereby
represents and warrants that the representations and warranties contained in
paragraph 4 of the Subsidiary Pledge Agreement are true and correct on the date
of this Supplement.
7. This Supplement is supplemental to the Subsidiary
Pledge Agreement, forms a part thereof and is subject to the terms thereof.
[Schedule I, Schedule II and/or Schedule III] to the Subsidiary Pledge Agreement
shall hereby be deemed to include each item listed on [Schedule I, Schedule II
and/or Schedule III] to this Supplement.
Exhibit H Schedules-11
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ has caused this Supplement to be duly
executed and delivered in favor of the Collateral Agent on the date first set
forth above.
___________________________________
By:________________________________
Title:
Exhibit H Schedules-12
Schedule I
To Subsidiary Pledge Agreement
Supplement
SCHEDULE I
(A) ADDITIONAL SUBSIDIARIES
Description of Equity
Certificate Interest and Name of
Defined Term Type of Entity Number Pledgor owing Equity
Name of Issuer for Issuer of Issuer (if any) Interest
--------------------------------------------------------------------------------------------
(B) DESCRIPTION OF ADDITIONAL PLEDGED STOCK
Stock
Class Certificate No. of
Issuer of Stock* No. Shares
------ --------- ----------- ------
---------------------------
* Stock is assumed to be common stock unless otherwise indicated.
Exhibit H Schedules-13
Schedule II
To Subsidiary Pledge Agreement
Supplement
SCHEDULE II
ADDITIONAL UCC FILINGS
State Filing Office Document Filed
----- ---------------------- --------------
Exhibit H Schedules-14
Schedule III
To Subsidiary Pledge Agreement
Supplement
SCHEDULE III
INFORMATION REGARDING THE PLEDGOR
Organizational
Name of each Pledgor Identification
on Public Record of Defined Term Number in
Pledgor's Jurisdiction for such Jurisdiction of Former Name
of Organization Type of Entity Pledgor Organization (if any)
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
Exhibit H Schedules-15
EXHIBIT B TO SUBSIDIARY
PLEDGE AGREEMENT
FORM OF ACKNOWLEDGEMENT AND CONSENT
[NAME OF NEW PLEDGED SUBSIDIARY] (the "Issuer") hereby
acknowledges receipt of a copy of the foregoing Supplement and the Subsidiary
Pledge Agreement referred to therein and agrees to be bound thereby and to
comply with the terms thereof insofar as such terms are applicable to it. The
Issuer agrees to notify the Collateral Agent promptly in writing of the
occurrence of any of the events described in paragraph 5(a) of the Subsidiary
Pledge Agreement, as supplemented by such Supplement. The Issuer further agrees
that the terms of paragraph 10(c) of the Subsidiary Pledge Agreement, as
supplemented by such Supplement, shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it under or pursuant to or
arising out of paragraph 10 of the Subsidiary Pledge Agreement, as supplemented
by such Supplement. The Issuer hereby also agrees that it will comply with
instructions originated by the Collateral Agent without the consent of any
Pledgor.
_______________, 2001
[NAME OF NEW PLEDGED SUBSIDIARY]
By:___________________________
Title:
Exhibit H Schedules-16
EXHIBIT I
FORM OF SUBSIDIARIES SECURITY AGREEMENT
CONSOLIDATED AMENDED AND RESTATED
SUBSIDIARY SECURITY AGREEMENT
CONSOLIDATED AMENDED AND RESTATED SUBSIDIARY SECURITY
AGREEMENT, dated as of October 10, 2002, made by the entities identified on
Schedule IV hereto, (individually a "Grantor", and collectively the "Grantors"),
in favor of JPMORGAN CHASE BANK, as collateral agent (in such capacity, the
"Collateral Agent"), for the ratable benefit of (a) the banks and other
financial institutions (the "EPN Lenders") parties to the Amended and Restated
Credit Agreement, dated as of March 23, 1995 and as amended and restated as of
October 10, 2002 (as amended, supplemented or otherwise modified from time to
time, the "EPN Credit Agreement") among El Paso Energy Partners, L.P., a
Delaware limited partnership, as the borrower ("EPN"), El Paso Energy Partners
Finance Corporation, a Delaware corporation, as the co-borrower ("El Paso
Finance"), the EPN Lenders and JPMORGAN CHASE BANK, as administrative agent (in
such capacity, the "EPN Administrative Agent"), (b) the banks and other
financial institutions (the "EPNHC Lenders"; the EPN Lenders and EPNHC Lenders
herein collectively referred to as the "EPN Group Lenders") parties to the
Amended and Restated Credit Agreement, dated as of April 8, 2002 and as amended
and restated as of October 10, 2002 (as amended, supplemented or otherwise
modified from time to time, the "EPNHC Credit Agreement") among EPN Holding
Company, L.P., a Delaware limited partnership, as the borrower ("EPNHC"; EPN, El
Paso Finance and EPNHC herein collectively referred to as the "EPN Group
Borrowers"), the EPNHC Lenders and JPMORGAN CHASE BANK, as administrative agent
(in such capacity, the "EPNHC Administrative Agent"; the EPN Administrative
Agent and the EPNHC Administrative Agent herein collectively referred to as the
"EPN Group Administrative Agents"), and (c) the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (as defined
in the EPN Credit Agreement).
W I T N E S S E T H :
WHEREAS, certain of the Grantors and the Collateral Agent are
parties to that Amended and Restated Subsidiary Security Agreement, dated as of
March 23, 1995 and amended and restated as of January 31, 2002 (as amended,
supplemented and otherwise modified prior to the date hereof, the "Existing EPN
Security Agreement");
WHEREAS, EPNHC and the Collateral Agent are parties to that
certain Borrower Security Agreement, dated as of April 8, 2002 (as amended,
supplemented and otherwise modified prior to the date hereof, the "Existing
EPNHC Security Agreement");
WHEREAS, certain of the Grantors and the Collateral Agent are
parties to that certain Subsidiary Security Agreement, dated as of April 8, 2002
(as amended, supplemented and otherwise modified prior to the date hereof, the
"Existing EPNHC Subsidiary Security Agreement");
WHEREAS, the making of this Security Agreement by each Grantor
is necessary or convenient to the conduct, promotion, or attainment of the
business of such Grantor; and
Exhibit I-1
WHEREAS, pursuant to the provisions of Section 7.9 of the EPN
Credit Agreement, EPN and El Paso Finance agreed that they would deliver, and
would cause each Person that is a party (or is required to be a party) to any
Security Document, other than the Collateral Agent, to deliver, amended and
restated Security Documents, together with supplemented and corrected schedules,
exhibits or other documents, if any, that are necessary to accurately reflect
the collateral existing as of the Closing Date that is pledged as security for
EPN and El Paso Finance's obligations under the EPN Credit Agreement;
WHEREAS, pursuant to the provisions of Section 7.9 of the
EPNHC Credit Agreement, EPNHC agreed that it would deliver, and would cause each
Person that is a party (or is required to be a party) to any Security Document,
other than the Collateral Agent, to deliver, amended and restated Security
Documents, together with supplemented and corrected schedules, exhibits or other
documents, if any, that are necessary to accurately reflect the collateral
existing as of the Closing Date that is pledged as security for EPNHC's
obligations under the EPNHC Credit Agreement;
NOW, THEREFORE, in consideration of the premises and to comply
with the requirements of Section 7.9 of the EPN Credit Agreement and Section 7.9
of the ENPHC Credit Agreement, each Grantor hereby agrees with the Collateral
Agent, for the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders, that each of the Existing EPN Security Agreement, Existing EPNHC
Security Agreement and Existing EPNHC Subsidiary Security Agreement is hereby
consolidated, amended and restated as a single instrument to read in its
entirety as follows:
1. Defined Terms. Unless otherwise defined herein, terms
which are defined in the EPN Credit Agreement and used herein are so
used as so defined; the following terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Accounts, Chattel Paper,
Commercial Tort Claims, Deposit Accounts, Documents, Electronic Chattel
Paper, Equipment, Farm Products, General Intangibles, Instruments,
Inventory, Investment Property, Letter-of-Credit Rights, Payment
Intangibles, Supporting Obligations, Promissory Notes, Proceeds; and
the following terms shall have the following meanings:
"Account Debtor": a Person (other than any Grantor) obligated
on an Account, Chattel Paper, or General Intangible.
"Collateral": as defined in Section 2 of this Security
Agreement. The obligations of the Grantors to provide Collateral are
limited by paragraphs (c) and (d) of subsection 7.10 of the EPN Credit
Agreement any by paragraphs (c) and (d) of subsection 7.10 of the EPNHC
Credit Agreement.
"Obligations": (i) with respect to any Grantor, all
obligations, liabilities and indebtedness of such Grantor under and
pursuant to the Subsidiaries Guarantee, and (ii) solely with respect to
EPNHC, the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the EPNHC Term
Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to EPNHC, whether or not a claim
Exhibit I-2
for post-filing or post-petition interest is allowed in such
proceeding) and all other obligations and liabilities of EPNHC to the
EPNHC Administrative Agent or the EPNHC Lenders, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection
with, the EPNHC Credit Agreement, the other EPNHC Loan Documents or any
other document made, delivered or given in connection therewith,
whether on account of principal, interest, reimbursement of
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the EPNHC
Administrative Agent or any of the EPNHC Lenders) or otherwise.
"Patents": (a) all letters patent of the United States and all
reissues and extensions thereof, including, without limitation, any
thereof referred to in Schedule I hereto, and (b) all applications for
letters patent of the United States and all divisions, continuations
and continuations-in-part thereof or any other country, including,
without limitation, any thereof referred to in Schedule I hereto.
"Patent License": all agreements, whether written or oral,
providing for the grant by any Grantor of any right to manufacture, use
or sell any invention covered by a Patent, including, without
limitation, any thereof referred to in Schedule I hereto.
"Security Agreement": this Consolidated Amended and Restated
Security Agreement, as amended, supplemented or otherwise modified from
time to time.
"Subsidiary Pledge Agreement": the Consolidated Amended and
Restated Subsidiary Pledge Agreement dated as of even date herewith
made by the Pledgors party thereto in favor of JPMorgan Chase Bank for
the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇.
"Trademarks": (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers,
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule II hereto, and (b) all renewals
thereof.
"Trademark License": any agreement, written or oral, providing
for the grant by any Grantor of any right to use any Trademark,
including, without limitation, any thereof referred to in Schedule II
hereto.
"UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Vehicles": all cars, trucks, trailers, construction and earth
moving equipment and other vehicles covered by a certificate of title
law of any state and, in any event, shall include, without limitation,
the vehicles listed on Schedule III hereto and all tires and other
appurtenances to any of the foregoing.
Exhibit I-3
2. Grant of Security Interest. As collateral security
for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of the
Obligations of the relevant Grantor, each Grantor hereby grants to the
Collateral Agent for the ratable benefit of the EPN Group Lenders and
the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, a security interest in all of the following
property now owned or at any time hereafter acquired by such Grantor or
in which such Grantor now has or at any time in the future may acquire
any right, title or interest (collectively, the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper (including, without
limitation, all Electronic Chattel Paper and all Tangible
Chattel Paper);
(iii) all Documents;
(iv) all Equipment;
(v) all General Intangibles (including, without
limitation, all Payment Intangibles);
(vi) all Instruments;
(vii) all Inventory;
(viii) all Investment Property (but excluding any
such Investment Property that is subject to the security
interests granted by any Grantor in the Subsidiary Pledge
Agreement);
(ix) all Patents;
(x) all Patent Licenses;
(xi) all Trademarks;
(xii) all Trademark Licenses;
(xiii) all Vehicles;
(xiv) all Deposit Accounts other than payroll,
withholding tax and other fiduciary Deposit Accounts;
(xv) all Letter-of-Credit Rights;
(xvi) all Commercial Tort Claims;
(xvii) all Supporting Obligations;
(xviii) with respect only to any Grantor that is a
"transmitting utility" (as defined in the Uniform Commercial
Code of the State of Texas (the "Texas
Exhibit I-4
UCC")), any fixtures (as defined in the Texas UCC) physically
located in the State of Texas to the extent (but only to the
extent) that the filing in the Office of the Secretary of
State of the State of Texas of a financing statement
substantially in the form of Exhibit A hereto would, under the
Texas UCC, result in the perfection of a security interest in
such fixtures;
(xix) with respect only to any Grantor that is a
"transmitting utility" (as defined in the Uniform Commercial
Code of the State of New Mexico (the "New Mexico UCC")), any
fixtures (as defined in the New Mexico UCC) physically located
in the State of New Mexico to the extent (but only to the
extent) that the filing in the Office of the New Mexico
Secretary of State of a financing statement substantially in
the form of Exhibit A hereto would, under the New Mexico UCC,
result in the perfection of a security interest in such
fixtures; and
(xx) to the extent not otherwise included, all
Proceeds and products and all of the foregoing;
except, in each case of clauses (i) - (xx) above, to the extent that (I) any
consent of any affiliate of any Grantor (other than the Borrower, a Subsidiary
of such Grantor or a Subsidiary of the Borrower) is required for the grant of
such security interest and such consent has not been obtained after such Grantor
has made a reasonable effort to seek such consent and (II) any consent of any
non-affiliated third party (other than a Governmental Authority) is required for
the grant of such security interest and such consent has not been obtained
(provided that such Grantor is under no duty to seek such third-party consents);
provided that (x) upon the receipt of any such consent referred to in clauses
(I) and (II) above, the security interest granted herein shall automatically
attach on such property and (y) notwithstanding the foregoing, Accounts, Chattel
Paper, Payment Intangibles and Promissory Notes constitute Collateral in which
each Grantor granting a security interest, as permitted by Sections 9-406 and
9-408 of the Uniform Commercial Code in effect in the State of New York on the
date hereof.
3. Rights of Collateral Agent and EPN Group Lenders;
Limitations on Collateral Agent's and EPN Group Lenders' Obligations.
(a) Grantors Remains Liable under Accounts. Anything
herein to the contrary notwithstanding, each Grantor shall remain
liable under each of the Accounts, Chattel Paper, and Payment
Intangibles to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance with
the terms of any agreement giving rise to each such Account, Chattel
Paper or Payment Intangible. Neither the Collateral Agent nor any of
the EPN Group Lenders shall have any obligation or liability under any
Account, Chattel Paper or Payment Intangible (or any agreement giving
rise thereto) by reason of or arising out of this Security Agreement or
the receipt by the Collateral Agent or any of such EPN Group Lenders of
any payment relating to such Account, Chattel Paper or Payment
Intangible, pursuant hereto, nor shall the Collateral Agent or any of
the EPN Group Lenders be obligated in any manner to perform any of the
obligations of any Grantor under or pursuant to any Account, Chattel
Paper or Payment Intangible (or any agreement giving rise thereto), to
make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received
Exhibit I-5
by it or as to the sufficiency of any performance by any party under
any Account, Chattel Paper or Payment Intangible (or any agreement
giving rise thereto), to present or file any claim, to take any action
to enforce any performance or to collect the payment of any amounts
which may have been assigned to it or to which it may be entitled at
any time or times.
(b) Notice to Account Debtors. Upon the request of the
Collateral Agent at any time after the occurrence and during the
continuance of an Event of Default, each Grantor shall notify the
Account Debtors that the applicable Accounts, Chattel Paper, and
Payment Intangibles have been assigned to the Collateral Agent for the
ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders and
that payments in respect thereof shall be made directly to the
Collateral Agent. The Collateral Agent may in its own name or in the
name of others communicate with the Account Debtors to verify with them
to its satisfaction the existence, amount and terms of any Accounts,
Chattel Paper, or Payment Intangibles.
(c) Analysis of Accounts, Etc. The Collateral Agent shall
have the right to make test verifications of the Accounts, Chattel
Paper and Payment Intangibles in any manner and through any medium that
it reasonably considers advisable, and each Grantor shall furnish all
such assistance and information as the Collateral Agent may require in
connection therewith. At any time and from time to time, upon the
Collateral Agent's request and at the expense of each Grantor, such
Grantor shall furnish to the Collateral Agent reports showing
reconciliations, aging and test verifications of, and trial balances
for, the Accounts, Chattel Paper and Payment Intangibles.
(d) Collections on Account, Etc. The Collateral Agent
hereby authorizes each Grantor to collect the Accounts, Chattel Paper
and Payment Intangibles subject to the Collateral Agent's direction and
control, and the Collateral Agent may curtail or terminate said
authority at any time after the occurrence and during the continuance
of an Event of Default. If required by the Collateral Agent at any time
after the occurrence and during the continuance of an Event of Default,
any payments of Accounts, Chattel Paper and Payment Intangibles, when
collected by each Grantor, shall be forthwith (and, in any event,
within two Business Days) deposited by such Grantor in the exact form
received, duly indorsed by such Grantor to the Collateral Agent if
required, in a special collateral account maintained by the Collateral
Agent, subject to withdrawal by the Collateral Agent for the ratable
benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, as
hereinafter provided, and, until so turned over, shall be held by such
Grantor in trust for the Collateral Agent for the ratable benefit of
the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, segregated from other
funds of any such Grantor. Each deposit of any such Proceeds shall be
accompanied by a report identifying in reasonable detail the nature and
source of the payments included in the deposit. All Proceeds
constituting collections of Accounts while held by the Collateral Agent
(or by any Grantor in trust for the Collateral Agent for the ratable
benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders) shall
continue to be collateral security for all of the Obligations and shall
not constitute payment thereof until applied as hereinafter provided.
At such intervals as may be agreed upon by each Grantor and the
Collateral Agent, or, if an Event of Default shall have occurred and be
continuing, at any time at the Collateral Agent's election, the
Exhibit I-6
Collateral Agent shall apply all or any part of the funds on deposit in
said special collateral account on account of the Obligations in such
order as the Collateral Agent may elect, and any part of such funds
which the Collateral Agent elects not so to apply and deems not
required as collateral security for the Obligations shall be paid over
from time to time by the Collateral Agent to each Grantor or to
whomsoever may be lawfully entitled to receive the same. At the
Collateral Agent's request, each Grantor shall deliver to the
Collateral Agent all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the
Accounts, including, without limitation, all original orders, invoices
and shipping receipts.
4. Representations and Warranties. Each Grantor hereby represents
and warrants that:
(a) Title; No Other Liens. Except for the Lien granted to
the Collateral Agent for the ratable benefit of the EPN Group Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders pursuant to this Security Agreement and the
other Liens permitted to exist on the Collateral pursuant to the EPN
Credit Agreement or the EPNHC Credit Agreement, each Grantor owns each
item of the Collateral free and clear of any and all Liens or claims of
others. No security agreement, financing statement or other public
notice with respect to all or any part of the Collateral is on file or
of record in any public office, except such as may have been filed in
favor of the Collateral Agent, for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, pursuant to this Security Agreement
or as may be permitted pursuant to the EPN Credit Agreement or the
EPNHC Credit Agreement.
(b) Perfected First Priority Liens. The Liens granted
pursuant to this Security Agreement constitute perfected Liens on the
Collateral in favor of the Collateral Agent, for the ratable benefit of
the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, which are (except for
any Liens on the Collateral which are permitted to exist pursuant to
the EPN Credit Agreement or the EPNHC Credit Agreement) prior to all
other Liens on the Collateral created by each Grantor and in existence
on the date hereof and which are enforceable as such against all
creditors of and purchasers from each Grantor and against any owner or
purchaser of the real property where any of the Equipment is located
and any present or future creditor obtaining a Lien on such real
property. All action necessary or desirable to perfect such security
interest in each item of the Collateral requested by the Collateral
Agent, including the filing of financing statements in the offices
referred to on Schedule V hereto, has been or will be duly taken.
(c) Accounts. The amount represented by each Grantor to
the EPN Group Lenders from time to time as owing by each Account Debtor
or by all Account Debtors in respect of the Accounts, Chattel Paper,
and Payment Intangibles will at such time be, to such Grantor's best
knowledge, the correct amount actually owing by such Account Debtor or
Account Debtors thereunder. No amount payable to each Grantor under or
in connection with any Account is evidenced by any Instrument or
Chattel Paper which has not been delivered to the Collateral Agent. The
place where each Grantor keeps its records concerning the Accounts,
Chattel Paper and Payment Intangibles is Four Greenway Plaza, Houston,
Texas 77046.
Exhibit I-7
(d) Grantor's Name, Etc. The name of each Grantor as
indicated on the public record of such Grantor's jurisdiction of
organization, which shows such Grantor to have been organized, is as
set forth on Schedule IV hereto. The mailing address of each Grantor is
Four Greenway Plaza, Houston, Texas 77046. With respect to each
Grantor, the type of entity of such Grantor and the organizational
identification number for such Grantor in such Grantor's jurisdiction
of organization is correctly set forth on Schedule IV hereto. To the
extent indicated on Schedule IV hereto, the Grantors therein identified
were formerly known by the names set forth on Schedule IV hereto. Other
than such names, no Grantor has used any other name or trade name.
(e) Farm Products. None of the Collateral constitutes, or
is the Proceeds of, Farm Products.
(f) Patents and Trademarks. Schedule I hereto includes
all Patents and Patent Licenses owned by each Grantor in its own name
as of the date hereof. Schedule II hereto includes all Trademarks and
Trademark Licenses owned by each Grantor in its own name as of the date
hereof. To the best of each such Grantor's knowledge, each Patent and
Trademark is valid, subsisting, unexpired, enforceable and has not been
abandoned. Except as set forth in either such Schedule, none of such
Patents and Trademarks is the subject of any licensing or franchise
agreement. No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the
validity of any Patent or Trademark. No action or proceeding is pending
(i) seeking to limit, cancel or question the validity of any Patent or
Trademark, or (ii) which, if adversely determined, would have a
material adverse effect on the value of any Patent or Trademark.
