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EXHIBIT 10.B.1
EXECUTION COPY
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EL PASO ENERGY CORPORATION
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$700,000,000 3-MONTH
REVOLVING CREDIT FACILITY AGREEMENT
DATED AS OF DECEMBER 21, 2000
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THE CHASE MANHATTAN BANK
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS.........................................1
SECTION 1.1 Certain Defined Terms........................................1
SECTION 1.2 Computation of Time Periods.................................15
SECTION 1.3 Accounting Terms............................................15
SECTION 1.4 References..................................................15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES.......................................15
SECTION 2.1 The Advances................................................15
SECTION 2.2 Making the Advances.........................................15
SECTION 2.3 Evidence of Debt............................................17
SECTION 2.4 Money Market Advances.......................................17
SECTION 2.5 [Intentionally left blank]..................................18
SECTION 2.6 [Intentionally left blank]..................................18
SECTION 2.7 [Intentionally left blank]..................................18
SECTION 2.8 Fees........................................................18
SECTION 2.9 Reduction of the Commitments................................19
SECTION 2.10 Repayment of Advances......................................19
SECTION 2.11 Interest on Advances.......................................19
SECTION 2.12 Additional Interest on Eurodollar Rate Advances............20
SECTION 2.13 Interest Rate Determination................................20
SECTION 2.14 Voluntary Conversion of Advances...........................21
SECTION 2.15 Optional and Mandatory Prepayments.........................21
SECTION 2.16 Increased Costs............................................22
SECTION 2.17 Increased Capital..........................................23
SECTION 2.18 Illegality.................................................23
SECTION 2.19 Pro Rata Treatment, Payments and Computations..............24
SECTION 2.20 Taxes......................................................25
SECTION 2.21 Sharing of Payments, Etc...................................27
SECTION 2.22 Use of Proceeds............................................28
SECTION 2.23 Extension of Stated Termination Date.......................28
SECTION 2.24 [Intentionally left blank].................................29
SECTION 2.25 Replacement of Lenders.....................................29
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING.................................30
SECTION 3.1 Conditions Precedent to Effectiveness of this Agreement.....30
SECTION 3.2 Conditions Precedent to Initial Advances....................30
SECTION 3.3 [Intentionally left blank]..................................31
SECTION 3.4 Conditions Precedent to Each Borrowing......................31
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Page
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES.........................................31
SECTION 4.1 Representations and Warranties of the Company..............31
ARTICLE V
COVENANTS OF THE COMPANY...............................................34
SECTION 5.1 Affirmative Covenants......................................34
SECTION 5.2 Negative Covenants.........................................35
SECTION 5.3 Reporting Requirements.....................................39
SECTION 5.4 Restrictions on Material Subsidiaries......................41
ARTICLE VI
[Intentionally left blank].............................................41
ARTICLE VII
EVENTS OF DEFAULT......................................................42
SECTION 7.1 Event of Default...........................................42
ARTICLE VIII
THE AGENT..............................................................45
SECTION 8.1 Authorization and Action...................................45
SECTION 8.2 Agent's Reliance, Etc......................................45
SECTION 8.3 Chase and Affiliates.......................................45
SECTION 8.4 Lender Credit Decision.....................................46
SECTION 8.5 Indemnification............................................46
SECTION 8.6 Successor Agent............................................46
ARTICLE IX
MISCELLANEOUS..........................................................47
SECTION 9.1 Amendments, Etc............................................47
SECTION 9.2 Notices, Etc...............................................47
SECTION 9.3 No Waiver; Remedies........................................47
SECTION 9.4 Costs and Expenses; Indemnity..............................48
SECTION 9.5 Right of Set-Off...........................................48
SECTION 9.6 Binding Effect.............................................49
SECTION 9.7 Assignments and Participations.............................49
SECTION 9.8 Confidentiality............................................51
SECTION 9.9 Consent to Jurisdiction....................................52
SECTION 9.10 GOVERNING LAW.............................................53
SECTION 9.11 Rate of Interest..........................................53
SECTION 9.12 Execution in Counterparts................................53
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SCHEDULE
Schedule I Commitments, Addresses, Etc.
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Opinion of [General][Senior] Counsel
of the Company
Exhibit E Form of Opinion of New York Counsel to the
Company
Exhibit F Form of Process Agent Letter
Exhibit G Form of Extension Request
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$700,000,000 3-MONTH REVOLVING CREDIT FACILITY AGREEMENT,
dated as of December 21, 2000, among EL PASO ENERGY CORPORATION, a Delaware
corporation (the "Company"), the several banks and other financial institutions
from time to time parties to this Agreement (the "Lenders"), THE CHASE MANHATTAN
BANK, a New York banking corporation, as administrative agent for the Lenders
(in such capacity, the "Agent") and Chase Securities Inc. as lead arranger and
book manager ("CSI").
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Agent" has the meaning assigned to such term in the preamble
hereof.
"Advance" means an advance by a Lender to the Company pursuant
to Article II, and refers to a Base Rate Advance or a Eurodollar Rate
Advance or a Money Market Advance.
"Affiliate" means as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
The term "control" (including the terms "controlled by" or "under
common control with") means, with respect to any Person, the
possession, direct or indirect, of the power to vote 20% or more of the
securities having ordinary voting power for the election of directors
of such Person or to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting
securities or by contract or otherwise. Neither a director nor any
officer of a Person, in such capacity, shall be deemed an "Affiliate"
of such Person for purposes of this Agreement.
"Agreement" means this $700,000,000 3-Month Revolving Credit
Facility Agreement, as amended, restated, supplemented or otherwise
modified from time to time.
"Alternate Program" means any program providing for the sale
or other disposition of trade or other receivables entered into by the
Company or a Subsidiary which is in addition to or in replacement of
the program evidenced by either Receivables Purchase and Sale Agreement
(whether or not either Receivables Purchase and Sale Agreement shall
then be in effect), provided that such program is on terms (a)
substantially similar to either Receivables Purchase and Sale Agreement
(as modified
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to comply with FASB 125 or similar policies or guidelines from time to
time in effect) or (b) customary for similar transactions as reasonably
determined by the Agent.
"Applicable Eurodollar Rate Margin" with respect to any
Eurodollar Rate Advance to the Company means for any day the rate per
annum set forth below opposite the applicable S&P Bond Rating and
▇▇▇▇▇'▇ Bond Rating in effect on such day for the Company:
Bond Rating Applicable Eurodollar
(S&P/▇▇▇▇▇'▇) Level Rate Margin
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A/A2 or higher I .180%
A-/A3 II .270%
BBB+/Baa1 III .300%
BBB/Baa2 IV .375%
BBB-/Baa3 V .550%
BB+/Ba1 or lower VI .800%;
provided that (i) if the Bond Ratings for the Company do not fall
within the same Level, the Applicable Eurodollar Rate Margin applicable
to such day will be the percentage opposite the Bond Rating that is at
the higher level (Level I being the highest and Level VI being the
lowest Level), (ii) in the event a Bond Rating for the Company is not
available from one of the Rating Agencies, the Applicable Eurodollar
Rate Margin will be based on the Bond Rating of the other Rating
Agency, and (iii) in the event a Bond Rating for the Company is
available from none of the Rating Agencies, the Applicable Eurodollar
Rate Margin will be the percentage opposite Level VI; provided,
further, that (i) for each day on which the aggregate principal amount
of the Advances outstanding hereunder is equal to or greater than 25%
of the aggregate amount of the total Commitments hereunder, the
Applicable Eurodollar Rate Margin will be increased by 0.125% for such
day and (ii) for each day on which any Eurodollar Rate Advance is
outstanding before January 1, 2001, the Applicable Eurodollar Rate
Margin will be increased by 0.125% for such day.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C.
"Base Rate" means for any day, a rate per annum (adjusted to
the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, rounded
upwards to the next highest 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day, (b) the secondary market rate for
certificates of deposit (grossed up for reserve requirements) plus 1/2
of 1% and (c) the Effective Federal Funds Rate in effect on such day
plus 1/2 of 1%; provided, that for each day on which any Base Rate
Advance is outstanding before January 1, 2001, the applicable Base Rate
will be increased by 0.125% for such day. Any change in the Base Rate
due to a change in the Prime Rate, the rate for certificates of deposit
or the Effective Federal Funds Rate shall be effective as of the
opening of business on the effective day of
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such change in the Prime Rate, the rate for certificates of deposit or
the Effective Federal Funds Rate, respectively.
"Base Rate Advance" means an Advance (other than a Money
Market Advance) which bears interest as provided in Section 2.11(a)(i).
"Bond Rating" means a rating assigned to the Company's senior
long-term unsecured debt by any of the Rating Agencies.
"Borrowing" means (i) a borrowing consisting of Advances of
the same Type made on the same day by the Lenders, and, in the case of
Eurodollar Rate Advances, having Interest Periods of the same duration,
it being understood that there may be more than one Borrowing on a
particular day and (ii) a Money Market Advance.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York, New York and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Business Entity" means a partnership, limited partnership,
limited liability partnership, corporation (including a business
trust), limited liability company, unlimited liability company, joint
stock company, trust, unincorporated association, joint venture or
other entity.
"Capitalization" of any Person means the sum (without
duplication) of (a) consolidated Debt of such Person and its
consolidated Subsidiaries, plus (b) the aggregate amount of Guaranties
entered into by such Person and its consolidated Subsidiaries, plus (c)
the consolidated common and preferred stockholders' equity of such
Person and its consolidated Subsidiaries, plus (d) the cumulative
amount by which stockholders' equity of such Person shall have been
reduced by reason of non-cash write downs of long-term assets from and
after the Effective Date.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date" has the meaning assigned to such term in
Section 3.2.
"Commitment" means as to any Lender, the obligation of such
Lender to make Advances (other than Money Market Advances) to the
Company hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I (as such Schedule I is amended from time to time
pursuant to Section 9.7(c)), as such amount may be reduced from time to
time in accordance with the provisions of this Agreement.
"Commitment Expiration Date" has the meaning assigned to such
term in Section 2.23(a).
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"Commitment Percentage" means as to any Lender at any time,
the percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall have
expired or terminated, the percentage which the aggregate principal
amount of such Lender's Advances then outstanding constitutes of the
aggregate principal amount of the Advances then outstanding).
"Company" has the meaning assigned to such term in the
preamble hereof.
"Contingent Guaranty" has the meaning assigned to such term in
the definition of the term "Guaranty" contained in this Section 1.1.
"Convert," "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of another Type
pursuant to Section 2.13, 2.14 or 2.18.
"Current Reimbursement Obligations" means, with respect to any
Person, non-contingent obligations of such Person to reimburse a bank
or other Person in respect of amounts paid under a letter of credit or
similar instrument that are paid on or prior to the fifth Business Day
after the due date therefor.
"Debt" means, as to any Person, all Indebtedness of such
Person other than (a) any Project Financing of such Person, (b) in the
case of the Company or a Principal Subsidiary, any liabilities of the
Company or such Principal Subsidiary, as the case may be, under any
Alternate Program, or any document executed by the Company or such
Principal Subsidiary, as the case may be, in connection therewith, (c)
any obligations of the Company or a Principal Subsidiary with respect
to lease payments for the headquarters building of the Company located
in Houston, Texas and (d) Current Reimbursement Obligations of such
Person; provided, however, that for purposes of Article V, "Debt" shall
not include up to an aggregate amount (determined without duplication
of amount) of $200,000,000 of (i) the amount of optional payments in
lieu of asset repurchase or other payments to similar effect, including
extension or renewal payments, on off balance sheet leases and (ii) the
amount of the purchase price for optional acquisition of such asset (in
either case, calculated at the lower amount payable in respect of such
asset under clause (i) or (ii) above).
"Default" means any event that would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Effective Date" has the meaning assigned to such term in
Section 3.1.
"Effective Federal Funds Rate" means, for any day, the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is
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not a Business Day, for the next preceding 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 such day
on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Eligible Assignee" means, with respect to any particular
assignment under Section 9.7, any bank or other financial institution
approved in writing by (a) the Company expressly with respect to such
assignment and (b) except as to such an assignment by Chase so long as
Chase is the Agent hereunder, the Agent, as an Eligible Assignee for
purposes of this Agreement, provided that (i) the Company may grant or
withhold its approval in its sole discretion, (ii) the Agent's approval
shall not be unreasonably withheld and (iii) neither the Agent's nor
the Company's approval shall be required if the assignee is another
Lender or an Affiliate of the assigning Lender.
"EPNGC" means El Paso National Gas Company, a Delaware
corporation, and its successors.
"EPTPC" means El Paso Tennessee Pipeline Co., a Delaware
corporation, and its successors.
"EPTPC Facility" means the $3,000,000,000 Revolving Credit and
Competitive Advance Facility Agreement, dated as of November 4, 1996,
among EPTPC, the several financial institutions from time to time
parties thereto, and The Chase Manhattan Bank, as administrative agent
and CAF advance agent thereunder, as the same may be amended, modified
or supplemented from time to time.
"Equity Interests" means any capital stock, partnership, joint
venture, member or limited liability or unlimited liability company
interest, beneficial interest in a trust or similar entity or other
equity interest or investment of whatever nature.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued from time to time thereunder.
"ERISA Affiliate" means any Person who is a member of the
Company's controlled group within the meaning of Section 4001(a)(14)(A)
of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate which appears on Page 3750 of
the Telerate 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 Agent from time to time for purposes
of providing
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quotations of interest rates applicable to Dollar deposits in the
London interbank market) as at approximately 11:00 A.M. (London,
England time) two Business Days before the first day of such Interest
Period as the rate for Dollar deposits with a maturity comparable to
such Interest Period; provided that if such rate is not available at
such time for any reason, the Eurodollar Rate for such Borrowing for
such Interest Period shall be the interest rate per annum equal to the
rate (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such rate is not such a multiple) per annum at which deposits
in Dollars are offered by the principal office of the Reference Lender
in London, England, to prime banks in the London interbank market as at
approximately 11:00 A.M. (London, England time) two Business Days
before the first day of such Interest Period, in an approximate amount
of the Reference Lender's share of the relevant Borrowing for the
applicable Interest Period. The Eurodollar Rate for the Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing,
when being determined pursuant to the foregoing proviso clause, shall
be determined by the Agent on the basis of applicable rates furnished
to and received by the Agent from the Reference Lender two Business
Days before the first day of such Interest Period, subject, however, to
the provisions of Section 2.13.
"Eurodollar Rate Advance" means an Advance (other than a Money
Market Advance) which bears interest determined by reference to the
Eurodollar Rate, as provided in Section 2.11(a)(ii).
"Eurodollar Reserve Percentage" for any Lender for any
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including,
but not limited to, any emergency, supplemental or other marginal
reserve requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a
term equal to such Interest Period.
"Events of Default" has the meaning assigned to such term in
Section 7.1.
"Excluded Acquisition Debt" means (a) Debt, Guaranties or
reimbursement obligations of any Business Entity acquired by the
Company or any of its Subsidiaries and which Debt, Guaranties or
reimbursement obligations exist immediately prior to such acquisition
(provided that (i) such Debt, Guaranties or reimbursement obligations
are not incurred solely in anticipation of such acquisition and (ii)
immediately prior to such acquisition such Business Entity is not a
Subsidiary of the Company), (b) Debt, Guaranties or reimbursement
obligations of EPTPC and its Subsidiaries in existence on the date of
the merger of El Paso Tennessee Pipeline Company with El Paso Merger
Company or (c) Debt, Guaranties or reimbursement obligations in respect
of any asset acquired by the Company or any of its Subsidiaries and
which Debt, Guaranties or reimbursement obligations exists immediately
prior to such acquisition (provided that (i) such Debt, Guaranties or
reimbursement obligations are not incurred solely in
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anticipation of such acquisition and (ii) immediately prior to such
acquisition such asset is not an asset of the Company or any of its
Subsidiaries).
"Existing 364-Day Facility" means the $2,000,000,000 364-Day
Revolving Credit and Competitive Advance Facility Agreement dated as of
August 4, 2000, among the Company, EPNGC, Tennessee, the several
financial institutions from time to time parties thereto, Chase, as
Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro
Bank, N.V., as Co-Documentation Agents and Bank of America, N.A., as
Syndication Agent, as the same has been and may be amended,
supplemented and modified from time to time.
"Existing 3-Year Facility" means the $1,000,000,000 3-Year
Revolving Credit and Competitive Advance Facility Agreement, dated as
of August 4, 2000, among the Company, EPNGC, Tennessee, the banks and
other lenders parties thereto, Chase, as Administrative Agent and CAF
Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as
Co-Documentation Agents and Bank of America, N.A., as Syndication
Agent, as the same has been and may be amended, supplemented and
modified from time to time.
"Exposure" means (a) with respect to an Objecting Lender at
any time, the aggregate outstanding principal amount of its Advances
and (b) with respect to any other Lender at any time, the maximum
amount of the Commitment of such Lender.
"Extension Request" means each request by the Company made
pursuant to Section 2.23 for the Lenders to extend the Stated
Termination Date, which shall contain the information in respect of
such extension specified in Exhibit G and shall be delivered to the
Agent in writing.
"Facility Fee Commencement Date" means the date hereof.
"FERC" means the Federal Energy Regulatory Commission, or any
agency or authority of the United States from time to time succeeding
to its function.
"GAAP" means generally accepted accounting principles in the
United States of America, as in effect from time to time.
"Guaranty," "Guaranteed" and "Guaranteeing" each means any act
by which any Person assumes, guarantees, endorses or otherwise incurs
direct or contingent liability in connection with, or agrees to
purchase or otherwise acquire or otherwise assures a creditor against
loss in respect of, any Debt or Project Financing of any Person other
than the Company or any of its consolidated Subsidiaries (excluding (a)
any liability by endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business,
(b) any liability in connection with obligations of the Company, any of
its consolidated Subsidiaries, including, obligations under any
conditional sales agreement, equipment trust financing or equipment
lease, and (c) any such act in connection with a Project Financing that
either (i) guarantees to the provider of such Project Financing or any
other Person performance of the acquisition,
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improvement, installation, design, engineering, construction,
development, completion, maintenance or operation of, or otherwise
affects any such act in respect of, all or any portion of the project
that is financed by such Project Financing or performance by a Project
Financing Subsidiary of certain obligations to Persons other than the
provider of such Project Financing, except during any period, and then
only to the extent, that such guaranty is a guaranty of payment of such
Project Financing (other than a guaranty of payment of the type
referred to in subclause (ii) below) or (ii) is contingent upon, or the
obligation to pay or perform under which is contingent upon, the
occurrence of any event other than or in addition to the passage of
time or any Project Financing becoming due (any such act referred to in
this clause (c) being a "Contingent Guaranty"); provided, however, that
for purposes of this definition the liability of the Company or any of
its Subsidiaries with respect to any obligation as to which a third
party or parties are jointly, or jointly and severally, liable as a
guarantor or otherwise as contemplated hereby and have not defaulted on
its or their portions thereof, shall be only its pro rata portion of
such obligation.
"Indebtedness" of any Person means, without duplication (a)
indebtedness of such Person for borrowed money, (b) obligations of such
Person (other than any portion of any trade payable obligation of such
Person which shall not have remained unpaid for 91 days or more from
the original due date of such portion) to pay the deferred purchase
price of property or services, and (c) obligations of such Person as
lessee under leases which shall have been or should be, in accordance
with GAAP, recorded as capital leases, except that where such
indebtedness or obligation of such Person is made jointly, or jointly
and severally, with any third party or parties other than any
consolidated Subsidiary of such Person, the amount thereof for the
purposes of this definition only shall be the pro rata portion thereof
payable by such Person, so long as such third party or parties have not
defaulted on its or their joint and several portions thereof.
"Indemnified Party" means any or all of the Lenders and the
Agent.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period beginning on the date
of such Advance or the date of the Conversion of any Advance into such
an Advance and ending on the last day of the period selected by the
Company pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Company pursuant to the provisions below. The duration
of each such Interest Period shall be one, two or three months or such
other periods as may from time to time be agreed in writing with all
the Lenders, in each case as the Company may, upon notice received by
the Agent not later than 12:00 noon (New York City time) on the third
Business Day prior to the first day of such Interest Period with
respect to Eurodollar Rate Advances, select; provided, however, that:
(a) the duration of any Interest Period which
commences before the Termination Date and would otherwise end
after the Termination Date shall end on the Termination Date;
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(b) if the last day of such Interest Period
would otherwise occur on a day which is not a Business Day,
such last day shall be extended to the next succeeding
Business Day, except if such extension would cause such last
day to occur in a new calendar month, then such last day shall
occur on the next preceding Business Day;
(c) Interest Periods commencing on the same
date for Advances comprising the same Borrowing shall be of
the same duration;
(d) with respect to Advances made by an
Objecting Lender, no Interest Period with respect to such
Advances shall end after such Objecting Lender's Commitment
Expiration Date; and
(e) any Interest Period which begins on the
last Business 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, subject to
clause (a) above, end on the last Business Day of a calendar
month.
The term "Interest Period" will also include, when used with reference
to a Money Market Advance, Money Market Interest Periods.
"Lenders" has the meaning assigned to such term in the
preamble hereof.
"Lien" means any lien, security interest or other charge or
encumbrance, or any assignment of the right to receive income, or any
other type of preferential arrangement, in each case to secure any
Indebtedness or any Guaranty of any Person.
"Majority Lenders" means one or more Lenders the Commitment
Percentages of which aggregate at least 51%, provided, that at any time
after the Commitment Expiration Date with respect to any Objecting
Lender (but prior to the termination of all the Commitments), "Majority
Lenders" shall mean Lenders whose Exposure aggregates at least 51% of
the aggregate Exposure of all the Lenders.
"Margin Stock" means "margin stock" as defined in Regulation U
of the Board of Governors of the Federal Reserve System, as in effect
from time to time.
"Material Adverse Effect" means a material adverse effect on
the financial condition or operations of the Company and its
consolidated Subsidiaries on a consolidated basis.
"Material Subsidiary" means any Subsidiary of the Company
(other than a Project Financing Subsidiary) that itself (on an
unconsolidated, stand-alone basis) owns in excess of 10% of the book
value of the consolidated assets of the Company and its consolidated
Subsidiaries.
"Mojave" means Mojave Pipeline Company.
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"Money Market Advance" has the meaning assigned to such term
in Section 2.4.
"Money Market Interest Period" has the meaning assigned to
such term in Section 2.4.
"Moody's Bond Rating," with respect to the Company, means for
any day the Bond Rating of the Company, if any, established by ▇▇▇▇▇'▇
Investors Service, Inc. as in effect at 11:00 A.M., New York City time,
on such day.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Company or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions and in respect of which the Company or
an ERISA Affiliate has any liability (contingent or otherwise), such
plan being maintained pursuant to one or more collective bargaining
agreements.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, which (a) is maintained for
employees of the Company or an ERISA Affiliate and at least one Person
other than the Company and its ERISA Affiliates or (b) was so
maintained and in respect of which the Company or an ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Worth" means, as of any date of determination, the sum of
the preferred stock and stockholders' equity of the Company as shown on
the most recent consolidated balance sheet of the Company delivered
pursuant to Section 5.3 plus the cumulative amount by which
stockholders' equity of the Company shall have been reduced by reason
of non-cash write-downs of long term assets from and after the
Effective Date.
"Note" has the meaning assigned to such term in Section
2.3(d).
"Notice of Borrowing" has the meaning specified in Section
2.2(a).
"Obligations" means the collective reference to the unpaid
principal of and interest on the Advances and the Notes and all other
financial liabilities of the Company to the Agent and the Lenders
(including interest accruing at the then applicable rate provided in
this Agreement after the maturity of the Advances and interest accruing
at the then applicable rate provided in this Agreement after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company whether or
not a claim for post-filing or post-petition interest is allowed in
such proceeding), 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 or the
Notes, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or
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otherwise (including, all fees and disbursements of counsel to the
Agent or to the Lenders that are required to be paid by the Company
pursuant to this Agreement).
"Objecting Lenders" has the meaning assigned to such term in
Section 2.23(a).
"Other Taxes" has the meaning assigned to such term in Section
2.20(b).
"Party" has the meaning assigned to such term in Section 9.8.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Claims" has the meaning assigned to such term in
Section 9.9(a).
"Permitted Liens" means:
(i) inchoate Liens and charges imposed by law and incidental
to construction, maintenance, development or operation of properties,
or the operation of business, in the ordinary course of business if
payment of the obligation secured thereby is not yet overdue or if the
validity or amount of which is being contested in good faith by the
Company or any of its Subsidiaries;
(ii) Liens for taxes, assessments, obligations under workers'
compensation or other social security legislation or other governmental
requirements, charges or levies, in each case not yet overdue;
(iii) Liens reserved in any oil, gas or other mineral lease
entered into in the ordinary course of business for rent, royalty or
delay rental under such lease and for compliance with the terms of such
lease;
(iv) easements, servitudes, rights-of-way and other rights,
exceptions, reservations, conditions, limitations, covenants and other
restrictions that do not materially interfere with the operation, value
or use of the properties affected thereby;
(v) conventional provisions contained in any contracts or
agreements affecting properties under which the Company or any of its
Subsidiaries is required immediately before the expiration, termination
or abandonment of a particular property to reassign to such Person's
predecessor in title all or a portion of such Person's rights, titles
and interests in and to all or portion of the such property;
(vi) any Lien reserved in a grant or conveyance in the nature
of a farm-out or conditional assignment to the Company or any of its
Subsidiaries entered into in the ordinary course of business on
reasonable terms to secure undertakings of the Company or any such
Subsidiary in such grant or conveyance;
(vii) any Lien consisting of (A) statutory landlord's liens
under leases to which the Company or any of its Subsidiaries is a party
or other Liens on leased property
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reserved in leases thereof for rent or for compliance with the terms of
such leases, (B) rights reserved to or vested in any municipality or
governmental, statutory or public authority to control or regulate any
property of the Company or any of its Subsidiaries, or to use such
property in any manner which does not materially impair the use of such
property for the purposes for which it is held by the Company or any
such Subsidiary, (C) obligations or duties to any municipality or
public authority with respect to any franchise, grant, license, lease
or permit and the rights reserved or vested in any governmental
authority or public utility to terminate any such franchise, grant,
license, lease or permit or to condemn or expropriate any property, and
(D) zoning laws and ordinances and municipal regulations;
(viii) any Lien on any assets (including Equity Interests and
other obligations) securing Indebtedness or other obligations incurred
or assumed for the purpose of financing all or any part of the cost of
acquiring, improving, installing, designing, engineering, developing
(including drilling), or constructing such assets, provided that such
Lien attaches to such assets concurrently with or within 365 days after
the acquisition or completion of development, construction or
installation thereof or improvement thereto; and
(ix) the creation of interests in property of the character
commonly referred to as a "royalty interest" or "overriding royalty
interest," production payments, farmouts, leases, subleases, rights of
way and other easements, participations, joint venture, joint
operating, unitization, pooling and communitization agreements, or
other similar transactions in the ordinary course of business.
"Person" means an individual, a Business Entity or a country
or any political subdivision thereof or any agency or instrumentality
of such country or subdivision.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City. The Prime Rate is not intended to be
the lowest rate of interest charged by Chase in connection with
extensions of credit to debtors.
"Principal Subsidiary" means, at any time, any Subsidiary of
the Company (other than a Project Financing Subsidiary) either (a)
having assets that are, or owning Subsidiaries with assets that
together with its assets are, at such time greater than or equal to 5%
of the consolidated assets of the Company and its consolidated
Subsidiaries at such time or (b) constituting a "Borrowing Subsidiary"
under and as defined in the Existing 364-Day Facility.
"Process Agent" has the meaning specified in Section 9.9(a).
"Project Financing" means any Indebtedness incurred to finance
or refinance the acquisition, improvement, installation, design,
engineering, construction, development,
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completion, maintenance or operation of, or otherwise in respect of,
all or any portion of any project, or any asset related thereto, and
any Guaranty with respect thereto, other than any portion of such
Indebtedness or Guaranty permitting or providing for recourse against
the Company or any of its Subsidiaries other than (a) recourse to the
Equity Interests in, Indebtedness or other obligations of, or assets
of, one or more Project Financing Subsidiaries, and (b) such recourse
as exists under any Contingent Guaranty.
"Project Financing Subsidiary" means any Subsidiary of the
Company whose principal purpose is to incur Project Financing, or to
become a direct or indirect partner, member or other equity participant
or owner in a Business Entity so created, and substantially all the
assets of which Subsidiary or Business Entity, are limited to those
assets being financed (or to be financed) or the operation of which is
being financed (or to be financed), in whole or in part by a Project
Financing or to Equity Interests in, or Indebtedness or other
obligations of, one or more other such Subsidiaries or Business
Entities or to Indebtedness or other obligations of the Company or its
Subsidiaries or other Persons.
"Rating Agency" means any of ▇▇▇▇▇'▇ Investors Service, Inc.
and Standard & Poor's Ratings Group; collectively the "Rating
Agencies."
"Receivables Purchase and Sale Agreement" means the collective
reference to (a) the Receivables Purchase and Sale Agreement dated as
of January 14, 1992 among EPNGC, ▇▇▇▇▇▇ ▇.▇., a New York limited
partnership, Corporate Asset Funding Company, a Delaware corporation
and Citicorp North America, Inc., as agent, as amended as of the date
hereof, and (b) the Amended and Restated Receivables Sale Agreement
dated as of December 31, 1996 among El Paso Energy Credit Corporation,
Asset Securitization Cooperative Corporation and Canadian Imperial Bank
of Commerce, as administrative agent, as such Agreement may be amended,
supplemented, restated or otherwise modified from time to time,
provided that no such amendment, supplement, restatement or
modification shall change the scope of such Agreement from that of a
receivables securitization transaction.
"Reference Lender" means Chase, or if Chase is no longer a
Lender at any time, such other Lender as is designated for such
purposes by the Company.
"Register" has the meaning specified in Section 9.7(c).
"Required Lenders" means one or more Lenders (a) which are not
Objecting Lenders with respect to any previous Extension Request and
(b) which have Commitment Percentages aggregating at least 66-2/3% of
the aggregate Commitment Percentages of such non-Objecting Lenders.
"S&P Bond Rating," with respect to the Company, means for any
day the Bond Rating of the Company, if any, established by Standard &
Poor's Ratings Group as in effect at 11:00 A.M., New York City time, on
such day.
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"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or an ERISA Affiliate and no Person other than
the Company and its ERISA Affiliates or (b) was so maintained and in
respect of which the Company or an ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to
be terminated.
"Stated Termination Date" means March 21, 2001 or such later
date as shall be determined pursuant to the provisions of Section 2.23
with respect to non-Objecting Lenders.
"Subsidiary" means, as to any Person, any Business Entity of
which shares of stock or other Equity Interests having ordinary voting
power (other than stock or such other Equity Interests having such
power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such Business
Entity are at the time owned, directly or indirectly through one or
more Subsidiaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Company.
"Taxes" has the meaning assigned to such term in Section
2.20(a).
"Tennessee" means Tennessee Gas Pipeline Company, a Delaware
corporation, and its successors.
"Termination Date" means the earlier of (a) the Stated
Termination Date and (b) the date of termination in whole of the
Commitments pursuant to Section 2.9 or 7.1.
"Termination Event" means (a) a "reportable event," as such
term is described in Section 4043 of ERISA (other than a "reportable
event" not subject to the provision for 30-day notice to the PBGC under
subsection .11, .12, .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615), or an event described in Section 4062(e) of ERISA, or
(b) the withdrawal of the Company or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a
"substantial employer," as such term is defined in Section 4001(a)(2)
of ERISA or the incurrence of liability by the Company or any ERISA
Affiliate under Section 4064 of ERISA upon the termination of a
Multiple Employer Plan, or (c) the filing of a notice of intent to
terminate a Plan or the treatment of a Plan amendment as a termination
under Section 4041 of ERISA, or (d) the institution of proceedings to
terminate a Plan by the PBGC under Section 4042 of ERISA, or (e) the
conditions set forth in Section 302(f)(1)(A) and (B) of ERISA to the
creation of a lien upon property or rights to property of the Company
or any ERISA Affiliate for failure to make a required payment to a Plan
are satisfied, or (f) the adoption of an amendment to a Plan requiring
the provision of security to such Plan, pursuant to Section 307 of
ERISA, or (g) the occurrence of any other event or the existence of any
other condition which would reasonably be expected to result in the
termination of, or the appointment of a trustee to administer, any Plan
under Section 4042 of ERISA.
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"Type" means as to any Advance, its nature as a Base Rate
Advance or a Eurodollar Rate Advance or a Money Market Advance.
"Valero Assets" means those natural gas and natural gas
liquids and related businesses of PG&E Gas Transmission, Texas
Corporation and PG&E Gas Transmission Teco, Inc., acquired by the
Company on or before December 31, 2000.
"Withdrawal Liability" has the meaning given such term under
Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.2 Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding."
SECTION 1.3 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP either
(a) consistent with those principles applied in the preparation of the financial
statements referred to in Section 4.1(e) or (b) not materially inconsistent with
such principles (so that no covenant contained in Section 5.1 or 5.2 would be
calculated or construed in a materially different manner or with materially
different results than if such covenant were calculated or construed in
accordance with clause (a) of this Section 1.3). "Include," "includes" and
"including" shall be deemed to be followed by "without limitation" whether or
not they are in fact followed by such words or words of like import. References
to any agreement or contract are to such agreement or contract as amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.
SECTION 1.4 References. 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 Article, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.1 The Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make revolving credit advances to
the Company from time to time on any Business Day during the period from the
date hereof to and including the Termination Date in an aggregate amount not to
exceed at any time outstanding the amount of such Lender's Commitment; provided
that the aggregate amount of the Advances (other than Advances of Objecting
Lenders) outstanding shall not at any time exceed the aggregate amount of the
Commitments. It is acknowledged and agreed that the aggregate amount of Advances
made by any Lender pursuant to the preceding sentence plus the aggregate amount
of Money Market Advances made by such Lender may exceed such Lender's
Commitment, subject to the proviso clause in the preceding sentence. Each
Borrowing pursuant to this Section 2.1 shall be in
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an aggregate amount of $5,000,000 in the case of a Borrowing comprised of Base
Rate Advances and $20,000,000 in the case of a Borrowing comprised of Eurodollar
Rate Advances, or, in each case, an integral multiple of $1,000,000 in excess
thereof (or, in the case of a Borrowing of Base Rate Advances, the aggregate
unused Commitments, if less) and shall consist of Advances of the same Type made
on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the Company may make
more than one Borrowing on any Business Day and may borrow, repay pursuant to
Section 2.10 or prepay pursuant to Section 2.15, and reborrow under this Section
2.1 or under Section 2.4.