(g) Vehicles. Schedule III is a complete and correct list
of all Vehicles owned by each Grantor.
(h) Governmental Obligors. None of the obligors on any
Grantor's Accounts, Chattel Paper or Payment Intangibles is a
Governmental Authority.
(i) Power and Authority; Authorization. Each Grantor has
the power and authority and the legal right to execute and deliver, to
perform its obligations under, and to grant the Lien on the Collateral
pursuant to, this Security Agreement and has taken all necessary action
to authorize its execution, delivery and performance of, and grant of
the Lien on the Collateral pursuant to, this Security Agreement.
(j) Enforceability. This Security Agreement constitutes a
legal, valid and binding obligation of each Grantor enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally.
(k) No Conflict. The execution, delivery and performance
of this Security Agreement will not violate any provision of any
Requirement of Law or Contractual Obligation of any Grantor and will
not result in the creation or imposition of any Lien on
Exhibit I-8
any of the properties or revenues of any Grantor pursuant to any
Requirement of Law or Contractual Obligation of such Grantor, except as
contemplated hereby.
(l) No Consents, etc. No consent or authorization of,
filing with, or other act by or in respect of, any arbitrator or
Governmental Authority and no consent of any other Person (including,
without limitation, any member, manager or creditor of any Grantor), is
required in connection with the execution, delivery, performance,
validity or enforceability of this Security Agreement.
(m) No Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of each Grantor, threatened by or against
such Grantor or against any of its properties or revenues with respect
to this Security Agreement or any of the transactions contemplated
hereby.
(n) Chaco Trust. Chaco Trust represents and warrants that
(i) it is a Massachusetts business trust, (ii) the only jurisdictions
in which Chaco Trust does business and/or owns or leases any property
are the States of Massachusetts, New Mexico, and Texas, (iii) all of
the beneficial interest in the Chaco Trust is held by Delos, which has
its principal place of business and chief executive office in the State
of Texas, and (iv) the sole trustee of the Chaco Trust is EP-Operating,
which has its principal place of business and chief executive office in
the State of Texas.
(o) No Chapter 35 Filings. No Grantor has filed a
security instrument with the Secretary of State of the State of Texas
electing to be covered by, or is otherwise subject to the requirements
and benefits of, Subchapter A of Chapter 35 of the Texas Business and
Commerce Code.
(p) Transmitting Utilities. As of the Closing Date, (X)
each of the Grantors listed on Schedule VI hereto is a Person primarily
engaged in (i) transmitting goods by pipeline, (ii) transmitting gas,
or (iii) producing and transmitting gas, and (Y) such Grantor owns
goods and pipelines located in the jurisdictions indicated on such
Schedule VI.
5. Covenants. Each Grantor covenants and agrees with the Collateral
Agent and each of the EPN Group Lenders that, from and after the date of this
Security Agreement until the Obligations are paid in full and the Commitments
are terminated:
(a) Further Documentation; Pledge of Instruments and
Chattel Paper. At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of each
Grantor, such Grantor will promptly and duly execute and deliver such
further instruments and documents and take such further action as the
Collateral Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Security Agreement and of the
rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform
Commercial Code in effect in any jurisdiction with respect to the Liens
created hereby. Each Grantor hereby authorizes the Collateral Agent,
its counsel or its representative, at any time and from time to time,
to file financing statements and
Exhibit I-9
amendments to financing statements that describe the collateral covered
by such financing statements as "all assets of the Grantor", "all
personal property of the Grantor", or words of similar effect, in such
jurisdictions as the Collateral Agent may deem necessary or desirable
in order to perfect or maintain the perfection of the security
interests granted by such Grantor under this Security Agreement. Each
Grantor hereby further authorizes the Collateral Agent, its counsel or
its representative, at any time and from time to time, to file
continuation statements with respect to previously filed financing
statements. A photographic or other reproduction of this Security
Agreement shall be sufficient as a financing statement for filing in
any jurisdiction. If any amount payable under or in connection with any
of the Collateral shall be or become evidenced by any Instrument or
Chattel Paper, such Instrument or Chattel Paper shall be immediately
delivered to the Collateral Agent, duly endorsed in a manner
satisfactory to the Collateral Agent, to be held as Collateral pursuant
to this Security Agreement. Upon the request of the Collateral Agent or
any of the EPN Group Lenders, each Grantor shall take or cause to be
taken all actions (other than any actions required to be taken by the
Collateral Agent or any of the EPN Group Lenders) necessary to cause
the Collateral Agent to have "control" (within the meaning of Sections
9-104, 9-105, 9-106, and 9-107 of the UCC) over any Collateral
constituting Deposit Accounts, Electronic Chattel Paper, Investment
Property, or Letter-of-Credit Rights, and each Grantor shall promptly
notify the Collateral Agent and each of the EPN Group Lenders of such
Grantor's acquisition of any such Collateral. With respect to any goods
constituting Collateral that are in the possession of a "bailee"
(within the meaning of Section 9-312 of the UCC), each Grantor shall
take or cause to be taken all actions (other than any actions required
to be taken by the Collateral Agent or any of the EPN Group Lenders)
necessary to cause the Collateral Agent to have a perfected security
interest in such Collateral pursuant to the provisions of Section 9-312
of the UCC, and such Grantor shall provide prompt notice to the
Collateral Agent and each of the EPN Group Lenders of any such
Collateral then in the possession of such a "bailee".
(b) Indemnification. Each Grantor agrees to pay and to
save the Collateral Agent and each of the EPN Group Lenders harmless
from any and all liabilities and reasonable costs and expenses
(including, without limitation, legal fees and expenses), (i) with
respect to, or resulting from, any delay in paying, any and all excise,
sales or other taxes which may be payable or determined to be payable
with respect to any of the Collateral, (ii) with respect to, or
resulting from, any delay in complying with any Requirement of Law
applicable to any of the Collateral or (iii) in connection with any of
the transactions contemplated by this Security Agreement. In any suit,
proceeding or action brought by the Collateral Agent or any of the EPN
Group Lenders under any Account, Chattel Paper, or Payment Intangibles,
for any sum owing thereunder, or to enforce any provisions of any
Account, Chattel Paper, or Payment Intangible, each Grantor will save,
indemnify and keep the Collateral Agent and any of such EPN Group
Lenders harmless from and against all reasonable expense, loss or
damage suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction or liability whatsoever of the Account Debtor
or obligor thereunder, arising out of a breach by any Grantor of any
obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such
Account Debtor or obligor or its successors from such Debtor.
Exhibit I-10
(c) Maintenance of Records. Each Grantor will keep and
maintain at its own cost and expense satisfactory and complete records
of the Collateral, including, without limitation, a record of all
payments received and all credits granted with respect to the Accounts.
For the Collateral Agent's and the EPN Group Lenders' further security,
the Collateral Agent, for the ratable benefit of the EPN Group Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders, shall have a security interest in all of
each Grantor's books and records pertaining to the Collateral, and each
Grantor shall turn over any such books and records to the Collateral
Agent or to its representatives during normal business hours at the
request of the Collateral Agent.
(d) Right of Inspection. The Collateral Agent and the EPN
Group Lenders shall at all times have full and free access during
normal business hours to all the books, correspondence and records of
each Grantor, and the Collateral Agent and the EPN Group Lenders and
their respective representatives may examine the same, take extracts
therefrom and make photocopies thereof, and each Grantor agrees to
render to the Collateral Agent and the EPN Group Lenders, at such
Grantor's cost and expense, such clerical and other assistance as may
be reasonably requested with regard thereto. The Collateral Agent and
the EPN Group Lenders and their respective representatives shall at all
times also have the right to enter into and upon any premises where any
of the Inventory or Equipment is located for the purpose of inspecting
the same, observing its use or otherwise protecting its interests
therein.
(e) Compliance with Laws, etc. Each Grantor will comply
in all material respects with all Requirements of Law applicable to the
Collateral or any part thereof or to the operation of such Grantor's
business; provided, however, that such Grantor may contest any
Requirement of Law in any reasonable manner which shall not, in the
sole opinion of the Collateral Agent, adversely affect the Collateral
Agent's or the EPN Group Lenders' rights or the priority of their Liens
on the Collateral.
(f) Compliance with Contractual Obligations. Each Grantor
will perform and comply in all material respects with all its
Contractual Obligations relating to the Collateral.
(g) Payment of Obligations. Each Grantor will pay
promptly when due all taxes, assessments and governmental charges or
levies imposed upon the Collateral or in respect of its income or
profits therefrom, as well as all claims of any kind (including,
without limitation, claims for labor, materials and supplies) against
or with respect to the Collateral, except that no such charge need be
paid if (i) the validity thereof is being contested in good faith by
appropriate proceedings, (ii) such proceedings do not involve any
material danger of the sale, forfeiture or loss of any of the
Collateral or any interest therein and (iii) such charge is adequately
reserved against on such Grantor's books in accordance with GAAP.
(h) Limitation on Liens on Collateral. Each Grantor will
not create, incur or permit to exist, will defend the Collateral
against, and will take such other action as is necessary to remove, any
Lien or claim on or to the Collateral, other than the Liens created
hereby and other than as permitted pursuant to the EPN Credit Agreement
or the
Exhibit I-11
EPNHC Credit Agreement, and will defend the right, title and interest
of the Collateral Agent and the EPN Group Lenders in and to any of the
Collateral against the claims and demands of all Persons whomsoever.
(i) Limitations on Dispositions of Collateral. The
Collateral Agent and the EPN Group Lenders do not authorize, and each
Grantor agrees not to sell, transfer, lease or otherwise dispose of any
of the Collateral, or attempt, offer or contract to do so except to the
extent expressly permitted by the EPN Credit Agreement or the EPNHC
Credit Agreement.
(j) Limitations on Modifications, Waivers, Extensions of
Agreements Giving Rise to Accounts. Each Grantor will not (i) amend,
modify, terminate or waive any provision of any Chattel Paper or any
agreement giving rise to an Account or Payment Intangible in any manner
which could reasonably be expected to materially adversely affect the
value of such Chattel Paper, Payment Intangible or Account as
Collateral, (ii) fail to exercise promptly and diligently each and
every material right which it may have under any Chattel Paper and each
agreement giving rise to an Account or Payment Intangible (other than
any right of termination) or (iii) fail to deliver to the Collateral
Agent a copy of each material demand, notice or document received by it
relating in any way to any Chattel Paper or any agreement giving rise
to an Account, or Payment Intangible.
(l) Limitations on Discounts, Compromises, Extensions of
Accounts. Other than in the ordinary course of business as generally
conducted by each Grantor over a period of time, each Grantor will not
grant any extension of the time of payment of any of the Accounts,
Chattel Paper or Payment Intangibles, compromise, compound or settle
the same for less than the full amount thereof, release, wholly or
partially, any Person liable for the payment thereof, or allow any
credit or discount whatsoever thereon.
(m) Maintenance of Equipment. Each Grantor will maintain
each item of Equipment in good operating condition, ordinary wear and
tear and immaterial impairments of value and damage by the elements
excepted, and will provide all maintenance, service and repairs
necessary for such purpose.
(n) Further Identification of Collateral. Each Grantor
will furnish to the Collateral Agent and the EPN Group Lenders from
time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Collateral Agent may reasonably request, all in
reasonable detail.
(o) Notices. Each Grantor will advise the Collateral
Agent and the EPN Group Lenders promptly, in reasonable detail, at
their respective addresses set forth in the EPN Credit Agreement and
the EPNHC Credit Agreement, (i) of any Lien (other than Liens created
hereby or permitted under the EPN Credit Agreement or the EPNHC Credit
Agreement) on, or claim asserted against, any of the Collateral and
(ii) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of
the Collateral or on the Liens created hereunder.
Exhibit I-12
(p) Changes in Locations, Name, etc. Each Grantor
recognizes that financing statements pertaining to the Collateral have
been or may be filed where such Grantor maintains any Collateral or is
organized. Without limitation of any other covenant herein, each
Grantor will not cause or permit (i) any change to be made in its name,
identity or corporate structure or (ii) any change to (A) the identity
of any warehouseman, common carrier, other third-party transporter,
bailee or any agent or processor in possession or control of any
Collateral or (B) such Grantor's jurisdiction of organization, unless
such Grantor shall have first (1) notified the Collateral Agent and the
EPN Group Lenders of such change at least thirty (30) days prior to the
effective date of such change, and (2) taken all action reasonably
requested by the Collateral Agent or any of the EPN Group Lenders for
the purpose of maintaining the perfection and priority of the
Collateral Agent's security interests under this Security Agreement. In
any notice furnished pursuant to this subsection, each Grantor will
expressly state that the notice is required by this Security Agreement
and contains facts that may require additional filings of financing
statements or other notices for the purposes of continuing perfection
of the Collateral Agent's security interest in the Collateral.
(q) Patents and Trademarks.
(i) Each Grantor (either itself or through
licensees) will, except with respect to any Trademark that
such Grantor shall reasonably determine is of negligible
economic value to it, (i) continue to use each Trademark on
each and every trademark class of goods applicable to its
current line as reflected in its current catalogs, brochures
and price lists in order to maintain such Trademark in full
force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services
offered under such Trademark, (iii) employ such Trademark with
the appropriate notice of registration, (iv) not adopt or use
any mark which is confusingly similar or a colorable imitation
of such Trademark unless the Collateral Agent, for the ratable
benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders,
shall obtain a perfected security interest in such mark
pursuant to this Security Agreement, and (v) not (and not
permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any Trademark may become
invalidated.
(ii) Each Grantor will not, except with respect
to any Patent that such Grantor shall reasonably determine is
of negligible economic value to it, do any act, or omit to do
any act, whereby any Patent may become abandoned or dedicated.
(iii) Each Grantor will notify the Collateral
Agent and the EPN Group Lenders immediately if it knows, or
has reason to know, that any application or registration
relating to any Patent or Trademark may become abandoned or
dedicated, or of any adverse determination or development
(including, without limitation, the institution of, or any
such determination or development in, any proceeding in the
United States Patent and Trademark Office or any court or
tribunal in any country) regarding such Grantor's ownership of
any Patent or Trademark or its right to register the same or
to keep and maintain the same.
Exhibit I-13
(iv) Whenever a Grantor, either by itself or
through any agent, employee, licensee or designee, shall file
an application for the registration of any Patent or Trademark
with the United States Patent and Trademark Office or any
similar office or agency in any other country or any political
subdivision thereof, such Grantor shall report such filing to
the Collateral Agent and the EPN Group Lenders within five
Business Days after the last day of the fiscal quarter in
which such filing occurs. Upon request of the Collateral
Agent, such Grantor shall execute and deliver any and all
agreements, instruments, documents, and papers as the
Collateral Agent may request to evidence the Collateral
Agent's and the EPN Group Lenders' security interest in any
Patent or Trademark and the goodwill and general intangibles
of such Grantor relating thereto or represented thereby, and
such Grantor hereby constitutes the Collateral Agent its
attorney-in-fact to execute and file all such writings for the
foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power being coupled with an
interest is irrevocable until the Obligations are paid in full
and the Commitments are terminated.
(v) Each Grantor will take all reasonable and
necessary steps, including, without limitation, in any
proceeding before the United States Patent and Trademark
Office, or any similar office or agency in any other country
or any political subdivision thereof, to maintain and pursue
each application (and to obtain the relevant registration) and
to maintain each registration of the Patents and Trademarks,
including, without limitation, filing of applications for
renewal, affidavits of use and affidavits of incontestability.
(vi) In the event that any Patent or Trademark
included in the Collateral is infringed, misappropriated or
diluted by a third party, each Grantor shall promptly notify
the Collateral Agent and the EPN Group Lenders after it learns
thereof and shall, unless such Grantor shall reasonably
determine that such Patent or Trademark is of negligible
economic value to such Grantor which determination such
Grantor shall promptly report to the Collateral Agent and the
EPN Group Lenders, promptly sue for infringement,
misappropriation or dilution, to seek injunctive relief where
appropriate and to recover any and all damages for such
infringement, misappropriation or dilution, or take such other
actions as such Grantor shall reasonably deem appropriate
under the circumstances to protect such Patent or Trademark.
(q) Vehicles. Each Grantor will maintain each Vehicle in
good operating condition, ordinary wear and tear and immaterial
impairments of value and damage by the elements excepted, and will
provide all maintenance, service and repairs necessary for such
purpose. No Vehicle shall be removed from the state which has issued
the certificate of title or ownership therefor for a period in excess
of 60 days.
(r) Commercial Tort Claims. If any Grantor shall at any
time hold or acquire a Commercial Tort Claim that satisfies the
requirements of the following sentence, such Grantor shall, within
thirty (30) days after such Commercial Tort Claim satisfies such
requirements, notify the Collateral Agent and the EPN Group Lenders in
a writing signed
Exhibit I-14
by such Grantor containing a brief description thereof, and granting to
the Collateral Agent in such writing (for the benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇) a security interest therein and in
the Proceeds thereof, all upon the terms of this Security Agreement,
with such writing to be in form and substance satisfactory to the
Collateral Agent and the EPN Group Lenders. The provisions of the
preceding sentence shall apply only to a Commercial Tort Claim that
satisfies the following requirements: (i) the monetary value claimed by
or payable to the relevant Grantor in connection with such Commercial
Tort Claim shall exceed $5,000,000, and either (ii) (A) such Grantor
shall have filed a law suit or counterclaim or otherwise commenced
legal proceedings (including, without limitation, arbitration
proceedings) against the Person against whom such Commercial Tort Claim
is made, or (B) such Grantor and the Person against whom such
Commercial Tort Claim is asserted shall have entered into a settlement
agreement with respect to such Commercial Tort Claim. In addition, to
the extent that the existence of any Commercial Tort Claim held or
acquired by any Grantor is disclosed by EPN or any Grantor in any
public filing with the Securities Exchange Commission or any successor
thereto or analogous Governmental Authority, or to the extent that the
existence of any such Commercial Tort Claim is disclosed in any press
release issued by EPN or any Grantor, then, upon the request of the
Collateral Agent, the relevant Grantor shall, within thirty (30) days
after such request is made, transmit to the Collateral Agent and the
EPN Group Lenders a writing signed by such Grantor containing a brief
description of such Commercial Tort Claim and granting to the
Collateral Agent in such writing (for the benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇) a security interest therein and in
the Proceeds thereof, all upon the terms of this Security Agreement,
with such writing to be in form and substance satisfactory to the
Collateral Agent and the EPN Group Lenders.
6. Collateral Agent's Appointment as Attorney-in-Fact.
(a) Powers. Each Grantor hereby irrevocably constitutes
and appoints the Collateral Agent and any officer or agent thereof,
with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place
and stead of such Grantor and in the name of such Grantor or in its own
name, from time to time in the Collateral Agent's discretion, for the
purpose of carrying out the terms of this Security Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the
purposes of this Security Agreement, and, without limiting the
generality of the foregoing, each Grantor hereby gives the Collateral
Agent the power and right, on behalf of such Grantor, without notice to
or assent by such Grantor, to do the following:
(i) in the case of any Account, Chattel Paper or
Payment Intangible, at any time when the authority of such
Grantor to collect the Accounts, Chattel Paper or Payment
Intangible has been curtailed or terminated pursuant to the
first sentence of Section 3(d) hereof, or in the case of any
other Collateral, at any time when any Event of Default shall
have occurred and is continuing, in the name of such Grantor
or its own name, or otherwise, to take possession of and
indorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any
Account, Instrument, General Intangible, Chattel Paper,
Exhibit I-15
or Payment Intangible, or with respect to any other Collateral
and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Account,
Instrument, or General Intangible or with respect to any other
Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied
or placed on or threatened against the Collateral, to effect
any repairs or any insurance called for by the terms of this
Security Agreement and to pay all or any part of the premiums
therefor and the costs thereof; and
(iii) upon the occurrence and during the
continuance of any Event of Default, (A) to direct any Person
liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder
directly to the Collateral Agent or as the Collateral Agent
shall direct; (B) to ask or demand for, collect, receive
payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of
or arising out of any Collateral; (C) to sign and indorse any
invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against such Grantor,
assignments, verifications, notices and other documents in
connection with any of the Collateral; (D) to commence and
prosecute any suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect the
Collateral or any thereof and to enforce any other right in
respect of any Collateral; (E) to defend any suit, action or
proceeding brought against any Grantor with respect to any
Collateral; (F) to settle, compromise or adjust any suit,
action or proceeding described in clause (E) above and, in
connection therewith, to give such discharges or releases as
the Collateral Agent may deem appropriate; (G) to assign any
Patent or Trademark (along with the goodwill of the business
to which any such Trademark pertains), throughout the world
for such term or terms, on such conditions, and in such
manner, as the Collateral Agent shall in its sole discretion
determine; and (H) generally, to sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any
of the Collateral as fully and completely as though the
Collateral Agent were the absolute owner thereof for all
purposes, and to do, at the Collateral Agent's option and each
Grantor's expense, at any time, or from time to time, all acts
and things which the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and the
Collateral Agent's and the EPN Group Lenders' Liens thereon
and to effect the intent of this Security Agreement, all as
fully and effectively as any Grantor might do.