SECTION 2.2 Making the Advances. (a) Each Borrowing of
Advances pursuant to Section 2.1 shall be made on notice by the Company, to the
Agent (a "Notice of Borrowing") received by the Agent, (i) in the case of a
proposed Borrowing pursuant to Section 2.1 comprised of Base Rate Advances, not
later than 10:00 A.M. (New York City time) on the Business Day of such proposed
Borrowing and (ii) in the case of a proposed Borrowing pursuant to Section 2.1
comprised of Eurodollar Rate Advances, not later than 12:00 noon (New York City
time) on the third Business Day prior to the date of such proposed Borrowing.
Each Notice of Borrowing shall be by telecopy or telephone (and if by telephone,
confirmed promptly by telecopier), in substantially the form of Exhibit B,
specifying therein the requested (A) date of such Borrowing, (B) Type of
Advances comprising such Borrowing, (C) aggregate amount of such Borrowing, and
(D) in the case of a Borrowing comprised of Eurodollar Rate Advances, the
initial Interest Period for each such Advance. Each Lender shall, before 1:00
P.M. (New York City time) on the date of such Borrowing, make available to the
Agent at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Reference:
El Paso Energy Corporation, or at such other address designated by notice from
the Agent to the Lenders pursuant to Section 9.2, in same day funds, such
Lender's ratable portion of such Borrowing. Immediately after the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Company at
Chase, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Account No. 323291503,
Reference: El Paso Energy Corporation, or at such other account of the Company
maintained by the Agent (or any successor Agent) designated by the Company and
agreed to by the Agent (or such successor Agent), in same day funds.
(b) Each Notice of Borrowing shall be irrevocable and binding
on the Company. In the case of any Borrowing which the related Notice of
Borrowing specified is to be comprised of Eurodollar Rate Advances, if such
Advances are not made as a result of any failure to fulfill on or before the
date specified for such Borrowing the applicable conditions set forth in Article
III, the Company shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of such failure, including any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Advance to be made by such
Lender as part of such Borrowing.
(c) Unless the Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available to
the Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such Borrowing in accordance with subsection (a) of this Section 2.2 and the
Agent may, in reliance upon such assumption, make available to the Company on
such date a corresponding amount. If and to the extent such Lender shall not
have
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so made such ratable portion available to the Agent, such Lender and the Company
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Company until the date such amount is repaid to the Agent,
at the Effective Federal Funds Rate for such day. If such Lender shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance to the Company as part of such Borrowing for purposes of this
Agreement.
(d) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.3 Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing
indebtedness of the Company to such Lender resulting from each Advance of such
Lender to the Company from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time in respect of such
Advance.
(b) The Agent shall maintain the Register pursuant to Section
9.7(c), and a subaccount therein for each Lender, in which shall be recorded (i)
the amount of each Advance made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Company on account of such Advance
to each Lender hereunder and (iii) both the amount of any sum received by the
Agent hereunder from the Company and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.3(a) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the failure
of any Lender or the Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of the Company to
repay (with applicable interest) the Advances made to the Company by such Lender
in accordance with the terms of this Agreement.
(d) The Company agrees that, upon the request to the Agent by
any Lender, the Company will execute and deliver to such Lender a promissory
note of the Company evidencing the Advances of such Lender to the Company,
substantially in the form of Exhibit A with appropriate insertions as to date
and principal amount (a "Note").
SECTION 2.4 Money Market Advances. In addition to the other
revolving credit Advances provided for in this Agreement, each Lender may, in
its sole discretion on an uncommitted basis, offer to make loans (the "Money
Market Advances," which shall be Advances for purposes of this Agreement) to the
Company on such terms and conditions (including tenor, amount and interest rate)
as such Lender may offer and the Company shall accept. Each Money Market Advance
shall bear interest at such rate as the applicable Lender
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may offer and the Company shall accept. Each Money Market Advance shall be due
and payable on the last day of the Money Market Interest Period applicable to
such Money Market Advance. Money Market Advances may not be prepaid without the
prior written consent of the applicable Lender. Money Market Advances shall be
available for such interest periods ("Money Market Interest Periods") as a
Lender may offer and the Company shall accept (which interest periods may not
end after the then current Stated Termination Date). The Company may request
Money Market Advances by giving the applicable Lender notice by 10:00 a.m., New
York City time, on the Business Day of the proposed Borrowing. For each day on
which the aggregate principal amount of the Advances hereunder is equal to or
greater than 25% of the aggregate amount of the total Commitments hereunder, the
interest rate for each outstanding Money Market Advance will be increased by
0.125% for such day.
SECTION 2.5 [Intentionally left blank]
SECTION 2.6 [Intentionally left blank]
SECTION 2.7 [Intentionally left blank]
SECTION 2.8 Fees. (a) The Company agrees to pay to the Agent
for the account of each Lender a facility fee for the period from the Facility
Fee Commencement Date until all Advances have been paid in full and all
Commitments have been terminated, computed at a variable rate per annum on the
average daily amount of the Commitment of such Lender, which rate will vary
according to the S&P Bond Rating for the Company and the ▇▇▇▇▇'▇ Bond Rating for
the Company as follows:
Bond Rating Facility
(S&P/▇▇▇▇▇'▇) Level Fee Rate
------------- ----- --------
A/A2 or higher I .070%
A-/A3 II .080%
BBB+/Baa1 III .100%
BBB/Baa2 IV .125%
BBB-/Baa3 V .150%
BB+/Ba1 or lower VI .200%;
provided that (i) if the Bond Ratings of the Company do not fall within the same
Level, the rate applicable to such day will be the percentage opposite the Bond
Rating that is at the higher Level (Level I being the highest and Level VI being
the lowest), (ii) in the event a Bond Rating for the Company is not available
from one of the Rating Agencies, the rate shall be based on the Bond Rating of
the other Rating Agency, and (iii) in the event a Bond Rating for the Company is
available from none of the Rating Agencies, the rate will be the percentage
opposite Level VI. Such facility fees shall be payable in arrears on the date
that is the earlier of (i) the Stated Termination Date, (ii) the date that is
three months after the Closing Date, (iii) the Termination Date or (iv) such
earlier date on which the Commitments shall terminate as provided herein, and,
if the Lender is an Objecting Lender, on the Commitment Expiration Date
applicable to such Lender.
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(b) The Company agrees to pay to Chase Securities Inc. the
fees set forth in the letter, dated as of May 26, 2000 from Chase Securities
Inc. and Chase to the Company.
SECTION 2.9 Reduction of the Commitments. The Company shall
have the right, upon at least three Business Days' notice to the Agent, to
terminate in whole or reduce ratably in part the unused portions of the
respective Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of $10,000,000 or any whole multiple of
$1,000,000 in excess thereof.
SECTION 2.10 Repayment of Advances. The Company shall repay to
each Lender on the Termination Date the aggregate principal amount of the
Advances then owing to such Lender provided that the Advances made by Objecting
Lenders shall be repaid as provided in Section 2.23.
SECTION 2.11 Interest on Advances. (a) Ordinary Interest. The
Company shall pay interest on the unpaid principal amount of each Advance of the
Company owing to each Lender from the date of such Advance until such principal
amount is due (whether at stated maturity, by acceleration or otherwise), at the
following rates:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time, payable quarterly in arrears
on the last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
due (whether at stated maturity, by acceleration or otherwise).
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, at a rate per annum equal at
all times during each Interest Period for such Advance to the sum of
the Eurodollar Rate for such Interest Period plus the Applicable
Eurodollar Rate Margin in effect from time to time, payable on the last
day of each such Interest Period and, if any such Interest Period has a
duration of more than three months, on each day which occurs during
such Interest Period every three months from the first day of such
Interest Period, and on the date such Advance shall be Converted or due
(whether at stated maturity, by acceleration or otherwise).
(iii) Money Market Advances. During such periods as such
Advance is a Money Market Advance, at a rate per annum equal at all
times during each Money Market Interest Period for such Advance to the
interest rate for such Money Market Interest Period determined pursuant
to Section 2.4, payable on the last day of each such Money Market
Interest Period and on the date such Advance shall be due (whether at
stated maturity, by acceleration or otherwise).
(b) Default Interest. The Company shall pay interest on the
unpaid principal amount of each Advance to it that is not paid when due (whether
at stated maturity, by acceleration or otherwise) from the date on which such
amount is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times (i) from such due date to the
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last day of the then existing Interest Period in the case of each Eurodollar
Rate Advance, to 1% per annum above the interest rate per annum required to be
paid on such Advance immediately prior to the date on which such amount became
due, and (ii) from and after the last day of the then existing Interest Period,
and at all times in the case of any Base Rate Advance, to 1% per annum above the
Base Rate in effect from time to time.
SECTION 2.12 Additional Interest on Eurodollar Rate Advances.
If any Lender shall determine in good faith that reserves under regulations of
the Board of Governors of the Federal Reserve System are required to be
maintained by it in respect of, or a portion of its costs of maintaining
reserves under such regulations is properly attributable to, one or more of its
Eurodollar Rate Advances, the Company shall pay to such Lender additional
interest on the unpaid principal amount of each such Eurodollar Rate Advance to
it (other than any such additional interest accruing to a particular Lender in
respect of periods prior to the 30th day preceding the date notice of such
interest is given by such Lender as provided in this Section 2.12), payable on
the same day or days on which interest is payable on such Advance, at an
interest rate per annum equal at all times during each Interest Period for such
Advance to the excess of (i) the rate obtained by dividing the Eurodollar Rate
for such Interest Period by a percentage equal to 100% minus the Eurodollar
Reserve Percentage, if any, for such Lender for such Interest Period over (ii)
the Eurodollar Rate for such Interest Period. The amount of such additional
interest (if any) shall be determined by each Lender, and such Lender shall
furnish written notice of the amount of such additional interest to the Company
and the Agent, which notice shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.13 Interest Rate Determination. (a) If the Reference
Lender is not the Agent, the Reference Lender agrees to furnish to the Agent
timely information for the purpose of determining the Eurodollar Rate.
(b) The Agent shall give prompt notice to the Company and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.11(a)(i) or (ii).
(c) [Intentionally left blank]
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders determine and give notice to the Agent that, as a result of
conditions in or generally affecting the London interbank eurodollar market, the
rates of interest determined on the basis of the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Agent shall forthwith so notify the
Company and the Lenders, whereupon,
(i) each such Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base
Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Company and the Lenders that the circumstances
causing such suspension no longer exist.
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(e) If the Company shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.1, the
Agent will forthwith so notify the Company and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Eurodollar
Rate Advances shall automatically Convert into Base Rate Advances, and on and
after such date the right of the Company to Convert such Advances into
Eurodollar Rate Advances shall terminate; provided, however, that if and so long
as each such Eurodollar Rate Advance shall have the same Interest Period as
Eurodollar Rate Advances comprising another Borrowing or other Borrowings, and
the aggregate unpaid principal amount of all such Eurodollar Rate Advances shall
equal or exceed $20,000,000, the Company shall have the right to continue all
such Advances as, or to Convert all such Advances into, Eurodollar Rate Advances
having the same Interest Period.
(g) If the Reference Lender shall for any reason no longer
have a Commitment or any Advances, the Reference Lender shall thereupon cease to
be the Reference Lender, and the Company shall, by notice to the Lenders,
designate another Lender as the Reference Lender (or if, at any time, there is
only one Lender, such Lender shall automatically be the Reference Lender at such
time) so that there shall at all times be a Reference Lender.
SECTION 2.14 Voluntary Conversion of Advances. The Company may
on any Business Day, upon notice given to the Agent, not later than 10:00 A.M.
(New York City time) on the Business Day of the proposed Conversion of
Eurodollar Rate Advances to Base Rate Advances and not later than 12:00 noon
(New York City time) on the third Business Day prior to the date of the proposed
Conversion in the case of a Conversion of Base Rate Advances to Eurodollar Rate
Advances, and subject to the provisions of Sections 2.13, 2.16 and 2.18, Convert
all Advances of one Type (other than Money Market Advances) comprising the same
Borrowing into Advances of another Type (other than Money Market Advances);
provided, however, that any Conversion of any Eurodollar Rate Advances into Base
Rate Advances made on any day other than the last day of an Interest Period for
such Eurodollar Rate Advances shall be subject to the provisions of Section
9.4(b); and provided, further, that, without the consent of all the Lenders, no
Base Rate Advance may be converted into a Eurodollar Rate Advance after the date
that is one month prior to (a) in the case of an Advance made by an Objecting
Lender, such Objecting Lender's Commitment Expiration Date, and (b) in the case
of all Advances, the Termination Date and provided, still further that no Base
Rate Advance may be converted into a Eurodollar Rate Advance if an Event of
Default has occurred and is continuing. Each such notice of a Conversion shall,
within the restrictions specified above, specify (a) the date of such
Conversion, (b) the Advances to be Converted, and (c) if such Conversion is into
Eurodollar Rate Advances, the duration of the Interest Period for each such
Advance.
SECTION 2.15 Optional and Mandatory Prepayments. (a) Optional
Prepayments. The Company may, with respect to an Advance other than a Money
Market Advance, upon (i) in the case of Eurodollar Rate Advances, at least two
Business Days' notice
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and (ii) in the case of Base Rate Advances, telephonic notice not later than
12:00 noon (New York City time) on the date of prepayment, to the Agent which
specifies the proposed date and aggregate principal amount of the prepayment and
the Type of Advances to be prepaid, and if such notice is given the Company
shall, or with respect to a Money Market Advance, with the prior consent of the
relevant Lenders, prepay the outstanding principal amounts of the Advances
comprising the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the amount prepaid; provided,
however, that (A) each partial prepayment of Advances (other than Money Market
Advances) shall be in an aggregate principal amount not less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (B) in the event of any
such prepayment of Eurodollar Rate Advances on any day other than the last day
of an Interest Period for such Eurodollar Rate Advances, the Company shall be
obligated to reimburse the Lenders in respect thereof pursuant to, and to the
extent required by, Section 9.4(b); provided, further, however, that the Company
will use its best efforts to give notice to the Agent of the proposed prepayment
of Base Rate Advances on the Business Day prior to the date of such proposed
prepayment.
(b) Mandatory Prepayments. If, at any time and from time to
time, the aggregate principal amount of Advances (other than Advances of
Objecting Lenders) then outstanding exceeds the Commitments of all the Lenders
after giving effect to any reduction of the Commitments pursuant to Section 2.9,
the Company shall immediately prepay the Advances of Lenders (other than
Objecting Lenders) (to the extent there are such outstanding Advances) by an
amount equal to such excess.
SECTION 2.16 Increased Costs. (a) If, due to either (i) the
introduction after the date of this Agreement of or any change after the date of
this Agreement (including any change by way of imposition or increase of reserve
requirements or assessments other than those referred to in the definition of
"Eurodollar Reserve Percentage" contained in Section 1.1) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request issued or made after the date of this Agreement from or by
any central bank or other governmental authority (whether or not having the
force of law), in each case above other than those referred to in Section 2.17,
there shall be any increase in the cost to any Lender of agreeing to make, fund
or maintain, or of making, funding or maintaining, Eurodollar Rate Advances
funded in the interbank Eurodollar market, then the Company shall from time to
time, upon demand by such Lender (with a copy of such demand to the Agent), pay
to the Agent for the account of such Lender additional amounts sufficient to
reimburse such Lender for all such increased costs (except those costs incurred
more than 60 days prior to the date of such demand; for the purposes hereof any
cost or expense allocable to a period prior to the publication or effective date
of such an introduction, change, guideline or request shall be deemed to be
incurred on the later of such publication or effective date). Each Lender agrees
to use its best efforts promptly to notify the Company of any event referred to
in clause (i) or (ii) above, provided that the failure to give such notice shall
not affect the rights of any Lender under this Section 2.16(a) (except as
otherwise expressly provided above in this Section 2.16(a)). A certificate as to
the amount of such increased cost, submitted to the Company and the Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error. After one or more Lenders have notified the Company of any increased
costs pursuant to this Section 2.16, the Company may specify by notice to the
Agent and the affected Lenders that, after the date of such notice whenever the
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election of Eurodollar Rate Advances by the Company for an Interest Period or
portion thereof would give rise to such increased costs, such election shall not
apply to the Advances of such Lenders during such Interest Period or portion
thereof, and, in lieu thereof, such Advances shall during such Interest Period
or portion thereof be Base Rate Advances. Each Lender agrees to use its best
efforts (including a reasonable effort to change its lending office or to
transfer its affected Advances to an affiliate of such Lender) to avoid, or
minimize the amount of, any demand for payment from the Company under this
Section 2.6.
(b) In the event that any Lender shall change its lending
office and such change results (at the time of such change) in increased costs
to such Lender, the Company shall not be liable to such Lender for such
increased costs incurred by such Lender to the extent, but only to the extent,
that such increased costs shall exceed the increased costs which such Lender
would have incurred if the lending office of such Lender had not been so
changed, but, subject to subsection (a) above and to Section 2.18, nothing
herein shall require any Lender to change its lending office for any reason.
SECTION 2.17 Increased Capital. If either (a) the introduction
of or any change in or in the interpretation of any law or regulation or (b)
compliance by any Lender with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and such Lender determines
that the amount of such capital is increased by or based upon the existence of
such Lender's commitment to lend hereunder and other commitments of this type,
then, within ten days after demand, and delivery to the Company of the
certificate referred to in the last sentence of this Section 2.17 by such Lender
(with a copy of such demand to the Agent), the Company shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder (except any such increase in capital
incurred more than, or compensation attributable to the period before, 90 days
prior to the date of such demand; for the purposes hereof any increase in
capital allocable to, or compensation attributable to, a period prior to the
publication or effective date of such an introduction, change, guideline or
request shall be deemed to be incurred on the later of such publication or
effective date). Each Lender agrees to use its best efforts promptly to notify
the Company of any event referred to in clause (a) or (b) above, provided that
the failure to give such notice shall not affect the rights of any Lender under
this Section 2.17 (except as otherwise expressly provided above in this Section
2.17). A certificate in reasonable detail as to the basis for, and the amount
of, such compensation submitted to the Company by such Lender shall, in the
absence of manifest error, be conclusive and binding for all purposes.
SECTION 2.18 Illegality. Notwithstanding any other provision
of this Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any
Lender or its lending office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain such Advances
hereunder, such Lender may, by notice to the Company and the Agent, suspend the
right of the Company to
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elect Eurodollar Rate Advances from such Lender and, if necessary in the
reasonable opinion of such Lender to comply with such law or regulation, Convert
all such Eurodollar Rate Advances of such Lender to Base Rate Advances at the
latest time permitted by the applicable law or regulation, and such suspension
and, if applicable, such Conversion shall continue until such Lender notifies
the Company and the Agent that the circumstances making it unlawful for such
Lender to perform such obligations no longer exist (which such Lender shall
promptly do when such circumstances no longer exist). So long as the obligation
of any Lender to make Eurodollar Rate Advances has been suspended under this
Section 2.18, all Notices of Borrowing specifying Advances of such Type shall be
deemed, as to such Lender, to be requests for Base Rate Advances. Each Lender
agrees to use its best efforts (including a reasonable effort to change its
lending office or to transfer its affected Advances to an affiliate) to avoid
any such illegality.
SECTION 2.19 Pro Rata Treatment, Payments and Computations.
(a) Each Borrowing by the Company in respect of Advances other than Money Market
Advances shall be made pro rata according to the respective Commitment
Percentages of the Lenders. The Company shall make each payment hereunder
(including under Section 2.8, 2.10 or 2.11) and under the Notes, whether the
amount so paid is owing to any or all of the Lenders or to the Agent, not later
than 12:00 noon (New York City time) without setoff, counterclaim, or any other
deduction whatsoever, on the day when due in Dollars to the Agent at its address
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Reference: El Paso Energy
Corporation, or at such other location designated by notice to the Company from
the Agent and agreed to by the Company, in same day funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.12, 2.16, 2.17, 2.18 or 2.20 or in respect of principal of
or interest on Money Market Advances) according to the respective amounts of
such principal, interest or facility fees then due and owing to the Lenders, and
like funds relating to the payment of any other amount payable to any Lender to
such Lender, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 9.7(d),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Prime Rate and
of facility fees shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Effective Federal Funds Rate shall be made by the Agent,
and all computations of interest pursuant to Section 2.4 or 2.12 shall be made
by each Lender with respect to its own Advances, on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable. Each determination by the Agent (or, in the case of Section 2.4,
2.12, 2.16, 2.17, 2.18 or 2.20, by each Lender with respect to its own Advances)
of an interest rate or an increased cost or increased capital or of illegality
hereunder shall be conclusive and binding for all purposes if made reasonably
and in good faith.
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(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest; provided, however,
if such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the
Company prior to the date on which any payment is due to the Lenders hereunder
that the Company will not make such payment in full, the Agent may assume that
the Company has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Company shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at a rate equal to the Effective Federal Funds Rate
for such day.
SECTION 2.20 Taxes. (a) Any and all payments by the Company
hereunder or under the Notes to each Indemnified Party shall be made, in
accordance with Section 2.19, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding all taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, imposed by the jurisdiction under the laws of which such
Indemnified Party is organized, domiciled, resident or doing business, or any
political subdivision thereof or by any jurisdiction in which such Indemnified
Party holds any interest in connection with this Agreement or any Note
(including, in the case of each Lender, the jurisdiction of such Lender's
lending office) or any political subdivision thereof, other than by any
jurisdiction with which the Indemnified Party's connection arises solely from
having executed, delivered or performed obligations or received a payment under,
or enforced, this Agreement or any Note (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Company shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder or under any Note to any
Indemnified Party, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) such Indemnified Party receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Company shall make or cause to be made such deductions and (iii)
the Company shall pay or cause to be paid the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law, provided that the Company shall not be required to pay any additional
amount (and shall be relieved of any liability with respect thereto) pursuant to
this subsection (a) to any Indemnified Party that either (A) on the date such
Lender became an Indemnified Party hereunder, (I) was not entitled to submit a
U.S. Internal Revenue Service form 1001 (relating to such Indemnified Party, and
entitling it to a complete exemption from United States withholding taxes on all
amounts to be received by such Indemnified Party pursuant to this Agreement) and
a U.S. Internal Revenue Service form 4224 (relating to all amounts to be
received by such Indemnified Party pursuant to this Agreement) and (II) was not
a United States
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person (as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code) or (B) has failed to submit any form or certificate that it was required
to file or provide pursuant to subsection (d) of this Section 2.20 and is
entitled to file or give, as applicable, under applicable law, provided,
further, that should an Indemnified Party become subject to Taxes because of its
failure to deliver a form required hereunder, the Company shall take such steps
as such Indemnified Party shall reasonably request to assist such Indemnified
Party to recover such Taxes, and provided, further, that each Indemnified Party,
with respect to itself, agrees to indemnify and hold harmless the Company from
any taxes, penalties, interest and other expenses, costs and losses incurred or
payable by the Company as a result of the failure of the Company to comply with
its obligations under clause (ii) or (iii) above in reliance on any form or
certificate provided to it by such Indemnified Party pursuant to this Section
2.20. If any Indemnified Party receives a net credit or refund in respect of
such Taxes or amounts so paid by the Company, it shall promptly notify the
Company of such net credit or refund and shall promptly pay such net credit or
refund to the Company, provided that the Company agrees to return such net
credit or refund if the Indemnified Party to which such net credit or refund is
applicable is required to repay it.
(b) In addition, the Company agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made by the Company hereunder or
under the Notes or from the execution, delivery or performance of, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Company will indemnify each Indemnified Party and the
Agent for the full amount of Taxes or Other Taxes (including, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 2.20)
paid by such Indemnified Party and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto except as a result of
the gross negligence (which shall in any event include the failure of such
Indemnified Party to provide to the Company any form or certificate that it was
required to provide pursuant to subsection (d) below) or willful misconduct of
such Indemnified Party, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within 30 days from the
date such Indemnified Party makes written demand therefor.
(d) On or prior to the date on which each Indemnified Party
organized under the laws of a jurisdiction outside the United States becomes an
Indemnified Party hereunder, such Indemnified Party shall provide the Company
with U.S. Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the U.S. Internal Revenue Service, certifying that
such Indemnified Party is fully exempt from United States withholding taxes with
respect to all payments to be made to such Indemnified Party hereunder, or other
documents satisfactory to the Company indicating that all payments to be made to
such Indemnified Party hereunder are fully exempt from such taxes. Thereafter
and from time to time (but only so long as such Indemnified Party remains
lawfully able to do so), each such Indemnified Party shall submit to the Company
such additional duly completed and signed copies of one or the other of such
Forms (or such successor Forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may be (i) notified by the Company
to such
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Indemnified Party and (ii) required under then-current United States law or
regulations to avoid United States withholding taxes on payments in respect of
all amounts to be received by such Indemnified Party pursuant to this Agreement
or the Notes. Upon the request of the Company from time to time, each
Indemnified Party that is a United States person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code) shall submit to the Company a
certificate to the effect that it is such a United States person. If any
Indemnified Party determines, as a result of any change in applicable law,
regulation or treaty, or in any official application or interpretation thereof,
that it is unable to submit to the Company any form or certificate that such
Indemnified Party is obligated to submit pursuant to this subsection (d), or
that such Indemnified Party is required to withdraw or cancel any such form or
certificate previously submitted, such Indemnified Party shall promptly notify
the Company of such fact.
(e) Any Indemnified Party claiming any additional amounts
payable pursuant to this Section 2.20 shall use its best efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its lending office if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts which may
thereafter accrue and would not, in the reasonable judgment of such Indemnified
Party, be otherwise disadvantageous to such Indemnified Party.
(f) Without prejudice to the survival of any other agreement
of the Company hereunder, the agreements and obligations of the Company and each
Indemnified Party contained in this Section 2.20 shall survive the payment in
full of principal and interest hereunder and under the Notes.
(g) Any other provision of this Agreement to the contrary
notwithstanding, any amounts which are payable by the Company under this Section
2.20 shall not be payable under Section 2.16.
SECTION 2.21 Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances made by it (other
than pursuant to Section 2.4, 2.12, 2.16, 2.17, 2.18 or 2.20) in excess of its
ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and each Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (a) the amount of
such Lender's required repayment to (b) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Company
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the Company
in the amount of such participation.
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SECTION 2.22 Use of Proceeds. Proceeds of the Advances may be
used for general business purposes of the Company and its Subsidiaries,
including for acquisitions and for payment of commercial paper issued by the
Company, and to refinance any Indebtedness of the Company and its Subsidiaries
(whether in connection with any acquisition or otherwise).
SECTION 2.23 Extension of Stated Termination Date. (a) Not
less than 10 days and not more than 30 days prior to the Stated Termination Date
then in effect, provided that no Event of Default shall have occurred and be
continuing, the Company may request an extension of such Stated Termination Date
by submitting to the Agent an Extension Request containing the information in
respect of such extension specified in Exhibit G, which the Agent shall promptly
furnish to each Lender. Each Lender shall, not less than 10 days and not more
than 30 days prior to the Stated Termination Date then in effect, notify the
Company and the Agent of its election to extend or not extend the Stated
Termination Date as requested in such Extension Request. Notwithstanding any
provision of this Agreement to the contrary, any notice by any Lender of its
willingness to extend the Stated Termination Date shall be revocable by such
Lender in its sole and absolute discretion at any time prior to the date which
is 10 days prior to the Stated Termination Date then in effect. For each Lender
that shall approve in writing the extension of the Stated Termination Date
requested in such Extension Request, the Stated Termination Date shall
automatically and without any further action by any Person be extended for the
period specified in such Extension Request with regard to each such approving
Lender; provided that (i) each extension pursuant to this Section 2.23 shall be
for a maximum of three months, (ii) the Commitment of any Lender that does not
consent in writing, or which revokes, in accordance with the provisions of this
Section 2.23, its consent to such extension not less than 10 days and not more
than 30 days prior to the Stated Termination Date then in effect and has not
thereafter reinstated its consent (an "Objecting Lender") shall, unless earlier
terminated in accordance with this Agreement, expire on the Stated Termination
Date in effect on the date of such Extension Request (such Stated Termination
Date, if any, referred to as the "Commitment Expiration Date" with respect to
such Objecting Lender), (iii) no more than three extensions may be requested
pursuant to this Section 2.23, (iv) in no event shall the Termination Date be
extended beyond the first anniversary of the Closing Date, and (v) no such
extension shall be effective unless the Company has paid all fees to the Lenders
required to be paid on the effective date of such extension. If, not less than
10 days and not more than 30 days prior to the Stated Termination Date then in
effect, no Lenders shall approve in writing the extension of the Stated
Termination Date requested in an Extension Request, the Stated Termination Date
shall not be extended pursuant to such Extension Request. The Agent shall
promptly notify (y) the Lenders and the Company of any extension of the Stated
Termination Date pursuant to this Section 2.23 and (z) the Company and the
Lenders of any Lender which becomes an Objecting Lender.
(b) Advances owing to any Objecting Lender on the Commitment
Expiration Date with respect to such Lender shall be repaid in full on or before
such Commitment Expiration Date.
(c) The Company shall have the right, so long as no Event of
Default has occurred and is then continuing, upon giving notice to the Agent and
the Objecting Lenders in accordance with Section 2.15, to prepay in full the
Advances of the Objecting Lenders, together with accrued interest thereon, any
amounts payable pursuant to Sections 2.11, 2.12, 2.16, 2.17,
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2.18, 2.20 and 9.4(b) and any accrued and unpaid facility fee or other amounts
payable to the Objecting Lenders hereunder and/or, upon giving not less than
three Business Days' notice to the Objecting Lenders and the Agent, to cancel
the whole or part of the Commitments of the Objecting Lenders.
(d) Notwithstanding the foregoing, if any Lender becomes an
Objecting Lender, the Company may, at its own expense and in its sole discretion
and prior to the then Stated Termination Date, require such Lender to transfer
or assign, in whole or in part, without recourse (in accordance with Section
9.7), all or part of its interests, rights and obligations under this Agreement
to an Eligible Assignee (provided that the Company, with the full cooperation of
such Lender, can identify an Eligible Assignee that is ready, willing and able
to be an assignee with respect thereto) which shall assume such assigned
obligations (which assignee may be another Lender, if such assignee Lender
accepts such assignment); provided that (A) the assignee or the Company, as the
case may be, shall have paid to such Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the Advances
made by it hereunder and all other amounts owed to it hereunder, including, any
amounts owing pursuant to Section 9.4(b) and any amounts that would be owing
under said Section if such Advances were prepaid on the date of such assignment,
and (B) such assignment does not conflict with any law, rule or regulation or
order of any governmental authority. Any assignee which becomes a Lender as a
result of such an assignment made pursuant to this paragraph (d) shall be deemed
to have consented to the applicable Extension Request and, therefore, shall not
be an Objecting Lender.
SECTION 2.24 [Intentionally left blank]
SECTION 2.25 Replacement of Lenders. If any Lender requests
compensation under Sections 2.12, 2.16 or 2.17 or if the Company is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.20, or if any Lender suspends the
right of the Company to elect Eurodollar Rate Advances from such Lender pursuant
to Section 2.18, or if any Lender defaults in its obligation to fund Advances
hereunder, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.7), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Agent, which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Company (in the case of all other amounts) and (iii) in the case of
any such assignment resulting from a claim for compensation under Sections 2.12
, 2.16 or 2.17 or payments required to be made pursuant to Section 2.20, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation cease to apply.
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ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.1 Conditions Precedent to Effectiveness of this
Agreement. This Agreement shall become effective (the "Effective Date") when (i)
it shall have been executed by the Company and the Agent, and (ii) the Agent and
the Company either shall have been notified by each Lender that such Lender has
executed it or shall have received a counterpart of this Agreement executed by
such Lender (or compliance with the forgoing shall have been waived by the
Lenders). Anything in this Agreement to the contrary notwithstanding, if all of
the conditions to effectiveness of this Agreement specified in this Section 3.1
shall not have been fulfilled on or before January 1, 2001, (i) the Company
shall on such date pay all accrued and unpaid facility fees pursuant to Section
2.8 and (ii) this Agreement, and all of the obligations of the Company, the
Lenders and the Agent hereunder, shall be terminated on and as of 5:00 P.M. (New
York City time) on January 1, 2001; provided, however, that as soon as the Agent
determines that all of the conditions to effectiveness of this Agreement
specified in this Section 3.1 shall have been fulfilled on or before January 1,
2001, the Agent shall furnish written notice to the Company and the Lenders to
the effect that it has so determined, and such notice by the Agent shall
constitute conclusive evidence that this Agreement shall have become effective
for all purposes. Notwithstanding the foregoing, the obligations of the Company
to pay fees pursuant to Section 2.8 as well as all obligations of the Company
pursuant to Section 9.4 shall survive the termination of this Agreement.
SECTION 3.2 Conditions Precedent to Initial Advances. The
agreement of each Lender to make the initial Advances to be made by it to the
Company hereunder is subject to (the date upon which all conditions listed in
Section 3.2(a), 3.2(b) and 3.2(c) are satisfied, the "Closing Date") (a) the
occurrence of the Effective Date hereunder, (b) the purchase by the Company of
the Valero Assets from PG&E Corporation prior to, or substantially
simultaneously with, the making of the initial Advances, and (c) the receipt by
the Agent of the following in form and substance satisfactory to the Agent and
in sufficient copies for each Lender:
(i) Certified copies of the resolutions of the Board of
Directors of the Company approving the borrowings contemplated hereby
and authorizing the execution of this Agreement and the Notes, and of
all documents evidencing other necessary corporate action of the
Company and governmental approvals to the Company, if any, with respect
to this Agreement and the Notes.
(ii) A certificate of the Secretary or an Assistant Secretary
of the Company certifying the names and true signatures of the officers
of the Company authorized to sign this Agreement and the other
documents to be delivered by it hereunder.
(iii) A favorable opinion of the Senior Counsel of the
Company, or the Associate General Counsel of the Company, in
substantially the form of Exhibit D.
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(iv) A favorable opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, New
York counsel to the Company, in substantially the form of Exhibit E.
(v) A letter from the Process Agent, in substantially the form
of Exhibit F, agreeing to act as Process Agent for the Company and to
forward forthwith all process received by it to the Company.