Each Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
(b) Other Powers. Each Grantor also authorizes the
Collateral Agent and the EPN Group Lenders, at any time and from time
to time, to execute, in connection with
Exhibit I-16
the sale provided for in Section 9 hereof, any endorsements,
assignments or other instruments of conveyance or transfer with respect
to the Collateral.
(c) No Duty on Collateral Agent or EPN Group Lenders'
Part. The powers conferred on the Collateral Agent and the EPN Group
Lenders hereunder are solely to protect the Collateral Agent's and the
EPN Group Lenders' interests in the Collateral and shall not impose any
duty upon the Collateral Agent or any of the EPN Group Lenders to
exercise any such powers. The Collateral Agent and the EPN Group
Lenders shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they
nor any of their officers, directors, employees or agents shall be
responsible to any Grantor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.
7. Performance by Collateral Agent of the Grantor's Obligations.
If any Grantor fails to perform or comply with any of its agreements contained
herein and the Collateral Agent, as provided for by the terms of this Security
Agreement, shall itself perform or comply, or otherwise cause performance or
compliance, with such agreement, the expenses of the Collateral Agent incurred
in connection with such performance or compliance, together with interest
thereon at a rate per annum 3-1/2 % above the Alternate Base Rate, shall be
payable by such Grantor to the Collateral Agent on demand and shall constitute
Obligations secured hereby.
8. Proceeds. In addition to the rights of the Collateral Agent
and the EPN Group Lenders specified in Section 3(d) with respect to payments of
Accounts, it is agreed that if an Event of Default shall occur and be continuing
(a) all Proceeds received by each Grantor consisting of cash, checks and other
near-cash items shall be held by such Grantor in trust for the Collateral Agent
for the ratable benefit of the EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
segregated from other funds of such Grantor, and shall, forthwith upon receipt
by such Grantor, be turned over to the Collateral Agent in the exact form
received by such Grantor (duly indorsed by such Grantor to the Collateral Agent,
if required), and (b) any and all such Proceeds received by the Collateral Agent
(whether a Grantor or otherwise) may, in the sole discretion of the Collateral
Agent, be held by the Collateral Agent for the ratable benefit of the EPN Group
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ as collateral security for, and/or then or at
any time thereafter may be applied by the Collateral Agent against, the
Obligations (whether matured or unmatured), such application to be in such order
as the Collateral Agent shall elect. Any balance of such Proceeds remaining
after the Obligations shall have been paid in full and the Commitments shall
have been terminated shall be paid over to such Grantor or to whomsoever may be
lawfully entitled to receive the same.
9. Remedies. If an Event of Default shall occur and be
continuing, the Collateral Agent, on behalf of the EPN Group Lenders and the
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, may exercise, in addition to all other rights and remedies
granted to them in this Security Agreement and in any other instrument or
agreement securing, evidencing or relating to the Obligations, all rights and
remedies of a secured party under the UCC. Without limiting the generality of
the foregoing, the Collateral Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon any Grantor or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
Exhibit I-17
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Collateral Agent or any of the EPN
Group Lenders or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Collateral Agent or
any of the EPN Group Lenders shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Collateral so sold, free of any right
or equity of redemption in any Grantor, which right or equity is hereby waived
or released. Each Grantor further agrees, at the Collateral Agent's request, to
assemble the Collateral and make it available to the Collateral Agent at places
which the Collateral Agent shall reasonably select, whether at such Grantor's
premises or elsewhere. The Collateral Agent shall apply the net proceeds of any
such collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Collateral Agent and the EPN
Group Lenders hereunder, including, without limitation, reasonable attorneys'
fees and disbursements, to the payment in whole or in part of the Obligations,
in such order as the Collateral Agent may elect, and only after such application
and after the payment by the Collateral Agent of any other amount required by
any provision of law, including, without limitation, Section 9-615 of the UCC,
need the Collateral Agent account for the surplus, if any, to such Grantor. To
the extent permitted by applicable law, each Grantor waives all claims, damages
and demands it may acquire against the Collateral Agent or any of the EPN Group
Lenders arising out of the exercise by them of any rights hereunder except to
the extent any thereof arise solely from the willful misconduct of the
Collateral Agent. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition. Each
Grantor shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are insufficient to pay the Obligations and
the fees and disbursements of any attorneys employed by the Collateral Agent or
any of the EPN Group Lenders to collect such deficiency.
10. Limitation on Duties Regarding Preservation of Collateral. The
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. Neither the
Collateral Agent, any of the EPN Group Lenders, nor any of their respective
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any Grantor or otherwise.
11. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
12. Severability. Any provision of this Security Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
Exhibit I-18
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
13. Paragraph Headings. The paragraph headings used in this
Security Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
14. No Waiver; Cumulative Remedies. Neither the Collateral Agent
nor any of the EPN Group Lenders shall by any act (except by a written
instrument pursuant to Section 15 hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent or any of the EPN Group Lenders,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Collateral Agent or any of the EPN
Group Lenders of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or any such
EPN Group Lenders would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any rights or remedies provided by law.
15. Waivers and Amendments; Successors and Assigns; Governing Law.
None of the terms or provisions of this Security Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Grantors and the Collateral Agent, provided that any provision
of this Security Agreement may be waived by the Collateral Agent in a written
letter or agreement executed by the Collateral Agent or by facsimile
transmission from the Collateral Agent. This Security Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Collateral Agent and the EPN Group Lenders and their respective
successors and assigns. This Security Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
16. Notices. Notices hereunder may be given by mail or by
facsimile transmission, addressed or transmitted to the Person to which it is
being given at such Person's address or transmission number set forth in the EPN
Credit Agreement and the EPNHC Credit Agreement and shall be effective (a) in
the case of mail, 3 days after deposit in the postal system, first class postage
pre-paid and (b) in the case of facsimile notices, when sent. Each Grantor may
change its address and transmission number by written notice to the Collateral
Agent, and the Collateral Agent or any of the EPN Group Lenders may change its
address and transmission number by written notice to each Grantor and, in the
case of any of the EPN Group Lenders, to the Collateral Agent.
17. Authority of Collateral Agent. Each Grantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Security
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any option, right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Security Agreement shall, as among the Collateral Agent, the EPN
Group
Exhibit I-19
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ be governed by EPN Credit Agreement, the
EPNHC Credit Agreement, the ▇▇▇▇▇ ▇▇▇▇ Financing Documents and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Agent and each Grantor, the Collateral Agent shall be
conclusively presumed to be acting as agent for the EPN Group Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
18. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH GRANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF MAY BE BROUGHT AGAINST IT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT AND SUCH OTHER LOAN DOCUMENTS, EACH
GRANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
GRANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH GRANTOR AT ITS
ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW. NOTHING HEREIN AND IN SUCH OTHER
LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT OR ANY HOLDER OF A
NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR OT COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GRANTOR IN ANY OTHER JURISDICTION.
19. WAIVERS. (a) EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY ACTION DESCRIBED IN PARAGRAPH 18, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE SAME.
(b) EACH GRANTOR AND THE COLLATERAL AGENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER ARISING DIRECTLY OR INDIRECTLY OUT
OF OR WITH RESPECT TO THIS AGREEMENT.
IN WITNESS WHEREOF, each Grantor has caused this Security Agreement to
be duly executed and delivered as of the date first above written.
[SIGNATURE PAGES FOLLOW]
HATTIESBURG GAS STORAGE COMPANY
Exhibit I-20
By: Hattiesburg Industrial Gas Sales, L.L.C.
First Reserve Gas, L.L.C.
its General Partners
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
By: El Paso Energy Partners Deepwater, L.L.C.
its Sole Member
EAST BREAKS GATHERING COMPANY, L.L.C.
By: El Paso Energy Partners Deepwater, L.L.C.
its Sole Member
▇▇▇▇, ▇.▇.▇.
▇▇▇▇ I, L.L.C.
ARGO II, L.L.C.
CRYSTAL HOLDING, L.L.C.
EL PASO ENERGY PARTNERS DEEPWATER, L.L.C.
EL PASO ENERGY PARTNERS OIL TRANSPORT, L.L.C.
FIRST RESERVE GAS, L.L.C.
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.
PETAL GAS STORAGE, L.L.C.
GREEN CANYON PIPE LINE COMPANY, L.P.
EL PASO ENERGY PARTNERS OPERATING COMPANY, L.L.C.
DELOS OFFSHORE COMPANY, L.L.C.
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
MANTA RAY GATHERING COMPANY, L.L.C.
POSEIDON PIPELINE COMPANY, L.L.C.
VK DEEPWATER GATHERING COMPANY, L.L.C.
VK-MAIN PASS GATHERING COMPANY, L.L.C.
EPN NGL STORAGE, L.L.C.
By: ________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
EPN HOLDING COMPANY, L.P.
By: EPN GP Holding, L.L.C.
its General Partner
Exhibit I-21
EL PASO ENERGY INTRASTATE, L.P.
By: EPN Pipeline GP Holding, L.L.C.
its General Partner
EPGT TEXAS PIPELINE, L.P.
By: EPN Pipeline GP Holding, L.L.C.
its General Partner
EL PASO INDIAN BASIN, L.P.
By: El Paso Indian Basin GP, L.L.C.
its General Partner
EPN GATHERING AND TREATING
COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
WARWINK GATHERING AND TREATING
COMPANY
By: El Paso Energy Warwink I Company, L.P.
and El Paso Energy Warwink II Company, L.P.,
its General Partners
By: EPN Gathering and Treating
GP Holding, L.L.C., their General Partner
EPN PIPELINE GP HOLDING, L.L.C.
EPN GP HOLDING, L.L.C.
EPN GP HOLDING I, L.L.C.
EPN HOLDING COMPANY I, L.P.
EL PASO HUB SERVICES COMPANY, L.L.C.
EL PASO ENERGY WARWINK I COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO ENERGY WARWINK II COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO OFFSHORE GATHERING &
TRANSMISSION, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO INDIAN BASIN GP, L.L.C.
EPN GATHERING AND TREATING GP HOLDING, L.L.C.
Exhibit I-22
By:________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President & Chief Financial Officer
Exhibit I-23
THE CHACO LIQUIDS PLANT TRUST
By: El Paso Energy Partners Operating Company,
L.L.C.
its Trustee
By:____________________________________
D. ▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President and Controller
Exhibit I-24
Agreed to:
JPMorgan Chase Bank,
as Collateral Agent
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
Consented to pursuant to Section 15 of the Existing
EPN Security Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
Consented to pursuant to Section 15 of the Existing
EPNHCSecurity Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
Consented to pursuant to Section 15 of the Existing
EPNHC Subsidiary Security Agreement:
JPMorgan Chase Bank,
as Administrative Agent
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
Exhibit I-25
Schedule I to
Subsidiary Security Agreement
Patents and Patent Licenses
[None]
Exhibit I Schedules-1
Schedule II to
Subsidiary Security Agreement
Trademarks and Trademark Licenses
[None]
Exhibit I Schedules-2
Schedule III to
Subsidiary Security Agreement
Vehicles
[None]
Exhibit I Schedules-3
Schedule IV to
Subsidiary Security Agreement
Grantors
------------------------------------------------------------------------------------------------------------------
Organizational
Name of each Pledgor Identification
on Public Record of Defined Term Number in
Pledgor's Jurisdiction for such Jurisdiction of Former Name
of Organization Type of Entity Pledgor Organization (if any)
------------------------------------------------------------------------------------------------------------------
▇▇▇▇, L.L.C. Delaware limited "Argo" 3253546
liability company
------------------------------------------------------------------------------------------------------------------
Argo I, L.L.C. Delaware limited "Argo I" 3252501
liability company
------------------------------------------------------------------------------------------------------------------
Argo II, L.L.C. Delaware limited "Argo II" 3253543
liability company
------------------------------------------------------------------------------------------------------------------
Crystal Holding, L.L.C. Delaware limited "Crystal Holding" 3258369
liability company
------------------------------------------------------------------------------------------------------------------
El Paso Energy Partners Delaware limited "EP Deepwater" ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇.▇. liability company Holdings, L.L.C.
------------------------------------------------------------------------------------------------------------------
El Paso Energy Partners Oil Delaware limited "EP-Transport" 2408384 Leviathan Oil
Transport, L.L.C. liability company Transport
Systems, L.L.C.
------------------------------------------------------------------------------------------------------------------
First Reserve Gas, L.L.C. Delaware limited "First Reserve" 2227809
liability company
------------------------------------------------------------------------------------------------------------------
Hattiesburg Industrial Gas Delaware limited "Hattiesburg Sales" 2058929
Sales, L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
Hattiesburg Gas Storage Company Delaware general "Hattiesburg Storage" None
partnership
------------------------------------------------------------------------------------------------------------------
Petal Gas Storage, L.L.C. Delaware limited "Petal Gas" 2310880
liability company
------------------------------------------------------------------------------------------------------------------
Green Canyon Pipe Line Delaware limited "Green Canyon" 2324709 Green Canyon
Company, L.P. partnership Pipe Line
Company, L.L.C.
------------------------------------------------------------------------------------------------------------------
El Paso Energy Partners Delaware limited "EP-Operating" 3063154 Leviathan
Operating Company, L.L.C. liability company Operating
Company, L.L.C.
------------------------------------------------------------------------------------------------------------------
Exhibit I Schedules-4
------------------------------------------------------------------------------------------------------------------
Delos Offshore Company, L.L.C. Delaware limited "Delos" 2747220
liability company
------------------------------------------------------------------------------------------------------------------
Flextrend Development Company, Delaware limited "Flextrend" 2510310
L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
Manta Ray Gathering Company, Delaware limited "Manta Ray" 2324708
L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
Poseidon Pipeline Company, Delaware limited "Poseidon Pipeline" 2487652
L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
VK Deepwater Gathering Delaware limited "VK Deepwater" 2401981
Company, L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
VK-Main Pass Gathering Delaware limited "VK Main Pass" 2401983
Company, L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
High Island Offshore System, Delaware limited "HIOS" 2999070
L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
East Breaks Gathering Company, Delaware limited "East Breaks" 340427
L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
The Chaco Liquids Plant Trust Massachusetts "Chaco Trust" None
business trust
------------------------------------------------------------------------------------------------------------------
EPN NGL Storage, L.L.C. Delaware limited "EPN-NGL" 3151447 Crystal
iability company Properties
and Trading
Company,
L.L.C.
------------------------------------------------------------------------------------------------------------------
EPN Holding Company, L.P. Delaware limited "EPN Holding" 3499494
partnership
------------------------------------------------------------------------------------------------------------------
EPN Pipeline GP Holding, L.L.C. Delaware limited "Pipeline GP 3499171
liability company Holding"
------------------------------------------------------------------------------------------------------------------
El Paso Energy Intrastate, L.P. Delaware limited "Intrastate" 0931567
partnership
------------------------------------------------------------------------------------------------------------------
EPGT Texas Pipeline, L.P. Delaware limited "EPGT Texas Pipeline" 2120073
partnership
------------------------------------------------------------------------------------------------------------------
El Paso Hub Services Company, Delaware limited "Hub Services" 0919236
L.L.C. liability company
------------------------------------------------------------------------------------------------------------------
El Paso Energy Warwink I Delaware limited "Warwink I" 3132001 El Paso Energy
Company, L.P. partnership Warwink I
Company, L.L.C.
------------------------------------------------------------------------------------------------------------------
Exhibit I Schedules-5
------------------------------------------------------------------------------------------------------------------
El Paso Energy Warwink II Delaware limited "Warwink II" 3132004 El Paso Energy
Company, L.P. partnership Warwink II
Company, L.L.C.
------------------------------------------------------------------------------------------------------------------
El Paso Offshore Gathering & Delaware limited "Offshore Gathering 2527167 El Paso Offshore
Transmission, L.P. partnership & Transmission" Gathering &
Transmission,
L.L.C.
------------------------------------------------------------------------------------------------------------------
El Paso Indian Basin, L.P. Delaware limited "Indian Basin" 3494592
partnership
------------------------------------------------------------------------------------------------------------------
EPN Gathering and Treating GP Delaware limited "EPN Gathering and 3499170 El Paso Indian
Holding, L.L.C. liability company Treating GP Holding" Basin GP, L.L.C.
------------------------------------------------------------------------------------------------------------------
EPN Gathering and Treating Delaware limited "EPN Gathering and 3499483
Company, L.P. partnership Treating"
------------------------------------------------------------------------------------------------------------------
EPN GP Holding, L.L.C. Delaware limited "EPN GP Holding" 3499172
liability company
------------------------------------------------------------------------------------------------------------------
EPN GP Holding I, L.L.C. Delaware limited "EPN GP Holding I" 3505818
liability company
------------------------------------------------------------------------------------------------------------------
EPN Holding Company I, L.P. Delaware limited "EPN Holding 3505820
partnership Company I"
------------------------------------------------------------------------------------------------------------------
Warwink Gathering and Treating Texas general "Warwink Gathering N/A
Company partnership and Treating
------------------------------------------------------------------------------------------------------------------
Exhibit I Schedules-6
Schedule V to
Subsidiary Security Agreement
UCC FILINGS
---------------------------------------------------------------------------------------
STATE FILING OFFICE DOCUMENT FILED
---------------------------------------------------------------------------------------
Delaware Secretary of State UCC-1
(with respect to all Grantors
except Warwink Gathering and
Treating)
---------------------------------------------------------------------------------------
Texas (with respect to Warwink Secretary of State UCC-1
Gathering and Treating)
---------------------------------------------------------------------------------------
Texas (with respect to Secretary of State UCC-1 as a transmitting utility
Intrastate, EPGT Texas Pipeline, filing
Warwink Gathering and Treating
and EPN Gathering and Treating)
---------------------------------------------------------------------------------------
New Mexico (with respect to EPN Secretary of State UCC-1 as a transmitting utility
Gathering and Treating) filing
---------------------------------------------------------------------------------------
Exhibit I Schedules-7
Schedule VI to
Subsidiary Security Agreement
Transmitting Utilities
--------------------------------------------------------------------------------------------------------
JURISDICTION(S) WHERE
GRANTOR'S GOODS AND
NAME OF EACH GRANTOR TYPE OF ENTITY PIPELINES ARE LOCATED
--------------------------------------------------------------------------------------------------------
El Paso Energy Intrastate, L.P. Delaware limited partnership Texas
--------------------------------------------------------------------------------------------------------
EPGT Texas Pipeline, L.P. Delaware limited partnership Texas
--------------------------------------------------------------------------------------------------------
El Paso Offshore Gathering & Delaware limited partnership Texas
Transmission, L.P.
--------------------------------------------------------------------------------------------------------
EPN Gathering and Treating Company, Delaware limited partnership Texas & New Mexico
L.P.
--------------------------------------------------------------------------------------------------------
Warwink Gathering and Treating Company Texas general partnership Texas
--------------------------------------------------------------------------------------------------------
Exhibit I Schedules-8
Exhibit A to
Subsidiary Security Agreement
ADDENDUM TO SUBSIDIARY SECURITY AGREEMENT
ADDENDUM, dated as of _____________, 200_ (this "Addendum"), to that
Consolidated Amended and Restated Subsidiary Security Agreement, dated as of
October 10, 2002 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Subsidiary Security Agreement"), made by each of the Grantors
listed below in favor of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, as collateral agent (in such
capacity, the "Collateral Agent") for EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ referred to in the Subsidiary Security Agreement. Unless otherwise
defined herein, terms defined in the Subsidiary Security Agreement are used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, [NAME OF NEW GRANTOR], [a _________ limited liability company]
[a _________________ corporation] [a __________________ partnership] (the "New
Grantor"), has become a Subsidiary of one of the EPN Group Borrowers; and
WHEREAS, pursuant to subsection 8.17 of the EPN Credit Agreement [or
Section 8.17 of the EPNHC Credit Agreement], the New Grantor is required to
become a party to the Subsidiary Security Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the New Grantor hereby:
(i) agrees to all of the provisions of the Subsidiary
Security Agreement, and
(ii) effective on the date hereof, becomes a party to the
Subsidiary Security Agreement, as a Grantor, with the same effect as if
the New Grantor were an original signatory thereto (with the
representations and warranties contained therein being deemed to be
made by the New Grantor as of the date hereof);
(iii) represents and warrants as follows:
(a) Schedule I hereto includes all Patents and
Patent Licenses owned by New Grantor in its own name as of the
date hereof. Schedule II hereto includes all Trademarks and
Trademark Licenses owned by New Grantor in its own name as of
the date hereof. To the best of New Grantor's knowledge, each
Patent and Trademark is valid, subsisting, unexpired,
enforceable and has not been abandoned. Except as set forth in
either such Schedule, none of such Patents and Trademarks is
the subject of any licensing or franchise agreement. No
holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question
the validity of any Patent or Trademark. No action or
proceeding is pending (i) seeking to limit, cancel or question
the
Exhibit I Schedules-9
validity of any Patent or Trademark, or (ii) which, if
adversely determined, would have a material adverse effect on
the value of any Patent or Trademark;
(b) Schedule III hereto is a complete and
correct list of all Vehicles owned by New Grantor;
(c) The name of New Grantor as indicated on the
public record of New Grantor's jurisdiction of organization,
which shows New Grantor to have been organized, is as set
forth on Schedule IV hereto. The mailing address of New
Grantor is Four Greenway Plaza, Houston, Texas 77046. The type
of entity of New Grantor and the organizational identification
number for New Grantor in New Grantor's jurisdiction of
organization is correctly set forth on Schedule IV hereto. To
the extent indicated on Schedule IV hereto, New Grantor was
formerly known by the names set forth on Schedule IV hereto.