SECTION 3.3 [Intentionally left blank]
SECTION 3.4 Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance (including the initial Advance, but
excluding any continuation or Conversion of an Advance) on the occasion of any
Borrowing shall be subject to the conditions precedent that on the date of such
Borrowing this Agreement shall have become effective pursuant to Section 3.1
and, before and immediately after giving effect to such Borrowing and to the
application of the proceeds therefrom, the following statements shall be true
and correct, and the giving by the Company of the applicable Notice of Borrowing
(where applicable) and the acceptance by the Company of the proceeds of such
Borrowing shall constitute its representation and warranty that on and as of the
date of such Borrowing, before and immediately after giving effect thereto and
to the application of the proceeds therefrom, the following statements are true
and correct:
(i) each representation and warranty contained in Section 4.1
is correct in all material respects as though made on and as of such
date; and
(ii) no event has occurred and is continuing, or would result
from such Borrowing, which constitutes an Event of Default or a
Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
Each Principal Subsidiary is duly incorporated, validly existing and in
good standing in the jurisdiction of its incorporation. The Company and
each Principal Subsidiary possess all corporate powers and all other
authorizations and licenses necessary to engage in its business and
operations as now conducted, the failure to obtain or maintain which
would have a Material Adverse Effect.
(b) The execution, delivery and performance by the Company of
this Agreement and the Notes are within the Company's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (A) the Company's charter or
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by-laws or (B) any law or any material contractual restriction binding
on or affecting the Company.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Company of this Agreement or the Notes, except filings necessary to
comply with laws, rules, regulations and orders required in the
ordinary course to comply with ongoing obligations of the Company under
Section 5.1(a) and (b).
(d) This Agreement constitutes, and the Notes when delivered
hereunder shall constitute, the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, except as may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general principles of
equity.
(e) The consolidated balance sheet of the Company and its
consolidated Subsidiaries as at December 31, 1999, and the related
consolidated statements of income and cash flows of the Company and its
consolidated Subsidiaries for the fiscal year then ended, reported on
by PricewaterhouseCoopers LLP, independent public accountants, copies
of which have been furnished to the Agent and the Lenders prior to the
date hereof, fairly present the consolidated financial condition of the
Company and its consolidated Subsidiaries as at such date and the
consolidated results of the operations of the Company and its
consolidated Subsidiaries for the period ended on such date, all in
accordance with GAAP consistently applied, and since December 31, 1999,
there has been no material adverse change in such condition or
operations. The unaudited consolidated balance sheet of the Company and
its consolidated Subsidiaries as of June 30, 2000, and the related
consolidated statements of income and cash flows of the Company and its
consolidated Subsidiaries for the three months then ended, certified by
the chief financial officer of the Company, copies of which have been
furnished to the Agent prior to the date hereof, fairly present the
consolidated results of operations of the Company and its consolidated
Subsidiaries for the three months then ended, all in accordance with
GAAP consistently applied (except as approved by the chief financial
officer of the Company and as disclosed therein) and subject to normal
year-end audit adjustments.
(f) Each of the Company and its Subsidiaries is in compliance
with all laws, rules, regulations and orders of any governmental
authority applicable to it or its property except where the failure to
comply, individually or in the aggregate, would not in the reasonable
judgment of the Company be expected to result in a Material Adverse
Effect.
(g) There is no action, suit or proceeding pending, or to the
knowledge of the Company threatened, against or involving the Company
or any Principal Subsidiary in any court, or before any arbitrator of
any kind, or before or by any governmental body, existing as at the
Effective Date, which in the reasonable judgment of the Company (taking
into account the exhaustion of all appeals) would have a Material
Adverse Effect,
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or which purports to affect the legality, validity, binding effect or
enforceability of this Agreement or the Notes.
(h) The Company and each Principal Subsidiary have duly filed
all tax returns required to be filed, and have duly paid and discharged
all taxes, assessments and governmental charges upon it or against its
properties now due and payable, the failure to pay which would have a
Material Adverse Effect, unless and to the extent only that the same
are being contested in good faith and by appropriate proceedings by the
Company or the appropriate Principal Subsidiary.
(i) The Company and each Principal Subsidiary have good title
to their respective properties and assets, free and clear of all
mortgages, liens and encumbrances, except for mortgages, liens and
encumbrances (including covenants, restrictions, rights, easements and
minor irregularities in title) which do not materially interfere with
the business or operations of the Company or such Principal Subsidiary
as presently conducted or which are permitted by Section 5.2(a), and
except that no representation or warranty is being made with respect to
Margin Stock.
(j) No Termination Event has occurred or is reasonably
expected to occur with respect to any Plan which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default
under Section 7.1(g).
(k) Each Plan has complied with the applicable provisions of
ERISA and the Code where the failure to so comply would reasonably be
expected to result in an aggregate liability that would exceed 10% of
the Net Worth of the Company.
(l) The statement of assets and liabilities of each Plan and
the statements of changes in fund balance and in financial position, or
the statement of changes in net assets available for plan benefits, for
the most recent plan year for which an accountant's report with respect
to such Plan has been prepared, copies of which report have been
furnished to the Agent, fairly present the financial condition of such
Plan as at such date and the results of operations of such Plan for the
plan year ended on such date.
(m) Neither the Company nor any ERISA Affiliate has incurred,
or is reasonably expected to incur, any Withdrawal Liability to any
Multiemployer Plan which, when aggregated with all other amounts
required to be paid to Multiemployer Plans in connection with
Withdrawal Liability (as of the date of determination), would exceed
10% of the Net Worth of the Company.
(n) Neither the Company nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization,
insolvent or has been terminated, within the meaning of Title IV of
ERISA, and no Multiemployer Plan is reasonably expected to be in
reorganization, insolvent or to be terminated within the meaning of
Title IV of ERISA the effect of which reorganization, insolvency or
termination would be the occurrence of an Event of Default under
Section 7.1(i).
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(o) The Company 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.
(p) The Company is not a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(q) The borrowings by the Company under this Agreement and the
Notes and the applications of the proceeds thereof as provided herein
will not violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
All representations and warranties made by the Company herein or made in any
certificate delivered pursuant hereto shall survive the making of the Advances
and the execution and delivery to the Lenders of this Agreement and the Notes.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.1 Affirmative Covenants. So long as any amount
payable by the Company hereunder or under any Note shall remain unpaid or any
Lender shall have any Commitment hereunder, the Company will, unless the
Majority Lenders shall otherwise consent in writing:
(a) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each Principal Subsidiary to preserve and maintain,
its existence, rights (organizational and statutory) and material
franchises, except as otherwise permitted by Section 5.2(d) or 5.2(e)
and except that nothing herein shall prevent any change in Business
Entity form of the Company or any Principal Subsidiary.
(b) Compliance with Laws, Etc. Comply, and cause each
Principal Subsidiary to comply, in all material respects with all
applicable laws, rules, regulations and orders (including, all
environmental laws and laws requiring payment of all taxes, assessments
and governmental charges imposed upon it or upon its property except to
the extent contested in good faith by appropriate proceedings) the
failure to comply with which would have a Material Adverse Effect.
(c) Visitation Rights. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Company and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Company and any of its Subsidiaries with
any of their officers and with their independent certified public
accountants.
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(d) Books and Records. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all its respective financial
transactions and the assets and business of the Company and each of its
Subsidiaries, as applicable, in accordance with GAAP either (i)
consistently applied or (ii) applied in a changed manner provided such
change shall have been disclosed to the Agent and shall have been
consented to by the accountants which (as required by Section 5.3(b))
report on the financial statements of the Company and its consolidated
Subsidiaries for the fiscal year in which such change shall have
occurred.
(e) Maintenance of Properties, Etc. Maintain and preserve, and
cause each Principal Subsidiary to maintain and preserve, all of its
properties which are used in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, to the
extent that any failure to do so would have a Material Adverse Effect.
(f) Maintenance of Insurance. Maintain, and cause each
Principal Subsidiary to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Company or such Subsidiary operates.
SECTION 5.2 Negative Covenants. So long as any amount payable
by the Company hereunder or under any Note shall remain unpaid or any Lender
shall have any Commitment hereunder, the Company will not, unless the Majority
Lenders shall otherwise consent in writing:
(a) Liens, Etc. (i) Create, assume or suffer to exist, or
permit any Principal Subsidiary to create, assume or suffer to exist,
any Liens upon or with respect to any of its Equity Interests in any
Principal Subsidiary, whether now owned or hereafter acquired, or (ii)
create or assume, or permit any Principal Subsidiary to create or
assume, any Liens upon or with respect to any other assets material to
the consolidated operations of the Company and its consolidated
Subsidiaries taken as a whole securing the payment of Indebtedness and
Guaranties in an aggregate amount (determined without duplication of
amount (so that the amount of a Guarantee will be excluded to the
extent the Indebtedness Guaranteed thereby is included in computing
such aggregate amount)) exceeding the greater of (x) $300,000,000 and
(y) 10% of Net Worth as at the date of such creation or assumption;
provided, however, that this subsection (a) shall not apply to:
(A) Liens on the Equity Interests in, or Indebtedness
or other obligations of, or assets of any Project Financing
Subsidiary (or any Equity Interests in, or Indebtedness or
other obligations of, any Business Entity which are directly
or indirectly owned by any Project Financing Subsidiary)
securing the payment of a Project Financing and related
obligations;
(B) Liens on (1) assets acquired by the Company or
any of its Subsidiaries after February 11, 1992 to the extent
that such Liens existed at the
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time of such acquisition and were not placed thereon by or
with the consent of the Company in contemplation of such
acquisition and (2) Equity Interests acquired after February
11, 1992 in a Business Entity that has become or becomes a
Subsidiary of the Company, or on assets of any such Business
Entity, to the extent that such Liens existed at the time of
such acquisition and were not placed thereon by or with the
consent of the Company in contemplation of such acquisition;
(C) Liens created by any Alternate Program or any
document executed by the Company or any of its Principal
Subsidiaries in connection therewith;
(D) Liens on Margin Stock;
(E) Permitted Liens;
(F) Liens arising out of the refinancing, extension,
renewal or refunding of any Indebtedness or Guaranty or other
obligation secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that the principal
amount of such Indebtedness or Guaranty or other obligation is
not increased (except by the amount of costs reasonably
incurred in connection with the issuance thereof) beyond the
highest previous amount thereof and such Indebtedness or
Guaranty or other obligation is outstanding immediately prior
to the refinancing, extension, renewal or refunding and is not
secured by any additional assets that would not have been
permitted by this Section to secure the Indebtedness or
Guaranty or other obligation refinanced, extended, renewed or
refunded; and
(G) Liens on products and proceeds (including
dividend, interest and like payments on, and insurance and
condemnation proceeds and rental, lease, licensing and similar
proceeds) of, and property evidencing or embodying, or
constituting rights or other general intangibles directly
relating to or arising out of, and accessions and improvements
to, collateral subject to Liens permitted by this Section
5.2(a).
(b) Consolidated Debt and Guarantees to Capitalization. Permit
the ratio of (A) the sum of (1) the aggregate amount of consolidated
Debt of the Company and its consolidated Subsidiaries (without
duplication of amount under this clause (A) and determined as to all of
the foregoing entities on a consolidated basis) plus (2) the aggregate
amount of consolidated Guaranties of the Company and its consolidated
Subsidiaries (without duplication of amount under this clause (A) and
determined as to all of the foregoing entities on a consolidated basis)
to (B) Capitalization of the Company (without duplication and
determined as to all of the foregoing entities on a consolidated basis)
to exceed 0.7 to 1.
(c) Debt, Etc. Permit any of its consolidated Subsidiaries to
incur or become liable for any Debt, any Guaranty or any reimbursement
obligation with respect to any letter of credit (other than any Project
Financing), if, immediately after giving effect to
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such Debt, Guaranty or reimbursement obligation and the receipt and
application of any proceeds thereof or value received in connection
therewith, the aggregate amount (determined without duplication of
amount) of Debt, Guaranties and letter of credit reimbursement
obligations of the Company's consolidated Subsidiaries owing to Persons
other than the Company and its consolidated Subsidiaries (other than
any Project Financing) would exceed the greater of (x) $600,000,000 and
(y) 10% of Net Worth determined as at the date of incurrence or
assumption thereof; provided, however, that the following Debt,
Guaranties or reimbursement obligations shall be excluded from the
application of, and calculation set forth in, this paragraph (c): (A)
Debt, Guaranties or reimbursement obligations incurred by (x) Mojave or
(y) EPNGC, (B) Debt, Guaranties or reimbursement obligations arising
under (x) the EPTPC Facility or (y) the Existing 364-Day Facility or
the Existing 3-Year Facility, (C) Debt, Guaranties or reimbursement
obligations incurred by El Paso Field Services Company up to an amount
not to exceed at any time outstanding the tangible net worth of El Paso
Field Services Company, provided that such Debt may be guaranteed by
the Company, (D) Excluded Acquisition Debt, (E) successive extensions,
refinancings or replacements (at the same Subsidiary or at any other
consolidated Subsidiary of the Company) of Debt, Guaranties or
reimbursement obligations (or commitments in respect thereof) referred
to in clauses (A), (B) and (D) above and in an amount not in excess of
the amounts so extended, refinanced or replaced (or the amount of
commitments in respect thereof) and (F) Debt, Guarantees or
reimbursement obligations incurred by Tennessee pursuant to one or more
commercial paper programs allowing for the issuance by Tennessee of
items of commercial paper having maturity dates not later than one year
from the dates of their respective issuance provided that such Debt,
Guarantees or reimbursement obligations of Tennessee shall be in an
aggregate amount not to exceed at any time the excess of (x) the sum of
(1) the aggregate amount of Commitments, as defined in the Existing
364-Day Facility, and (2) the aggregate amount of Commitments as
defined in the Existing 3-Year Facility, over (y) the sum of (1) the
aggregate amount of Advances, as defined in and outstanding pursuant
to, the Existing 364-Day Facility, (2) the aggregate amount of
Advances, as defined in and outstanding pursuant to, the Existing
3-Year Facility, and (3) the aggregate principal amount of commercial
paper outstanding from time to time that (I) is issued by the Company
and its Subsidiaries (other than Tennessee) and (II) relies upon credit
availability under either the Existing 364-Day Facility or the Existing
3-Year Facility for commercial paper liquidity purposes.
(d) Sale, Etc. of Assets. Sell, lease or otherwise transfer,
or permit any Principal Subsidiary to sell, lease or otherwise
transfer, (in either case, whether in one transaction or in a series of
transactions) assets constituting all or substantially all of the
consolidated assets of the Company and its Principal Subsidiaries taken
as a whole, provided that provisions of this subsection (d) shall not
apply to:
(i) any sale of receivables and related rights
pursuant to any Alternate Program;
(ii) any Project Financing Subsidiary and the
assets thereof;
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(iii) sales, leases or other transfers of
assets or capital stock of any Subsidiary of the Company other
than any Principal Subsidiary;
(iv) any sale of Margin Stock;
(v) any sale of up to 20% of the equity of El
Paso Field Services Company in an initial public offering of
such Person's Equity Interests;
(vi) any sale, lease or other transfer to the
Company or any Principal Subsidiary, or to any Business Entity
that after giving effect to such transfer will become and be
either (A) a Principal Subsidiary in which the Company's
direct or indirect equity interest will be at least as great
as its direct or indirect equity interest in the transferor
immediately prior thereto or (B) a directly or indirectly
wholly-owned Principal Subsidiary; and
(vii) any transfer permitted by Section 5.2(e);
and
(viii) any transfer to the Company or any of
its Subsidiaries of any stock or assets other than FERC
regulated assets (or stock or any other equity interest in an
entity owning FERC regulated assets) used in the mainline gas
transmission business; provided that no Event of Default or
Default, shall have occurred and be continuing before and
after giving effect to such transfer.
(e) Mergers, Etc. Merge or consolidate with any Person, or
permit any of its Principal Subsidiaries to merge or consolidate with
any Person, except that (i) any Principal Subsidiary may merge or
consolidate with (or liquidate into) any other Subsidiary (other than a
Project Financing Subsidiary, unless the successor Business Entity is
not treated as a Project Financing Subsidiary under this Agreement) or
may merge or consolidate with (or liquidate into) the Company, provided
that (A) if such Principal Subsidiary merges or consolidates with (or
liquidates into) the Company, either (x) the Company shall be the
continuing or surviving Business Entity or (y) the continuing or
surviving Business Entity is organized under the laws of the United
States or a State thereof and unconditionally assumes by agreement all
of the performance obligations and payment Obligations of the Company
under this Agreement and (B) if any such Principal Subsidiary merges or
consolidates with (or liquidates into) any other Subsidiary, one or
more Business Entities that are Subsidiaries are the continuing or
surviving Business Entity(ies) and, if either such Subsidiary is not
directly or indirectly wholly-owned by the Company, such merger or
consolidation is on an arm's length basis, and (ii) the Company or any
Principal Subsidiary may merge or consolidate with any other Business
Entity (that is, in addition to the Company or any Subsidiary),
provided that (A) if the Company merges or consolidates with any such
other Business Entity, either (x) the Company is the continuing or
surviving Business Entity or (y) the continuing or surviving Business
Entity is organized under the laws of the United States or a State
thereof and unconditionally assumes by agreement all of the performance
obligations and payment Obligations of the Company under this
Agreement, (B) if any Principal Subsidiary merges or consolidates with
any such other Business Entity, the
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surviving Business Entity is directly or indirectly a wholly-owned
Principal Subsidiary of the Company, (C) if either the Company or any
Principal Subsidiary merges or consolidates with any such other
Business Entity, after giving effect to such merger or consolidation no
Event of Default or Default, shall have occurred and be continuing.
SECTION 5.3 Reporting Requirements. So long as any amount
payable by the Company hereunder or under any Note shall remain unpaid or any
Lender shall have any Commitment hereunder, the Company will furnish to each
Lender in such reasonable quantities as shall from time to time be requested by
such Lender:
(a) as soon as publicly available and in any event within 60
days after the end of each of the first three fiscal quarters of each
fiscal year of each of the Company and EPNGC, a consolidated balance
sheet of each of the Company and EPNGC and its respective consolidated
subsidiaries as of the end of such quarter, and consolidated statements
of income and cash flows of each of the Company and EPNGC and its
respective consolidated subsidiaries each for the period commencing at
the end of the previous fiscal year and ending with the end of such
quarter, certified (subject to normal year-end adjustments) as being
fairly stated in all material respects by the chief financial officer,
controller or treasurer of the Company and accompanied by a certificate
of such officer stating (i) whether or not such officer has knowledge
of the occurrence of any Event of Default which is continuing hereunder
or of any event not theretofore remedied which with notice or lapse of
time or both would constitute such an Event of Default and, if so,
stating in reasonable detail the facts with respect thereto, (ii) all
relevant facts in reasonable detail to evidence, and the computations
as to, whether or not the Company is in compliance with the
requirements set forth in subsections (b) and (c) of Section 5.2, and
(iii) a listing of all Principal Subsidiaries and consolidated
Subsidiaries of the Company showing the extent of its direct and
indirect holdings of their stocks;
(b) as soon as publicly available and in any event within 120
days after the end of each fiscal year of each of the Company and
EPNGC, a copy of the annual report for such year for each of the
Company and EPNGC and its respective consolidated Subsidiaries
containing financial statements for such year reported by nationally
recognized independent public accountants acceptable to the Lenders,
accompanied by (i) a report signed by said accountants stating that
such financial statements have been prepared in accordance with GAAP
and (ii) a letter from such accountants stating that in making the
investigations necessary for such report they obtained no knowledge,
except as specifically stated therein, of any Event of Default which is
continuing hereunder or of any event not theretofore remedied which
with notice or lapse of time or both would constitute such an Event of
Default;
(c) within 120 days after the close of each of the Company's
fiscal years, a certificate of the chief financial officer, controller
or treasurer of the Company stating (i) whether or not he has knowledge
of the occurrence of any Event of Default which is continuing hereunder
or of any event not theretofore remedied which with notice or lapse of
time or both would constitute such an Event of Default and, if so,
stating in reasonable detail the facts with respect thereto, (ii) all
relevant facts in reasonable detail to evidence,
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and the computations as to, whether or not the Company is in compliance
with the requirements set forth in subsections (b) and (c) of Section
5.2 and (iii) a listing of all Principal Subsidiaries and consolidated
Subsidiaries of the Company showing the extent of its direct and
indirect holdings of their stocks;
(d) promptly after the sending or filing thereof, copies of
all publicly available reports which the Company or any Principal
Subsidiary sends to any of its security holders and copies of all
publicly available reports and registration statements which the
Company or any Principal Subsidiary files with the Securities and
Exchange Commission or any national securities exchange other than
registration statements relating to employee benefit plans and to
registrations of securities for selling security holders;
(e) within 10 days after sending or filing thereof, a copy of
FERC Form No. 2: Annual Report of Major Natural Gas Companies, sent or
filed by the Company to or with the FERC with respect to each fiscal
year of the Company;
(f) promptly in writing, notice of all litigation and of all
proceedings before any governmental or regulatory agencies against or
involving the Company or any Principal Subsidiary, except any
litigation or proceeding which in the reasonable judgment of the
Company (taking into account the exhaustion of all appeals) is not
likely to have a material adverse effect on the consolidated financial
condition of the Company and its consolidated Subsidiaries taken as a
whole;
(g) within three Business Days after an executive officer of
the Company obtains knowledge of the occurrence of any Event of Default
which is continuing or of any event not theretofore remedied which with
notice or lapse of time, or both, would constitute an Event of Default,
notice of such occurrence together with a detailed statement by a
responsible officer of the Company of the steps being taken by the
Company or the appropriate Subsidiary to cure the effect of such event;
(h) as soon as practicable and in any event (i) within 30 days
after the Company or any ERISA Affiliate knows or has reason to know
that any Termination Event described in clause (a) of the definition of
Termination Event with respect to any Plan has occurred and (ii) within
10 days after the Company or any ERISA Affiliate knows or has reason to
know that any other Termination Event has occurred, a statement of the
chief financial officer or treasurer of the Company describing such
Termination Event and the action, if any, which the Company or such
ERISA Affiliate proposes to take with respect thereto;
(i) promptly and in any event within two Business Days after
receipt thereof by the Company or any ERISA Affiliate, copies of each
notice received by the Company or any ERISA Affiliate from the PBGC
stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
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(j) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Single Employer Plan;
(k) promptly and in any event within five Business Days after
receipt thereof by the Company or any ERISA Affiliate from the sponsor
of a Multiemployer Plan, a copy of each notice received by the Company
or any ERISA Affiliate concerning (i) the imposition of Withdrawal
Liability by a Multiemployer Plan, (ii) the determination that a
Multiemployer Plan is, or is expected to be, in reorganization or
insolvent within the meaning of Title IV of ERISA, (iii) the
termination of a Multiemployer Plan within the meaning of Title IV of
ERISA, or (iv) the amount of liability incurred, or expected to be
incurred, by the Company or any ERISA Affiliate in connection with any
event described in clause (i), (ii) or (iii) above; and
(l) as soon as practicable but in any event within 60 days of
any notice of request therefor, such other information respecting the
financial condition and results of operations of the Company or any
Subsidiary of the Company as any Lender through the Agent may from time
to time reasonably request.
Each balance sheet and other financial statement furnished
pursuant to subsections (a) and (b) of this Section 5.3 shall contain
comparative financial information which conforms to the presentation required in
Form 10-Q and 10-K, as appropriate, under the Securities Exchange Act of 1934,
as amended.
SECTION 5.4 Restrictions on Material Subsidiaries. The Company
will not, and will not permit any Material Subsidiary, to enter into any
agreement or understanding pursuant to which (a) any non-equity interest claim
the Company may have against any Material Subsidiary would be subordinate in any
manner to the payment of any other obligation of such Material Subsidiary (other
than waivers or subordination of subrogation, contribution or similar rights
under Guaranties and similar agreements) or (b) by its terms limits or restricts
the ability of such Material Subsidiary to make funds available to the Company
(whether by dividend or other distribution, by replacement of any inter-company
advance or otherwise) if, in any such case referred to in this Section 5.4,
there is, at the time any such agreement is entered into, a reasonable
likelihood that all such agreements and understandings, considered together,
would materially and adversely affect the ability of the Company to meet its
obligations as they become due.
ARTICLE VI
[Intentionally left blank]
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ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 Event of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Company shall fail to pay any installment of principal
of any of the Advances or Notes when due, or any interest on any of the
Advances or Notes or any other amount payable by it hereunder within
five Business Days after the same shall be due; or
(b) Any representation or warranty made or deemed made by the
Company herein or by the Company (or any of its officers) in connection
with this Agreement shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) The Company shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed and any such failure shall remain unremedied
for 30 days after written notice thereof shall have been given to the
Company by the Agent or by any Lender with a copy to the Agent; or
(d) The Company or any Principal Subsidiary shall fail to pay
any Debt or Guaranty (excluding Debt incurred pursuant hereto) of the
Company or such Principal Subsidiary in an aggregate principal amount
of $200,000,000 or more, or any installment of principal thereof or
interest or premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt or
Guaranty; or any other default under any agreement or instrument
relating to any such Debt, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event is to
accelerate, the maturity of such Debt; or any such Debt shall be
required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof, as a result of
either (i) any default under any agreement or instrument relating to
any such Debt or (ii) the occurrence of any other event (other than an
issuance, sale or other disposition of stock or other assets, or an
incurrence or issuance of Indebtedness or other obligations, giving
rise to a repayment or prepayment obligation in respect of such Debt)
the effect of which would otherwise be to accelerate the maturity of
such Debt; provided that, notwithstanding any provision contained in
this subsection (d) to the contrary, to the extent that pursuant to the
terms of any agreement or instrument relating to any Debt or Guaranty
referred to in this subsection (d) (or in the case of any such
Guaranty, relating to any obligations Guaranteed thereby), any sale,
pledge or disposal of Margin Stock, or utilization of the proceeds of
such sale, pledge or disposal, would result in a breach of any covenant
contained therein or otherwise give rise to a default or event of
default thereunder and/or acceleration of the maturity of the Debt or
obligations extended pursuant thereto, or payment pursuant to any
Guaranty, and as a
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result of such terms or of such sale, pledge, disposal, utilization,
breach, default, event of default or acceleration or nonpayment under
such Guaranty, or the provisions thereof relating thereto, this
Agreement or any Advance hereunder would otherwise be subject to the
margin requirements or any other restriction under Regulation U issued
by the Board of Governors of the Federal Reserve System, then such
breach, default, event of default or acceleration, or nonpayment under
any Guaranty, shall not constitute a default or Event of Default under
this subsection (d); or
(e)(i) The Company or any Principal Subsidiary shall (A)
generally not pay its debts as such debts become due; or (B) admit in
writing its inability to pay its debts generally; or (C) make a general
assignment for the benefit of creditors; or (ii) any proceeding shall
be instituted or consented to by the Company or any Principal
Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for any
substantial part of its property; or (iii) any such proceeding shall
have been instituted against the Company or any Principal Subsidiary
and either such proceeding shall not be stayed or dismissed for 60
consecutive days or any of the actions sought in such proceeding
(including, the entry of an order for relief against it or the
appointment of a receiver, trustee, custodian or other similar official
for it or any substantial part of its property) shall occur; or (iv)
the Company or any Principal Subsidiary shall take any corporate action
to authorize any of the actions set forth above in this subsection (e);
or
(f) Any judgment or order of any court for the payment of
money in excess of $100,000,000 shall be rendered against the Company
or any Principal Subsidiary and either (i) enforcement proceedings
shall have been commenced and are continuing or have been completed by
any creditor upon such judgment or order (other than any enforcement
proceedings consisting of the mere obtaining and filing of a judgment
lien or obtaining of a garnishment or similar order so long as no
foreclosure, levy or similar process in respect of such lien, or
payment over in respect of such garnishment or similar order, has
commenced and is continuing or has been completed) or (ii) there shall
be any period of 30 consecutive days during which a stay of execution
or of enforcement proceedings (other than those referred to in the
parenthesis in clause (i) above) in respect of such judgment or order,
by reason of a pending appeal, bonding or otherwise, shall not be in
effect; or
(g) (i) Any Termination Event with respect to a Plan shall
have occurred and, 30 days after notice thereof shall have been given
to the Company by the Agent, such Termination Event shall still exist;
or (ii) the Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan; or (iii) the Company or any ERISA
Affiliate shall have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization, or is insolvent
or is being terminated, within the meaning of Title IV of ERISA; or
(iv) any Person shall engage in a "prohibited transaction" (as defined
in
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Section 406 of ERISA or Section 4975 of the Code) involving any Plan;
and in each case in clauses (i) through (iv) above, such event or
condition, together with all other such events or conditions, if any,
would result in an aggregate liability of the Company or any ERISA
Affiliate that would exceed 10% of the Net Worth of the Company.
(h) Upon completion of, and pursuant to, a transaction, or a
series of transactions (which may include prior acquisitions of capital
stock of the Company in the open market or otherwise), involving a
tender offer (i) a "person" (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934) other than the Company or a Subsidiary
of the Company or any employee benefit plan maintained for employees of
the Company and/or any of its Subsidiaries or the trustee therefor,
shall have acquired direct or indirect ownership of and paid for in
excess of 50% of the outstanding capital stock of the Company entitled
to vote in elections for directors of the Company and (ii) at any time
before the later of (A) six months after the completion of such tender
offer and (B) the next annual meeting of the shareholders of the
Company following the completion of such tender offer more than half of
the directors of the Company consists of individuals who (1) were not
directors before the completion of such tender offer and (2) were not
appointed, elected or nominated by the Board of Directors in office
prior to the completion of such tender offer (other than any such
appointment, election or nomination required or agreed to in connection
with, or as a result of, the completion of such tender offer); or
(i) Any event of default shall occur under any agreement or
instrument relating to or evidencing any Debt now or hereafter existing
of the Company or any Principal Subsidiary as the result of any change
of control of the Company;
then, and in any such event, the Agent shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Company, (i) declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) declare the Advances and the Notes, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances and the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Company; provided, however, that if an Event
of Default under subsection (e) of this Section 7.1 (except under clause (i)(A)
thereof) shall occur, (A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Advances and the Notes, all interest
thereon and all other amounts payable under this Agreement shall automatically
become and be forthwith due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by the Company.
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ARTICLE VIII
THE AGENT
SECTION 8.1 Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including enforcement of this Agreement or collection of the Notes), the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Agent shall not be required to take any
action which exposes the Agent to personal liability or which is contrary to
this Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Company pursuant to the terms of this
Agreement.
SECTION 8.2 Agent's Reliance, Etc. None of the Agent or any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender which is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.7; (ii) may consult with legal counsel (including counsel for the
Company), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Company
or to inspect the property (including the books and records) of the Company; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopier, cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 8.3 Chase and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Chase shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Chase in its
individual capacity. Chase and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Company, any of its Subsidiaries and any Person who may do
business with or own securities of
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the Company or any of its Subsidiaries, all as if Chase were not the Agent and
without any duty to account therefor to the other Lenders.
SECTION 8.4 Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.1 and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the 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 decisions in taking or
not taking action under this Agreement.
SECTION 8.5 Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Company), ratably according to
the respective principal amounts of the Advances then outstanding by each of
them (or if no Advances are at the time outstanding or if any Notes are held by
Persons which are not Lenders, ratably according to the respective amounts of
their aggregate Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable counsel fees) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings, in bankruptcy or insolvency proceedings, or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Agent is not reimbursed for such expenses by the Company.
SECTION 8.6 Successor Agent The Agent may resign at any time
by giving written notice thereof to the Lenders and the Company and may be
removed at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then such retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a Lender and a commercial bank
organized, or authorized to conduct a banking business, under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
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shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Amendments, Etc. An amendment or waiver of any
provision of this Agreement or the Notes, or a consent to any departure by the
Company therefrom, shall be effective against the Lenders and all holders of the
Notes if, but only if, it shall be in writing and signed or consented to in
writing by the Majority Lenders, and then such a waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, be effective to: (a) waive any
of the conditions specified in Article III, (b) except as contemplated by
Sections 2.23 and 2.25, increase or extend the Commitments of the Lenders or
subject the Lenders to any additional obligations, (c) reduce the principal of,
or interest on, any Advance or the Notes or any facility fees hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, any
Advance or the Notes or any facility fees hereunder, (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount of any Advance or
the Notes, or the number of Lenders, which shall be required for the Lenders or
any of them to take any action under this Agreement, or (f) amend this Section
9.1, provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Lenders required hereinabove
to take such action, affect the rights or duties of the Agent under this
Agreement or any Note.
SECTION 9.2 Notices, Etc. Except as otherwise provided in
Section 2.2(a) or 2.15(b), all notices and other communications provided for
hereunder shall be in writing (including telecopier and other readable
communication) and mailed by certified mail, return receipt requested,
telecopied or otherwise transmitted or delivered, if to the Company at El Paso
Energy Building, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
Executive Vice President and Chief Financial Officer, Telecopier: (713)
420-4975; if to any Lender, at its address set forth under its name on Schedule
I; if to the Agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇; or,
as to each party, at such other address as shall be designated by such party in
a written notice to the other parties. All such notices and communications
shall, if so mailed, telecopied or otherwise transmitted, be effective when
received, if mailed, or when the appropriate answerback or other evidence of
receipt is given, if telecopied or otherwise transmitted, respectively. A notice
received by the Agent or a Lender by telephone pursuant to Section 2.2(a), 2.4
or 2.15(a) shall be effective if the Agent or Lender believes in good faith that
it was given by an authorized representative of the Company and acts pursuant
thereto, notwithstanding the absence of written confirmation or any
contradictory provision thereof.
SECTION 9.3 No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder or under any
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Note preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 9.4 Costs and Expenses; Indemnity. (a) The Company
agrees to pay on demand (i) all reasonable fees and out-of-pocket expenses of
counsel for the Agent in connection with the preparation, execution and delivery
of this Agreement, the Notes and the other documents to be delivered hereunder
and the fulfillment or attempted fulfillment of conditions precedent hereunder,
(ii) all reasonable costs and expenses incurred by the Agent and its Affiliates
in initially syndicating all or any portion of the Commitments hereunder,
including, the related reasonable fees and out-of-pocket expenses of counsel for
the Agent or its Affiliates, travel expenses, duplication and printing costs and
courier and postage fees, and excluding any syndication fees paid to other
parties joining the syndicate and (iii) all out-of-pocket costs and expenses, if
any, incurred by the Agent and the Lenders in connection with the enforcement
(whether through negotiations, legal proceedings in bankruptcy or insolvency
proceedings, or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder and thereunder, including the reasonable fees and
out-of-pocket expenses of counsel.