Other than such names, New Grantor has not used any other name
or trade name;
(d) All action necessary or desirable to perfect
the Liens and security interest in each item of New Grantor's
Collateral requested by the Collateral Agent, including the
filing of financing statements in the offices referred to on
Schedule V hereto, has been or will be duly taken; and
(d) To the extent indicated on Schedule VI
attached hereto, New Grantor is a Person primarily engaged in
(i) transmitting goods by pipeline, (ii) transmitting gas, or
(iii) producing and transmitting gas, and (ii) New Grantor
owns goods and pipelines located in the jurisdictions
indicated on such Schedule VI.
IN WITNESS WHEREOF, the New Grantor has caused this Addendum to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
[NAME OF NEW GRANTOR]
By: _______________________
Title:
Address:
Exhibit I Schedules-10
Each of the undersigned Guarantors hereby ratifies and confirms its
respective obligations under the Subsidiaries Guarantee, as supplemented by this
Addendum:
[List Names Existing Subsidiary Guarantors]
By: ______________________
______________________
Exhibit I Schedules-11
Schedule I to
Subsidiary Security Agreement
Addendum
Patents and Patent Licenses
Exhibit I Schedules-12
Schedule II to
Subsidiary Security Agreement
Addendum
Trademarks and Trademark Licenses
Exhibit I Schedules-13
Schedule III to
Subsidiary Security Agreement
Addendum
Vehicles
Exhibit I Schedules-14
Schedule IV to
Subsidiary Security Agreement
Addendum
Grantors
-------------------------------------------------------------------------------------------------------------------
Organizational
Name of each Pledgor Identification
on Public Record of Defined Term Number in
Pledgor's Jurisdiction for such Jurisdiction of Former Name
of Organization Type of Entity Pledgor Organization (if any)
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Exhibit I Schedules-15
Schedule V to
Subsidiary Security Agreement
Addendum
UCC FILINGS
-------------------------------------------------------------------------------------------------------------------
STATE FILING OFFICE DOCUMENT FILED
Exhibit I Schedules-16
Schedule VI to
Subsidiary Security Agreement
Addendum
Transmitting Utilities
--------------------------------------------------------------------------------------------------
JURISDICTION(S) WHERE
GRANTOR'S GOODS AND
NAME OF EACH GRANTOR TYPE OF ENTITY PIPELINES ARE LOCATED
Exhibit I Schedules-17
EXHIBIT J
FORM OF GUARANTEES AND SECURITY DOCUMENTS CONFIRMATION
GUARANTEES AND SECURITY DOCUMENTS CONFIRMATION
GUARANTEES AND SECURITY DOCUMENTS CONFIRMATION, dated as of November
27, 2002 (this "Confirmation"), to each of the following documents:
▇. ▇▇▇▇▇▇▇ and Restated Borrower Pledge Agreement, dated as of
October 10, 2002, as amended and supplemented prior to the date hereof
(the "Borrower Pledge Agreement"), made by El Paso Energy Partners,
L.P., a Delaware limited partnership (the "Borrower"), in favor of
JPMorgan Chase Bank, as collateral agent (the "Collateral Agent") for
the ratable benefit of the EPN Lenders, the EPNHC Lenders and the ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ (each as defined below);
▇. ▇▇▇▇▇▇▇ and Restated Security Agreement, dated as of October
10, 2002, as amended and supplemented prior to the date hereof (the
"Borrower Security Agreement"), made by the Borrower and El Paso Energy
Partners Finance Corporation, a Delaware corporation (the
"Co-Borrower"), in favor of the Collateral Agent for ratable benefit of
the EPN Lenders, the EPNHC Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇;
▇. ▇▇▇▇▇▇▇ and Restated EPEPC Guarantee, dated as of October 10,
2002, as amended and supplemented prior to the date hereof (the "EPEPC
Guarantee"), made by El Paso Energy Partners Company ("EPEPC") in favor
of the EPN Administrative Agent (as defined below), the EPNHC
Administrative Agent (as defined below), the EPN Lenders, the EPNHC
Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇;
▇. ▇▇▇▇▇▇▇ and Restated EPEPC Security Agreement (G&A Agreement),
dated as of October 10, 2002, as amended and supplemented prior to the
date hereof ("the EPEPC Security Agreement"), made by EPEPC in favor of
the Collateral Agent for the ratable benefit of the EPN Lenders, the
EPNHC Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇;
E. Consolidated Amended and Restated Subsidiaries Guarantee,
dated as of October 10, 2002, as amended and supplemented prior to the
date hereof (the "Subsidiary Guarantee"), made by each of the
corporations, limited liability companies and other entities, as the
case may be, that are from time to time signatories thereto (the
"Subsidiary Guarantors") in favor of the EPN Administrative Agent, the
EPNHC Administrative Agent, the EPN Lenders, the EPNHC Lenders and the
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇;
F. Consolidated Amended and Restated Subsidiary Security
Agreement, dated as of October 10, 2002, as amended and supplemented
prior to the date hereof (the "Subsidiary Security Agreement"), by each
of the Subsidiary Guarantors in favor of the Collateral Agent for the
ratable benefit of the EPN Lenders, the EPNHC Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders; and
G. Consolidated Amended and Restated Subsidiary Pledge Agreement,
dated as of October 10, 2002, as amended and supplemented prior to the
date hereof (the "Subsidiary
Exhibit J-1
Pledge Agreement"), made by each of the Subsidiary Guarantors in favor
of the Collateral Agent for the ratable benefit of the EPN Lenders, the
EPNHC Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇;
(each as further amended, supplemented, waived, conformed or otherwise modified
from time to time, and this by this Confirmation, collectively, the "Guarantees
and Security Documents").
W I T N E S S E T H :
WHEREAS, the Borrower, the Co Borrower, the Lenders parties thereto
(the "EPN Lenders"), Credit Lyonnais New York Branch and Wachovia Bank, National
Association, as co-syndication agents, Fleet National Bank and Fortis Capital
Corp., as co-documentation agents, and JPMorgan Chase Bank, as administrative
agent (the "EPN Administrative Agent"), have entered into the Sixth Amended and
Restated Credit Agreement, dated as of March 23, 1995, as amended and restated
on October 10, 2002, and as further amended by the First Amendment to Sixth
Amended and Restated Credit Agreement (and as may be further amended, modified
or supplemented from time to time, the "EPN First Amendment") dated as of
November 21, 2002 (such credit agreement as amended, the "EPN Credit
Agreement");
WHEREAS, EPN Holding Company, L.P., a Delaware limited partnership
("EPNHC") and an indirect, wholly-owned subsidiary of the Borrower, has entered
into that Amended and Restated Credit Agreement dated as of April 8, 2002 as
amended and restated through October 10, 2002 and as further amended by the
First Amendment to Amended and Restated Credit Agreement (the "EPNHC First
Amendment") dated as of November 21, 2002 (such credit agreement as amended and
as may be further amended, modified or supplemented from time to time, the
"EPNHC Credit Agreement") by and among EPNHC, the Lenders parties thereto (the
"EPNHC Lenders"), Banc One Capital Markets, Inc. and Wachovia Bank, National
Association, as co-syndication agents, Fleet National Bank and Fortis Capital
Corp., as co-documentation agents, and JPMorgan Chase Bank, as administrative
agent, (the "EPNHC Administrative Agent");
WHEREAS, pursuant to the Guarantee dated as of October 10, 2002 (the
"Borrower Guarantee") the Borrower and the Co-Borrower have guaranteed the
obligations of EPNHC under the EPNHC Credit Agreement to the EPNHC
Administrative Agent for the ratable benefit of the EPNHC Lenders;
WHEREAS, the Borrower and El Paso Corporation ("El Paso") have entered
into the Contribution, Purchase and Sale Agreement, by and between El Paso, as
seller, and the Borrower, as buyer, dated as of November 21, 2002 (the
"Acquisition Document") governing the terms and conditions of the acquisition
and purchase by the Borrower from El Paso or its Subsidiaries of (i) all of the
equity interests of ANR Central Gulf Gathering Company, L.L.C., El Paso San
▇▇▇▇, L.L.C. and El Paso South Texas, L.P. and their respective assets (as more
particularly described below), (ii) an indirect 50% equity interest in Coyote
Gas Treating, LLC , (iii) certain residual interests related to the Chaco
cryogenic plant located in San ▇▇▇▇ County, New Mexico, and (iv) the Typhoon Oil
Gathering System located offshore in the deep water regions of the Gulf of
Mexico, for an aggregate consideration of up to $782,000,000, subject to closing
adjustments (the "San ▇▇▇▇ Acquisition");
Exhibit J-2
WHEREAS, pursuant to the terms of the Acquisition Document and in
connection with and as a part of the San ▇▇▇▇ Acquisition, the Borrower will
acquire certain assets, including, without limitation, (i) the natural gas
gathering system assets located in the San ▇▇▇▇ Basin of New Mexico and Colorado
commonly called the San ▇▇▇▇ Gathering System, the ▇▇▇▇▇▇ Compression Plant, the
Global Compression Plant, the Rattlesnake Treating Plant, the Florida River
Compression Facility and related assets, (ii) certain natural gas liquids
transportation and fractionation assets located in southern Texas commonly
called the Houston 8" Pipeline, the ▇▇▇▇▇▇▇ Terminal/Propane Pipeline, the
Markham Butane Shuttle, the Texas City 6" Pipeline/Terminal, the ▇▇▇▇▇▇
Fractionator and related storage assets, (iii) the natural gas gathering system
located in the offshore deep water region of the Gulf of Mexico commonly called
the Typhoon Gas Gathering System, and (iv) an oil gathering system located in
the offshore deep water region of the Gulf of Mexico commonly called the Typhoon
Oil Gathering System (collectively, the "San ▇▇▇▇ Assets");
WHEREAS, concurrently with the execution of this Confirmation, the
Borrower and the Co-Borrower are entering into a Senior Secured Acquisition Term
Loan Credit Agreement dated as of November 27, 2002 (as amended, modified or
supplemented from time to time, the "Senior Secured Acquisition Term Loan Credit
Agreement"), by and among the Borrower, the Co-Borrower, the Lenders party
thereto (the "Senior Secured Acquisition Term Loan Lenders," which together with
the EPN Lenders and the EPNHC Lenders are collectively the "EPN Group Lenders"),
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as documentation agent, UBS Warburg LLC and
Wachovia Bank, National Association, as syndication agents, and JPMorgan Chase
Bank, as administrative agent (the "Senior Secured Acquisition Term Loan
Administrative Agent"), under which the Senior Secured Acquisition Term Loan
Lenders will agree to make term loans to Borrower and the Co-Borrower from time
to time in connection with the consummation of the San ▇▇▇▇ Acquisition;
WHEREAS, each of the signatories (other than the EPN Group
Administrative Agents) hereto is a party to one or more of the Guarantees and
Security Documents and wishes to acknowledge and confirm that (i) its
obligations, and the Liens and security interests created, under each of the
Guarantees and Security Documents to which it is a party continue in full force
and effect, unimpaired and undischarged, and (ii) the obligations guaranteed by
and secured by (or, in the case of the obligations of each of the Confirming
Parties (as defined below), other than the Borrower and the Co-Borrower under
the Security Documents, secured indirectly by) the Liens and security interests
created under each of the Guarantees and Security Documents shall be the
obligations of the Borrower and the Co-Borrower under each of the EPN Credit
Agreement; the EPNHC Credit Agreement and the Senior Secured Acquisition Term
Loan Credit Agreement.
WHEREAS, each of the parties hereto wishes to acknowledge and confirm
that the following additional parties have been added as Subsidiary Guarantors
to the Guarantees and Security Documents: (i) ANR Central Gulf Gathering
Company, L.L.C., a Delaware limited liability company, (ii) El Paso San ▇▇▇▇,
L.L.C., a Delaware limited liability company, and (iii) El Paso South Texas,
L.P., a Delaware limited partnership.
WHEREAS, the Borrower has requested, and the EPN Lenders and the EPNHC
Lenders have agreed pursuant to the EPN First Amendment and the EPNHC First
Amendment,
Exhibit J-3
respectively, that the Obligations (as defined in the Senior Secured Acquisition
Term Loan Credit Agreement) of the Borrower and the Co-Borrower under the Senior
Secured Acquisition Term Loan Credit Agreement (the "Senior Secured Acquisition
Term Loan Credit Agreement Obligations") (i) be guaranteed by EPEPC and the
Subsidiary Guarantors and (ii) be secured by the Collateral under the Security
Documents on a pari passu basis by the Liens and security interests created
under the Security Documents that secure the obligations of the Confirming
Parties under the EPN Loan Documents and the EPNHC Loan Documents;
WHEREAS, in order to secure the Senior Secured Acquisition Term Loan
Obligations, the Collateral Agent has agreed to act as collateral agent for the
Senior Secured Acquisition Term Loan Lenders on the terms and conditions set
forth herein and in the Intercreditor Agreement;
WHEREAS, it is a condition precedent to the obligation of the Senior
Secured Acquisition Term Loan Lenders to make the senior secured acquisition
term loans to the Borrower and the Co Borrower pursuant to the Senior Secured
Acquisition Term Loan Credit Agreement that the parties hereto shall have
executed and delivered this Confirmation to the Collateral Agent for the ratable
benefit of the EPN Administrative Agent, the EPNHC Administrative Agent, the
Senior Secured Acquisition Term Loan Administrative Agent, EPN Lenders, the
EPNHC Lenders, the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, and the Senior Secured Acquisition Term
Loan Lenders.
NOW, THEREFORE, in consideration of the premises and to induce the EPN
Lenders to continue to make extensions of credit under the EPN Credit Agreement,
to induce the EPNHC Lenders to maintain their loans to EPNHC and to induce the
Senior Secured Acquisition Term Loan Lenders to make the senior secured
acquisition term loans to the Borrower and the Co Borrower, each of the
signatories hereto hereby agrees with the EPN Administrative Agent, the EPNHC
Administrative Agent and the Senior Secured Acquisition Term Loan Administrative
Agent (collectively, the "EPN Group Administrative Agents") and the Collateral
Agent, for the ratable benefit of the EPN Lenders, the EPNHC Lenders, the Senior
Secured Acquisition Term Loan Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, as follows:
1. Unless otherwise defined herein or in the Recitals and
introductory paragraphs, capitalized terms used herein shall
have the respective meanings assigned to them in the EPN
Credit Agreement and the other Loan Documents (as defined in
the EPN Credit Agreement), as such other Loan Documents may be
amended, supplemented or modified hereby.
2. Each of EPEPC and the Subsidiary Guarantors hereby, jointly
and severally, unconditionally and irrevocably guarantees as a
primary obligor to the EPN Group Administrative Agents, the
EPN Group Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, the prompt and
complete payment by the Borrower and the Co-Borrower when due
of the Senior Secured Acquisition Term Loan Obligations to the
same extent as EPEPC and the Subsidiary Guarantors guarantee
payment of the EPN Loan Obligations and the EPNHC Loan
Obligations.
Exhibit J-4
3. Each of the signatories hereto (a "Confirming Party") hereby
consents to the execution, delivery and performance of the EPN
First Amendment and the EPNHC First Amendment. Each Confirming
Party agrees that each reference to the "EPN Credit Agreement"
or "EPNHC Credit Agreement" in each of the Guarantees and
Security Documents shall be deemed to be a reference to the
EPN Credit Agreement or the EPNHC Credit Agreement,
respectively, as defined herein.
4. Each Confirming Party hereby grants to the Collateral Agent,
for the ratable benefit of the Senior Secured Acquisition Term
Loan Lenders on a pari passu basis with the EPN Lenders, the
EPNHC Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, a security interest
in all of the Collateral under the Security Documents,
including, without limitation, the San ▇▇▇▇ Assets, in which
such Confirming Party has any right, title or interest to
secure the Senior Secured Acquisition Term Loan Obligations
and, if applicable, such Confirming Party's guarantee thereof
as set forth in Section 2 above. Without limitation of the
foregoing, the definition of "Obligations" set forth in each
Security Document with respect to which a Confirming Party is
a party shall also be deemed to include such Confirming
Party's obligation to pay the Senior Secured Acquisition Term
Loan Obligations, whether directly or as a guarantor.
5. The Collateral Agent ▇▇▇▇▇▇ agrees to act as collateral agent
for the Senior Secured Acquisition Term Loan Lenders under the
Security Documents in order to perfect the Liens and security
interests created by the Security Documents and this
Confirmation to secure the Senior Secured Acquisition Term
Loan Obligations and guarantees thereof.
6. Each of the Confirming Parties confirms that and hereby agrees
that the definition of "Collateral" under the Security
Documents includes the property obtained by the Borrower and
its Restricted Subsidiaries in the Acquisition, including,
without limitation, the San ▇▇▇▇ Assets.
7. The EPEPC Guarantee is hereby amended as follows:
(a) The definition of "Credit Agreement" set forth in the
Recitals of the EPEPC Guarantee is hereby amended to
mean the "EPN Credit Agreement" as defined in this
Confirmation.
(b) The definition of "Commitments" set forth in Section
1 of the EPEPC Guarantee is hereby amended to read in
its entirety as follows: "Commitments": (a) the
"Revolving Loan Commitments" and the "Term Loan
Commitments" as defined in the EPN Credit Agreement,
(b) the "Commitments" as defined in the EPNHC Credit
Agreement and (c) the "Commitments" as defined in the
Senior Secured Acquisition Term Loan Credit
Agreement.
Exhibit J-5
(c) The definition of "Obligations" set forth in Section
1 of the EPEPC Guarantee is amended to read in its
entirety as follows: "Obligations": (i) the unpaid
principal of and interest on (including, without
limitation, interest accruing after the maturity of
the EPN Loans and interest accruing after the filing
of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding,
relating to EPN or El Paso Finance, whether or not a
claim for post-filing or post petition interest is
allowed in such proceeding) the Notes (as defined in
the EPN Credit Agreement) and all other obligations
and liabilities of EPN and El Paso Finance to the EPN
Administrative Agent or the EPN Lenders, whether
direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which
may arise under, out of, or in connection with, the
EPN Credit Agreement, the other Loan Documents (as
defined in the EPN Credit Agreement) or any other
document made, delivered or given in connection
therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and
disbursements of counsel to the EPN Administrative
Agent or any of the EPN Lenders) or otherwise, (ii)
the unpaid principal of and interest on (including,
without limitation, interest accruing after the
maturity of the EPNHC Term Loans and interest
accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to EPNHC,
whether or not a claim for post filing or post
petition interest is allowed in such proceeding) and
all other obligations and liabilities of EPNHC to the
EPNHC Administrative Agent or the EPNHC Lenders,
whether direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter
incurred, which may arise under, out of, or in
connection with, the EPNHC Credit Agreement, the
other EPNHC Loan Documents or any other document
made, delivered or given in connection therewith,
whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and
disbursements of counsel to the EPNHC Administrative
Agent or any of the EPNHC Lenders) or otherwise,
(iii) the unpaid principal of and interest on
(including, without limitation, interest accruing
after the maturity of the Senior Secured Acquisition
Term Loans and interest accruing after the filing of
any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding,
relating to EPN or El Paso Finance, whether or not a
claim for post filing or post petition interest is
allowed in such proceeding) the Notes (as defined in
the Senior Secured Acquisition Term Loan Credit
Agreement) and all other obligations and liabilities
of EPN and El Paso Finance to the Senior Secured
Acquisition Administrative Agent or the Senior
Secured Acquisition Term Loan Lenders, whether direct
or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, the
Senior Secured Acquisition Term Loan Credit
Agreement, the other
Exhibit J-6
Loan Documents (as defined in the Senior Secured
Acquisition Term Loan Credit Agreement) or any other
document made, delivered or given in connection
therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and
disbursements of counsel to the Senior Secured
Acquisition Term Loan Administrative Agent or any of
the Senior Secured Acquisition Term Loan Lenders) or
otherwise, and (iv) the ▇▇▇▇▇ ▇▇▇▇ Clawback.
(d) The terms the "EPN Group Administrative Agents" and
the "EPN Group Lenders" as defined in the Recitals to
the EPEPC Guarantee are hereby amended to have the
meanings given to such terms in this Confirmation.
(e) The defined term of "Senior Secured Acquisition Term
Loan Credit Agreement" as defined in this
Confirmation is hereby added to Section 1 of the
EPEPC Guarantee.
8. The Subsidiary Guarantee is hereby amended as follows:
(a) The definition of "Commitments" set forth in Section
1 of the Subsidiary Guarantee is hereby amended to
read in its entirety as follows: "Commitments": (a)
the "Revolving Loan Commitments" and the "Term Loan
Commitments" as defined in the EPN Credit Agreement,
(b) the "Commitments" as defined in the EPNHC Credit
Agreement and (c) the "Commitments" as defined in the
Senior Secured Acquisition Term Loan Credit
Agreement.
(b) The definition of "Loan Documents" set forth in
Section 1 of the Subsidiary Guarantee is hereby
amended to read in its entirety as follows: "Loan
Documents": (i) the "Loan Documents" under and as
defined in the EPN Credit Agreement, (ii) the "Loan
Documents" under and as defined in the EPNHC Credit
Agreement and (iii) the "Loan Documents" under and as
defined in the Senior Secured Acquisition Term Loan
Credit Agreement.
(c) The words "EPN Credit Agreement or the EPNHC Credit
Agreement, as applicable" as they are found in the
definition of "Maximum Guaranteed Amount" in Section
1 of the Subsidiary Guarantee are replaced with the
words "EPN Credit Agreement, the EPNHC Credit
Agreement or the Senior Secured Acquisition Term Loan
Credit Agreement, as applicable"
(d) The definition of "Obligations" set forth in Section
1 of the Subsidiary Guarantee is amended to read in
its entirety as follows: "Obligations": (i) the
unpaid principal of and interest on (including,
without limitation, interest accruing after the
maturity of the EPN Loans and interest accruing after
the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or
like proceeding, relating to EPN or El Paso
Exhibit J-7
Finance, whether or not a claim for post-filing or
post petition interest is allowed in such proceeding)
the Notes (as defined in the EPN Credit Agreement)
and all other obligations and liabilities of EPN and
El Paso Finance to the EPN Administrative Agent or
the EPN Lenders, whether direct or indirect, absolute
or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or
in connection with, the EPN Credit Agreement, the
other Loan Documents (as defined in the EPN Credit
Agreement) or any other document made, delivered or
given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to
the EPN Administrative Agent or any of the EPN
Lenders) or otherwise, (ii) the unpaid principal of
and interest on (including, without limitation,
interest accruing after the maturity of the EPNHC
Term Loans and interest accruing after the filing of
any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding,
relating to EPNHC, whether or not a claim for post
filing or post petition interest is allowed in such
proceeding) and all other obligations and liabilities
of EPNHC to the EPNHC Administrative Agent or the
EPNHC Lenders, whether direct or indirect, absolute
or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or
in connection with, the EPNHC Credit Agreement, the
other EPNHC Loan Documents or any other document
made, delivered or given in connection therewith,
whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and
disbursements of counsel to the EPNHC Administrative
Agent or any of the EPNHC Lenders) or otherwise,
(iii) the unpaid principal of and interest on
(including, without limitation, interest accruing
after the maturity of the Senior Secured Acquisition
Term Loans and interest accruing after the filing of
any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding,
relating to EPN or El Paso Finance, whether or not a
claim for post filing or post petition interest is
allowed in such proceeding) the Notes (as defined in
the Senior Secured Acquisition Term Loan Credit
Agreement) and all other obligations and liabilities
of EPN and El Paso Finance to the Senior Secured
Acquisition Administrative Agent or the Senior
Secured Acquisition Term Loan Lenders, whether direct
or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, the
Senior Secured Acquisition Term Loan Credit
Agreement, the other Loan Documents (as defined in
the Senior Secured Acquisition Term Loan Credit
Agreement) or any other document made, delivered or
given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to
the Senior Secured Acquisition Term Loan
Administrative Agent or any of the Senior
Exhibit J-8
Secured Acquisition Term Loan Lenders) or otherwise,
and (iv) the ▇▇▇▇▇ ▇▇▇▇ Clawback.
(e) The terms the "EPN Group Administrative Agents" and
the "EPN Group Lenders" as defined in the Recitals to
the Subsidiary Guarantee are hereby amended to have
the meanings given to such terms in this
Confirmation.
(f) The defined term of "Senior Secured Acquisition Term
Loan Credit Agreement" as defined in this
Confirmation is hereby added to Section 1 of the
Subsidiary Guarantee.
9. The Borrower Pledge Agreement is hereby amended as follows:
(a) The definition of "Commitments" set forth in Section
1 of the Borrower Pledge Agreement is hereby amended
to read in its entirety as follows: "Commitments":
(a) the "Revolving Loan Commitments" and the "Term
Loan Commitments" as defined in the EPN Credit
Agreement, (b) the "Commitments" as defined in the
EPNHC Credit Agreement and (c) the "Commitments" as
defined in the Senior Secured Acquisition Term Loan
Credit Agreement.
(b) The definition of "Obligations" set forth in Section
1 of the Borrower Pledge Agreement is amended to read
in its entirety as follows: "Obligations": (i) the
unpaid principal of and interest on (including,
without limitation, interest accruing after the
maturity of the EPN Loans and interest accruing after
the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or
like proceeding, relating to the Pledgor or the
Co-Borrower, whether or not a claim for post-filing
or post petition interest is allowed in such
proceeding) the Notes (as defined in the EPN Credit
Agreement) and all other obligations and liabilities
of the Pledgor and the Co-Borrower to the EPN
Administrative Agent or the EPN Lenders, whether
direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which
may arise under, out of, or in connection with, the
EPN Credit Agreement, the other Loan Documents (as
defined in the EPN Credit Agreement) or any other
document made, delivered or given in connection
therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and
disbursements of counsel to the EPN Administrative
Agent or any of the EPN Lenders) or otherwise, (ii)
the unpaid principal of and interest on (including,
without limitation, interest accruing after the
maturity of the Senior Secured Acquisition Term Loans
and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding,
relating to the Pledgor or the Co-Borrower, whether
or not a claim for post filing or post petition
interest is allowed in such proceeding) the Notes (as
defined in the Senior Secured Acquisition Term Loan
Credit Agreement)
Exhibit J-9
and all other obligations and liabilities of the
Pledgor and the Co-Borrower to the Senior Secured
Acquisition Administrative Agent or the Senior
Secured Acquisition Term Loan Lenders, whether direct
or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, the
Senior Secured Acquisition Term Loan Credit
Agreement, the other Loan Documents (as defined in
the Senior Secured Acquisition Term Loan Credit
Agreement) or any other document made, delivered or
given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to
the Senior Secured Acquisition Term Loan
Administrative Agent or any of the Senior Secured
Acquisition Term Loan Lenders) or otherwise, and
(iii) all obligations, liabilities and indebtedness
of the Pledgor or the Co-Borrower under and pursuant
to the Borrower Guarantee.
(c) The terms the "EPN Group Administrative Agents" and
the "EPN Group Lenders" as defined in the Recitals to
the Borrower Pledge Agreement are hereby amended to
have the meanings given to such terms in this
Confirmation.
(d) The defined term of "Senior Secured Acquisition Term
Loan Credit Agreement" as defined in this
Confirmation is hereby added to Section 1 of the
Borrower Pledge Agreement.
10. The Borrower Security Agreement is hereby amended as follows:
(a) The definition of "Commitments" set forth in Section
1 of the Borrower Security Agreement is hereby
amended to read in its entirety as follows:
"Commitments": (a) the "Revolving Loan Commitments"
and the "Term Loan Commitments" as defined in the EPN
Credit Agreement, (b) the "Commitments" as defined in
the EPNHC Credit Agreement and (c) the "Commitments"
as defined in the Senior Secured Acquisition Term
Loan Credit Agreement.
(b) The definition of "Obligations" set forth in Section
1 of the Borrower Security Agreement is amended to
read in its entirety as follows: "Obligations": (i)
the unpaid principal of and interest on (including,
without limitation, interest accruing after the
maturity of the EPN Loans and interest accruing after
the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or
like proceeding, relating to EPN or El Paso Finance,
whether or not a claim for post-filing or post
petition interest is allowed in such proceeding) the
Notes (as defined in the EPN Credit Agreement) and
all other obligations and liabilities of EPN and El
Paso Finance to the EPN Administrative Agent or the
EPN Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or
hereafter incurred, which may arise under,
Exhibit J-10
out of, or in connection with, the EPN Credit
Agreement, the other Loan Documents (as defined in
the EPN Credit Agreement) or any other document made,
delivered or given in connection therewith, whether
on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and
disbursements of counsel to the EPN Administrative
Agent or any of the EPN Lenders) or otherwise, (ii)
the unpaid principal of and interest on (including,
without limitation, interest accruing after the
maturity of the Senior Secured Acquisition Term Loans
and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding,
relating to EPN or El Paso Finance, whether or not a
claim for post filing or post petition interest is
allowed in such proceeding) the Notes (as defined in
the Senior Secured Acquisition Term Loan Credit
Agreement) and all other obligations and liabilities
of EPN and El Paso Finance to the Senior Secured
Acquisition Administrative Agent or the Senior
Secured Acquisition Term Loan Lenders, whether direct
or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may
arise under, out of, or in connection with, the
Senior Secured Acquisition Term Loan Credit
Agreement, the other Loan Documents (as defined in
the Senior Secured Acquisition Term Loan Credit
Agreement) or any other document made, delivered or
given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to
the Senior Secured Acquisition Term Loan
Administrative Agent or any of the Senior Secured
Acquisition Term Loan Lenders) or otherwise, and
(iii) all obligations, liabilities and indebtedness
of EPN or El Paso Finance under and pursuant to the
Borrower Guarantee.
(c) The terms the "EPN Group Administrative Agents" and
the "EPN Group Lenders" as defined in the Recitals to
the Borrower Security Agreement are hereby amended to
have the meanings given to such terms in this
Confirmation.
(d) The defined term of "Senior Secured Acquisition Term
Loan Credit Agreement" as defined in this
Confirmation is hereby added to Section 1 of the
Borrower Security Agreement.
11. Each Confirming Party hereby agrees, with respect to each
Guarantee and Security Document that it has executed, that:
(a) all of its obligations, liabilities and indebtedness
under the Guarantees and Security Documents remain in
full force and effect on a continuous basis after
giving effect to the EPN First Amendment and the
EPNHC First Amendment;
Exhibit J-11
(b) all of the Liens and security interests created and
arising under the Guarantees and Security Documents
remain in full force and effect on a continuous
basis, and having the same perfected status and
priority, after giving effect to the EPN First
Amendment, the EPNHC First Amendment and this
Confirmation, as collateral security for the
Obligations (as defined in each of the Guarantees or
Security Documents as amended by this Confirmation)
and the other obligations of such Confirming Party
under the Guarantees and Security Documents,
including the Senior Secured Acquisition Term Loan
Obligations and guarantees thereof to the extent set
forth in Sections 7, 8, 9 and 10 above;
(c) all of the obligations, liabilities and indebtedness
of the Borrower under the EPN Credit Agreement (i)
are continued in full force and effect on a
continuous basis, unpaid and undischarged, after
giving effect to the EPN First Amendment, and (ii)
constitute obligations, liabilities and indebtedness
under the EPN Credit Agreement;
(d) all of the obligations, liabilities and indebtedness
of EPNHC under the EPNHC Credit Agreement (i) are
continued in full force and effect on a continuous
basis, unpaid and undischarged, after giving effect
to the EPNHC First Amendment, and (ii) constitute
obligations, liabilities and indebtedness under the
EPNHC Credit Agreement; and
(e) the perfected status and priority of each Lien and
security interest created under the Guarantees and
Security Documents continues in full force and effect
on a continuous basis, unimpaired, uninterrupted and
undischarged, after giving effect to the EPN First
Amendment and the EPNHC First Amendment, as
collateral security for the Obligations (as defined
in each of the Guarantees and Security Documents as
amended by this Confirmation).
12. Each of the Subsidiary Pledge Agreement, the Subsidiary
Security Agreement and the EPEPC Security Agreement are hereby
amended to add the amend the terms of "EPN Group
Administrative Agents" and "EPN Group Lenders" to have the
definitions of such terms as defined in this Confirmation.
13. Except as set forth in the proviso below, each Confirming
Party that is a party to any Guarantee or Security Document
hereby confirms all of its payment and performance obligations
thereunder, as amended hereby; provided, that notwithstanding
anything to the contrary in any EPN Loan Document, EPNHC Loan
Document or Senior Secured Acquisition Term Loan Documents or
any of the Guarantees and Security Documents, the Co-Borrower
is obligated under, and has granted liens under, such Loan
Documents as a co-obligor, jointly and severally liable with
the Borrower, and not as a Subsidiary Guarantor. The
Obligations (as defined in the Borrower Security Agreement as
amended by this Confirmation) with respect to the Co-Borrower
relate to its obligations as a co-obligor with the Borrower
and not as a guarantor.
Exhibit J-12
14. The obligations of the Loan Parties to provide Collateral are
limited by paragraphs (c) and (d) of Section 7.10 of the EPN
Credit Agreement, paragraphs (c) and (d) of Section 7.10 of
the EPNHC Credit Agreement and paragraphs of (c) and (d) of
Section 7.10 of the Senior Secured Acquisition Term Loan
Credit Agreement.
15. The transactions permitted by Sections 8.5 and 8.6 of the EPN
Credit Agreement, EPNHC Credit or the Senior Secured
Acquisition Term Loan Credit Agreement, respectively, shall be
permitted notwithstanding anything to the contrary in
subsection 4(j) of the Borrower Pledge Agreement.
16. Each Confirming Party agrees that it shall take any action
reasonably requested by any EPN Group Administrative Agent or
the Collateral Agent in order to confirm or effect the intent
of this Confirmation. Each Confirming Party agrees that it
shall prepare updated schedules to the Guarantees and Security
Documents with respect to the information required to be
provided by it thereunder.
17. This Confirmation shall be governed by, and construed and
interpreted in accordance with, the law of the State of New
York.
18. This Confirmation may be executed by one or more of the
parties hereto on any number of separate counterparts
(including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument.
[Signature Pages to this Confirmation begin on the next page]
IN WITNESS WHEREOF, the undersigned have caused this CONFIRMATION to be
executed and delivered by a duly authorized officer on the date first above
written.
ANR CENTRAL GULF GATHERING
COMPANY, L.L.C.
▇▇▇▇, ▇.▇.▇.
▇▇▇▇ I, L.L.C.
ARGO II, L.L.C.
CRYSTAL HOLDING, L.L.C.
DELOS OFFSHORE COMPANY, L.L.C.
EAST BREAKS GATHERING COMPANY, L.L.C.
By: El Paso Energy Partners Deepwater, L.L.C.
its Sole Member
EL PASO ENERGY INTRASTATE, L.P.
By: EPN Pipeline GP Holding, L.L.C.
its General Partner
EL PASO INDIAN BASIN, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EL PASO ENERGY PARTNERS COMPANY
EL PASO ENERGY PARTNERS
DEEPWATER, L.L.C.
EL PASO ENERGY PARTNERS
FINANCE CORPORATION
EL PASO ENERGY PARTNERS, L.P.
EL PASO ENERGY PARTNERS OIL
TRANSPORT, L.L.C.
EL PASO ENERGY PARTNERS
OPERATING COMPANY, L.L.C.
EL PASO ENERGY WARWINK I COMPANY, L.P.
By: EPN Gathering and Treating GP
Holding, L.L.C., its General Partner
EL PASO ENERGY WARWINK II COMPANY, L.P.
Exhibit J-13
By: EPN Gathering and Treating GP
Holding, L.L.C., its General Partner
EL PASO HUB SERVICES
COMPANY, L.L.C.
EL PASO OFFSHORE GATHERING &
TRANSMISSION, L.P.
By: EPN Gathering and Treating GP
Holding, L.L.C., its General Partner
EL PASO SAN ▇▇▇▇, L.L.C.
EL PASO SOUTH TEXAS, L.P.
By: El Paso Energy Partners Oil
Transport, L.L.C., its general partner
EPGT TEXAS PIPELINE, L.P.
By: EPN Pipeline GP Holding,L.L.C.
its General Partner
EPN GATHERING AND TREATING
COMPANY, L.P.
By: EPN Gathering and Treating GP Holding,
L.L.C., its General Partner
EPN GATHERING AND TREATING GP HOLDING, L.L.C.
EPN GP HOLDING, L.L.C.
EPN GP HOLDING I, L.L.C.
EPN HOLDING COMPANY, L.P.
By: EPN GP Holding, L.L.C.
its General Partner
EPN HOLDING COMPANY I, L.P.
EPN NGL STORAGE, L.L.C.
EPN PIPELINE GP HOLDING, L.L.C.
FIRST RESERVE GAS, L.L.C.
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
GREEN CANYON PIPE LINE COMPANY, L.P.
By: El Paso Energy Partners Oil Transport,
L.L.C., its general partner
HATTIESBURG GAS STORAGE COMPANY
By: Hattiesburg Industrial Gas Sales, L.L.C.
First Reserve Gas, L.L.C., its General Partners
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
By: El Paso Energy Partners Deepwater, L.L.C.,
its Sole Member
MANTA RAY GATHERING COMPANY, L.L.C.
PETAL GAS STORAGE, L.L.C.
POSEIDON PIPELINE COMPANY, L.L.C.
THE CHACO LIQUIDS PLANT TRUST
By: El Paso Energy Partners Operating
Company, L.L.C., its Trustee
VK DEEPWATER GATHERING COMPANY, L.L.C.
VK-MAIN PASS GATHERING COMPANY, L.L.C.
WARWINK GATHERING AND TREATING
COMPANY
By: El Paso Energy Warwink I Company, L.P.
and El Paso Energy Warwink II Company, L.P.,
its General Partners
By: EPN Gathering and Treating GP Holding,
L.L.C., their General Partner
By:_______________________________________
Name:
Title:
Exhibit J-14
Accepted and acknowledged as of
the date first above written:
JPMORGAN CHASE BANK,
as EPN Administrative Agent,
EPNHC Administrative Agent,
Collateral Agent and Senior Secured
Acquisition Term Loan Administrative Agent
By:__________________________
Name:
Title:
Exhibit J-15
EXHIBIT K
FORM OF AMENDED AND RESTATED INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of November 27, 2002 (this
"Agreement"), among JPMorgan Chase Bank, as Collateral Agent, JPMorgan Chase
Bank, as EPN Administrative Agent, JPMorgan Chase Bank, as EPNHC Administrative
Agent, JPMorgan Chase Bank, as Senior Secured Acquisition Term Loan
Administrative Agent and JPMorgan Chase Bank, as ▇▇▇▇▇ ▇▇▇▇ Administrative
Agent.
W I T N E S S E T H:
WHEREAS, El Paso Energy Partners, L.P., a Delaware limited partnership
("EPN") and El Paso Energy Partners Finance Corporation, a Delaware corporation
(the "Co-Borrower") are parties to the EPN Credit Agreement pursuant to which
the EPN Lenders party thereto have agreed to make loans and other extensions of
credit to EPN (Capitalized terms used in these recitals and not defined herein
are defined below);
WHEREAS, EPN, the Co-Borrower and certain other EPN Group Loan Parties
have pledged certain Collateral to secure their obligations under the EPN Credit
Agreement and other EPN Loan Documents;
WHEREAS, EPN and the Co-Borrower are parties to the Senior Secured
Acquisition Term Loan Credit Agreement pursuant to which the Senior Secured
Acquisition Term Loan Lenders party thereto have agreed to make term loans to
EPN.
WHEREAS, EPN, the Co-Borrower and certain other EPN Group Loan Parties
have pledged certain Collateral to secure the Senior Secured Acquisition Term
Loan Obligations (as defined below);
WHEREAS, EPN Holding Company, L.P., a Delaware limited partnership
("EPNHC"), is a party to the EPNHC Credit Agreement pursuant to which the EPNHC
Lenders party thereto have agreed to make term loans to EPNHC;
WHEREAS, EPNHC and certain other EPN Group Loan Parties have pledged
certain Collateral to secure their obligations under the EPNHC Credit Agreement
and other EPNHC Loan Documents;
WHEREAS, Deepwater Gateway, L.L.C., a Delaware limited liability
company ("Deepwater Gateway"), is a party to the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement
pursuant to which the ▇▇▇▇▇ ▇▇▇▇ Lenders party thereto have agreed to make loans
and other extensions of credit to Deepwater Gateway;
WHEREAS, EPN and certain of its Subsidiaries have agreed to return
certain distributions made to them by Deepwater Gateway to the ▇▇▇▇▇ ▇▇▇▇
Lenders on the terms set forth in the EPN Sponsor Agreement with respect to the
Clawback Obligation;
Exhibit K-1
WHEREAS, EPN and certain of its Subsidiaries created a Lien on and
security interest in the Collateral to secure the Clawback Obligation which
ranks pari passu with the Liens on and security interests in the Collateral
securing the EPN Loan Obligations;
WHEREAS, the Collateral Agent, the EPN Administrative Agent, the EPNHC
Administrative Agent and the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent entered into that
certain Intercreditor Agreement dated as of October 9, 2002 (the "Prior
Intercreditor Agreement"), to evidence the relative rights of the EPN Lenders,
the EPNHC Lenders and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ in the Collateral;
WHEREAS, EPEPC, EPNHC, EPNHC's limited and general partners, and
certain of EPNHC's Subsidiaries have guaranteed the EPN Loan Obligations and
have secured those guarantee obligations with their assets that constitute
Collateral;
WHEREAS, EPEPC, EPNHC, EPNHC's limited and general partners, and
certain of EPNHC's Subsidiaries have guaranteed the Senior Secured Acquisition
Term Loan Obligations and have secured those guarantee obligations with their
assets that constitute Collateral;
WHEREAS, EPN, the Co-Borrower, EPEPC and the Subsidiaries of EPN that
are Restricted Subsidiaries (other than EPNHC) have guaranteed the EPNHC Loan
Obligations and have secured those guarantee obligations with their assets that
constitute Collateral;
WHEREAS, the EPN Lenders, the EPNHC Lenders, the Senior Secured
Acquisition Term Loan Lenders and the EPN Group Loan Parties are willing to
permit the Collateral to secure the Clawback Obligation on a pari passu basis
with the EPN Loan Obligations, the EPNHC Loan Obligations and the Senior Secured
Acquisition Term Loan Obligations, on the terms set forth herein;
WHEREAS, the EPN Administrative Agent, the EPNHC Administrative Agent
and the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent are willing to amend and restate the
Prior Intercreditor Agreement on the terms set forth herein;
WHEREAS, the Collateral Agent, the EPN Administrative Agent, the EPNHC
Administrative Agent, the Senior Secured Acquisition Term Loan Administrative
Agent and the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent, pursuant to the authority granted
to each of them in their respective credit agreements, are willing to enter into
this agreement to evidence the relative rights of the EPN Lenders, the EPNHC
Lenders, the Senior Secured Acquisition Term Loan Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders in the Collateral; and
WHEREAS, the parties hereto desire to set forth their relative rights
in respect of the Collateral and the security interests granted therein;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. DEFINITIONS. (a) Unless otherwise defined herein, terms
defined in the EPN Credit Agreement and used herein shall have the meanings
given to them in the EPN Credit Agreement and if such terms are not otherwise
defined herein or in the EPN Credit Agreement,
Exhibit K-2
but are defined in the EPNHC Credit Agreement, such terms that are used herein
shall have the meanings given to them in the EPNHC Credit Agreement.
(b) The following terms shall have the following
meanings:
"Acceleration" (and with correlative meaning, "Accelerate"): shall mean
either (i) the maturity of the EPN Group Loans under any of the EPN Credit
Agreement, the EPNHC Credit Agreement or the Senior Secured Acquisition Term
Loan Credit Agreement, as applicable, by reason of their stated maturity date or
(ii) the acceleration (after the occurrence of an Event of Default) of the due
date for payment of the principal amount then outstanding and of accrued
interest on the EPN Group Loans under and as defined in any of the EPN Credit
Agreement, the EPNHC Credit Agreement or the Senior Secured Acquisition Term
Loan Credit Agreement, as applicable, automatically or by reason of a
declaration or demand.
"Additional Vote Credit Agreement": shall have the meaning set forth in
Section 3(b).
"Agents": collectively, the EPN Group Administrative Agents and the
▇▇▇▇▇ ▇▇▇▇ Administrative Agent.
"Agreement": this Intercreditor Agreement, as the same may be amended,
modified or otherwise supplemented from time to time.
"Clawback Obligation": as set forth in Section 1 of the EPN Sponsor
Agreement, the obligation of EPN and its Subsidiaries, upon certain
circumstances, to pay to the ▇▇▇▇▇ ▇▇▇▇ Lenders an amount equal to the lesser of
(a) $22,500,000 and (b) any distributions received by EPN or its Subsidiaries,
including without limitation, Delos Offshore Company, L.L.C., from Deepwater
Gateway, whether such obligation is contingent or matured and irrespective of
whether EPN itself has actually received the proceeds of any such distributions.
"Collateral": the collective reference to the collateral from time to
time pledged pursuant to the EPN Group Security Documents by any EPN Group Loan
Party, whether such collateral is in existence on the date hereof or is
hereafter acquired or created.
"Collateral Agent": JPMorgan and any of its successors and assigns at
any time acting as collateral agent under the EPN Group Security Documents
pursuant to appointment under the EPN Credit Agreement, the EPNHC Credit
Agreement and the Senior Secured Acquisition Term Loan Credit Agreement.
"EPN Administrative Agent": JPMorgan and any of its successors and
assigns at any time acting as administrative agent or lead agent under the EPN
Credit Agreement.
"EPN Credit Agreement": the Sixth Amended and Restated Credit
Agreement, dated as of March 23, 1995, as amended and restated through October
9, 2002, among EPN, the Co-Borrower, the lenders parties thereto from time to
time, the Syndication Agent, Documentation Agent and Collateral Agent parties
thereto and JPMorgan, as Administrative Agent, as amended by that certain First
Amendment to Sixth Amended and Restated Credit Agreement, dated as of November
21, 2002, and as such Credit Agreement may be amended, modified or supplemented
from time to time, including, without limitation, amendments, modifications,
supplements and
Exhibit K-3
restatements thereof giving effect to increases, renewals, extensions,
refundings, deferrals, restructurings, replacements or refinancings of, or
additions to, the arrangements provided in such Credit Agreement (whether
provided by the original agents and lenders under such Credit Agreement or
successor agents or other lenders).
"EPN Group Administrative Agents": collectively, the EPN Administrative
Agent, the EPNHC Administrative Agent and the Senior Secured Acquisition Term
Loan Administrative Agent.
"EPN Group Credit Agreements": collectively, the EPN Credit Agreement,
the EPNHC Credit Agreement and the Senior Secured Acquisition Term Loan Credit
Agreement.
"EPN Group Guarantees": collectively, the "Guarantees" as defined in
the EPN Credit Agreement, the "Guarantees" as defined in the EPNHC Credit
Agreement and the "Guarantees" as defined in the Senior Secured Acquisition Term
Loan Credit Agreement.
"EPN Group Lenders": collectively, the EPN Lenders, the EPNHC Lenders
and the Senior Secured Acquisition Term Loan Lenders.
"EPN Group Loan Party": The Co-Borrower, EPN, its Subsidiaries, the
Person then acting as general partner of EPN and the Persons which own any
equity interests in the general partner of EPN and any other Person which has
granted a lien on or security interest in any of its property to secure the EPN
Loan Obligations, the EPNHC Loan Obligations and the Senior Secured Acquisition
Term Loan Obligations.
"EPN Group Loans": collectively, the "Loans" as defined in the EPN
Credit Agreement, the "Loans" as defined in the EPNHC Credit Agreement and the
"Loans" as defined in the Senior Secured Acquisition Term Loan Credit Agreement.
"EPN Group Security Documents": collectively, the security agreements,
pledge agreements, mortgages and other collateral documents executed by any EPN
Group Loan Party, which create Liens on or security interests in property to
secure the EPN Loan Obligations, the EPNHC Loan Obligations and the Senior
Secured Acquisition Term Loan Obligations or any guarantee thereof.
"EPN Lenders": the lenders from time to time party to the EPN Credit
Agreement.
"EPN Loan Documents": the collective reference to the EPN Credit
Agreement, the EPN Group Security Documents, any guarantees of the EPN Credit
Agreement, any notes delivered pursuant thereto and all other documents that
from time to time evidence the EPN Loan Obligations or secure or support payment
or performance thereof or of any guarantee thereof, including interest rate
hedging agreements, commodity price hedging agreements and other hedging
agreements of any type.
"EPN Loan Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the loans made under the EPN
Credit Agreement and reimbursement obligations in respect of letters of credit
issued under the EPN Credit Agreement and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any
Exhibit K-4
insolvency, reorganization or like proceeding, relating to EPN, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
such loans and all other obligations and liabilities of EPN and the other EPN
Group Loan Parties to the EPN Administrative Agent or to any EPN Lender (or, in
the case of Hedge Agreements, any Affiliate of any EPN Lender), whether direct
or indirect (including guarantees), absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any EPN Loan Document, any letters of credit
issued under the EPN Credit Agreement, or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the EPN
Administrative Agent or to any EPN Lender that are required to be paid by EPN
pursuant thereto) or otherwise.
"EPN Sponsor Agreement": the Sponsor Agreement (El Paso Energy
Partners, L.P.) dated as of August 15, 2002 and executed by EPN in favor of the
▇▇▇▇▇ ▇▇▇▇ Administrative Agent for the benefit of the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇.
"EPNHC Administrative Agent": JPMorgan and any of its successors and
assigns at any time acting as administrative agent or lead agent under the EPNHC
Credit Agreement.
"EPNHC Credit Agreement": the Amended and Restated Credit Agreement,
dated as of April 8, 2002, as amended and restated through October 9, 2002,
among EPNHC, the lenders parties thereto from time to time, the co-syndication
agents and co-documentation agent parties thereto and JPMorgan, as
Administrative Agent, as amended by that certain First Amendment to Amended and
Restated Credit Agreement, dated as of November 21, 2002, and as such Credit
Agreement may be amended, modified or supplemented from time to time, including,
without limitation, amendments, modifications, supplements and restatements
thereof giving effect to increases, renewals, extensions, refundings, deferrals,
restructurings, replacements or refinancings of, or additions to, the
arrangements provided in such Credit Agreement (whether provided by the original
agents and lenders under such Credit Agreement or successor agents or other
lenders).
"EPNHC Lenders": the lenders from time to time party to the EPNHC
Credit Agreement.
"EPNHC Loan Documents": the collective reference to the EPN Credit
Agreement, the EPN Group Security Documents, any guarantees of the EPNHC Credit
Agreement, any notes delivered pursuant thereto and all other documents that
from time to time evidence the EPNHC Loan Obligations or secure or support
payment or performance thereof or of any guarantee thereof, including interest
rate hedging agreements, commodity price hedging agreements and other hedging
agreements of any type.
"EPNHC Loan Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the loans made under the
EPNHC Credit Agreement and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to EPNHC, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) such loans and all other
obligations and liabilities of EPNHC and the other applicable EPN Group Loan
Parties to the EPNHC Administrative Agent or to any EPNHC Lender (or, in the
case of Hedge Agreements, any
Exhibit K-5
Affiliate of any EPNHC Lender), whether direct or indirect (including
guarantees), absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any EPNHC Loan Document, or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the EPNHC Administrative Agent or to any EPNHC
Lender that are required to be paid by EPN or EPNHC pursuant thereto) or
otherwise.
"Initial Vote Credit Agreement": shall have the meaning set forth in
Section 3(b).
"JPMorgan": JPMorgan Chase Bank.
"Lenders": the collective reference to the EPN Lenders, the EPNHC
Lenders, the Senior Secured Acquisition Term Loan Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders.
"▇▇▇▇▇ ▇▇▇▇ Administrative Agent": JPMorgan and any of its successors
and assigns at any time acting in its capacity as administrative agent or lead
agent under the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement.
"▇▇▇▇▇ ▇▇▇▇ Bank Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the loans made under the
▇▇▇▇▇ ▇▇▇▇ Credit Agreement and reimbursement obligations in respect of letters
of credit issued under the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement and interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to Deepwater Gateway,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) such loans and all other obligations and liabilities of
Deepwater Gateway and the other ▇▇▇▇▇ ▇▇▇▇ Loan Parties to the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent or to any ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, whether direct or indirect
(including guarantees), absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any ▇▇▇▇▇ ▇▇▇▇ Loan Document, any letters of credit issued
under the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent or to any ▇▇▇▇▇
▇▇▇▇ Lender that are required to be paid by Deepwater Gateway pursuant thereto)
or otherwise
"▇▇▇▇▇ ▇▇▇▇ Credit Agreement": the Credit Agreement, dated as of August
15, 2002, among Deepwater Gateway, the lenders parties thereto from time to
time, and JPMorgan, as Administrative Agent, as such Credit Agreement may be
amended, modified or supplemented from time to time, including, without
limitation, amendments, modifications, supplements and restatements thereof
giving effect to increases, renewals, extensions, refundings, deferrals,
restructurings, replacements or refinancings of, or additions to, the
arrangements provided in such Credit Agreement (whether provided by the original
agents and lenders under such Credit Agreement or successor agents or other
lenders).
"▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇": the lenders from time to time party to the ▇▇▇▇▇
▇▇▇▇ Credit Agreement.
Exhibit K-6
"▇▇▇▇▇ ▇▇▇▇ Loan Documents": the collective reference to the ▇▇▇▇▇ ▇▇▇▇
Credit Agreement, any security agreements, pledge agreements, mortgages, other
collateral security agreements and guarantee agreements delivered pursuant
thereto and any other documents or instruments that from time to time evidence
the ▇▇▇▇▇ ▇▇▇▇ Bank Obligations or secure or support payment or performance
thereof.
"Responsible Officer": the Chief Executive Officer, the Chief Operating
Officer, the President, the Chief Financial Officer, the Treasurer or any vice
president of an EPN Group Loan Party.
"Senior Secured Acquisition Term Loan Administrative Agent": JPMorgan
and any of its successors and assigns at any time acting as administrative agent
or lead agent under the Senior Secured Acquisition Term Loan Credit Agreement.
"Senior Secured Acquisition Term Loan Credit Agreement": the Credit
Agreement, dated as of November 27, 2002, among EPN, the Co-Borrower, the
lenders parties thereto from time to time, the syndication agent and
co-documentation agents parties thereto and JPMorgan, as Administrative Agent,
as such Credit Agreement may be amended, modified or supplemented from time to
time, including, without limitation, amendments, modifications, supplements and
restatements thereof giving effect to increases, renewals, extensions,
refundings, deferrals, restructurings, replacements or refinancings of, or
additions to, the arrangements provided in such Credit Agreement (whether
provided by the original agents and lenders under such Credit Agreement or
successor agents or other lenders).
"Senior Secured Acquisition Term Loan Lenders": the lenders from time
to time party to the Senior Secured Acquisition Term Loan Credit Agreement.
"Senior Secured Acquisition Term Loan Documents": the collective
reference to the Senior Secured Acquisition Term Loan Credit Agreement, the EPN
Group Security Documents, any guarantees of the Senior Secured Acquisition Term
Loan Credit Agreement, any notes delivered pursuant thereto and all other
documents that from time to time evidence the Senior Secured Acquisition Term
Loan Obligations or secure or support payment or performance thereof or of any
guarantee thereof, including interest rate hedging agreements, commodity price
hedging agreements and other hedging agreements of any type.
"Senior Secured Acquisition Term Loan Obligations": the unpaid
principal of and interest on (including interest accruing after the maturity of
the loans made under the Senior Secured Acquisition Term Loan Credit Agreement
and interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
EPN, whether or not a claim for post-filing or post-petition interest is allowed
in such proceeding) such loans and all other obligations and liabilities of EPN
and the other applicable EPN Group Loan Parties to the Senior Secured
Acquisition Term Loan Administrative Agent or to any Senior Secured Acquisition
Term Loan Lender (or, in the case of Hedge Agreements, any Affiliate of any
Senior Secured Acquisition Term Loan Lender), whether direct or indirect
(including guarantees), absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any Senior Secured Acquisition Term Loan Document, or any
other document made, delivered or
Exhibit K-7
given in connection herewith or therewith, whether on account of principal,
interest, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Senior Secured Acquisition Term Loan
Administrative Agent or to any Senior Secured Acquisition Term Loan Lender that
are required to be paid by EPN pursuant thereto) or otherwise.
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
section and paragraph references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. ACKNOWLEDGEMENT OF COLLATERAL AGENT. The Collateral Agent
acknowledges and agrees that, in acting as Collateral Agent under the EPN Group
Credit Agreements and the EPN Group Security Documents, it also acts as
collateral agent on the terms set forth herein for the benefit of the ▇▇▇▇▇ ▇▇▇▇
Lenders in order to perfect their liens on and security interests in the
Collateral.
3. COORDINATED ADMINISTRATION AND COMBINED VOTING. (a) The EPN
Group Administrative Agents, the EPN Group Lenders, and the Issuing Banks hereby
acknowledge and agree to the appointment of JPMorgan as "Collateral Agent"
pursuant to Section 12.1 of each of the EPN Group Credit Agreements to act on
behalf of the EPN Group Lenders. If at any time JPMorgan resigns or is replaced
as the Collateral Agent, then the Required EPN Group Lenders shall select a
replacement "collateral agent" hereunder in accordance with the procedures
provided in the EPN Group Credit Agreements for replacement of the "Collateral
Agent", subject to the approval of EPN or EPNHC as set forth therein.
(b) Notwithstanding anything to the contrary provided in
the EPN Group Credit Agreements:
(i) If the EPN Lenders under the EPN Credit
Agreement, the EPNHC Lenders under the EPNHC Credit Agreement,
or the Senior Secured Acquisition Term Loan Lenders under the
Senior Secured Acquisition Term Loan Credit Agreement have the
right to Accelerate or exercise any other remedies, then the
EPN Group Lenders under the other EPN Group Credit Agreements
shall have the same right.
(ii) If any decision, determination, instruction,
action, consent, waiver or amendment is made by the "Required
Lenders" (as defined in each EPN Group Credit Agreement) with
respect to any of the EPN Group Credit Agreements (the
"Initial Vote Credit Agreement") and if a corresponding or
substantially similar decision, determination, instruction,
action, consent, waiver or amendment is voted on by the EPN
Group Lenders under either or both of the other EPN Group
Credit Agreements (each, the "Additional Vote Credit
Agreement"), then each EPN Group Lender that is a Lender under
both the Initial Vote Credit Agreement
Exhibit K-8
and any Additional Vote Credit Agreement agrees to vote
consistently as an EPN Group Lender under the Initial Vote
Credit Agreement, each such Additional Vote Credit Agreement
and hereunder. By way of example, if any EPN Group Lender
votes to Accelerate the EPN Loans under the EPN Credit
Agreement, such EPN Group ▇▇▇▇▇▇ agrees to vote to Accelerate
the EPNHC Loans hereunder and under the EPNHC Credit Agreement
if it is a party to such vote, and agrees to vote to
Accelerate the Senior Secured Acquisition Term Loans hereunder
and under the Senior Secured Acquisition Term Loan Credit
Agreement if it is a party to such vote.
(c) When a vote of the EPN Group Lenders is required
pursuant to this Agreement or any EPN Group Credit Agreement, the EPN
Administrative Agent shall ascertain the votes of the EPN Lenders, the EPNHC
Administrative Agent shall ascertain the votes of the EPNHC Lenders and the
Senior Secured Acquisition Term Loan Administrative Agent shall ascertain the
votes of the Senior Secured Acquisition Term Loan Lenders. Each of the EPN Group
Administrative Agents agrees with the other EPN Group Administrative Agents that
it will promptly provide such information regarding such votes to the other EPN
Group Administrative Agents. The EPN Group Administrative Agents shall then
compile the votes of the EPN Lenders, the EPNHC Lenders and the Senior Secured
Acquisition Term Loan Lenders to determine whether the vote of the EPN Group
Lenders constitutes the Required EPN Group Lenders.
(d) Notwithstanding any other provision of this
Agreement, to the extent not inconsistent with the terms and provisions of the
EPN Group Credit Agreements and EPN Group Security Documents, any EPN Group
Administrative Agent or any EPN Group Lender may, without instruction from its
EPN Group Administrative Agent or the EPN Group Lenders under the other EPN
Group Credit Agreements (but in no event shall be required to), take action
permitted by applicable law to preserve its rights and security including but
not limited to curing any default or alleged default under any contract entered
into by EPN or EPNHC, as applicable, paying any tax, fee, or expense on behalf
of EPN or EPNHC, as applicable, and paying insurance premiums on behalf of EPN
or EPNHC, as applicable and each EPN Group Lender taking any such action shall
notify each of the EPN Group Administrative Agents and the Collateral Agent of
the action so taken.
(e) Each EPN Group Administrative Agent agrees with the
other EPN Group Administrative Agents and the Collateral Agent that:
(i) to the extent available, it will from time
to time promptly provide such information to the other EPN
Group Administrative Agents and the Collateral Agent as may be
reasonably necessary to enable the other EPN Group
Administrative Agents or the Collateral Agent to make any
calculation referred to in or necessary to implement this
Section 3 or otherwise reasonably required by the other EPN
Group Administrative Agents and the Collateral Agent for any
other purpose hereof; and
(ii) to the extent reasonably possible, it will
from time to time consult with the other EPN Group
Administrative Agents and the Collateral Agent in
Exhibit K-9
good faith regarding the enforcement of its and each EPN Group
Lender's rights and remedies under its EPN Group Credit
Agreement with a view to recovering amounts due under the EPN
Group Credit Agreements in an effective and cost-efficient
manner.
4. RIGHTS IN COLLATERAL. (a) Notwithstanding anything to
the contrary contained in any EPN Loan Document, any EPNHC Loan Document, any
Senior Secured Acquisition Term Loan Document or any ▇▇▇▇▇ ▇▇▇▇ Loan Document
and irrespective of the time, order or method of attachment or perfection of the
security interests created by the EPN Loan Documents, the EPNHC Loan Documents
or the ▇▇▇▇▇ ▇▇▇▇ Loan Documents, anything contained in any filing or agreement
to which the EPN Administrative Agent, the EPNHC Administrative Agent, the
Senior Secured Acquisition Term Loan Administrative Agent, the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent, the Collateral Agent, any EPN Lender, any EPNHC Lender,
any Senior Secured Acquisition Term Loan Lender or any ▇▇▇▇▇ ▇▇▇▇ Lender now or
hereafter may be a party and the rules for determining priority under the
Uniform Commercial Code or any other law governing the relative priorities of
secured creditors, any security interest in the Collateral secures the EPN Loan
Obligations, the EPNHC Loan Obligations, the Senior Secured Acquisition Term
Loan Obligations and the Clawback Obligation on a pari passu basis.
(b) So long as the EPN Loan Obligations have not been
paid in full and the commitments under the EPN Credit Agreement have not been
terminated, the EPNHC Loan Obligations have not been paid in full and the Senior
Secured Acquisition Term Loan Obligations have not been paid in full, whether or
not any bankruptcy proceeding or similar event or proceeding has been commenced
by or against EPN, EPNHC, or any other EPN Group Loan Party, (i) the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent and the ▇▇▇▇▇ ▇▇▇▇ Lenders will not (A) exercise or seek to
exercise any rights or exercise any remedies with respect to any Collateral, (B)
institute any action or proceeding with respect to such rights or remedies,
including without limitation, any action of foreclosure, (C) contest, protest or
object to any foreclosure proceeding or action brought by the Collateral Agent
or any other exercise by the Collateral Agent of any rights and remedies
relating to the Collateral under any EPN Group Security Documents or (D) object
to the forbearance by the Collateral Agent from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or remedies
relating to the Collateral, and (ii) the Collateral Agent shall have the
exclusive right to enforce rights and exercise remedies with respect to the
Collateral.
(c) In exercising rights and remedies with respect to the
Collateral on behalf of the Lenders, the Collateral Agent may enforce the
provisions of the EPN Group Security Documents and exercise remedies thereunder,
all in such order and in such manner as the Collateral Agent may determine in
the exercise of its sole business judgment in accordance with the provisions of
this Section 4. Such exercise and enforcement shall include, without limitation,
the rights to sell or otherwise dispose of Collateral, to incur expenses in
connection with such sale or disposition, to exercise rights and powers as a
holder of the shares of stock, limited liability company or partnership
interests, other equity interests and other property included in the Collateral
under the EPN Group Security Documents or otherwise and to exercise all the
rights and remedies of a secured lender under the Uniform Commercial Code of any
applicable jurisdiction.
Exhibit K-10
(d) Any money, property or securities realized upon the
sale, disposition or other realization by the Collateral Agent upon all or any
part of the Collateral and any money, property or securities received by the
Collateral Agent from any other Person in respect of the Collateral, shall be
applied by the Collateral Agent in the following order:
(i) First, to the payment in full of all costs
and expenses (including, without limitation, attorneys' fees
and disbursements) paid or incurred by the Collateral Agent in
connection with such realization on the Collateral or the
protection of the Lenders' rights and interests therein;
(ii) Second, to the payment (or collateralization
of payment, if such obligations are not yet matured or are
evidenced by unexpired, undrawn letters of credit) in full of
the EPN Loan Obligations, the EPNHC Loan Obligations, the
Senior Secured Acquisition Term Loan Obligations and the
Clawback Obligation on a pro rata basis based on the
respective aggregate amounts thereof; and
(iii) Third, to pay to the EPN Group Loan Parties
or their respective representatives or as a court of competent
jurisdiction may direct, any surplus then remaining.
(e) The Collateral Agent's rights with respect to the
Collateral include the right to release any or all of the Collateral from the
Lien granted or created under the EPN Group Security Documents in connection
with the sale of such Collateral, notwithstanding that the net proceeds of any
such sale may not be used to permanently prepay any EPN Loan Obligations, EPNHC
Loan Obligation, Senior Secured Acquisition Term Loan Obligation or Clawback
Obligation. In addition, the Collateral Agent and the Required EPN Group Lenders
may release Collateral and may fail to perfect any security interest in any
Collateral and may agree to any exchange of Collateral for property not
constituting Collateral, all without liability to the ▇▇▇▇▇ ▇▇▇▇ Lenders. Upon
any sale by the Collateral Agent of Collateral, the Lien and security interest
created pursuant to the EPN Group Security Documents in such Collateral shall be
automatically released. The ▇▇▇▇▇ ▇▇▇▇ Administrative Agent, for itself and on
behalf of the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, hereby irrevocably constitutes and appoints
the Collateral Agent and any officer or agent of the Collateral Agent, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
and in the name of the ▇▇▇▇▇ ▇▇▇▇ Lenders or in the Collateral Agent's own name,
from time to time in the Collateral Agent's discretion or as directed by the
Required EPN Group Lenders, for the purpose of carrying out the terms of this
paragraph, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this paragraph, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer or
release. The ▇▇▇▇▇ ▇▇▇▇ Administrative Agent and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ hereby
ratify all that said attorneys shall lawfully do or cause to be done pursuant to
the power of attorney granted in this paragraph.
(f) In the event that all of the EPN Loan Obligations
have been paid in full and the commitments under the EPN Credit Agreement have
been terminated, the EPNHC Loan Obligations have been paid in full and the
Senior Secured Acquisition Term Loan Obligations have been paid in full, and at
such time the Clawback Obligation is still outstanding, (i) the
Exhibit K-11
▇▇▇▇▇ ▇▇▇▇ Administrative Agent shall have the right to direct the Collateral
Agent to enforce the provisions of the EPN Group Security Documents and exercise
remedies thereunder; (ii) if at such time the Collateral has been sold or
otherwise disposed of and the Collateral Agent, on the one hand, or ▇▇▇▇▇ ▇▇▇▇
Administrative Agent or any ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, on the other, holds cash proceeds
remaining after application as set forth in clauses (d)(i) and (ii) above, the
Persons holding such cash proceeds shall turn over such remaining proceeds to
the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent, to satisfy any remaining Clawback
Obligation, and then any such remaining proceeds shall be turned over to the EPN
Group Loan Parties for application as set forth in clause (d)(iii) above; and
(iii) the Collateral Agent shall continue to act as collateral agent for the
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, provided, that the Collateral Agent may elect in lieu
thereof to assign and transfer its rights as collateral agent for the benefit of
the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ to the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent.
(g) The arrangements contemplated by this Agreement shall
apply notwithstanding any Event of Default (as defined in each of the EPN Group
Credit Agreements) or any Acceleration under an EPN Group Credit Agreement or
demand under any of the EPN Group Guarantees; the date of execution, delivery,
attachment, perfection or registration of any EPN Group Security Document (or
lack of any thereof), the exercise of any right of setoff; the priority of any
EPN Group Security Document; the date of advance of any funds; the date of
creation, perfection or determination of any charges or security interests; the
date of appointment of any receiver or receiver-manager or bankruptcy trustee or
of taking any other enforcement proceedings; the date of obtaining any judgment;
the date of notification in respect of any account receivable; any provision of
applicable law or requirement of any Governmental Authority; any defense, claim
or any right not provided under this Agreement; or the terms of any agreement
between any Lender or EPN Group Loan Party under any other document or
instrument between or among such parties, whether or not a bankruptcy,
receivership or insolvency proceedings shall at any time have been commenced.
(h) The Collateral Agent shall make all payments and
distributions under this Section 4: (i) on account of the EPN Loan Obligations
to the EPN Administrative Agent for distribution in accordance with the terms
and provisions of the EPN Credit Agreement; (ii) on account of the EPNHC Loan
Obligations to the EPNHC Administrative Agent for distribution in accordance
with the terms and provisions of the EPNHC Credit Agreement; (iii) on account of
the Senior Secured Acquisition Term Loan Obligations to the Senior Secured
Acquisition Term Loan Administrative Agent for distribution in accordance with
the terms and provisions of the Senior Secured Acquisition Term Loan Credit
Agreement; and (iv) on account of the Clawback Obligation to the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent for distribution in accordance with the terms and
provisions of the EPN Sponsor Agreement and the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement.
(i) Each of the Lenders and the Agents acknowledges and
agrees that it shall only have recourse to the Collateral through the Collateral
Agent and that it shall have no independent recourse to the Collateral.
(j) If any Lender or Agent acquires custody, control or
possession of any Collateral or any proceeds thereof, other than pursuant to the
terms of this Agreement, such Lender or Agent shall promptly cause such
Collateral or proceeds to be delivered to or put in the custody, possession or
control of the Collateral Agent or, if the Collateral Agent shall so
Exhibit K-12
designate, an agent of the Collateral Agent (which agent may be an Affiliate of
the Collateral Agent or any Lender) in the same form of payment or property
received, with appropriate endorsements, for distribution in accordance with the
provisions of Section 4(d). Until such time as such Collateral or proceeds have
been delivered in accordance with the preceding sentence, each such Lender or
Agent shall hold such Collateral and proceeds in trust for the Collateral Agent.
(k) If any Lender or Agent exercises any right of
set-off, banker's lien or similar right with respect to any Collateral for
payment of any of the EPN Loan Obligations, EPNHC Loan Obligations, Senior
Secured Acquisition Term Loan Obligations or Clawback Obligation, the amounts so
set off shall constitute Collateral for purposes of this Agreement, and such
Lender or Agent shall promptly cause such amounts to be delivered to or put in
the custody, possession or control of the Collateral Agent as provided in
Section 4(j) above. Until such time as such Collateral or proceeds have been
delivered in accordance with the Section 4(j) above, each such Lender or Agent
shall hold such Collateral and proceeds in trust for the Collateral Agent.
(l) If, after the occurrence and during the continuance
of a Default or Event of Default (as each is defined in each of the EPN Group
Credit Agreements and the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement), the EPN Lenders, the
EPNHC Lenders, the Senior Secured Acquisition Term Loan Lenders, the ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, any of the EPN Group Administrative Agents or the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent (the receiving parties, the "benefited Lenders", the
non-receiving parties, the "non-benefited Lenders") shall at any time receive by
set-off any payment of all or part of any of the EPN Group Loans or Loans (as
defined in the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement) owing to them or it, or interest
thereon, or receive any collateral in respect thereof, in a greater proportion
than any such payment to or collateral received by the non-benefited Lenders, if
any, in respect of such non-benefited Lenders EPN Group Loans or Loans (as the
latter is defined in the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement) of the same type owing to
it, as the case may be, or interest thereon, the benefited Lenders shall
purchase for cash from the non-benefited Lenders a participating interest in
such portion of each such non-benefited Lender's Loan owing to it, or shall
provide such non-benefited Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the non-benefited Lenders; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. After the
occurrence and during the continuance of a Default or Event of Default (as each
is defined in each of the EPN Group Credit Agreements and the ▇▇▇▇▇ ▇▇▇▇ Credit
Agreement), in the event of any conflict between this Section 4(l), on the one
hand, and Section 11.7 of each of the EPN Group Credit Agreements and Section
9.08 of the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement, on the other hand, this Section 4(l)
shall govern.
(m) No holder of any of the EPN Loan Obligations, EPNHC
Loan Obligations, Senior Secured Acquisition Term Loan Obligations or Clawback
Obligation may require the Collateral Agent to take or refrain from taking any
action hereunder or under any of the EPN Group Security Documents or with
respect to any of the Collateral except as and to the extent expressly set forth
in this Agreement or in the EPN Group Security Documents. The Collateral
Exhibit K-13
Agent shall have no duty to, and each Lender hereby waives any and all right to
require the Collateral Agent to, marshal any assets of the EPN Group Loan
Parties or otherwise take any action with respect to marshaling.
5. EFFECT OF COVENANTS IN ▇▇▇▇▇ ▇▇▇▇ DOCUMENTS. The ▇▇▇▇▇ ▇▇▇▇
Administrative Agent hereby acknowledges and agrees that no covenant, agreement
or restriction contained in any ▇▇▇▇▇ ▇▇▇▇ Loan Document shall be deemed to
restrict in any way the rights and remedies of the Collateral Agent with respect
to the Collateral as set forth in this Agreement and the EPN Group Security
Documents.
6. OBLIGATIONS UNCONDITIONAL. All rights and interests of the
parties hereunder, and all agreements and obligations of the parties hereunder,
shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any EPN
Loan Documents, any EPNHC Loan Documents, any Senior Secured Acquisition Term
Loan Documents or any ▇▇▇▇▇ ▇▇▇▇ Loan Documents;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the EPN Loan Obligations, the EPNHC
Loan Obligations, the Senior Secured Acquisition Term Loan Obligations, the
Clawback Obligation or any amendment or waiver or other modification, whether by
course of conduct or otherwise, of the terms of any EPN Loan Document, any EPNHC
Loan Document, any Senior Secured Acquisition Term Loan Document or any ▇▇▇▇▇
▇▇▇▇ Loan Document; provided, however, that the aggregate Clawback Obligation
shall not in any event exceed $22,500,000;
(c) any exchange, release or nonperfection of any
security interest in any Collateral, or any release, amendment, waiver or other
modification, whether in writing or by course of conduct or otherwise, of all or
any of the EPN Loan Obligations, the EPNHC Loan Obligations, the Senior Secured
Acquisition Term Loan Obligations or the Clawback Obligation;
(d) the commencement of any bankruptcy or similar
proceeding in respect of EPN, EPNHC or any other EPN Group Loan Party; or
(e) any other circumstances which otherwise might
constitute a defense available to, or a discharge of, any EPN Group Loan Party
in respect of the EPN Loan Obligations, the EPNHC Loan Obligations, the Senior
Secured Acquisition Term Loan Obligations or the Clawback Obligation.
7. ▇▇▇▇▇▇ OF CLAIMS AND INDEMNIFICATION. (a) To the maximum
extent permitted by law, the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent and the ▇▇▇▇▇ ▇▇▇▇
Lenders waive any claim any of them might have against the Collateral Agent, the
EPN Group Administrative Agents or the EPN Group Lenders with respect to, or
arising out of, any action or failure to act or any error of judgment,
negligence, or mistake or oversight whatsoever on the part of the Collateral
Agent, the EPN Group Administrative Agents, the EPN Group Lenders or their
respective directors, officers, employees or agents with respect to any exercise
of rights or remedies under the EPN Loan Documents, the EPNHC Loan Documents,
the Senior Secured Acquisition Term Loan Documents or any transaction relating
to the Collateral. Neither the Collateral Agent, the EPN
Exhibit K-14
Administrative Agent, EPNHC Administrative Agent, the Senior Secured Acquisition
Term Loan Administrative Agent or any EPN Group Lender nor any of their
respective directors, officers, employees or agents shall be liable to the ▇▇▇▇▇
▇▇▇▇ Administrative Agent or the ▇▇▇▇▇ ▇▇▇▇ Lenders for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent or the ▇▇▇▇▇ ▇▇▇▇
Lenders or any other Person or to take any other action whatsoever with regard
to the Collateral or any part thereof.
(b) Without limiting the indemnity obligations of the EPN
Group Lenders under the EPN Loan Documents, the EPNHC Loan Documents, the Senior
Secured Acquisition Term Loan Documents and the ▇▇▇▇▇ ▇▇▇▇ Lenders under the
▇▇▇▇▇ ▇▇▇▇ Loan Documents, the Lenders, each of the EPN Group Administrative
Agents and the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent agree to indemnify the Collateral
Agent in its capacity as collateral agent under this Agreement and the EPN Group
Security Documents (to the extent not reimbursed by the EPN Group Loan Parties
and without limiting the obligation of the EPN Group Loan Parties to do so),
ratably according to their respective interests in the aggregate of the EPN Loan
Obligations, the EPNHC Loan Obligations, the Senior Secured Acquisition Term
Loan Obligations and the Clawback Obligation in effect on the date on which
indemnification is sought under this subsection, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the EPN
Loan Obligations, the EPNHC Loan Obligations, the Senior Secured Acquisition
Term Loan Obligations and ▇▇▇▇▇ ▇▇▇▇ Bank Obligations) be imposed on, incurred
by or asserted against the Collateral Agent in any way relating to or arising
out of this Agreement, the Collateral or any EPN Group Security Document or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Collateral Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Collateral Agent's
gross negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the EPN Loan Obligations, the EPNHC Loan Obligations, the
Senior Secured Acquisition Term Loan Obligations and the ▇▇▇▇▇ ▇▇▇▇ Bank
Obligations.
(c) No ▇▇▇▇▇ ▇▇▇▇ Lender shall be entitled to the
benefits of this Agreement, any EPN Group Security Document or to the collateral
security provided by the Collateral unless such ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ has agreed in
writing to be bound by the provisions of this Agreement.
(d) Each ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent agree, that, with respect to the EPN Loan Obligations, the
EPNHC Loan Obligations, the Senior Secured Acquisition Term Loan Obligations,
any and all guaranties thereof and any and all Collateral, the EPN Group Loan
Parties, the EPN Group Lenders, the EPN Group Administrative Agents and the
Collateral Agent may agree to (i) increase the amount of the EPN Loan
Obligations, the EPNHC Loan Obligations, the Senior Secured Acquisition Term
Loan Obligations or otherwise modify or waive the terms of any of the EPN Loan
Documents, the EPNHC Loan Documents or the Senior Secured Acquisition Term Loan
Documents or (ii) grant extensions of the time of payment or performance of and
make compromise in respect of the
Exhibit K-15
EPN Loan Obligations, the EPNHC Loan Obligations or the Senior Secured
Acquisition Term Loan Obligations, including, without limitation, releases of
guaranties or Collateral and settlements with the EPN Group Loan Parties and all
other Persons, in the case of either clause (i) or (ii) above, without the
consent of any ▇▇▇▇▇ ▇▇▇▇ Lender or the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent and
without affecting the agreements of each ▇▇▇▇▇ ▇▇▇▇ Lender and the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent as contained in this Agreement.
(e) Each EPNHC Lender and the EPNHC Administrative Agent
agree, that, with respect to the EPN Loan Obligations, the Senior Secured
Acquisition Term Loan Obligations and the Clawback Obligation, any and all
guaranties thereof and any and all Collateral, the EPN Group Loan Parties, the
EPN Lenders, the EPN Administrative Agent, the Senior Secured Acquisition Term
Loan Lenders, the Senior Secured Acquisition Term Loan Administrative Agent, the
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent and the Collateral Agent
may agree to (i) increase the amount of the EPN Loan Obligations, the Senior
Secured Acquisition Term Loan Obligations or the Clawback Obligation or
otherwise modify or waive the terms of any of the EPN Loan Documents, the Senior
Secured Acquisition Term Loan Documents, or the ▇▇▇▇▇ ▇▇▇▇ Loan Documents or
(ii) grant extensions of the time of payment or performance of and make
compromise in respect of the EPN Loan Obligations, the Senior Secured
Acquisition Term Loan Obligations or the Clawback Obligation, as applicable,
including, without limitation, releases of guaranties or (subject to Section 9)
Collateral and settlements with the EPN Group Loan Parties and all other
Persons, in the case of either clause (i) or (ii) above, without the consent of
any EPNHC Lender or the EPNHC Administrative Agent, except to the extent
otherwise required under the EPNHC Credit Agreement, and without affecting the
agreements of each EPNHC Lender and the EPNHC Administrative Agent as contained
in this Agreement.
(f) Each EPN Lender and the EPN Administrative Agent
agree, that, with respect to the EPNHC Loan Obligations, the Senior Secured
Acquisition Term Loan Obligations and the Clawback Obligation, any and all
guaranties thereof and any and all Collateral, the EPN Group Loan Parties, the
EPNHC Lenders, the EPNHC Administrative Agent, the Senior Secured Acquisition
Term Loan Lenders, the Senior Secured Acquisition Term Loan Administrative
Agent, the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent and the
Collateral Agent may agree to (i) increase the amount of the EPNHC Loan
Obligations, the Senior Secured Acquisition Term Loan Obligations or the
Clawback Obligation or otherwise modify or waive the terms of any of the EPNHC
Loan Documents, the Senior Secured Acquisition Term Loan Documents or the ▇▇▇▇▇
▇▇▇▇ Loan Documents or (ii) grant extensions of the time of payment or
performance of and make compromise in respect of the EPNHC Loan Obligations, the
Senior Secured Acquisition Term Loan Obligations or the Clawback Obligation, as
applicable, including, without limitation, releases of guaranties or (subject to
Section 9) Collateral and settlements with the EPN Group Loan Parties and all
other Persons, in the case of either clause (i) or (ii) above, without the
consent of any EPN Lender or the EPN Administrative Agent, except to the extent
otherwise required under the EPN Credit Agreement, and without affecting the
agreements of each EPN Lender and the EPN Administrative Agent as contained in
this Agreement.
(g) Each Senior Secured Acquisition Term Loan Lender and
the Senior Secured Acquisition Term Loan Administrative Agent agree, that, with
respect to the EPN Loan
Exhibit K-16
Obligations, the EPNHC Loan Obligations and the Clawback Obligation, any and all
guaranties thereof and any and all Collateral, the EPN Group Loan Parties, the
EPN Lenders, the EPN Administrative Agent, the EPNHC Lenders, the EPNHC
Administrative Agent, the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, the ▇▇▇▇▇ ▇▇▇▇ Administrative
Agent and the Collateral Agent may agree to (i) increase the amount of the EPN
Loan Obligations, the EPNHC Loan Obligations or the Clawback Obligation or
otherwise modify or waive the terms of any of the EPN Loan Documents, the EPNHC
Loan Documents or the ▇▇▇▇▇ ▇▇▇▇ Loan Documents or (ii) grant extensions of the
time of payment or performance of and make compromise in respect of the EPN Loan
Obligations, the EPNHC Loan Obligations or the Clawback Obligation, as
applicable, including, without limitation, releases of guaranties or (subject to
Section 9) Collateral and settlements with the EPN Group Loan Parties and all
other Persons, in the case of either clause (i) or (ii) above, without the
consent of any Senior Secured Acquisition Term Loan Lender or the Senior Secured
Acquisition Term Loan Administrative Agent, except to the extent otherwise
required under the Senior Secured Acquisition Term Loan Credit Agreement, and
without affecting the agreements of each Senior Secured Acquisition Term Loan
Lender and the Senior Secured Acquisition Term Loan Administrative Agent as
contained in this Agreement.
8. USE OF COLLATERAL PRIOR TO EVENTS OF DEFAULT. So long as no
Event of Default (as defined in each of the EPN Group Credit Agreements) shall
have occurred and be continuing, the EPN Group Loan Parties shall have the right
as provided under the EPN Group Security Documents: (i) to remain in possession
and retain exclusive control of the Collateral (other than Collateral for which
the security interest granted therein is perfected solely by possession or
control under the Uniform Commercial Code) with power to operate, manage,
develop, use and enjoy the Collateral as permitted in the EPN Group Credit
Agreements and to receive rents, issues, tolls, profits, royalties, revenues and
other income thereof and (ii) subject to Section 9 below, to sell or otherwise
dispose of, free and clear of any Lien and security interest created by the EPN
Group Security Documents, any Collateral. The Collateral Agent shall have no
duty to monitor the exercise by the EPN Group Loan Parties of their rights in
the Collateral under the EPN Group Credit Agreements, the EPN Group Security
Documents or this Agreement.
9. RELEASES. (a) So long as no Event of Default (as defined in
each of the EPN Group Credit Agreements) shall have occurred and be continuing,
Collateral shall be released from the Lien and security interests created by the
EPN Group Security Documents at any time or from time to time, (i) in connection
with any sale or other disposition that is permitted by Section 8.6 of each of
the EPN Group Credit Agreements, (ii) with the written consent of the Required
EPN Group Lenders (or to the extent required by clause (iv) of the proviso to
Section 11.1 of each of the EPN Group Credit Agreements, the EPN Lenders, the
Senior Secured Acquisition Term Loan Lenders, or the EPNHC Lenders, as
applicable), or (iii) in accordance with Section 19(b). No such permitted sales
or other dispositions or other permitted releases of Collateral shall require
any written or oral release or consent of the Collateral Agent. Nevertheless,
any EPN Group Loan Party may request that the Collateral Agent execute and
deliver to such EPN Group Loan Party or any permitted purchaser of Collateral, a
written release or termination of the Collateral Agent's interest in any
Collateral under the EPN Group Security Documents (including, without
limitation, any termination statements to be filed pursuant to the Uniform
Commercial Code). Such request shall be in writing signed by a Responsible
Officer of such EPN Group Loan Party, shall describe the property to be released
in reasonable detail and shall state that such release (x) is in accordance with
Section 8.6 of each of the EPN Group
Exhibit K-17
Credit Agreements, or (y) has been consented to in writing by the Required EPN
Group Lenders (or to the extent required by clause (iv) of the proviso to
Section 11.1 of the EPN Group Credit Agreements, the EPN Lenders, the EPNHC
Lenders or the Senior Secured Acquisition Term Loan Lenders, as applicable), a
copy of which consent shall be attached.
(b) If any Collateral which is being released pursuant to
Section 9 is in the possession of the Collateral Agent or one of its agents or
nominees, the Collateral Agent or such agent or nominee shall release such
Collateral to the relevant EPN Group Loan Party in connection with such sale or
disposition upon (i) a written request signed by a Responsible Officer of such
EPN Group Loan Party in the form of the request described in Section 9(a).
(c) The notices, statements, directions and certificates
requested under this Section 9 shall be in full authority for and direction to
the Collateral Agent to execute and deliver the releases and terminations
referred to in this Section 9 and the Collateral Agent shall promptly do so. The
Collateral Agent in so doing shall have no liability therefore to any Person.
10. PROVISIONS DEFINING RELATIVE RIGHTS. This Agreement is
intended solely for the purpose of defining the relative rights of the
Collateral Agent, the EPN Administrative Agent, the EPN Lenders, the EPNHC
Administrative Agent, the EPNHC Lenders, the Senior Secured Acquisition Term
Loan Administrative Agent, the Senior Secured Acquisition Term Loan Lenders, the
▇▇▇▇▇ ▇▇▇▇ Administrative Agent and the ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, and, with respect to
Sections 8 and 9 only, the EPN Group Loan Parties, and no other Person shall
have any right, benefit or other interest under this Agreement.
11. NOTICES AND COMMUNICATIONS. (a) All notices, requests and
demands to or upon the Collateral Agent, the EPN Administrative Agent, the EPNHC
Administrative Agent, the Senior Secured Acquisition Term Loan Administrative
Agent or the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent to be effective shall be in writing
(or by fax or similar electronic transfer confirmed in writing) and shall be
deemed to have been duly given or made (i) when delivered by hand or (ii) if
given by mail, when deposited in the mails by certified mail, return receipt
requested, or (iii) if by fax or similar electronic transfer, when sent and
receipt has been confirmed, addressed as follows:
If to the EPN Administrative Agent: JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the EPNHC Administrative Agent: JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Exhibit K-18
If to the Senior Secured Acquisition Term
Loan Administrative Agent: JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇▇▇▇▇ ▇▇▇▇ Administrative Agent JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇; and
If to the Collateral Agent: JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
The EPN Administrative Agent, the EPNHC Administrative Agent, the Senior Secured
Acquisition Term Loan Administrative Agent, the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent
and the Collateral Agent may change their respective addresses and transmission
numbers for notices by notice in the manner provided in this Section.
(b) So long as JPMorgan is the EPN Administrative Agent,
the EPNHC Administrative Agent, the Senior Secured Acquisition Term Loan
Administrative Agent and the Collateral Agent, any notice to any such Agent by
any EPN Group Loan Party or by any EPN Group Lender to its respective EPN Group
Administrative Agent shall constitute notice to the other such agents. If at any
time JPMorgan is not the EPN Administrative Agent, the EPNHC Administrative
Agent, the Senior Secured Acquisition Term Loan Administrative Agent and the
Collateral Agent, each such agent shall, without request, to the extent not
delivered by EPN or EPNHC, promptly provide to the other such agents, for
distribution to the EPN Group Lenders under the applicable EPN Group Credit
Agreements (to the extent such EPN Group Lender would have received such notice
if it were a party to the other EPN Group Credit Agreements), copies of any
material notices or other communications and material information received or
determinations made by them and, in particular, termination or reduction of
Revolving Credit Commitments or Term Loan Commitments under the EPN Credit
Agreement; execution and delivery of EPN Group Security Instruments; all
financial statements or other reports provided by EPN or EPNHC; each certificate
delivered pursuant to Section 7.2 of the EPN Group Credit Agreements; all
calculations or material furnished by EPN or EPNHC or prepared by an EPN Group
Administrative Agent with respect to covenants contained in any EPN Group Credit
Agreement; and all actions or material steps contemplated or taken in
proceedings, or payments received in respect of the EPN Loan Obligations, the
EPNHC Loan Obligations or the Senior Secured Acquisition Term Loan Obligations,
under the applicable EPN Group Credit Agreement during the existence of an Event
of Default (as defined in such EPN Group Credit Agreement).
12. COUNTERPARTS. This Agreement may be executed by one or more
of the parties on any number of separate counterparts, and all of said
counterparts taken together shall be deemed
Exhibit K-19
to constitute one and the same instrument. A set of the counterparts of this
Agreement signed by all the parties shall be lodged with each of the EPN Group
Administrative Agents and the Collateral Agent.
13. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. INTEGRATION. This Agreement represents the agreement of the
Collateral Agent, EPN Administrative Agent, the EPNHC Administrative Agent, the
Senior Secured Acquisition Term Loan Administrative Agent, the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises or representations by any of them relative to the
subject matter hereof not reflected herein.
15. AMENDMENTS IN WRITING. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by the Collateral Agent, the EPN Administrative
Agent, the EPNHC Administrative Agent, the Senior Secured Acquisition Term Loan
Administrative Agent, the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent and EPN (without the
need to obtain the consent of any other EPN Group Loan Party or Deepwater
Gateway); provided, that each Agent shall have obtained the prior approval or
consent of the "Required Lenders" under its respective credit agreement to enter
into such waiver, amendment, supplement or modification .
16. SUCCESSORS AND ASSIGNS. (a) This Agreement shall be
binding upon the successors and assigns of the Collateral Agent, the EPN
Administrative Agent, the EPNHC Administrative Agent, the Senior Secured
Acquisition Term Loan Administrative Agent, the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent
and the Lenders, and shall inure to the benefit of the Collateral Agent, the EPN
Administrative Agent, the EPNHC Administrative Agent, the ▇▇▇▇▇ ▇▇▇▇
Administrative Agent, the Senior Secured Acquisition Term Loan Administrative
Agent and the Lenders and their successors and assigns.
(b) Upon a successor collateral agent becoming the
collateral agent under the EPN Credit Agreement, the EPNHC Credit Agreement, and
the Senior Secured Acquisition Term Loan Credit Agreement, such successor
collateral agent automatically shall become the Collateral Agent hereunder with
all the rights and powers of the Collateral Agent hereunder without the need for
any further action on the part of any party hereto.
(c) Upon a successor agent becoming the administrative
agent under the EPN Credit Agreement, such successor administrative agent
automatically shall become the EPN Administrative Agent hereunder with all the
rights and powers of the EPN Administrative Agent hereunder without the need for
any further action on the part of any party hereto.
(d) Upon a successor agent becoming the administrative
agent under the EPNHC Credit Agreement, such successor administrative agent
automatically shall become the EPNHC Administrative Agent hereunder with all the
rights and powers of the EPNHC
Exhibit K-20
Administrative Agent hereunder without the need for any further action on the
part of any party hereto.
(e) Upon a successor agent becoming the administrative
agent under the Senior Secured Acquisition Term Loan Credit Agreement, such
successor administrative agent automatically shall become the Senior Secured
Acquisition Term Loan Administrative Agent hereunder with all the rights and
powers of the Senior Secured Acquisition Term Loan Administrative Agent
hereunder without the need for any further action on the part of any party
hereto.
(f) Upon a successor agent becoming the administrative
agent under the ▇▇▇▇▇ ▇▇▇▇ Credit Agreement, such successor administrative agent
automatically shall become the Marco Administrative Agent hereunder with all the
rights and powers of the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent hereunder without the
need for any further action on the part of any party hereto.
(g) Upon the request of the Collateral Agent from time to
time, each of the EPN Group Administrative Agents, the ▇▇▇▇▇ ▇▇▇▇ Administrative
Agent and each Lender shall confirm in writing its agreement to be bound by the
provisions of this Agreement. None of the EPN Group Administrative Agents, ▇▇▇▇▇
▇▇▇▇ Administrative Agent nor any Lender shall be entitled to the benefits of
this Agreement if it refuses to confirm its indemnification obligations under
Section 7(b) following a request to do so by the Collateral Agent.
17. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
18. JOINDER BY EPN AND EPNHC. Each of EPN and EPNHC hereby
consents to the provisions of this Agreement, including without limitation the
disclosure of information provided for herein and the sharing of payments
provided for herein. Each of EPN and EPNHC agrees to do all things and take all
such actions as are within its power and which are reasonably necessary to give
effect to the provisions of this Agreement.
19. TERMINATION. (a) Upon receipt by the Collateral Agent from
(i) each of the EPN Group Administrative Agents of a written notice stating that
all of the EPN Loan Obligations outstanding under the EPN Loan Documents, all of
the EPNHC Loan Obligations outstanding under the EPNHC Loan Documents, and all
of the Senior Secured Acquisition Term Loan Obligations under the Senior Secured
Acquisition Term Loan Documents, respectively, have been satisfied and repaid in
full and (ii) the ▇▇▇▇▇ ▇▇▇▇ Administrative Agent that the Clawback Obligation
is no longer outstanding, then the Liens and security interests created by the
EPN Group Security Documents shall terminate forthwith and all right, title and
interest of the Collateral Agent in and to the Collateral shall revert to the
EPN Group Loan Parties and their respective successors and assigns.
(b) Upon the termination of the Collateral Agent's Liens
and security interests in, and the release of, the Collateral in accordance with
Section 19(a), the Collateral Agent will promptly, at any EPN Group Loan Party's
written request and expense, (i) execute and deliver to such EPN Group Loan
Party such documents as such EPN Group Loan Party shall reasonably
Exhibit K-21
request to evidence the termination of such Liens or security interests or the
release of the Collateral and (ii) deliver or cause to be delivered to the EPN
Group Loan Parties all property of the EPN Group Loan Parties then held by the
Collateral Agent or any agent or nominee thereof as Collateral.
(c) This Agreement shall terminate when the Liens and
security interests under the EPN Group Security Documents have terminated and
the Collateral has been released; provided, however, that the provisions of
Section 7 (Waiver of Claims and Indemnification) shall not be affected by any
such termination.
Exhibit K-22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
JPMORGAN CHASE BANK,
as Collateral Agent
By: _________________________________________________
Title:
JPMORGAN CHASE BANK,
as EPN Administrative Agent
By: _________________________________________________
Title:
JPMORGAN CHASE BANK,
as EPNHC Administrative Agent
By: _________________________________________________
Title:
JPMORGAN CHASE BANK,
as Senior Secured Acquisition Term Loan
Administrative Agent
By: _________________________________________________
Title:
JPMORGAN CHASE BANK,
as ▇▇▇▇▇ ▇▇▇▇ Administrative Agent
By: _________________________________________________
Title:
Exhibit K Signature Page-1
ACKNOWLEDGED AND AGREED:
EL PASO ENERGY PARTNERS, L.P.
By: _________________________________________________
Name:
Title:
EPN HOLDING COMPANY, L.P.
By: EPN GP Holding, L.L.C., its general partner
By: _________________________________________________
Name:
Title:
Exhibit K Signature Page-2
EXHIBIT L
FORM OF ASSIGNMENT AND ASSUMPTION
Reference is made to the Senior Secured Acquisition Term Loan Credit
Agreement dated as of November 27, 2002 (as amended and in effect on the date
hereof, the "Credit Agreement"), among El Paso Energy Partners, L.P., El Paso
Energy Partners Finance Corporation, the Lenders named therein and JPMorgan
Chase Bank, as Administrative Agent for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse, to
the Assignee named below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the "Assigned Interest") in the Assignor's
rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Loans owing to the Assignor
which are outstanding on the Assignment Date, but excluding accrued interest and
fees to and excluding the Assignment Date. The Assignee hereby acknowledges
receipt of a copy of the Credit Agreement. From and after the Assignment Date
(i) the Assignee shall be a party to and be bound by the provisions of the
Credit Agreement and, to the extent of the Assigned Interest, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent of the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.
This Assignment and Assumption is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 4.10(b) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 11.6(b) of the Credit Agreement.
This Assignment and Assumption shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Exhibit L-1
Percentage Assigned of Loans
(set forth, to at least 8
Principal Amount decimals, as a percentage of
Assigned: the Loans of all Lenders)
-----------------------------------------------------------------------------------------------
Loans Assigned: $ %
The terms set forth above and below are hereby agreed to:
[Name of Assignor], as Assignor
By: ___________________________
Name:
Title:
[Name of Assignee], as Assignee
By: ___________________________
Name:
Title:
The undersigned hereby consent to the within assignment:(3)
JPMorgan Chase Bank, as Administrative Agent
By: ____________________________________________
Name: ____________________________________________
Title: ____________________________________________
El Paso Energy Partners, L.P., as Borrower
By: ____________________________________________
Name: ____________________________________________
Title: ____________________________________________
-------------------------
(3) Consents to be included to the extent required by Section 11.6(b) of the
Credit Agreement.
Exhibit L-2
EXHIBIT M
FORM OF ENVIRONMENTAL COMPLIANCE CERTIFICATE
The undersigned, being the [President] [Chief Operating Officer] [Chief
Financial Officer] of El Paso Energy Partners, L.P. (the "Borrower"), pursuant
to subsection 7.2(i) of the Senior Secured Acquisition Term Loan Credit
Agreement, dated as of November 27, 2002, among the Borrower, El Paso Energy
Partners Finance Corporation, JPMorgan Chase Bank, as administrative agent (the
"Administrative Agent"), and the banks and other financial institutions which
are parties thereto (the "Lenders") (such Credit Agreement, as the same may from
time to time be amended, supplemented or otherwise modified, is referred to
herein as the "Credit Agreement"), after due inquiry and consultation with the
senior operating officers of the Borrower, does hereby certify as of the date
hereof to the Lenders as follows:
19. For the fiscal year ending immediately prior to the date
hereof, except as set forth in Schedule I attached hereto, the
Borrower and its Subsidiaries have complied and are complying
with Section 7.8 of the Credit Agreement;
20. To the best knowledge of the undersigned after due inquiry and
except as set forth in Schedule 5.17, the Borrower and its
Subsidiaries are in compliance with all applicable
Environmental Laws, noncompliance with which could give rise
to a liability in a Material Environmental Amount;
21. The Borrower and its Subsidiaries have taken steps to minimize
the generation of potentially harmful effluents;
22. The Borrower and its Subsidiaries have established a program
of conducting an internal audit of each operating facility of
the Borrower and its Subsidiaries to identify actual or
potential environmental liabilities which could give rise to a
liability in a Material Environmental Amount; and
23. The Borrower and its Subsidiaries have established a program
of training their respective employees in issues of
environmental, health and safety compliance, and the Borrower
and its Subsidiaries have one or more individuals in charge of
implementing the training program.
Exhibit M-1
For purposes of this Certificate, all capitalized terms not otherwise
defined herein shall have the meanings assigned thereto in the Credit Agreement.
EL PASO ENERGY PARTNERS, L.P.
By: ______________________________
Name:
Title:
Date:
Exhibit M-2
EXHIBIT N
FORM OF BORROWING CERTIFICATE
Pursuant to subsection 6.1(c) of the Senior Secured
Acquisition Term Loan Credit Agreement, dated as of November 27, 2002 (the
"Credit Agreement"), among El Paso Energy Partners, L.P., a Delaware limited
partnership (the "Borrower"), El Paso Energy Partners Finance Corporation, a
Delaware corporation (the "Co-Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), and JPMorgan
Chase Bank, as administrative agent (the "Administrative Agent"), the
undersigned hereby certifies as follows:
(a) The representations and warranties made by the
Borrower in or pursuant to each of the Loan Documents to which it is a
party are true and correct in all material respects on and as of the
date hereof as if made on and as of the date hereof and after giving
effect to the Loans requested to be made pursuant to the Credit
Agreement (unless stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in
all material respects as of such earlier date); and
(b) Immediately prior to and immediately after the making
of the Loans requested to be made pursuant to the Agreement on the date
hereof, no Default or Event of Default will have occurred and will be
continuing under the Credit Agreement.
(c) At the time of and immediately after the making of
any Loan requested to be made pursuant to the Credit Agreement on the
date hereof, (i) the ratio of (A) Consolidated Total Senior
Indebtedness at such date to (B) the Consolidated EBITDA for the most
recent Calculation Period shall not exceed 3.25 to 1.0 and (ii) the
ratio of (X) Consolidated Total Indebtedness at such date to (Y) the
Consolidated EBITDA for the most recent Calculation Period shall not
exceed 5.25 to 1.0; provided, however, that the foregoing certification
contained in this paragraph 3 is made by the Borrower in good faith
based upon assumptions believed by the Borrower to be reasonable.
Capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
Exhibit N-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the ___th day of November, 2002.
EL PASO ENERGY PARTNERS, L.P.
By: _______________________________________
Name:
Title:
EL PASO ENERGY PARTNERS FINANCE CORPORATION
By: _______________________________________
Name:
Title:
Exhibit N-2
EXHIBIT O
DESCRIPTION OF CHACO TRANSACTIONS
I. The Chaco Plant
The Chaco Plant, the third largest natural gas processing plant in the
United States measured by liquids produced, is located in the San ▇▇▇▇ Basin in
New Mexico. It is capable of processing up to 600 Mmcf/d of natural gas and
handling up to 50,000 bbls/d of NGLs. The Chaco Plant is a state of the art
cryogenic plant that uses high pressures and extremely low temperatures to
remove water, impurities and excess hydrocarbon liquids from the raw natural gas
stream and recover ethane as well as propane and the heavier hydrocarbons. The
Chaco Plant receives and processes natural gas from the San ▇▇▇▇ Gathering
System (the "Gathering System"), an over 5,500 mile natural gas gathering system
in New Mexico owned and operated by an Affiliate of El Paso Field Services, L.P.
("Field Services").
II. Prior Status of Chaco Plant
As of October 2001, the Borrower acquired certain interests,
indirectly, in the Chaco Plant through the consummation of the following
transactions:
1. Delos Offshore Company, L.L.C. ("Delos"), a Restricted
Subsidiary of the Borrower, purchased all of the notes and
certificates issued by The Chaco Liquids Plant Trust, a
Massachusetts business trust (the "Trust"), to the
sale-leaseback lenders in connection with the sale-leaseback
financing transaction that Field Services put in place in
1995;
2. The effect of the purchase of such notes and certificates was
that Delos became the beneficiary of the Trust and acquired
title to the Chaco Plant subject to the existing lease
documents;
3. ▇▇▇▇▇ became the agent for the Trust;
4. El Paso Energy Partners Operating Company, L.L.C., another
Restricted Subsidiary of the Borrower, was appointed as
trustee of the Trust, replacing State Street Bank and Trust
Company;
5. The Trust was designated as a Restricted Subsidiary of the
Borrower which designation was consented by the Lenders
pursuant to the First Amendment to the Existing Credit
Agreement dated as of October 10, 2001, and is therefore a
Subsidiary Guarantor and has pledged its assets as collateral
for the Obligations;
6. Delos and Field Services entered into a Tolling Agreement
under which (a) Field Services dedicated all of the natural
gas received into the Gathering System to the Chaco Plant for
processing (except for certain amounts of natural gas that
were previously dedicated to the nearby Conoco/▇▇▇▇▇▇ Plant,
and certain other amounts of natural gas that are used for
fuel use, farm taps and lift gas, or temporarily offloaded due
to capacity restraints on the Gathering System pursuant
Exhibit O-1
to terms of existing gathering agreements), (b) Field Services
became obligated to attempt to acquire additional processing
rights for gas gathered by the Gathering System, and (c) gas
delivered to the Chaco Plant by Field Services has a
processing priority over other gas; and
7. Field Services personnel continue to operate and provide other
services related to the Chaco Plant.
III. Current Status of Chaco Plant
As of the Closing Date, after giving effect to the Transaction, the
Borrower will have acquired, indirectly through its Restricted Subsidiaries, the
entire remaining interest in the Chaco Plant.
Exhibit O-2