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or Money Market Advance is made by the Company to or for
the account of a Lender on any day other than the last day of the Interest
Period for such Advance, as a result of a prepayment pursuant to Section 2.15 or
a Conversion pursuant to Section 2.13(f) or Section 2.14 or due to acceleration
of the maturity of the Advances and the Notes pursuant to Section 7.1 or due to
any other reason attributable to the Company, or if the Company shall fail to
make a borrowing of Eurodollar Rate Advances or Money Market Advances after the
Company has given a notice requesting the same in accordance with the provisions
of this Agreement, the Company shall, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment, Conversion
or failure to borrow, including any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by any Lender to fund or maintain such
Advance.
(c) The Company agrees to indemnify and hold harmless the
Agent and each Lender from and against any and all claims, damages, liabilities
and expenses (including, fees and disbursements of counsel) which may be
incurred by or asserted against the Agent or such Lender in connection with or
arising out of any investigation, litigation, or proceeding (whether or not the
Agent or such Lender is party thereto) related to any acquisition or proposed
acquisition by the Company, or by any Subsidiary of the Company, of all or any
portion of the stock or substantially all the assets of any Person or any use or
proposed use of the Advances by the Company (excluding any claims, damages,
liabilities or expenses incurred by reason of the gross negligence or willful
misconduct of the party to be indemnified or its employees or agents, or by
reason of any use or disclosure of information relating to any such acquisition
or use or proposed use of the proceeds by the party to be indemnified or its
employees or agents).
SECTION 9.5 Right of Set-Off. Upon the declaration of the
Advances and the Notes as due and payable pursuant to the provisions of Section
7.1, each Lender is hereby
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authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Company
against any and all of the obligations of the Company now or hereafter existing
under this Agreement and the Notes of the Company held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or the Notes and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Company 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. The rights of
each Lender under this Section 9.5 are in addition to other rights and remedies
(including, other rights of set-off) which such Lender may have.
SECTION 9.6 Binding Effect. This Agreement shall become
effective in accordance with the provisions of Section 3.1, and thereafter shall
be binding upon and inure to the benefit of the Company, the Agent and each
Lender and their respective successors and assigns, except that the Company
shall not have the right to assign its rights or obligations hereunder or any
interest herein without the prior written consent of all of the Lenders and no
Lender shall have the right to assign its rights or obligations hereunder or any
interest herein other than in accordance with the provisions of Section 9.7
hereof.
SECTION 9.7 Assignments and Participations. (a) Each Lender
may assign to one or more banks or other financial institutions all or a portion
of its rights and obligations under this Agreement (including, all or a portion
of its Commitment, the Advances owing to it and the Notes held by it); provided,
however, that (i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement, (ii) the
amount of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $15,000,000 (or, if
less, the entire Commitment of the assigning Lender) and shall be an integral
multiple of $1,000,000, (iii) each such assignment shall be to an Eligible
Assignee, and (iv) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with any Notes subject to such assignment and a
processing and recordation fee of $2,500, and shall send to the Company an
executed counterpart of such Assignment and Acceptance. Upon consent by the
Company to such Eligible Assignee, and such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (A) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (B) the assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance,
each Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the
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other parties hereto as follows: (i) other than as provided in such Assignment
and Acceptance, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.1 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Lender 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
decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee (subject to approval in writing by the
Company, and, if applicable, the Agent, to the extent required by the definition
of "Eligible Assignee"); (vi) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in
Section 9.2 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register (which register may be in electronic form) for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Company, the Agent, and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice. Upon the acceptance of any Assignment and
Acceptance for recordation in the Register, Schedule I hereto shall be deemed to
be amended to reflect the revised Commitments of the Lenders parties to such
Assignment and Acceptance as well as administrative information with respect to
any new Lender as such information is recorded in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and as assignee representing that it is an Eligible
Assignee, together with any Notes subject to such assignment, the Agent shall,
if such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Company; within five Business Days after its receipt of such
notice and its receipt of an executed counterpart of such Assignment and
Acceptance, the Company, at its own expense, shall execute and deliver to the
Agent in exchange for the surrendered Notes, if any, new Notes to the order of
such Eligible Assignee, if requested, in an amount equal to the
55
51
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, new Notes, if requested,
to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Notes, if any, shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Notes, if any, shall be dated the Closing Date and shall otherwise be in
substantially the form of Exhibit A.
(e) Each Lender may sell participations to one or more banks
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment, and the Advances
owing to it and the Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including its Commitment to the Company
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Notes for all purposes of
this Agreement, (iv) the Company, the Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (v) such Lender shall continue to
be able to agree to any modification or amendment of this Agreement or any
waiver hereunder without the consent, approval or vote of any such participant
or group of participants, other than modifications, amendments and waivers which
(A) postpone any date fixed for any payment of, or reduce any payment of,
principal of or interest on such Lender's Advances or Notes or any facility fees
payable under this Agreement, or (B) increase the amount of such Lender's
Commitment in a manner which would have the effect of increasing the amount of a
participant's participation, or (C) reduce the interest rate payable under this
Agreement and such Lender's Notes, or (D) consent to the assignment or the
transfer by the Company of any of its rights and obligations under the
Agreement, and (vi) except as contemplated by the immediately preceding clause
(v), no participant shall be deemed to be or to have any of the rights or
obligations of a "Lender" hereunder.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.7, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Company furnished to such Lender by
or on behalf of the Company; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree in
writing for the benefit of the Company to preserve the confidentiality of any
confidential information relating to the Company received by it from such Lender
in a manner consistent with Section 9.8.
(g) Anything in this Agreement to the contrary
notwithstanding, any Lender may at any time create a security interest in all or
any portion of its rights under this Agreement (including the Advances owing to
it) and the Notes issued to it hereunder in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System (or any successor regulation) and the applicable operating circular of
such Federal Reserve Bank.
SECTION 9.8 Confidentiality. Each Lender and the Agent (each,
a "Party") agrees that it will use its best efforts not to disclose, without the
prior consent of the Company (other than to its, or its Affiliate's, employees,
auditors, accountants, counsel or other
56
52
representatives, whether existing at the date of this Agreement or any
subsequent time), any information with respect to the Company and its
Subsidiaries which is furnished pursuant to this Agreement, provided that any
Party may disclose any such information (i) as has become generally available to
the public, (ii) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or Federal regulatory body having or
claiming to have jurisdiction over such party or to the Board of Governors of
the Federal Reserve System or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors, (iii) as may be required or appropriate in response to any summons
or subpoena or in connection with any litigation or regulatory proceeding, (iv)
in order to comply with any law, order, regulation or ruling applicable to such
party, or (v) to any prospective assignee or participant in connection with any
contemplated assignment of any rights or obligations hereunder, or any sale of
any participation therein, by such Party pursuant to Section 9.7, if such
prospective assignee or participant, as the case may be, executes an agreement
with the Company containing provisions substantially similar to those contained
in this Section 9.8; provided, however, that the Company acknowledges that the
Agent has disclosed and may continue to disclose such information as the Agent
in its sole discretion determines is appropriate to the Lenders from time to
time.
SECTION 9.9 Consent to Jurisdiction. (a) The Company hereby
irrevocably submits to the jurisdiction of any New York State or Federal court
sitting in New York City and any appellate court from any thereof in any action
or proceeding by the Agent, any Lender or the holder of any Note in respect of,
but only in respect of, any claims or causes of action arising out of or
relating to this Agreement or the Notes (such claims and causes of action,
collectively, being "Permitted Claims"), and the Company hereby irrevocably
agrees that all Permitted Claims may be heard and determined in such New York
State court or in such Federal court. The Company hereby irrevocably waives, to
the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any aforementioned
court in respect of Permitted Claims. The Company hereby irrevocably appoints CT
Corporation System (the "Process Agent"), with an office on the date hereof at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on behalf of
the Company and its property service of copies of the summons and complaint and
any other process which may be served by the Agent, any Lender or the holder of
any Note in any such action or proceeding in any aforementioned court in respect
of Permitted Claims. Such service may be made by delivering a copy of such
process to the Company by courier and by certified mail (return receipt
requested), fees and postage prepaid, both (i) in care of the Process Agent at
the Process Agent's above address and (ii) at the Company's address specified
pursuant to Section 9.2, and the Company hereby irrevocably authorizes and
directs the Process Agent to accept such service on its behalf. The Company
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(b) Nothing in this Section 9.9 (i) shall affect the right of
any Lender, the holder of any Note or the Agent to serve legal process in any
other manner permitted by law or affect any right otherwise existing of any
Lender, the holder of any Note or the Agent to bring any action or proceeding
against the Company or its property in the courts of other jurisdictions or (ii)
shall be deemed to be a general consent to jurisdiction in any particular court
or a general
57
53
waiver of any defense or a consent to jurisdiction of the courts expressly
referred to in subsection (a) above in any action or proceeding in respect of
any claim or cause of action other than Permitted Claims.
SECTION 9.10 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 9.11 Rate of Interest. It is the intention of the
parties hereto that each Lender shall each conform strictly to usury laws
applicable to it. Accordingly, if the transactions contemplated hereby would be
usurious as to any Lender under laws applicable to it, then, in that event,
notwithstanding anything to the contrary in this Agreement or in the Notes to
the order of such Lender, it is agreed as follows: (a) the aggregate of all
consideration which constitutes interest under law applicable to such Lender
that is contracted for, taken, reserved, charged or received by such Lender
hereunder, or under such Notes or otherwise, shall under no circumstances exceed
the maximum amount allowed by such applicable law, and any excess shall be
credited by such Lender on the principal amount of the sums owed to such Lender
(or, if all amounts owing to such Lender shall have been paid in full, refunded
by such Lender to the Company); or (b) in the event that a prepayment of any
Advances owed to any Lender is required, then such consideration that
constitutes interest under law applicable to such Lender may never include more
than the maximum amount allowed by such applicable law, and excess interest, if
any, provided for shall be canceled automatically by such Lender as of the date
of such prepayment and, if theretofore paid, shall be credited by such Lender on
the principal amount of such prepayment obligation (or, if the principal amount
of such prepayment obligation shall have been paid in full, refunded by such
Lender to the Company). To the extent that Article 5069- 1.0001 of the Texas
Revised Civil Statutes is relevant to any Lender for the purpose of determining
the maximum amount of interest allowed by applicable law, such Lender hereby
elects to determine the applicable rate ceiling under such Article by the
indicated (weekly) rate ceiling from time to time in effect, subject to such
Lender's right subsequently to change such method in accordance with applicable
law. In no event, however, shall Chapter 346 of the Texas Finance Code apply to
this Agreement or the Notes or the transactions contemplated hereby.
SECTION 9.12 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery to the Agent of a counterpart executed by a Lender shall
constitute delivery of such counterpart to all of the Lenders. This Agreement
may be delivered by facsimile transmission of the relevant signature pages
hereof.
58
54
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective duly authorized
officers as of the date first above written.
EL PASO ENERGY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and
Controller
THE CHASE MANHATTAN BANK, as
Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
59
SCHEDULE I
COMMITMENTS, ADDRESSES, ETC.
Name and Address of Lender Amount of Commitment
-------------------------- --------------------
The Chase Manhattan Bank $700,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
60
EXHIBIT A
FORM OF
NOTE
$ New York, New York
----------- December 21, 2000]
FOR VALUE RECEIVED, the undersigned, EL PASO ENERGY CORPORATION, a
Delaware corporation (the "Company"), hereby unconditionally promises to pay to
the order of (the "Lender") at the office of The Chase Manhattan Bank, located
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in lawful money of the United
States of America and in same day funds, on the Termination Date (or if the
Lender is an Objecting Lender, the Commitment Expiration Date applicable to the
Lender) the principal amount of (a) DOLLARS ($ ), or, if less, (b) the aggregate
unpaid principal amount of all Advances made by the Lender to the Company
pursuant to subsection 2.1 of the Credit Agreement, as hereinafter defined. The
Company further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in the Credit Agreement.
The holder of this Note is authorized to, and prior to any transfer
hereof shall, endorse on the schedules attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof
the date, Type and amount of each Advance made pursuant to subsection 2.1 of the
Credit Agreement and the date and amount of each payment or prepayment of
principal thereof, each continuation thereof, each conversion of all or a
portion thereof to another Type and, in the case of Eurodollar Rate Advances,
the length of each Interest Period with respect thereto. Each such endorsement
shall constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement shall not affect the
obligations of the Company in respect of such Advance.
This Note (a) is one of the Notes referred to in the $700,000,000
3-Month Revolving Credit Facility Agreement, dated as of December 21, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Company and the Lender, the other banks and
financial institutions from time to time parties thereto and The Chase Manhattan
Bank, as Agent, (b) is subject to the provisions of the Credit Agreement and (c)
is subject to optional and mandatory prepayment in whole or in part as provided
in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
61
A-2
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind except those
expressly required under the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
EL PASO ENERGY CORPORATION
By:
--------------------------------------
Title:
62
Schedule A to Note
ADVANCES, CONVERSIONS AND REPAYMENTS OF BASE RATE ADVANCES
Amount of Base Rate
Amount Amount of Principal of Advances Converted to
Amount of Base Rate Converted to Base Rate Advances Eurodollar Rate Unpaid Principal Balance Notation
Date Advances Base Rate Advances Repaid Advances of Base Rate Advances Made By
---- ------------------- ------------------ ---------------------- --------------------- ------------------------ --------
63
Schedule B to Note
ADVANCES, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE ADVANCES
Amount of Eurodollar
Amount of Amount Converted Interest Period and Amount of Principal of Rate Advances
Eurodollar Rate to Eurodollar Rate Eurodollar Rate with Eurodollar Rate Converted to Base
Date Advances Advances Respect Thereto Advances Repaid Rate Advances
---- --------------- ------------------ -------------------- ---------------------- --------------------
Unpaid Principal
Balance of Eurodollar Notation
Date Rate Advances Made By
---- --------------------- --------
64
EXHIBIT B
FORM OF
NOTICE OF BORROWING
The Chase Manhattan Bank, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: El Paso Energy Corporation
Ladies and Gentlemen:
The undersigned, EL PASO ENERGY CORPORATION, refers to the
$700,000,000 3-Month Revolving Credit Facility Agreement, dated as of December
21, 2000 (the "Credit Agreement," the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto and The
Chase Manhattan Bank, as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.2 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.2(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ___________,
200__.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$__________.
(iv) The Interest Period for each Eurodollar Rate Advance made
as part of the Proposed Borrowing is [______ month[s]].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing, before and immediately after giving effect thereto and to the
application of the proceed therefrom:
(A) each representation and warranty contained in Section 4.1
is correct in all material respects as though made on and as of such
date; and
65
B-2
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing, which constitutes an Event of Default or
Default.
Very truly yours,
EL PASO ENERGY CORPORATION
By:
--------------------------------------
Title:
66
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated _____________, ____
Reference is made to the $700,000,000 3-Month Revolving Credit
Facility Agreement, dated as of December 21, 2000 (as the same may be amended,
restated or otherwise modified from time to time, the "Credit Agreement") among
EL PASO ENERGY CORPORATION, a Delaware corporation (the "Company"), the Lenders
(as defined in the Credit Agreement) and The Chase Manhattan Bank, as Agent (the
"Agent"). Terms defined in the Credit Agreement are used herein with the same
meaning.
_____________ (the "Assignor") and ____________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, that interest in
and to all of the Assignor's rights and obligations under the Credit Agreement
as of the date hereof which represents the percentage interest specified on
Schedule 1 of all outstanding rights and obligations under the Credit Agreement,
including such interest in the Assignor's Commitment, the Advances owing to the
Assignor, and the Notes held by the Assignor. After giving effect to such sale
and assignment, the Assignee's Commitment and the amount of the Advances owing
to the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Company or the performance or observance by the Company of any
of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Notes referred to in
paragraph 1 above and requests that the Agent exchange such Notes for new Notes
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.1 thereof and such other documents and information as it has
deemed appropriate to make its own credit
67
C-2
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor 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 decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; [and] (vi) specifies
as its address for notices the address set forth beneath its name on the
signature pages hereof [and (vii) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and the Notes or such other documents as are necessary to indicate that all such
payments are subject to such rates at a rate reduced by an applicable tax
treaty](1).
4. Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee, it will be delivered to the Agent for
acceptance and recording by the Agent. The effective date of this Assignment and
Acceptance shall be the date of acceptance thereof by the Agent, unless
otherwise specified on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby (including
all payments of principal, interest and commitment fees with respect thereto) to
the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution being made
on Schedule 1 hereto.
----------
(1) If the Assignee is organized under the laws of a jurisdiction outside
the United States.
68
Schedule 1
to
Assignment and Acceptance
Dated _________, ____
Section 1.
Percentage Interest: %
------
Section 2.
Assignee's Commitment: $
------
Aggregate Outstanding Principal
Amount of Advances owing to the Assignee: $
------
Note payable to the order of the Assignee
Dated: ,
------- ----
Principal amount: $
------
Note payable to the order of the Assignor
Dated: ,
------- ----
Principal amount: $
------
Section 3.
Effective Date(1): ,
-------- ----
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
------------------------------- --------------------------------
Title: Title:
Address for notices:
[Address]
----------
(1) This date should be no earlier than the date of acceptance by the
Agent.
69
2
Consented to:
EL PASO ENERGY CORPORATION THE CHASE MANHATTAN BANK, as
Agent
By: By:
------------------------------- --------------------------------
Title: Title:
70
3
Accepted this __ day
of __________, ___
THE CHASE MANHATTAN BANK, as
Agent
By:
-------------------------------
Title:
71
EXHIBIT D
FORM OF OPINION OF [ASSOCIATE GENERAL][SENIOR] COUNSEL OF THE COMPANY
[December] ___, 2000
To Each of the Lenders and the Agent
Referred to Below
c/o The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: El Paso Energy Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
3.2(b)(iii) of the $700,000,000 3-Month Revolving Credit Facility Agreement,
dated as of December 21, 2000 (the "Credit Agreement"), among El Paso Energy
Corporation (the "Company"), the banks and other financial institutions from
time to time party thereto (each a "Lender," and together the "Lenders") and The
Chase Manhattan Bank, as Agent (in such capacity, the "Agent") for the Lenders.
Unless the context otherwise requires, all capitalized terms used herein without
definition shall have the meanings ascribed to them in the Credit Agreement.
I am [Associate General] [Senior] Counsel of the Company, and
I, or attorneys over whom I exercise supervision, have acted as counsel for the
Company in connection with the preparation, execution and delivery of the Credit
Agreement. In that connection, I or such attorneys have examined:
(1) the Credit Agreement, executed by the parties thereto; and
(2) the Note, executed by the Company.
I, or attorneys over whom I exercise supervision, have also
examined the originals, or copies certified to our satisfaction, of the
agreements, instruments and other documents, and all of the orders, writs,
judgments, awards, injunctions and decrees, which affect or purport to affect
the Company's ability to perform its respective obligations under the Credit
Agreement or the Note (collectively referred to herein as the "Documents"). In
addition, I, or attorneys over whom I exercise supervision, have examined the
originals, or copies certified to our satisfaction, of such other CORPORATE
records of the Company, certificates of public officials and of officers of the
Company, and agreements, instruments and other documents, as I have deemed
necessary as a basis for the opinions hereinafter expressed. In all such
examinations, I, or attorneys over whom I exercise supervision, have assumed the
legal capacity of all natural
72
D-2
persons executing documents, the genuineness of all signatures on original or
certified, conformed or reproduction copies of documents of all parties (other
than, with respect to the Documents, the Company), the authenticity of original
and certified documents and the conformity to original or certified copies of
all copies submitted to such attorneys or me as conformed or reproduction
copies. As to various questions of fact relevant to the opinions expressed
herein, I have relied upon, and assume the accuracy of, representations and
warranties contained in the Credit Agreement and certificates and oral or
written statements and other information of or from public officials, officers
and/or representatives of the Company and others.
I have assumed that the parties to the Documents other than
the Company have the power to enter into and perform such documents and that
such documents have been duly authorized, executed and delivered by, and
constitute legal, valid and binding obligations of, such parties.
The opinions expressed below are limited to the federal laws
of the United States and, to the extent relevant hereto, the General Corporation
Law of the State of Delaware, as currently in effect. I assume no obligation to
supplement this opinion if any applicable laws change after the date hereof or
if I become aware of any facts that might change the opinions expressed herein
after the date hereof.
Based on the foregoing and upon such investigation as we have
deemed necessary, and subject to the limitations, qualifications and assumptions
set forth herein, I am of the following opinion:
1. The Company (i) is a corporation duly incorporated and
existing in good standing under the laws of the State of Delaware, and
(ii) possesses all the corporate powers and all other authorizations
and licenses necessary to engage in its business and operations as now
conducted, the failure to obtain or maintain which would have a
Material Adverse Effect.
2. The execution, delivery and performance by the Company of
the Documents to which it is a party are within the Company's corporate
powers and have been duly authorized by all necessary corporate action
in respect of or by the Company, and do not contravene (i) the
Company's charter or by-laws, each as amended to date, (ii) any federal
law, rule or regulation applicable to the Company (excluding provisions
of federal law expressly referred to in and covered by the opinion of
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇ delivered to you in connection with the
transactions contemplated hereby) or any provision of the General
Corporation Law of the State of Delaware applicable to the Company, or
(iii) any contractual restriction binding on or affecting the Company.
The Documents to which it is a party have been duly executed and
delivered on behalf of the Company.
3. No authorization or approval or other action by, and no
notice to or filing with, any federal governmental authority or
regulatory body (including the FERC) is required for the due execution,
delivery and performance by the Company of the Documents to which it is
a party, except those required in the ordinary course of business
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in connection with the performance by the Company of its obligations
under certain covenants and warranties contained in the Documents to
which it is a party.
4. To the best of my knowledge, there is no action, suit or
proceeding pending or overtly threatened against or involving the
Company or any of the Principal Subsidiaries which, in my reasonable
judgment (taking into account the exhaustion of all appeals), would
have a material adverse effect upon the consolidated financial
condition of the Company and its consolidated Subsidiaries taken as a
whole, or which purports to affect the legality, validity, binding
effect or enforceability of any Document.
These opinions are given as of the date hereof and are solely
for your benefit in connection with the transactions contemplated by the Credit
Agreement. These opinions may not be relied upon by you for any other purpose or
relied upon by any other person for any purpose without my prior written
consent.
Very truly yours,
▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ COUNSEL TO THE COMPANY
[December] __, 2000
To Each of the Lenders and the Administrative Agent, Referred to Below
c/o The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: $700,000,000 3-Month Revolving Credit Faculty Agreement
We have acted as special New York counsel for El Paso Energy
Corporation, a Delaware corporation (the "Borrower"), in connection with the
$700,000,000 3-Month Revolving Credit Facility Agreement, dated as of December
21, 2000 (the "Credit Agreement"), among the Borrower, the banks and other
financial institutions from time to time party thereto (each a "Lender", and
together the "Lenders"), and The Chase Manhattan Bank, as administrative agent
(in such capacity, the "Administrative Agent") for the Lenders. This opinion is
delivered to you pursuant to Section 3.2(c)(iv) of the Credit Agreement.
Capitalized terms used herein and not otherwise defined have the meanings
assigned such terms in the Credit Agreement. With your permission, all
assumptions and statements of reliance herein have been made without any
independent investigation or verification on our part except to the extent
otherwise expressly stated, and we express no opinion with respect to the
subject matter or accuracy of the assumptions or items upon which we have
relied.
In connection with the opinions expressed herein, we have
examined such documents, records and matters of law as we have deemed necessary
for the purposes of this opinion. We have examined, among other documents, the
following:
(a) An executed copy of the Credit Agreement; and
(b) An executed copy of each of the Notes.
The documents referred to in items (a) and (b) above are referred to herein
collectively as the "Documents."
In all such examinations, we have assumed the legal capacity
of all natural persons executing documents, the genuineness of all signatures,
the authenticity of original and certified documents and the conformity to
original or certified copies of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the opinions
expressed herein, we have relied upon, and assume the accuracy of,
representations and warranties contained in the Documents and certificates and
oral or written statements and other information of or from representatives of
the Borrower and others and assume compliance on the part of all
75
E-2
parties to the Documents with their covenants and agreements contained therein.
With respect to the opinions expressed in paragraph (a) below, our opinions are
limited (x) to our actual knowledge, if any, of the Borrower's specially
regulated business activities and properties based solely upon an officer's
certificate in respect of such matters and without any independent investigation
or verification on our part and (y) to our review of only those laws and
regulations that, in our experience, are normally applicable to transactions of
the type contemplated by the Documents.
To the extent it may be relevant to the opinions expressed
herein, we have assumed that the parties to the Documents have the power to
enter into and perform such documents and to consummate the transactions
contemplated thereby and that such documents have been duly authorized, executed
and delivered by, and, except as set forth in paragraph (b) with respect to the
Borrower, constitute legal, valid and binding obligations of, such parties.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion that:
(a) The execution and delivery to the Administrative Agent and
the Lenders by the Borrower of the Documents and the performance by the Borrower
of its obligations thereunder (i) do not require under present law any filing or
registration by the Borrower with, or approval or consent to the Borrower of,
any governmental agency or authority of the State of New York that has not been
made or obtained except those required in the ordinary course of business in
connection with the performance by the Borrower of its obligations under certain
covenants and warranties contained in the Documents and (ii) do not violate any
present law, or present regulation of any governmental agency or authority, of
the State of New York applicable to the Borrower or its property.
(b) The Documents constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms.
(c) The borrowings by the Borrower under the Credit Agreement
and the applications of the proceeds thereof as provided in the Credit Agreement
will not violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
The opinions set forth above are subject to the following
qualifications:
(A) We express no opinion as to:
(i) the validity, binding effect or enforceability (a) of any
provision of the Documents relating to indemnification, contribution or
exculpation in connection with violations of any securities laws or
statutory duties or public policy, or in connection with willful,
reckless or criminal acts or gross negligence of the indemnified or
exculpated party or the party receiving contribution; or (b) of any
provision of any of the Documents relating to exculpation of any party
in connection with its own negligence that a court would determine in
the circumstances under applicable law to be unfair or insufficiently
explicit;
(ii) the validity, binding effect or enforceability of (a) any
purported waiver, release, variation, disclaimer, consent or other
agreement to similar effect (all of the foregoing, collectively, a
"Waiver") by the Borrower under the Documents to the extent limited by
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E-3
provisions of applicable law (including judicial decisions), or to the
extent that such a Waiver applies to a right, claim, duty, defense or
ground for discharge otherwise existing or occurring as a matter of law
(including judicial decisions), except to the extent that such a Waiver
is effective under and is not prohibited by or void or invalid under
provisions of applicable law (including judicial decisions), (b) any
provision of any Document relating to choice of governing law to the
extent that the validity, binding effect or enforceability of any such
provision is to be determined by any court other than a court of the
State of New York or (c) any provision of any Document relating to
forum selection to the extent the forum is a federal court;
(iii) the enforceability of any provision in the Documents
specifying that provisions thereof may be waived only in writing, to
the extent that an oral agreement or an implied agreement by trade
practice or course of conduct has been created that modifies any
provision of the Documents;
(iv) the effect of any law of any jurisdiction other than the
State of New York wherein the Administrative Agent or any Lender may be
located or wherein enforcement of any document referred to above may be
sought that limits the rates of interest legally chargeable or
collectible; and
(v) any approval, consent or authorization of the Federal
Energy Regulatory Commission or any other United States federal agency
or authority needed in connection with the execution, delivery and
performance by the Borrower of the Documents, the consummation of the
transactions contemplated thereby and compliance with the terms and
conditions thereof.
(B) Our opinions above are subject to (i) applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, voidable preference, moratorium
or similar laws, and related judicial doctrines, from time to time in effect
affecting creditors' rights and remedies generally, (ii) general principles of
equity (including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits on the
availability of equitable remedies), whether such principles are considered in a
proceeding at law or in equity and (iii) the qualification that certain other
provisions of the Documents may be unenforceable in whole or in part under the
laws (including judicial decisions) of the State of New York or the United
States of America, but the inclusion of such provisions does not affect the
validity as against the Borrower of the Documents to which it is a party, taken
as a whole, and the Documents contain adequate provisions for enforcing payment
of the obligations governed thereby, subject to the other qualifications
contained in this letter.
(C) Our opinions as to enforceability are subject to the effect of
generally applicable rules of law that:
(i) limit the availability of a remedy under certain
circumstances when another remedy has been elected; and
(ii) may, where less than all of a contract may be
unenforceable, limit the enforceability of the balance of the contract
to circumstances in which the unenforceable portion is not an essential
part of the agreed exchange; and
77
E-4
(iii) govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys' fees and other
costs.
(D) For the purposes of the opinion set forth in paragraph (c) above,
we have assumed that (i) none of the Administrative Agent or any of the Lenders
has or will have the benefit of any agreement or arrangement (excluding the
Documents) pursuant to which any Advances are directly or indirectly secured by
Margin Stock, (ii) none of the Administrative Agent, any of the Lenders, or any
of their respective affiliates has extended or will extend any other credit to
the Borrower directly or indirectly secured by Margin Stock and (iii) none of
the Administrative Agent or any of the Lenders has relied or will rely upon any
Margin Stock as collateral in extending or maintaining any Advances pursuant to
the Credit Agreement.
(E) For purposes of our opinions above insofar as they relate to the
Borrower, we have assumed that (i) the Borrower is a corporation validly
existing in good standing in its jurisdiction of incorporation, has all
requisite power and authority, and has obtained all requisite corporate,
shareholder, third party and governmental authorizations, consents and
approvals, and made all requisite filings and registrations, necessary to
execute, deliver and perform the Documents (except to the extent noted in
paragraph (a) above), and that such execution, delivery and performance will not
violate or conflict with any law, rule, regulation, order, decree, judgment,
instrument or agreement binding upon or applicable to the Borrower or its
properties (except to the extent noted in paragraph (a) above), and (ii) the
Documents have been duly executed and delivered by the Borrower.
The opinions expressed herein are limited to (i) Regulations
T, U and X of the Board of Governors of the Federal Reserve System and (ii) the
laws of the State of New York, as currently in effect, except that, without
limiting the foregoing, we express no opinion with respect to, and our opinions
are subject to the effect of, laws, rules or regulations of the State of New
York or the United States of America, or of any governmental agency or authority
thereof, applicable to companies engaged in the gathering, processing,
transmission, distribution, trading or marketing of natural gas or other
hydrocarbon derivatives or power generation or the generation, transmission,
distribution, trading or marketing of electricity, or telecommunications or any
business relating to telecommunications, or to commodities trading (all of the
foregoing, collectively, the "Specified Businesses"), or as to filings,
registrations, approvals or consents under or required by such laws, rules or
regulations, including, without limitation, (x) any regulations of the Federal
Energy Regulatory Commission and of the Federal Communications Commission and
(y) the Federal Power Act and the Public Utilities Holding Company Act of 1935,
as amended (and any related regulations). Our opinions are limited to those
expressly set forth herein, and we express no opinions by implication.
We express no opinion as to the compliance or noncompliance,
or the effect of the compliance or noncompliance, of each of the addressees with
any state or federal laws or regulations applicable to each of them by reason of
their status as or affiliation with a federally insured depository institution.
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The opinions expressed herein are solely for the benefit of
the Administrative Agent and the Lenders and may not be relied on in any manner
or for any purpose by any other person or entity.
Very truly yours,
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇
Very truly yours,
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇
By:
--------------------------------------
79
EXHIBIT F
[LETTERHEAD OF PROCESS AGENT]
[DATE]
To each of the Lenders parties
to the Credit Agreement (as
defined and referred to
below) and to The Chase Manhattan Bank
as Agent for said Lenders
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
To El Paso Energy Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
El Paso Energy Corporation
Gentlemen:
Reference is made to that certain $700,000,000 3-Month
Revolving Credit Facility Agreement, dated as of December 21, 2000 (said
Agreement, as it may hereafter be amended, restated, supplemented or otherwise
modified from time to time, being the "Credit Agreement," the terms defined
therein being used herein with the same meaning) among El Paso Energy
Corporation (the "Company"), certain banks and other financial institutions from
time to time party thereto as Lenders (the "Lenders") and The Chase Manhattan
Bank, as Agent for the Lenders (in such capacity, the "Agent").
Pursuant to Section 9.9(a) of the Credit Agreement the Company has
appointed the undersigned (with an office on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇) as Process Agent to receive on behalf of the Company
and its property service of copies of the summons and complaint and any other
process which may be served by the Agent, any Lender or the holder of any Note
in any action or proceeding by the Agent, any Lender or the holder of any Note
in any New York State or Federal court sitting in New York City in respect of,
but only in respect of, any claims or causes of action arising out of or
relating to the Credit Agreement and the Notes issued pursuant thereto.
The undersigned hereby accepts such appointment as Process
Agent and agrees with each of you that (i) the undersigned will not terminate
the undersigned's agency as such Process
80
F-2
Agent prior to January 1, 2001 (and hereby acknowledges that the undersigned has
been paid in full by the Company for its services as Process Agent through such
date), (ii) the undersigned will maintain an office in New York City through
such date and will give the Agent prompt notice of any change of address of the
undersigned, (iii) the undersigned will perform its duties as Process Agent in
accordance with Section 9.9(a) of the Credit Agreement and (iv) the undersigned
will forward forthwith to the Company at its address specified below copies of
any summons, complaint and other process which the undersigned receives in
connection with its appointment as Process Agent.
This acceptance and agreement shall be binding upon the
undersigned and all successors of the undersigned.
Very truly yours,
CT CORPORATION SYSTEM
By:
--------------------------------------
Title:
Address of the Company:
El Paso Energy Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
81
EXHIBIT G
FORM OF
EXTENSION REQUEST
[Date]
The Chase Manhattan Bank, as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
[Attention: ▇▇▇▇▇▇ ▇▇▇▇]
Gentlemen:
Reference is made to the $700,000,000 3-Month Revolving Credit
Facility Agreement, dated as of December 21, 2000, among the undersigned,
certain Lenders parties thereto and The Chase Manhattan Bank, as Agent (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
The undersigned hereby represents and warrants that no Event
of Default has occurred or is continuing.
This is an Extension Request pursuant to Section 2.23 of the
Credit Agreement requesting an extension of the Stated Termination Date to
[INSERT REQUESTED TERMINATION DATE]. Please transmit a copy of this Extension
Request to each of the Lenders.
EL PASO ENERGY CORPORATION
By:
--------------------------------------
Title: