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EXHIBIT 10.6
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EL PASO ENERGY CORPORATION
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$1,000,000,000 3-YEAR
REVOLVING CREDIT AND COMPETITIVE
ADVANCE FACILITY AGREEMENT
Dated as of August 4, 2000
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THE CHASE MANHATTAN BANK,
as Administrative Agent
and CAF Advance Agent
CITIBANK, N.A. and ABN AMRO, N.V.,
as Co-Documentation Agents
BANK OF AMERICA, N.A.,
as Syndication Agent
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TABLE OF CONTENTS
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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................................................................17
SECTION 1.3 Accounting Terms...........................................................................17
SECTION 1.4 References.................................................................................18
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES.....................................................................18
SECTION 2.1 The Revolving Credit Advances..............................................................18
SECTION 2.2 Making the Revolving Credit Advances.......................................................18
SECTION 2.3 Evidence of Debt...........................................................................20
SECTION 2.4 CAF Advances...............................................................................20
SECTION 2.5 Procedure for CAF Advance Borrowings.......................................................20
SECTION 2.6 CAF Advance Payments.......................................................................24
SECTION 2.7 Evidence of Debt...........................................................................24
SECTION 2.8 Fees.......................................................................................25
SECTION 2.9 Reduction of the Commitments...............................................................25
SECTION 2.10 Repayment of Advances.....................................................................26
SECTION 2.11 Interest on Revolving Credit Advances.....................................................26
SECTION 2.12 Additional Interest on Eurodollar Rate Advances...........................................26
SECTION 2.13 Interest Rate Determination...............................................................27
SECTION 2.14 Voluntary Conversion of Advances..........................................................28
SECTION 2.15 Optional and Mandatory Prepayments........................................................29
SECTION 2.16 Increased Costs...........................................................................29
SECTION 2.17 Increased Capital.........................................................................30
SECTION 2.18 Illegality................................................................................31
SECTION 2.19 Pro Rata Treatment, Payments and Computations.............................................31
SECTION 2.20 Taxes.....................................................................................32
SECTION 2.21 Sharing of Payments, Etc..................................................................35
SECTION 2.22 Use of Proceeds...........................................................................35
SECTION 2.23 Extension of Stated Termination Date......................................................35
SECTION 2.24 [Intentionally Left Blank]................................................................36
SECTION 2.25 Replacement of Lenders....................................................................37
ARTICLE III CONDITIONS OF EFFECTIVENESS AND LENDING..............................................................38
SECTION 3.1 Conditions Precedent to Effectiveness of this Agreement....................................38
SECTION 3.2 Conditions Precedent to Initial Advances...................................................38
SECTION 3.3 Conditions Precedent to Initial Advances to Any Borrowing Subsidiary.......................39
SECTION 3.4 Conditions Precedent to Each Borrowing.....................................................40
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ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................40
SECTION 4.1 Representations and Warranties of the Borrowers............................................40
ARTICLE V COVENANTS OF THE BORROWERS.............................................................................43
SECTION 5.1 Affirmative Covenants......................................................................43
SECTION 5.2 Negative Covenants.........................................................................44
SECTION 5.3 Reporting Requirements.....................................................................48
SECTION 5.4 Restrictions on Material Subsidiaries......................................................51
ARTICLE VI GUARANTEE.............................................................................................51
SECTION 6.1 Guarantees.................................................................................51
SECTION 6.2 No Subrogation.............................................................................52
SECTION 6.3 Amendments, etc. with respect to the Obligations; Waiver of Rights.........................52
SECTION 6.4 Guarantee Absolute and Unconditional.......................................................53
SECTION 6.5 Reinstatement..............................................................................54
ARTICLE VII EVENTS OF DEFAULT....................................................................................54
SECTION 7.1 Event of Default...........................................................................54
ARTICLE VIII THE ADMINISTRATIVE AGENT AND THE CAF ADVANCE AGENT..................................................57
SECTION 8.1 Authorization and Action...................................................................57
SECTION 8.2 Administrative Agent's and CAF Advance Agent's Reliance, Etc...............................57
SECTION 8.3 Chase and Affiliates.......................................................................58
SECTION 8.4 Lender Credit Decision.....................................................................58
SECTION 8.5 Indemnification............................................................................58
SECTION 8.6 Successor Administrative Agent and CAF Advance Agent.......................................59
SECTION 8.7 Syndication Agent; Co-Documentation Agents.................................................59
ARTICLE IX MISCELLANEOUS.........................................................................................60
SECTION 9.1 Amendments, Etc............................................................................60
SECTION 9.2 Notices, Etc...............................................................................60
SECTION 9.3 No Waiver; Remedies........................................................................61
SECTION 9.4 Costs and Expenses; Indemnity..............................................................61
SECTION 9.5 Right of Set-Off...........................................................................62
SECTION 9.6 Binding Effect.............................................................................62
SECTION 9.7 Assignments and Participations.............................................................62
SECTION 9.8 Confidentiality............................................................................65
SECTION 9.9 Consent to Jurisdiction....................................................................65
SECTION 9.10 GOVERNING LAW.............................................................................66
SECTION 9.11 Rate of Interest..........................................................................66
SECTION 9.12 Execution in Counterparts.................................................................67
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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 CAF Advance Request
Exhibit D Form of CAF Advance Offer
Exhibit E Form of CAF Advance Confirmation
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Opinion of [Associate General][Senior] Counsel
of the Company
Exhibit H Form of Opinion of New York Counsel to the
Company
Exhibit I Form of Process Agent Letter
Exhibit J Form of Joinder Agreement
Exhibit K Form of Opinion of [Associate General][Senior] Counsel of
the Company
Exhibit L Form of Opinion of New York Counsel to the Company
Exhibit M Form of Extension Request
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$1,000,000,000 3-YEAR REVOLVING CREDIT AND COMPETITIVE ADVANCE
FACILITY AGREEMENT, dated as of August 4, 2000, among EL PASO ENERGY
CORPORATION, a Delaware corporation (the "Company"), EL PASO NATURAL GAS
COMPANY, a Delaware corporation ("EPNGC"), TENNESSEE GAS PIPELINE COMPANY, a
Delaware corporation ("Tennessee"), 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
(in such capacity, the "Administrative Agent") and as CAF Advance Agent (in such
capacity, the "CAF Advance Agent") for the Lenders hereunder, CITIBANK, N.A. and
ABN AMRO BANK, N.V., as co-documentation agents (in such capacity, the
"Co-Documentation Agents") for the Lenders, and BANK OF AMERICA, N.A., as
syndication agent (in such capacity, the "Syndication Agent") for the Lenders.
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.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):
"Administrative Agent" has the meaning assigned to such term in the
preamble hereof.
"Advance" means an advance by a Lender to any Borrower pursuant to
Article II, and refers to a Base Rate Advance, a Eurodollar Rate Advance or
a CAF 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 3-Year Revolving Credit and Competitive Advance
Facility, as amended, 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
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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 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 Administrative Agent.
"Applicable Eurodollar Rate Margin" with respect to any Eurodollar
Rate Advance to any Borrower means for any day the rate per annum set forth
below opposite the applicable S&P Bond Rating and Moody's Bond Rating in
effect on such day for such Borrower:
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Bond Rating Applicable Eurodollar
(S&P/Moody's) Level Rate Margin
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A/A2 or higher I .170%
A-/A3 II .260%
BBB+/Baa1 III .290%
BBB/Baa2 IV .375%
BBB-/Baa3 V .525%
BB+/Ba1 or lower VI .775%;
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provided that (i) if the Bond Ratings for any Borrower 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 a Borrower 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, (iii) in the event a Bond Rating
for the Company is available from none of the Rating Agencies, the
Applicable Eurodollar Rate Margin for the Company will be the percentage
opposite Level VI, and (iv) in the event a Bond Rating for a Borrowing
Subsidiary is available from none of the Rating Agencies, the Applicable
Eurodollar Rate Margin for such Borrower will be determined using the Bond
Ratings of the Company (unless there is another Borrower (the "Intermediate
Parent") that directly or indirectly owns 100% of the common stock of such
Borrower and the Intermediate Parent has a Bond Rating in effect, in which
case, the Applicable Eurodollar Rate Margin for such Borrower will be
determined using the Bond Ratings of the Intermediate Parent of such
Borrower); provided, that 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 for each Borrower will be increased by
.125% for such day.
"Applicable LIBO Rate" means in respect of any CAF Advance requested
pursuant to a LIBO Rate CAF Advance Request, an interest rate per annum
equal to the rate which appears on Page 3750 of the Telerate Service (or
any successor or substitute page of such Service, or any successor to or
substitute for such service providing rate
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quotations comparable to those currently provided on such page of such
service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar
deposits in the London interbank market) as at approximately 11:00 A.M.,
London time, two Business Days prior to the beginning of the period for
which such CAF Advance is to be outstanding as the rate for Dollar deposits
with a maturity comparable to such period.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit F.
"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 and (b) the Effective Federal Funds Rate in effect on
such day plus " of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Effective Federal Funds Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate
or the Effective Federal Funds Rate, respectively.
"Base Rate Advance" means an Advance which bears interest as provided
in Section 2.11(a)(i).
"Bond Rating" means a rating assigned to a Borrower"s senior long-term
unsecured debt by any of the Rating Agencies.
"Borrowers" means the collective reference to the Company and each
Borrowing Subsidiary; each a "Borrower".
"Borrowing" means 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.
"Borrowing Subsidiary" means EPNGC, Tennessee and each other domestic
Subsidiary of the Company which has been designated by the Company as a
"Borrowing Subsidiary" by written notice to the Administrative Agent, which
designation shall not have been revoked by written notice by the Company to
the Administrative Agent (provided, that no such designation shall be
revoked if either (a) any Default or Event of Default shall have occurred
and be continuing or (b) any Advance to such Borrowing Subsidiary, or any
interest accrued thereon, shall be outstanding); collectively, the
"Borrowing Subsidiaries". For avoidance of doubt, (i) Tennessee may be
undesignated as a Borrowing Subsidiary by written notice to the
Administrative Agent by the Company and (ii) EPNGC shall always be a
Borrower hereunder.
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"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 or LIBO Rate CAF
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.
"CAF Advance" means an Advance made pursuant to Sections 2.4 and 2.5.
"CAF Advance Agent" has the meaning assigned to such term in the
preamble hereof.
"CAF Advance Availability Period" means the period from and including
the Closing Date until the earlier of (a) the date which is 7 days prior to
the Stated Termination Date and (b) the Termination Date.
"CAF Advance Confirmation" means each confirmation by the applicable
Borrower of its acceptance of CAF Advance Offers, which CAF Advance
Confirmation shall be substantially in the form of Exhibit E and shall be
delivered to the CAF Advance Agent by telecopy.
"CAF Advance Interest Payment Date" means as to each CAF Advance, each
interest payment date specified by the applicable Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF Advance Lenders" means Lenders from time to time designated by
the Company, in consultation with the CAF Advance Agent, as CAF Advance
Lenders as provided in Section 2.4.
"CAF Advance Maturity Date" means as to any CAF Advance, the date
specified by the applicable Borrower pursuant to Section 2.5(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Offer" means each offer by a CAF Advance Lender to make
CAF Advances pursuant to a CAF Advance Request, which CAF Advance Offer
shall contain the information specified in Exhibit D and shall be delivered
to the CAF Advance Agent by telephone, immediately confirmed by telecopy.
"CAF Advance Request" means each request by the applicable Borrower
for CAF Advance Lenders to submit bids to make CAF Advances, which request
shall contain the information in respect of such requested CAF Advances
specified in Exhibit C and shall
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be delivered to the CAF Advance Agent in writing, by telecopy, or by
telephone, immediately confirmed by telecopy.
"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 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.
"Co-Documentation Agents" has the meaning assigned to such term in the
preamble hereof.
"Commitment" means as to any Lender, the obligation of such Lender to
make Revolving Credit Advances to the Borrowers 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).
"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
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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 Subsidiary, any liabilities of the Company or such Subsidiary,
as the case may be, under any Alternate Program, or any document executed
by the Company or such Subsidiary, as the case may be, in connection
therewith, (c) any obligations of the Company or a 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 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
Administrative 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 the Company expressly with respect to such assignment and,
except as to such an assignment by Chase so long as Chase is the
Administrative Agent hereunder, the Administrative Agent as an Eligible
Assignee for purposes of this Agreement, provided that (i) neither the
Administrative Agent's nor the Company's approval shall be unreasonably
withheld and (ii) neither the Administrative Agent's nor the Company's
approval shall be required if the assignee is another Lender or an
Affiliate of the assigning Lender.
"EPNGC" has the meaning assigned to such term in the preamble hereof.
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"EPTPC" means El Paso Tennessee Pipeline Co., a Delaware corporation.
"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
Administrative Agent from time to time for purposes of providing 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 average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in Dollars are offered by the
principal office of each of the Reference Lenders 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 each such 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 Administrative
Agent on the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Lenders two Business
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Days before the first day of such Interest Period, subject, however, to the
provisions of Section 2.13.
"Eurodollar Rate Advance" means an 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 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 364-Day Revolving Credit and
Competitive Advance Facility Agreement dated as of August 16, 1999, as the
same has been or may be amended, supplemented or otherwise modified prior
to the Closing Date, 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 5-Year Facility" means the $750,000,000 5-Year Revolving
Credit and Competitive Advance Facility Agreement, dated as of October 29,
1997, among the Company, EPNGC, Tennessee, the banks and other lenders
parties thereto, Chase as
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Administrative Agent and CAF Advance Agent, Citibank, N.A., as
Documentation Agent and Morgan Guaranty Trust Company of New York, 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 Revolving Credit 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 Borrowers 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 M and shall be delivered to the Administrative 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.
"Fixed Rate CAF Advance" means any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request" means any CAF Advance Request
requesting the CAF Advance Lenders to offer to make CAF Advances at a fixed
rate (as opposed to a rate composed of the Applicable LIBO Rate plus (or
minus) a margin).
"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, 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
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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, the
Administrative Agent and the CAF Advance 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 applicable
Borrower 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 applicable
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, or, subject to
availability to each Lender, nine or twelve months, in each case as the
applicable Borrower may, upon notice received by the Administrative 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;
(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
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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.
"Joinder Agreement" means a Joinder Agreement, substantially in the
form of Exhibit J hereto, duly executed and delivered by the Company and
the Borrowing Subsidiary party thereto.
"Lenders" has the meaning assigned to such term in the preamble
hereof.
"LIBO Rate CAF Advance" means any CAF Advance made pursuant to a LIBO
Rate CAF Advance Request.
"LIBO Rate CAF Advance Request" means any CAF Advance Request
requesting the CAF Advance Lenders to offer to make CAF Advances at an
interest rate equal to the Applicable LIBO Rate plus (or minus) a margin.
"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 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.
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"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.
"Moody's Bond Rating", with respect to any Borrower, means for any day
the Bond Rating of such Borrower, if any, established by Moody's 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 Borrowers to the Administrative Agent, the CAF Advance
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 any Borrower
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
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<PAGE> 17
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
otherwise (including all fees and disbursements of counsel to the
Administrative Agent, the CAF Advance Agent or to the Lenders that are
required to be paid by any Borrower 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
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<PAGE> 18
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 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.
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<PAGE> 19
"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, 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 Moody"s 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, CIESCO L.P., 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 Lenders" means Chase, Bank of America, N.A., Citibank, N.A.
and ABN Amro, N.V..
"Register" has the meaning specified in Section 9.7(c).
"Required Lenders" means Lenders (a) that are not Objecting Lenders
with respect to any previous Extension Request and (b) that have Commitment
Percentages
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aggregating at least 66-2/3% of the aggregate Commitment Percentages of
such non-Objecting Lenders.
"Revolving Credit Advances" has the meaning assigned to such term in
Section 2.1.
"S&P Bond Rating", with respect to any Borrower, means for any day the
Bond Rating of such Borrower, if any, established by Standard & Poor's
Ratings Group as in effect at 11:00 A.M., New York City time, on such day.
"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.
"Sonat Agreement" means the Credit Agreement dated as of April 15,
1999 among Sonat Inc., the banks party thereto, Chase, as Administrative
Agent thereunder, Bank of America National Trust and Savings Association,
as Syndication Agent thereunder and Suntrust Bank, Atlanta, as
Documentation Agent thereunder, as amended, supplemented or otherwise
modified from time to time.
"Stated Termination Date" means August 4, 2003 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.
"Syndication Agent" has the meaning assigned to such term in the
preamble hereof.
"Taxes" has the meaning assigned to such term in Section 2.20(a).
"Tennessee" has the meaning assigned to such term in the preamble
hereof, and its successors.
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"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. " 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.
"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 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.
"Type" means (a) as to any Revolving Credit Advance, its nature as a
Base Rate Advance or a Eurodollar Rate Advance and (b) as to any CAF
Advance, its nature as a Fixed Rate CAF Advance or a LIBO Rate CAF Advance.
"Withdrawal Liability" has the meaning given such term under Part 1 of
Subtitle E of Title IV of ERISA.
SECTION I.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 I.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 so materially inconsistent with such
principles that a covenant contained in Section 5.1 or 5.2 would
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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 I.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 II.1 The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make revolving
credit advances ("Revolving Credit Advances") to the Borrowers or any one or
more of them 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. Each Borrowing shall be in 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 Revolving Credit 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, any Borrower 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.
SECTION II.2 Making the Revolving Credit Advances. (a) Each Borrowing
of Revolving Credit Advances shall be made on notice by the Company on its own
behalf or the Company on behalf of another Borrower, to the Administrative Agent
(a "Notice of Borrowing") received by the Administrative Agent, (i) in the case
of a proposed Borrowing 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 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)
Borrower, (B) date of such Borrowing, (C) Type of Revolving Credit Advances
comprising such Borrowing, (D) aggregate amount of such Borrowing, and (E) in
the case of a Borrowing comprised of Eurodollar Rate Advances, the
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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
Administrative Agent at its address at 270 Park Avenue, New York, New York,
10017, Reference: El Paso Energy Corporation, or at such other address
designated by notice from the Administrative Agent to the Lenders pursuant to
Section 9.2, in same day funds, such Lender's ratable portion of such Borrowing.
Immediately after the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the applicable Borrower
at Chase, 270 Park Avenue, New York, New York, 10017, Account No. 323291503,
Reference: El Paso Energy Corporation, or at such other account of the
applicable Borrower maintained by the Administrative Agent (or any successor
Administrative Agent) designated by the applicable Borrower and agreed to by the
Administrative Agent (or such successor Administrative Agent), in same day
funds.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
applicable Borrower. 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 applicable Borrower 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 Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.2 and the Administrative Agent
may, in reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the applicable Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the applicable Borrower until the date such amount is repaid to the
Administrative Agent, at the Effective Federal Funds Rate for such day. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Advance to the applicable
Borrower 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.
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SECTION II.3 Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance of such Lender to such Borrower 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 Revolving Credit Advance.
(b) The Administrative 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 Revolving Credit 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 each
Borrower on account of such Revolving Credit Advance to each Lender hereunder
and (iii) both the amount of any sum received by the Administrative Agent
hereunder from each Borrower 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 each Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of each Borrower to repay (with applicable interest) the Revolving
Credit Advances made to each such Borrower by such Lender in accordance with the
terms of this Agreement.
(d) Each Borrower agrees that, upon the request to the Administrative
Agent by any Lender, such Borrower will execute and deliver to such Lender a
promissory note of such Borrower evidencing the Revolving Credit Advances of
such Lender to such Borrower, substantially in the form of Exhibit A with
appropriate insertions as to date and principal amount (a "Note").
SECTION II.4 CAF Advances. Subject to the terms and conditions of this
Agreement, the Borrowers or any one or more of them may borrow CAF Advances from
time to time during the CAF Advance Availability Period on any Business Day. The
Company shall, in consultation with the CAF Advance Agent, designate Lenders
from time to time as CAF Advance Lenders by written notice to the CAF Advance
Agent. The CAF Advance Agent shall transmit each such notice of designation
promptly to each designated CAF Advance Lender. CAF Advances shall be borrowed
in amounts such that the aggregate amount of Advances outstanding at any time
shall not exceed the aggregate amount of the Commitments at such time. Any CAF
Advance Lender may make CAF Advances in amounts which, individually and together
with the aggregate amount of other Advances of such CAF Advance Lender, exceed
such CAF Advance Lender's Commitment, and such CAF Advance Lender's CAF Advances
shall not be deemed to utilize such CAF Advance Lender's Commitment. Within the
limits and on the conditions hereinafter set forth with respect to CAF Advances,
the Borrowers from time to time may borrow, repay and reborrow CAF Advances.
SECTION II.5 Procedure for CAF Advance Borrowings. (a) A Borrower, or
the Company on behalf of a Borrower, shall request CAF Advances by delivering a
CAF Advance
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Request to the CAF Advance Agent, not later than 12:00 Noon (New York City time)
four Business Days prior to the date of the proposed Borrowing (in the case of a
LIBO Rate CAF Advance Request), and not later than 10:00 A.M. (New York City
time) one Business Day prior to the date of the proposed Borrowing (in the case
of a Fixed Rate CAF Advance Request). Each CAF Advance Request may solicit bids
for CAF Advances in an aggregate principal amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and having not more than five
alternative maturity dates. The maturity date for each CAF Advance shall be not
less than 7 days nor more than 360 days after the date of the Borrowing therefor
(and in any event shall be not later than the Stated Termination Date); provided
that each LIBO Rate CAF Advance shall mature one, two, three or six months or,
if available, nine or twelve months after the date of the Borrowing therefor.
The CAF Advance Agent shall notify each CAF Advance Lender promptly by telecopy
of the contents of each CAF Advance Request received by the CAF Advance Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the CAF Advance Agent of the contents of such CAF Advance Request,
each CAF Advance Lender may elect, in its sole discretion, to offer irrevocably
to make one or more CAF Advances at the Applicable LIBO Rate plus (or minus) a
margin determined by such CAF Advance Lender in its sole discretion for each
such CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
Advance Offer to the CAF Advance Agent, before 10:30 A.M. (New York City time)
on the day that is three Business Days before the date of the proposed
Borrowing, setting forth:
(i) the maximum amount of CAF Advances for each maturity date and the
aggregate maximum amount of CAF Advances for all maturity dates which such
CAF Advance Lender would be willing to make (which amounts may, subject to
Section 2.4, exceed such CAF Advance Lender's Commitment); and
(ii) the margin above or below the Applicable LIBO Rate at which such
CAF Advance Lender is willing to make each such CAF Advance.
The CAF Advance Agent shall advise the Company and the applicable Borrower
before 11:00 A.M. (New York City time) on the date which is three Business Days
before the proposed date of the Borrowing of the contents of each such CAF
Advance Offer received by it. If the CAF Advance Agent, in its capacity as a CAF
Advance Lender, shall elect, in its sole discretion, to make any such CAF
Advance Offer, it shall advise the Company and the applicable Borrower of the
contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on the
date which is three Business Days before the proposed date of the Borrowing.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the CAF Advance Agent of the contents of such CAF Advance Request,
each CAF Advance Lender may elect, in its sole discretion, to offer irrevocably
to make one or more CAF Advances at a rate of interest determined by such CAF
Advance Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the CAF
Advance Agent before 9:30 A.M. (New York City time) on the proposed date of the
Borrowing, setting forth:
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<PAGE> 26
(i) the maximum amount of CAF Advances for each maturity date, and the
aggregate maximum amount for all maturity dates, which such CAF Advance
Lender would be willing to make (which amounts may, subject to Section 2.4,
exceed such CAF Advance Lender's Commitment); and
(ii) the rate of interest at which such CAF Advance Lender is willing
to make each such CAF Advance.
The CAF Advance Agent shall advise the Company and the applicable Borrower
before 10:00 A.M. (New York City time) on the proposed date of the Borrowing of
the contents of each such CAF Advance Offer received by it. If the CAF Advance
Agent, in its capacity as a CAF Advance Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Company and
the applicable Borrower of the contents of its CAF Advance Offer before 9:15
A.M. (New York City time) on the proposed date of the Borrowing.
(d) Before 11:30 A.M. (New York City time) three Business Days before
the proposed date of the Borrowing (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the
proposed date of the Borrowing (in the case of CAF Advances requested by a Fixed
Rate CAF Advance Request), the Company, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the CAF Advance Agent
telephone notice to that effect, or
(ii) by giving telephone notice to the CAF Advance Agent (immediately
confirmed by delivery to the CAF Advance Agent of a CAF Advance
Confirmation in writing or by telecopy) (A) subject to the provisions of
Section 2.5(e), accept one or more of the offers made by any CAF Advance
Lender or CAF Advance Lenders pursuant to Section 2.5(b) or Section 2.5(c),
as the case may be, of the amount of CAF Advances for each relevant
maturity date and (B) reject any remaining offers made by CAF Advance
Lenders pursuant to Section 2.5(b) or Section 2.5(c), as the case may be.
(e) The Company's acceptance of CAF Advances in response to any CAF
Advance Request shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each maturity date
specified by any CAF Advance Lender in its CAF Advance Offer shall not
exceed the maximum amount for such maturity date specified in such CAF
Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all maturity
dates specified by any CAF Advance Lender in its CAF Advance Offer shall
not exceed the aggregate maximum amount specified in such CAF Advance Offer
for all such maturity dates;
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<PAGE> 27
(iii) the Company may not accept offers for CAF Advances for any
maturity date in an aggregate principal amount in excess of the maximum
principal amount requested in the related CAF Advance Request; and
(iv) if the Company accepts any of such offers, it must accept offers
based solely upon pricing for such relevant maturity date and upon no other
criteria whatsoever and if two or more CAF Advance Lenders submit offers
for any maturity date at identical pricing and the Company accepts any of
such offers but does not wish to (or by reason of the limitations set forth
in Section 2.4 or in Section 2.5(e)(iii), cannot) borrow the total amount
offered by such CAF Advance Lenders with such identical pricing, the
Company shall accept offers from all of such CAF Advance Lenders in amounts
allocated among them pro rata according to the amounts offered by such CAF
Advance Lenders (or as nearly pro rata as shall be practicable after giving
effect to the requirement that CAF Advances made by a CAF Advance Lender on
a date of the Borrowing for each relevant maturity date shall be in a
principal amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof; provided that if the number of CAF Advance Lenders that
submit offers for any maturity date at identical pricing is such that,
after the Company accepts such offers pro rata in accordance with the
foregoing, the CAF Advance to be made by such CAF Advance Lenders would be
less than $5,000,000 principal amount, the number of such CAF Advance
Lenders shall be reduced by the CAF Advance Agent by lot until the CAF
Advances to be made by such remaining CAF Advance Lenders would be in a
principal amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof).
(f) If the Company notifies the CAF Advance Agent that a CAF Advance
Request is cancelled pursuant to Section 2.5(d)(i), the CAF Advance Agent shall
give prompt telephone notice thereof to the CAF Advance Lenders.
(g) If the Company accepts pursuant to Section 2.5(d)(ii) one or more
of the offers made by any CAF Advance Lender or CAF Advance Lenders, the CAF
Advance Agent promptly shall notify each CAF Advance Lender which has made such
a CAF Advance Offer of (i) the aggregate amount of such CAF Advances to be made
on such Borrowing Date for each maturity date and (ii) the acceptance or
rejection of any offers to make such CAF Advances made by such CAF Advance
Lender. Before 1:00 P.M. (New York City time) on the date of the Borrowing
specified in the applicable CAF Advance Request, each CAF Advance Lender whose
CAF Advance Offer has been accepted shall make available to the Administrative
Agent at its office set forth in Section 9.2 the amount of CAF Advances to be
made by such CAF Advance Lender, in same day funds. The Administrative Agent
will make such funds available to the applicable Borrower as soon as practicable
on such date at the Administrative Agent's aforesaid address. As soon as
practicable after each Borrowing Date, the CAF Advance Agent shall notify each
Lender of the aggregate amount of CAF Advances advanced on such Borrowing Date
and the respective maturity dates thereof.
(h) The failure of any CAF Advance Lender to make the CAF Advance to
be made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any,
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<PAGE> 28
hereunder to make its CAF Advance on the date of such Borrowing, but no CAF
Lender shall be responsible for the failure of any other CAF Advance Lender to
make the CAF Advance to be made by such CAF Advance Lender on the date of any
Borrowing.
(i) A CAF Advance Request may request offers for CAF Advances to be
made on not more than one Borrowing Date and to mature on not more than five CAF
Advance Maturity Dates. No CAF Advance Request may be submitted earlier than
five Business Days after submission of any other CAF Advance Request.
SECTION II.6 CAF Advance Payments. (a) The applicable Borrower shall
repay to the Administrative Agent, for the account of each CAF Advance Lender
which has made a CAF Advance to it, on the applicable CAF Advance Maturity Date
the then unpaid principal amount of such CAF Advance. The Borrowers shall not
have the right to prepay any principal amount of any CAF Advance.
(b) The applicable Borrower shall pay interest on the unpaid principal
amount of each CAF Advance to it from the date of the Borrowing to the
applicable CAF Advance Maturity Date at the rate of interest specified in the
CAF Advance Offer accepted by the applicable Borrower in connection with such
CAF Advance (calculated on the basis of a 360-day year for actual days elapsed),
payable on each applicable CAF Advance Interest Payment Date.
(c) If all or a portion of the principal amount of any CAF Advance
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue principal amount shall, without limiting any rights of
any Lender under this Agreement, bear interest from the date on which such
payment was due at a rate per annum which is 1% above the rate which would
otherwise be applicable pursuant to such CAF Advance until the stated maturity
date of such CAF Advance, and for each day thereafter at a rate per annum which
is 2% above the Base Rate, in each case until paid in full (as well after as
before judgment). Interest accruing pursuant to this paragraph (c) shall be
payable from time to time on demand.
SECTION II.7 Evidence of Debt. Each Lender shall maintain in
accordance with its usual practice appropriate records evidencing indebtedness
of each Borrower to such Lender resulting from each CAF Advance of such Lender
to such Borrower 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
CAF Advance. The Administrative Agent shall maintain the Register pursuant to
Section 9.7(c) and a record therein for each Lender, in which shall be recorded
(i) the amount of each CAF Advance made by such Lender to each Borrower, the CAF
Advance Maturity Date thereof, the interest rate applicable thereto and each CAF
Advance Interest Payment Date applicable thereto, and (ii) the amount of any sum
received by the Administrative Agent hereunder from a Borrower on account of
such CAF Advance. The entries made in the Register and the records of each
Lender maintained pursuant to this Section 2.7 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such record, or any error therein,
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<PAGE> 29
shall not in any manner affect the obligation of each Borrower to repay (with
applicable interest) the CAF Advances made by such Lender in accordance with the
terms of this Agreement.
SECTION II.8 Fees. (a) The Company agrees to pay to the Administrative
Agent for the account of each Lender a facility fee for the period from and
including 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 greater of (i) the Commitment of
such Lender and (ii) the outstanding principal amount of Revolving Credit
Advances of such Lender during the period for which payment is made, which rate
will vary according to the S&P Bond Rating for the Company and the Moody's Bond
Rating for the Company as follows:
<TABLE>
<CAPTION>
Bond Rating Facility
(S&P/Moody's) Level Fee Rate
------------- ----- --------
<S> <C> <C>
A/A2 or higher I .080%
A-/A3 II .090%
BBB+/Baa1 III .110%
BBB/Baa2 IV .125%
BBB-/Baa3 V .175%
BB+/Ba1 or lower VI .225%;
</TABLE>
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 quarterly in arrears on
the last day of each March, June, September and December and on the Termination
Date or 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 and on the Termination Date (or if the Lender is
an Objecting Lender, the Commitment Expiration Date applicable to such Lender)
or such earlier date on which the Advances are repaid in full, commencing on the
first of such dates to occur after the date hereof.
(b) The Company agrees to pay to Chase Securities Inc., the
Administrative Agent and the CAF Advance Agent the fees set forth in the letter,
dated as of July 5, 2000 from Chase Securities Inc. and Chase to the Company.
SECTION II.9 Reduction of the Commitments. The Company shall have the
right, upon at least three Business Days' notice to the Administrative 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.
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<PAGE> 30
SECTION II.10 Repayment of Advances. The Borrowers shall repay to each
Lender on the Termination Date the aggregate principal amount of the Advances
then owing to such Lender; provided that the Revolving Credit Advances made by
Objecting Lenders shall be repaid as provided in Section 2.23.
SECTION II.11 Interest on Revolving Credit Advances. (a) Ordinary
Interest. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance of such Borrower 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 for such Borrower 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).
(b) Default Interest. The applicable Borrower shall pay interest on
the unpaid principal amount of each Revolving Credit 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
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 II.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 applicable Borrower 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
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<PAGE> 31
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 Administrative Agent, which notice shall be
conclusive and binding for all purposes, absent manifest error.
SECTION II.13 Interest Rate Determination. (a) Each Reference Lender
agrees to furnish to the Administrative Agent timely information for the purpose
of determining the Eurodollar Rate. If any one or more of the Reference Lenders
shall not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Lenders.
(b) The Administrative Agent shall give prompt notice to the Company
and the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.11(a)(i) or (ii), and the applicable rate, if
any, furnished by each Reference Lender for the purpose of determining the
applicable interest rate under Section 2.11(a)(ii).
(c) If fewer than two Reference Lenders furnish timely information to
the Administrative Agent for determining the Eurodollar Rate for any Eurodollar
Rate Advances,
(i) the Administrative Agent shall give the Company and each
Lender prompt notice thereof by telephone (confirmed in writing) that the
interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligations of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders determine and give notice to the Administrative 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 Administrative Agent
shall forthwith so notify the Company and the Lenders, whereupon,
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<PAGE> 32
(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
Administrative Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
(e) If the applicable Borrower 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
Administrative Agent will forthwith so notify the applicable Borrower 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 applicable Borrower 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 applicable Borrower 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 any Reference Lender shall for any reason no longer have a
Commitment or any Revolving Credit Advances, such Reference Lender shall
thereupon cease to be a Reference Lender, and if, as a result, there shall only
be one Reference Lender remaining, the Administrative Agent (after consultation
with the Company and the Lenders) shall, by notice to the Company and the
Lenders, designate another Lender as a Reference Lender so that there shall at
all times be at least two Reference Lenders.
SECTION II.14 Voluntary Conversion of Advances. Any Borrower may on
any Business Day, upon notice given to the Administrative 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 comprising the same Borrowing into Advances of another
Type; 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 no Revolving Credit Advance may be
converted into a Eurodollar Rate Advance after the date that is one month prior
to (a) in the case of a Revolving Credit Advance made by an
28
<PAGE> 33
Objecting Lender, such Objecting Lender's Commitment Expiration Date, and (b) in
the case of all Revolving Credit Advances, the Termination Date and provided,
still further, that no Revolving Credit 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 II.15 Optional and Mandatory Prepayments. (a) Optional
Prepayments. Any Borrower may upon (i) in the case of Eurodollar Rate Advances,
at least two Business Days' notice 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 Administrative 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 such Borrower shall, prepay the outstanding
principal amounts of the Revolving Credit 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 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, such Borrower 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 such
Borrower will use its best efforts to give notice to the Administrative 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
Borrowers shall immediately prepay the Revolving Credit Advances of Lenders
(other than Objecting Lenders) (to the extent there are such outstanding
Revolving Credit Advances) by an amount equal to such excess.
SECTION II.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 Borrowers shall from time to
time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative 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
29
<PAGE> 34
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 Administrative 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 Administrative Agent and
the affected Lenders that, after the date of such notice whenever the election
of Eurodollar Rate Advances by the applicable Borrower for an Interest Period or
portion thereof would give rise to such increased costs, such election shall not
apply to the Revolving Credit Advances of such Lenders during such Interest
Period or portion thereof, and, in lieu thereof, such Revolving Credit 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
Borrowers under this Section 2.16.
(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 Borrowers 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 II.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 Administrative Agent), the applicable
Borrowers shall pay to the Administrative 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
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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 II.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 Administrative Agent, suspend the right of
the Borrowers to 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 Administrative 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 II.19 Pro Rata Treatment, Payments and Computations. (a) Each
Borrowing by any Borrower in respect of Revolving Credit Advances (subject to
the provisions of Section 2.24(e)) shall be made pro rata according to the
respective Commitment Percentages of the Lenders. The Borrowers shall make each
payment hereunder (including under Section 2.6, 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 Administrative 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 Administrative Agent at its address at 270 Park Avenue, New York,
New York 10017, Reference: El Paso Energy Corporation, or at such other location
designated by notice to the Company from the Administrative Agent and agreed to
by the Company, in same day funds. The Administrative 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) 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 Administrative Agent shall make all payments hereunder and
under the Notes in respect of
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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 Administrative 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
Administrative Agent, and all computations of interest pursuant to Section 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 Administrative Agent
(or, in the case of Section 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.
(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 Administrative Agent shall have received notice from
the Company or any other applicable Borrower prior to the date on which any
payment is due to the Lenders hereunder that the applicable Borrower will not
make such payment in full, the Administrative Agent may assume that the
applicable Borrower has made such payment in full to the Administrative Agent on
such date and the Administrative 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 applicable Borrower shall
not have so made such payment in full to the Administrative Agent, each Lender
shall repay to the Administrative 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 Administrative Agent, at a rate equal to the Effective
Federal Funds Rate for such day.
SECTION II.20 Taxes. (a) Any and all payments by the Borrowers
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
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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 any
Borrower 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) such Borrower shall
make or cause to be made such deductions and (iii) such Borrower 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 Borrowers
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 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 Borrowers 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 Borrowers from any taxes,
penalties, interest and other expenses, costs and losses incurred or payable by
the Borrowers as a result of the failure of any of the Borrowers 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 Borrowers, it shall promptly notify the
Company of such net credit or refund and shall promptly pay such net credit or
refund to the applicable Borrower, provided that the applicable Borrower 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, each Borrower 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 such Borrower 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) Each Borrower will indemnify each Indemnified Party and the
Administrative 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
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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 Borrowers 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 any
Borrower to such 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 any Borrower 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
Borrowers hereunder, the agreements and obligations of the Borrowers 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.
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(g) Any other provision of this Agreement to the contrary
notwithstanding, any amounts which are payable by any Borrower under this
Section 2.20 shall not be payable under Section 2.16.
SECTION II.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 2.12, 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. Each Borrower 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 such Borrower in the amount of such
participation.
SECTION II.22 Use of Proceeds. Proceeds of the Advances may be used
for general business purposes of the Borrowers and their respective
Subsidiaries, including for acquisitions and for payment of commercial paper
issued by the Borrowers, and to refinance any Indebtedness of the Borrowers and
their respective Subsidiaries (whether in connection with any acquisition or
otherwise).
SECTION II.23 Extension of Stated Termination Date. (a) Not less than
45 days and not more than 60 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 Administrative Agent an Extension Request containing the
information in respect of such extension specified in Exhibit M, which the
Administrative Agent shall promptly furnish to each Lender. Each Lender shall,
not less than 30 days and not more than 60 days prior to the Stated Termination
Date then in effect, notify the Company and the Administrative 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 30 days prior to the Stated
Termination Date then in effect. If the Required Lenders 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; provided that (i) each extension pursuant to this Section 2.23 shall be
for a maximum of three years and (ii) the Commitment of any Lender that does not
consent in writing, or which
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revokes, in accordance with the provisions of this Section 2.23, its consent to
such extension not less than 30 days and not more than 60 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, being referred
to as the "Commitment Expiration Date" with respect to such Objecting Lender).
If, not less than 30 days and not more than 60 days prior to the Stated
Termination Date then in effect, the Required Lenders shall not 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 Administrative 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) Revolving Credit 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 Borrowers shall have the right, so long as no Event of Default
has occurred and is then continuing, upon giving notice to the Administrative
Agent and the Objecting Lenders in accordance with Section 2.15, to prepay in
full the Revolving Credit Advances of the Objecting Lenders, together with
accrued interest thereon, any amounts payable pursuant to Sections 2.11, 2.12,
2.16, 2.17, 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
Administrative 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 Borrower 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 Borrower, 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 Borrower, 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 II.24 [Intentionally Left Blank]
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SECTION II.25 Replacement of Lenders. If any Lender requests
compensation under Sections 2.12, 2.16 or 2.17 or if any Borrower 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 any Borrower 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 Administrative 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 (other than any outstanding CAF Advances held
by it) 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 Administrative
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 (other than CAF 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 Borrowers (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 III.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, EPNGC Tennessee, the Administrative Agent,
the CAF Advance Agent, the Co-Documentation Agents and the Syndication Agent and
(ii) the Administrative 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 August 31, 2000, (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, the Administrative Agent and the
CAF Advance Agent hereunder, shall be terminated on and as of 5:00 P.M. (New
York City time) on August 31, 2000; provided, however, that as soon as the
Administrative 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 August 31, 2000, the Administrative Agent shall furnish written notice to
the Company and the Lenders to the effect that it has so determined, and such
notice by the Administrative 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 Borrowers pursuant to Section 9.4 shall survive
the termination of this Agreement.
SECTION III.2 Conditions Precedent to Initial Advances. The agreement
of each Lender to make the initial Advances to be made by it to the Borrowers
hereunder is subject to (the date upon which all conditions listed in Section
3.2(a) and 3.2(b) are satisfied, the "Closing Date") (a) the occurrence of the
Effective Date hereunder and (b) the receipt by the Administrative Agent of the
following in form and substance satisfactory to the Administrative Agent and in
sufficient copies for each Lender:
(i) Certified copies of the resolutions of the Board of Directors of
each of the Company, EPNGC and Tennessee approving the borrowings
contemplated hereby and authorizing the execution of this Agreement and the
Notes, and of all documents evidencing other necessary Business Entity
action of each of the Company, EPNGC and Tennessee and governmental
approvals to each of the Company, EPNGC and Tennessee, if any, with respect
to this Agreement and the Notes.
(ii) A certificate of the Secretary or an Assistant Secretary of each
of the Company, EPNGC and Tennessee certifying the names and true
signatures of the officers of each of the Company, EPNGC and Tennessee
authorized to sign this Agreement and the other documents to be delivered
by it hereunder.
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(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 G.
(iv) A favorable opinion of Jones, Day, Reavis & Pogue, New York
counsel to the Company, EPNGC and Tennessee, in substantially the form of
Exhibit H.
(v) A letter from the Process Agent, in substantially the form of
Exhibit I, agreeing to act as Process Agent for each of the Company, EPNGC
and Tennessee and to forward forthwith all process received by it to the
Company, EPNGC and Tennessee, as applicable.
(vi) Evidence satisfactory to the Administrative Agent that all
advances, accrued interest and other fees and any other amounts owing to
the lenders and the agents under the Existing 364-Day Facility and the
Existing 5-Year Facility shall have been, or simultaneously with the
initial Advances are being, paid in full, and the commitments to make
advances thereunder shall have been cancelled.
SECTION III.3 Conditions Precedent to Initial Advances to Any
Borrowing Subsidiary. The agreement of each Lender to make the initial Advances
to be made by it to any Borrowing Subsidiary (other than EPNGC and Tennessee) is
further subject to the Administrative Agent receiving the following, in form and
substance satisfactory to the Administrative Agent and (except for the Notes) in
sufficient copies for each Lender:
(a) A Joinder Agreement executed and delivered by such Borrowing
Subsidiary conforming to the requirements hereof.
(b) Notes, dated the date such Borrowing Subsidiary executes and
delivers its Joinder Agreement, made by such Borrowing Subsidiary to the
order of each Lender requesting a Note, respectively.
(c) A certificate of the Secretary or an Assistant Secretary of such
Borrowing Subsidiary certifying the names and true signature of the
officers of such Borrowing Subsidiary authorized to sign the Joinder
Agreement and the other documents to be delivered by it hereunder.
(d) A favorable opinion of the Senior Counsel or Associate General
Counsel of the Company, given upon the express instructions of the Company,
in substantially the form of Exhibit K, and as to such other matters as any
Lender through the Administrative Agent may reasonably request, with such
assumptions, qualifications and exceptions as the Administrative Agent may
approve.
(e) A favorable opinion of Jones, Day, Reavis & Pogue or other New
York counsel to the Company reasonably satisfactory to the Administrative
Agent, in substantially the form of Exhibit L, and as to such other matters
as any Lender through
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the Administrative Agent may reasonably request, with such assumptions,
qualifications and exceptions as the Administrative Agent may approve.
(f) A letter from the Process Agent, in substantially the form of
Exhibit I, agreeing to act as Process Agent for such Borrowing Subsidiary,
as the case may be, and to forward forthwith all process received by it to
such Borrowing Subsidiary.
(g) Evidence satisfactory to the Administrative Agent that all
advances, accrued interest and other fees and any other amounts owing to
the lenders and the agents under the Existing 364-Day Facility and the
Existing 5-Year Facility shall have been, or simultaneously with the
initial Advances are being, paid in full, and the commitments to make
advances thereunder shall have been canceled.
SECTION III.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 or before 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 applicable Borrower or the Company on such
Borrower's behalf of the applicable Notice of Borrowing and the acceptance by
the applicable Borrower 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 IV.1 Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) The Company is a Business Entity duly formed, validly existing
and, if applicable, in good standing under the laws of the State of
Delaware. Each Principal Subsidiary is duly organized or formed, validly
existing and, if applicable, in good standing in the jurisdiction of its
organization or formation. The Company and each Principal Subsidiary
possess all applicable Business Entity powers and all other authorizations
and licenses necessary to engage in its business and operations as now
conducted, the failure to obtain or maintain which would have a Material
Adverse Effect.
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(b) The execution, delivery and performance by each Borrower of this
Agreement, each Joinder Agreement, if any, to which it is a party and its
Notes (as applicable) are within such Borrower's applicable Business Entity
powers, have been duly authorized by all necessary applicable Business
Entity action, and do not contravene (A) such Borrower's organizational
documents or (B) any law or any material contractual restriction binding on
or affecting such Borrower.
(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 such Borrower of this
Agreement, each Joinder Agreement, if any, to which it is a party or its
Notes (as applicable), except those necessary to comply with laws, rules,
regulations and orders required in the ordinary course to comply with
ongoing obligations of such Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement,
if any, to which it is a party (as applicable) when delivered hereunder
shall constitute the legal, valid and binding obligations of each Borrower,
enforceable against such Borrower 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 Administrative 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 March 31, 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 Administrative Agent and the
Lenders 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
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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 any Borrower 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, 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 file or pay which, as applicable, 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 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 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
Administrative 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
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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).
(o) No Borrower is an "investment company" or a "company" controlled
by an "investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(p) No Borrower is 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 Borrowers 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 Borrowers 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 BORROWERS
SECTION V.1 Affirmative Covenants. So long as any amount payable by
any Borrower hereunder or under any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, each Borrower will, unless the Majority Lenders
shall otherwise consent in writing:
(a) Preservation of Existence, Etc. Preserve and maintain, and, in the
case of the Company, 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, in the case of the
Company, 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
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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 Administrative 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.
(d) Books and Records. Keep, and, in the case of the Company, 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 Administrative 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, in the
case of the Company, 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, in the case of the
Company, 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 V.2 Negative Covenants. So long as any amount payable by any
Borrower hereunder or under any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, each Borrower will not, unless the Majority
Lenders shall otherwise consent in writing:
(a) Liens, Etc. (i) Create, assume or suffer to exist, or, in the case
of the Company, 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, in the case of the Company, 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
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Guaranties in an aggregate amount (determined without duplication of amount
(so that the amount of a Guaranty 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 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 any Borrower or any Subsidiary 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).
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(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 .7 to 1.
(c) Debt, Etc. In the case of the Company, 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 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) this Agreement or
the 364-Day 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 and (2) the aggregate amount of
Commitments as defined in the 364-Day Facility, over (y) the sum of (1) the
aggregate amount of Advances, (2) the aggregate amount of Advances, as
defined in and outstanding pursuant to, the 364-Day Facility, and (3) the
aggregate principal amount of commercial paper outstanding from time to
time that (I) is issued by the Company and its
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Subsidiaries (other than Tennessee) and (II) relies upon credit
availability under either this Agreement or the 364-Day Facility for
commercial paper liquidity purposes.
(d) Sale, Etc. of Assets. Sell, lease or otherwise transfer, or, in
the case of the Company, 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;
(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
immediately after giving effect to such transfer.
(e) Mergers, Etc. Merge or consolidate with any Person, or in the case
of the Company 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
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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 the Notes 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 and the Notes,
(B) if any Principal Subsidiary merges or consolidates with any such other
Business Entity, the 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 and (D)
if any Principal Subsidiary which is a party to any merger, consolidation
or liquidation permitted by this paragraph (e) is a Borrowing Subsidiary,
either (x) such Principal Subsidiary 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 such Borrowing Subsidiary under this Agreement and
the Notes (the Borrowers and the Lenders agreeing that it is their
intention that each Business Entity that is a Borrower be organized under
the laws of the United States or a State thereof).
SECTION V.3 Reporting Requirements. So long as any amount payable by
any Borrower 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
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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, 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
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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 with respect to any Plan 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;
(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 Administrative 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
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the presentation required in Form 10-Q and 10-K, as appropriate, under the
Securities Exchange Act of 1934, as amended.
SECTION V.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
GUARANTEES
SECTION VI.1 Guarantees. (a) Subject to the provisions of Section
6.1(b), each Borrower hereby unconditionally and irrevocably guarantees to the
Administrative Agent, for the ratable benefit of the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment by each other Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations owing by such other
Borrower.
(b) Anything in this Article VI to the contrary notwithstanding, the
maximum liability of each Borrower (other than a Borrower which is guaranteeing
the Obligations of its Subsidiaries) under this Article VI shall in no event
exceed the amount which can be guaranteed by such Borrowing Subsidiary under
applicable federal and state laws relating to the insolvency of debtors.
(c) Each Borrower agrees that the Obligations owing by any other
Borrower may at any time and from time to time exceed the amount of the
liability of such other Borrower under this Article VI without impairing the
guarantee of such Borrower under this Article VI or affecting the rights and
remedies of the Administrative Agent or any Lender under this Article VI.
(d) No payment or payments made by any Borrower or any other Person or
received or collected by the Administrative Agent or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the Borrowers under this Article VI
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which shall, notwithstanding any such payment or payments, continue until the
Obligations are paid in full and the Commitments are terminated.
(e) Each Borrower agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability under this Article VI, it will notify the
Administrative Agent in writing that such payment is made under this Article VI
for such purpose.
SECTION VI.2 No Subrogation. Notwithstanding any payment or payments
made by any Borrower under this Article VI or any set-off or application of
funds of such Borrower by the Administrative Agent or any Lender, such Borrower
shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against any other Borrower or against any
collateral security or guarantee or right of offset held by the Administrative
Agent or any Lender for the payment of the Obligations, nor shall such Borrower
seek or be entitled to seek any contribution or reimbursement from any other
Borrower in respect of payments made by such Borrower hereunder, until all
amounts owing to the Administrative Agent and the Lenders by the other Borrowers
on account of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to any Borrower on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by such Borrower in trust for the
Administrative Agent and the Lenders, segregated from other funds of such
Borrower, and shall, forthwith upon receipt by such Borrower, be turned over to
the Administrative Agent in the exact form received by such Borrower (duly
indorsed by such Borrower to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine.
SECTION VI.3 Amendments, etc. with respect to the Obligations; Waiver
of Rights. Each Borrower shall remain obligated under this Article VI
notwithstanding that, without any reservation of rights against such Borrower,
and without notice to or further assent by such Borrower, any demand for payment
of any of the Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender, and any of the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and this
Agreement, any Notes and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the Majority Lenders, as the
case may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any
Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Administrative Agent nor any Lender shall
have any obligation to protect, secure, perfect or insure any Lien at any time
held by it as security for the Obligations or for this Agreement or any property
subject thereto. When making any demand hereunder against any Borrower, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar
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demand on the applicable Borrowing Subsidiaries or any other guarantor, and any
failure by the Administrative Agent or any Lender to make any such demand or to
collect any payments from the other Borrowers or any such other guarantor or any
release of the other Borrowers or such other guarantor shall not relieve such
Borrower of its obligations or liabilities hereunder, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of
the Administrative Agent or any Lender against such Borrower for the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
SECTION VI.4 Guarantee Absolute and Unconditional. Each Borrower
waives any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon this Agreement or acceptance of this Agreement; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Agreement; and all dealings between any Borrower, on the one hand, and
the Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Agreement. Each Borrower waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the other Borrowers with
respect to the Obligations. The guarantee contained in this Article VI shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of this
Agreement, any Note, any of the Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by any
Borrower against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of any Borrower)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of any Borrower for the Obligations, or of the Borrowers under this
Agreement, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against any Borrower, the Administrative Agent and any Lender
may, but shall be under no obligation to, pursue such rights and remedies as it
may have against any other Borrower or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Lender to
pursue such other rights or remedies or to collect any payments from other
Borrowers or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
any other Borrower or any such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve any Borrower of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent or
any Lender against such Borrower. The guarantees contained in this Article VI
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon each Borrower and its successors and assigns
thereof, and shall inure to the benefit of the Administrative Agent and the
Lenders, and their respective successors, indorsees, transferees and assigns,
until all the Obligations and the obligations of the Borrowers under this
Agreement shall have been satisfied by payment in full and the Commitments shall
be terminated, notwithstanding that from time to time during the term of this
Agreement the Borrowers may be free from any Obligations.
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SECTION VI.5 Reinstatement. The provisions of this Article VI shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
ARTICLE VII
EVENTS OF DEFAULT
SECTION VII.1 Event of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any installment of principal of any
of its Advances or Notes when due, or any interest on any of its 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 any Borrower
herein or by any Borrower (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) Any Borrower 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 such Borrower by
the Administrative Agent or by any Lender with a copy to the Administrative
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, at such time, or any installment of principal thereof or interest
or premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt or Guaranty; or any other
default under any agreement or instrument relating to any such Debt, 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
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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 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 referred to above sought in such
proceeding (including the entry of an order for relief against it or the
appointment of a receiver, trustee, custodian or other similar official for
it or any substantial part of its property) shall occur; or (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
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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 Administrative Agent, such Termination Event shall still
exist; or (ii) the Company or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan; or (iii) the Company or any ERISA
Affiliate shall have been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization, or is insolvent or is
being terminated, within the meaning of Title IV of ERISA; or (iv) any
Person shall engage in a "prohibited transaction" (as defined in Section
406 of ERISA or Section 4975 of the Code) involving any Plan; and in each
case in clauses (i) through (iv) above, such event or condition, together
with all other such events or conditions, if any, would result in an
aggregate liability of the Company or any ERISA Affiliate that would exceed
10% of Net Worth; or
(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; or
(j) Any of the Guarantees contained in Article VI shall cease, for any
reason, to be in full force and effect or any Borrower shall so assert;
provided that if, within one Business Day after any Borrower receives
notice from the Administrative Agent or otherwise becomes aware that such
Guarantee is not in full force and effect, the Company delivers written
notice to the Administrative Agent that the applicable Borrower intends to
deliver a valid and effective Guarantee, or to reinstate such Guarantee, as
soon as possible, then an Event of Default shall not exist pursuant this
Section 7.1(j) unless the Company shall fail to deliver or reinstate or
cause to be delivered or reinstated a Guarantee of the applicable Borrower
having the same economic effect as the Guarantee
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set forth in Article VI within four Business Days after the delivery of
such written notice of intent;
then, and in any such event, the Administrative 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 Borrowers; 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 Borrowers.
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE CAF ADVANCE AGENT
SECTION VIII.1 Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agent and the CAF Advance Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agent and the CAF Advance 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 Administrative
Agent and the CAF Advance 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
Administrative Agent and the CAF Advance Agent shall not be required to take any
action which exposes the Administrative Agent or the CAF Advance Agent to
personal liability or which is contrary to this Agreement or applicable law. The
Administrative Agent and the CAF Advance Agent agree to give to each Lender
prompt notice of each notice given to it by any Borrower pursuant to the terms
of this Agreement.
SECTION VIII.2 Administrative Agent's and CAF Advance Agent's
Reliance, Etc. None of the Administrative Agent, the CAF Advance Agent or any of
its respective 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
Administrative Agent and the CAF Advance Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and accepts
an Assignment and
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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 Borrowers or
to inspect the property (including the books and records) of the Borrowers; (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 VIII.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 Administrative Agent or the CAF Advance 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 the Company or any of
its Subsidiaries, all as if Chase were not the Administrative Agent or the CAF
Advance Agent and without any duty to account therefor to the other Lenders.
SECTION VIII.4 Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent, the
CAF Advance 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 Administrative Agent, the CAF Advance 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 VIII.5 Indemnification. The Lenders agree to indemnify the
Administrative Agent and the CAF Advance Agent (to the extent not reimbursed by
the Borrowers), 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
Administrative Agent
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or the CAF Advance Agent in any way relating to or arising out of this Agreement
or any action taken or omitted by the Administrative Agent or the CAF Advance
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
Administrative Agent's or the CAF Advance Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Administrative Agent and the CAF Advance Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable counsel fees)
incurred by the Administrative Agent or the CAF Advance 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 Administrative
Agent or the CAF Advance Agent is not reimbursed for such expenses by the
Borrowers.
SECTION VIII.6 Successor Administrative Agent and CAF Advance Agent.
The Administrative Agent and the CAF Advance 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 Administrative Agent or the CAF Advance Agent. If no successor
Administrative Agent or CAF Advance Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's or the CAF Advance Agent"s giving of notice
of resignation or the Majority Lenders' removal of the retiring Administrative
Agent or CAF Advance Agent, then such retiring Administrative Agent or CAF
Advance Agent may, on behalf of the Lenders, appoint a successor Administrative
Agent or CAF Advance 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
Administrative Agent or CAF Advance Agent hereunder by a successor
Administrative Agent or CAF Advance Agent, such successor Administrative Agent
or CAF Advance Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent or
CAF Advance Agent, and the retiring Administrative Agent or CAF Advance Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Administrative Agent's or CAF Advance Agent's resignation or
removal hereunder as Administrative Agent or CAF Advance Agent, the provisions
of this Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent or CAF Advance Agent
under this Agreement.
SECTION 8.7. Syndication Agent; Co-Documentation Agents. None of the
Lenders identified on the cover page or signature pages or in the preamble of
this Agreement as a "syndication agent" or "co-documentation agent" shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders so identified as a "syndication agent" or
"co-documentation agent" shall have or be deemed to have any fiduciary
relationship with any
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Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION IX.1 Amendments, Etc. An amendment or waiver of any provision
of this Agreement or the Notes, or a consent to any departure by any Borrower
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 2.4, 2.5, 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, (f) amend this Section 9.1, (g)
amend, waive or consent to any departure of any provision in Article VI or (h)
except as provided below, release any Borrower from its guarantee in Article VI;
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent and the CAF Advance Agent in addition to
the Lenders required hereinabove to take such action, affect the rights or
duties of the Administrative Agent or the CAF Advance Agent under this Agreement
or any Note; provided, still further, that the guarantee of a Borrower under
Article VI shall be released automatically upon (i) the sale by the Company of
such Borrower, provided that such sale is permitted under this Agreement, or
(ii) such Borrower ceasing to be a Borrower (it being understood that the
Company and EPNGC shall never cease to be a Borrower hereunder).
SECTION IX.2 Notices, Etc. Except as otherwise provided in Section
2.2(a), 2.5(d) 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 any Borrower, c/o the
Company at El Paso Energy Building, 1001 Louisiana Street, Houston, Texas 77002,
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 Administrative Agent, at 270 Park Avenue, 21st floor, New
York, New York 10017, Attention: Steve Wood, Telecopier: (212) 270-2519,
Telephone: (212) 270-7056; and if to the CAF Advance Agent, at One Chase
Manhattan Plaza, 8th Floor, New York, New York 10081, Attention: Jackie Reid,
Telecopier: (212) 552-5777, Telephone: (212) 552-7683; or, as to each party and
each Borrowing Subsidiary, 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
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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 Administrative
Agent, the CAF Advance Agent or a Lender by telephone pursuant to Section
2.2(a), 2.5(d) or 2.15(a) shall be effective if the Administrative Agent or
Lender believes in good faith that it was given by an authorized representative
of the applicable Borrower and acts pursuant thereto, notwithstanding the
absence of written confirmation or any contradictory provision thereof.
SECTION IX.3 No Waiver; Remedies. No failure on the part of any
Lender, the Administrative Agent or the CAF Advance 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 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 IX.4 Costs and Expenses; Indemnity. (a) Each Borrower agrees
to pay on demand (to the extent not reimbursed by any other Borrower) (i) all
reasonable fees and out-of-pocket expenses of counsel for the Administrative
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 Administrative 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 Administrative 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 Administrative Agent,
the CAF Advance 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 CAF Advance is made by any Borrower 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 such Borrower, or if any Borrower shall fail to
make a borrowing of Eurodollar Rate Advances or CAF Advances after such Borrower
has given a notice requesting the same in accordance with the provisions of this
Agreement, such Borrower shall, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative 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.
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<PAGE> 66
(c) Each Borrower agrees to indemnify and hold harmless the
Administrative Agent, the CAF Advance Agent and each Lender (to the extent not
reimbursed by any other Borrower) 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 Administrative Agent, the CAF Advance
Agent or such Lender in connection with or arising out of any investigation,
litigation, or proceeding (whether or not the Administrative Agent, the CAF
Advance 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 any Borrower (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 IX.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 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 applicable Borrower against any and all of the obligations of
such Borrower now or hereafter existing under this Agreement and the Notes of
such Borrower held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement or such 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 IX.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 Borrowers, the Administrative Agent, the
CAF Advance Agent and each Lender and their respective successors and assigns,
except that no Borrower shall have the right to assign its rights or obligations
hereunder or any interest herein in a transaction not permitted by Section
5.2(e) without the prior written consent of all of the Lenders.
SECTION IX.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 such Lender's rights and obligations under this
Agreement, (ii) the amount of the Commitment of the assigning Lender being
assigned to an assignee 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
62
<PAGE> 67
shall execute and deliver to the Administrative 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 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 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 each
Borrower or the performance or observance by each Borrower 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 Administrative Agent, the CAF Advance 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 (subject to approval in writing by the Company and, if applicable,
the Administrative Agent to the extent required by the definition of "Eligible
Assignee") an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent and the CAF Advance Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent and the CAF Advance 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 Administrative 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
63
<PAGE> 68
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and each
Borrower, the Administrative Agent, the CAF Advance 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 any Borrower 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 Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit G 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 Borrowers, at their own expense, shall execute
and deliver to the Administrative 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 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 (A) in the case of Notes made by the
Company, EPNGC and Tennessee the Closing Date and (B) in the case of Notes made
by any other Borrower, the date such other Borrower executes and delivers its
Joinder Agreement, 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 Borrowers
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 Borrowers, the Administrative Agent, the CAF Advance
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
64
<PAGE> 69
under this Agreement and such Lender's Notes, or (D) consent to the assignment
or the transfer by any Borrower 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 Borrowers furnished to such Lender by or on behalf
of the Borrowers; 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 Borrowers to preserve the confidentiality of any confidential
information relating to the Borrowers 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 IX.8 Confidentiality. Each Lender, the Administrative Agent
and the CAF Advance 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
representatives, whether existing at the date of this Agreement or any
subsequent time), any information with respect to the Borrowers 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
Administrative Agent has disclosed and may continue to disclose such information
as the Administrative Agent in its sole discretion determines is appropriate to
the Lenders from time to time.
SECTION IX.9 Consent to Jurisdiction. (a) Each Borrower 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 Administrative Agent, the
65
<PAGE> 70
CAF Advance 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 each Borrower hereby irrevocably agrees that all
Permitted Claims may be heard and determined in such New York State court or in
such Federal court. Each Borrower 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. Each Borrower hereby irrevocably appoints CT Corporation
System (the "Process Agent"), with an office on the date hereof at 1633
Broadway, New York, New York 10019, as its agent to receive on behalf of such
Borrower and its property service of copies of the summons and complaint and any
other process which may be served by the Administrative 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 each Borrower hereby irrevocably authorizes and
directs the Process Agent to accept such service on its behalf. Each Borrower
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 Administrative Agent or the CAF Advance
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
Administrative Agent or the CAF Advance Agent to bring any action or proceeding
against any Borrower 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 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 IX.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 IX.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 applicable Borrower); 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
66
<PAGE> 71
may never include more than the maximum amount allowed by such applicable law,
and excess interest, if any, provided for shall be cancelled 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 applicable Borrower). 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 IX.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 Administrative 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.
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<PAGE> 72
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/ C. Dana Rice
--------------------------------------------
Title: Senior Vice President and Treasurer
EL PASO NATURAL GAS COMPANY
By: /s/ C. Dana Rice
--------------------------------------------
Title: Senior Vice President and Treasurer
TENNESSEE GAS PIPELINE COMPANY
By: /s/ C. Dana Rice
--------------------------------------------
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent, CAF Advance
Agent and a Lender
By: /s/ Steven Wood
--------------------------------------------
Title: Vice President
CITIBANK, N.A., as Co-Documentation
Agent and a Lender
By: /s/ J. Christopher Lyons
--------------------------------------------
Title: Attorney-in-Fact
<PAGE> 73
ABN AMRO BANK, N.V., as Co-Documentation
Agent and a Lender
By: /s/ Michael Nepveux
--------------------------------------------
Title: Group Vice President
By: /s/ Dana L. Montgomery
--------------------------------------------
Title: Assistant Vice President
BANK OF AMERICA, N.A., as Syndication
Agent and a Lender
By: /s/ Patrick M. Delaney
--------------------------------------------
Title: Managing Director
BANCA DI ROMA- CHICAGO BRANCH, as a Lender
By: /s/ Aurora Pensa
--------------------------------------------
Title: Vice President
By: /s/ Enrico Verdoscia
--------------------------------------------
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI,
LTD HOUSTON AGENCY, as a Lender
By: /s/ Michael G. Meiss
--------------------------------------------
Title: Vice President
<PAGE> 74
BNP PARIBAS, as a Lender
By: /s/ Bart Schouest
--------------------------------------------
Title: Managing Director
By: /s/ John H. Roberts
--------------------------------------------
Title: Vice President
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH, as a Lender
By: /s/ Hereward Drummond
--------------------------------------------
Title: Senior Vice President
By: /s/ James Fox
--------------------------------------------
Title: Vice President
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: /s/ Harry P. Yergey
--------------------------------------------
Title: Senior Vice President & Manager
By: /s/ W. David Suttles
--------------------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ David L. Sawyer
--------------------------------------------
Title: Vice President
By: /s/ Lalita Advani
--------------------------------------------
Title: Assistant Vice President
<PAGE> 75
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as a Lender
By: /s/ Joel Makowsky
--------------------------------------------
Title: Vice President
By: /s/ Michael E. Keating
--------------------------------------------
Title: Managing Director
BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH, as a Lender
By: /s/ Steven Atwell
--------------------------------------------
Title: Director
By: /s/ Shannon Batchman
--------------------------------------------
Title: Director
THE INDUSTRIAL BANK OF JAPAN TRUST
COMPANY, as a Lender
By: /s/ Michael N. Oakes
--------------------------------------------
Title: Senior Vice President
The Industrial Bank of Japan, Limited, Houston
Office
(Authorized Representative)
KBC BANK N.V., as a Lender
By: /s/ Jean-Pierre Diels
--------------------------------------------
Title: First Vice President
By: /s/ Patrick A. Janssens
--------------------------------------------
Title: Vice President
<PAGE> 76
NATIONAL WESTMINISTER BANK PLC, NEW
YORK BRANCH, as a Lender
By: /s/ Kevin Howard
------------------------------------------
Title: Executive Vice President
NATIONAL WESTMINISTER BANK PLC,
NASSAU BRANCH, as a Lender
By: /s/ Kevin Howard
------------------------------------------
Title: Executive Vice President
SOCIETE GENERALE, as a Lender
By: /s/ Paul E. Cornell
------------------------------------------
Title: Managing Director
THE FUJI BANK, LIMITED, as a Lender
By: /s/ Toru Maeda
------------------------------------------
Title: Executive Vice President
and General Manager
AUSTRALIA & NEW ZEALAND BANKING
GROUP LIMITED, as a Lender
By: /s/ R. Scott McInnis
------------------------------------------
Title: Head of Structured Finance
& Relationship Management-Americas
<PAGE> 77
THE BANK OF NEW YORK, as a Lender
By: /s/ Peter Keller
------------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ F.C.H. Ashby
------------------------------------------
Title: Senior Manager Loan Operations
BANK ONE, NA (CHICAGO), as a Lender
By: /s/ Helen Carr
------------------------------------------
Title: First Vice President
BARCLAYS BANK, as a Lender
By: /s/ Nicholas A. Bell
------------------------------------------
Title: Director, Loan Transaction Management
CREDIT AGRICOLE INDOSUEZ, as a Lender
By: /s/ Patrick Cocquerer
------------------------------------------
Title: FVP, Managing Director
By: /s/ Michael D. Willis
------------------------------------------
Title: VP, Credit Analysis
<PAGE> 78
CREDIT LYONNAIS, as a Lender
By: /s/ Pascal Poupelle
-------------------------------------
Title: President and Chief Operating
Officer
THE DAI-ICHI KANGYO BANK, LTD.,
as a Lender
By: /s/ Katsuya Noto
-------------------------------------
Title: Vice President
DLJ CAPITAL FUNDING, INC., as a Lender
By: /s/ Richard N. Beaudoin
-------------------------------------
Title: Senior Vice President
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Robert R. Wetteroff
-------------------------------------
Title: Senior Vice President
FLEET NATIONAL BANK, as a Lender
By:/s/ Christopher Holmgren
-------------------------------------
Title: Director
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as a Lender
By: /s/ Dennis R. Wilczek
-------------------------------------
Title: Associate
<PAGE> 79
MELLON BANK, N.A., as a Lender
By: /s/ Roger E. Howard
-------------------------------------
Title: Vice President
NATIONAL AUSTRALIA BANK LTD.,
as a Lender
By: /s/ Paul R. Morrison
-------------------------------------
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK
BRANCH, as a Lender
By: /s/ Toshiyuki Futaoka
-------------------------------------
Title: Joint General Manager
SUMITOMO BANK LTD., as a Lender
By: /s/ C. Michael Garrido
-------------------------------------
Title: Senior Vice President
SUNTRUST BANKS, INC., as a Lender
By: /s/ Joseph M. McCreary
-------------------------------------
Title: Assistant Vice President
TORONTO DOMINION (TEXAS), INC.,
as a Lender
By: /s/ Carolyn R. Faeth
-------------------------------------
Title: Vice President
<PAGE> 80
WELLS FARGO BANK, as a Lender
By: /s/ John Lane
-------------------------------------
Title: Vice-President
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as a Lender
By: /s/ Duncan M. Robertson
-------------------------------------
Title: Director
By: /s/ Thomas Lee
-------------------------------------
Title: Associate
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: /s/ Kirk Edelman
-------------------------------------
Title: First Vice President
By: /s/ Andrew Schroeder
-------------------------------------
Title: Vice President
BANCO BILBAO VIZCAYA ARGENTARIA,
as a Lender
By: /s/ Manuel Sanchez
-------------------------------------
Title: Senior Vice President
By: /s/ Alberto Conde
-------------------------------------
Title: Vice President
<PAGE> 81
ING (U.S.) CAPITAL LLC, as a Lender
By: /s/ Charles M. O'Neil
-------------------------------------
Title: Managing Director
By: /s/ Clara B. Alvarez
-------------------------------------
Title: Vice President
<PAGE> 82
SCHEDULE I
COMMITMENTS, ADDRESSES, ETC.
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
-------------------------- --------------------
<S> <C>
The Chase Manhattan Bank $46,666,666.67
270 Park Avenue
New York, NY 10017
Attention: Steve Wood
Telephone: 212-270-7056
Telecopier: 212-270-2519
Citibank, N.A. $46,666,666.67
1200 Smith Street, Suite 2000
Houston, TX 77002
Attention: Carol Rooney
Telephone: 713-654-3590
Telecopier: 713-654-2899
ABN AMRO Bank, N.V. $46,666,666.67
208 South LaSalle, Suite 1500
Chicago, IL 60604-1003
Attention: Credit Administration
Telephone: 312-992-5110
Telecopier: 312-992-5111
Bank of America, N.A. $46,666,666.67
333 Clay Street, Suite 4550
Houston, TX 77002
Attention: Patrick Delaney
Telephone: 713-651-4929
Telecopier: 713-651-4808
Banca di Roma- Chicago Branch $13,333,333.33
225 West Washington, Suite 1200
Chicago, IL 60606
Attention: Aurora Pensa
Telephone: 312-704-2630
Telecopier: 312-726-3058
</TABLE>
<PAGE> 83
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
-------------------------- --------------------
<S> <C>
The Bank of Tokyo-Mitsubishi, Ltd Houston Agency $20,000,000.00
1100 Louisiana Street, Suite 2800
Houston, TX 77002-5216
Attention: John M. McIntyre
Telephone: 713-655-3845
Telecopier: 713-655-3855
BNP Paribas $30,000,000.00
1200 Smith Street, Suite 3100
Houston, TX 77002
Attention: John Roberts
Telephone: 713-659-4811
Telecopier: 713-659-6915
Bayerische Landesbank Girozentrale, Cayman Islands Branch $13,333,333.33
560 Lexington Avenue
New York, NY 10022
Attention: Stephen Christenson
Telephone: 212-230-3105
Telecopier: 212-310-9868
Commerzbank AG, New York and Grand Cayman Branches $20,000,000.00
1230 Peachtree Street, N.E., Suite 3500
Atlanta, GA 30309
Attention: David Suttles/Lee Ward
Telephone: 404-888-6524/6526
Telecopier: 404-888-6539
Credit Suisse First Boston $30,000,000.00
11 Madison Avenue
New York, NY 10010
Attention: James Moran
Telephone: 212-325-9176
Telecopier: 212-325-8615
Deutsche Bank AG New York and/or Cayman Islands Branches $30,000,000.00
31 West 52nd Street
New York, NY 10019
Attention: Joel Makowsky
Telephone: 212-469-7896
Telecopier: 212-469-5711
</TABLE>
<PAGE> 84
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
-------------------------- --------------------
<S> <C>
Bayerische Hypo- und Vereinsbank AG, New York Branch $30,000,000.00
150 East 42nd Street
New York, NY 10017
Attention: Yoram Danker/Steve Atwell
Telephone: 212-672-5446/5458
Telecopier: 212-672-5530
The Industrial Bank of Japan Trust Company $20,000,000.00
Three Allen Center, Suite 4850
Houston, TX 77002
Attention: Mr. Lynn Williford
Telephone: 713-651-9444 ext.104
Telecopier: 713-651-9209
KBC Bank N.V. $30,000,000.00
125 West 55th Street
New York, NY 10019
Attention: Christine Park
Telephone: 212-541-0731
Telecopier: 212-541-0784
National Westminister Bank Plc $30,000,000.00
600 Travis Street, Suite 6070
Houston, TX 77002
Attention: Patty Dundee/Matt Main
Telephone: 713-221-2423/2441
Telecopier: 713-221-2430
Societe Generale $30,000,000.00
1111 Bagby Street, Suite 2020
Houston, TX 77002
Attention: Paul Cornell
Telephone: 713-759-6301
Telecopier: 713-650-0824
The Fuji Bank, Limited $30,000,000.00
1221 McKinney Street, Suite 4100
One Houston Center
Houston, TX 77010
Attention: Mark Polasek
Telephone: 713-759-1800
Telecopier: 713-759-0717
</TABLE>
<PAGE> 85
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
-------------------------- --------------------
<S> <C>
Australia & New Zealand Banking Group Limited $13,333,333.33
1177 Avenue of the Americas
New York, NY 10036
Attention: Anna Arxer/David Giacalone
Telephone: 212-801-9795/9814
Telecopier: 212-801-9131/4814
The Bank of New York $30,000,000.00
One Wall Street, 19th Floor
New York, NY 10286
Attention: Peter Keller
Telephone: 212-635-7861
Telecopier: 212-635-7923
Bank of Nova Scotia $30,000,000.00
1100 Louisiana, Suite 3000
Houston, TX 77002
Attention: Todd Mogil
Telephone: 713-759-3445
Telecopier: 713-752-2425
Bank One, NA(Chicago) $30,000,000.00
910 Travis, 6th Floor
Houston, TX 77002
Attention: Susan Stiernberg/Karen Patterson/
Helen Carr
Telephone: 713-751-3751/3863/3731
Telecopier: 713-751-3760/3982/3760
Barclays Bank $20,000,000.00
222 Broadway, 12th Floor
New York, NY 10038
Attention: Richard Williams/John Sullivan/
Nicholas Bell/Virginia Corpus
Telephone: 212-412-7570/7605/4029/7512
Telecopier: 212-412-7585/2441/7585
Credit Agricole Indosuez $13,333,333.33
600 Travis, Suite 2340
Houston, TX 77002
Attention: Brian Knezeak/Doug Whiddon
Telephone: 713-223-7001/7003
Telecopier: 713-223-7029
</TABLE>
<PAGE> 86
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
-------------------------- --------------------
<S> <C>
Credit Lyonnais $30,000,000.00
1000 Louisiana Street, Suite 5360
Houston, TX 77002
Attention: Rob LaRocque/Richard Kaufman/
Mark Isensee/Tati Sulistio
Telephone: 713-753-8733/8721/8716/8710
Telecopier: 713-751-0307
The Dai-Ichi Kangyo Bank, Ltd. $13,333,333.33
One World Trade Center, Suite 4811
New York, NY 10048
Attention: Bertram Tang/Katsuya Noto
Telephone: 212-432-8839/6627
Telecopier: 212-912-1879
DLJ Funding, Inc. $30,000,000.00
277 Park Avenue, 10th Floor
New York, NY 10172
Attention: Diane Albanese/Greg Biddle
Telephone: 212-892-2903/6142
Telecopier: 212-892-6031
First Union National Bank $30,000,000.00
1001 Fannin Street, Suite 2255
Houston, TX 77002
Attention: Philip Trinder
Telephone: 713-346-2718
Telecopier: 713-650-1071
Fleet National Bank $20,000,000.00
100 Federal Street, 01-08-02
Boston, MA 02110
Attention: Jill Calabrese
Telephone: 617-434-9579
Telecopier: 617-434-3652
ING (U.S.) Capital LLC $13,333,333.33
55 East 52nd Street
New York, NY 10055
Attention: Steve Fischer/Clara Beatriz
Alvarez
Telephone: 212-409-0455/5849
Telecopier: 212-486-4636 or 212-409-1091
Morgan Guranty Trust Company of New York $20,000,000.00
1221 McKinney Street, Suite 3150
Houston, TX 77002
Attention: Russell L. Sherrill
Telephone: 713-276-4625
Telecopier: 713-276-4604
</TABLE>
<PAGE> 87
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
-------------------------- --------------------
<S> <C>
Mellon Bank, N.A. $30,000,000.00
One Mellon Bank Center, Room 4530
Pittsburgh, PA 15258
Attention: Roger Howard
Telephone: 412-234-5606
Telecopier: 412-236-1840
National Australia Bank Ltd. $13,333,333.33
200 Park Avenue, 34th Floor
New York, NY
Attention: Matthew Woolf/Paul Morrison/
Nick Woutas/Frank Campiglia
Telephone: 212-916-9574/9519/9665/9595
Telecopier: 212-986-6958/212-983-1969
The Norinchukin Bank, New York Branch $20,000,000.00
245 Park Avenue, 29th Floor
New York, NY 10167
Attention: Keisuke Ishii
Telephone: 212-808-4195
Telecopier: 212-697-5754
Sumitomo Bank Ltd. $20,000,000.00
277 Park Avenue, 6th Floor
New York, NY 10172
Attention: Bruce Meredith
Telephone: 212-224-4194
Telecopier: 212-224-4384
SunTrust Banks, Inc. $20,000,000.00
303 Peachtree Street, N.E., 3rd Floor
Atlanta, GA 30308
Attention: John Fields, Jr./Joe McCreary
Telephone: 404-724-3667/404-532-0274
Telecopier: 404-827-6270
Toronto Dominion (Texas), Inc. $30,000,000.00
909 Fannin Street, Suite 1700
Houston, TX 77010
Attention: Carolyn Faeth
Telephone: 713-427-8520
Telecopier: 713-951-9921
</TABLE>
<PAGE> 88
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
-------------------------- --------------------
<S> <C>
Wells Fargo Bank $13,333,333.33
1000 Louisiana Street, 3rd Floor
MAC 5002-031
Houston, TX 77002
Attention: John Lane
Telephone: 713-319-1370
Telecopier: 713-739-1087
Westdeutsche Landesbank Girozentrale $20,000,000.00
1990 Post Oak Blvd., Suite 1100
Houston, TX 77056
Attention: Richard Newman
Telephone: 713-963-5203
Telecopier: 713-963-5308
Dresdner Bank AG, New York and Grand Cayman Branches $13,333,333.33
75 Wall Street
New York, NY 10005
Attention: Mike Mangan
Telephone: 212-429-2112
Telecopier: 212-429-2081
Banco Bilbao Vizcayz Argentaria $13,333,333.33
1345 Avenue of the Americas, 45th Floor
New York, NY 10105
Attention: Manuel Sanchez
Telephone: 212-728-1511
Telecopier: 212-333-2904
</TABLE>
<PAGE> 89
A-1
EXHIBIT A
FORM OF
NOTE
$___________ New York, New York
August 4, 2000
FOR VALUE RECEIVED, the undersigned, ___________________, a ________
corporation (the "Borrower"), hereby unconditionally promises to pay to the
order of (the "Lender") at the office of The Chase Manhattan Bank, located at
270 Park Avenue, New York, New York 10017, in lawful money of the United States
of America and in same day funds, on the Termination Date (or if the Lender is
an Objecting Lender, the Commitment Expiration Date applicable to the Lender)
the principal amount of (a) ____ DOLLARS ($__ ), or, if less, (b) the aggregate
unpaid principal amount of all Revolving Credit Advances made by the Lender to
the Borrower pursuant to subsection 2.1 of the Credit Agreement, as hereinafter
defined. The Borrower 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 Revolving Credit 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 Borrower in respect of such Revolving Credit Advance.
This Note (a) is one of the Notes referred to in the $1,000,000,000
3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of
August 4, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among El Paso Energy Corporation, El Paso Natural
Gas Company, Tennessee Gas Pipeline Company, the Lender, the other banks and
financial institutions from time to time parties thereto, The Chase Manhattan
Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN
Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as
Syndication 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.
<PAGE> 90
A-2
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.
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.
[BORROWER]
By:
----------------------------------------
Title:
<PAGE> 91
1
Schedule A to Note
ADVANCES, CONVERSIONS AND REPAYMENTS OF BASE RATE ADVANCES
<TABLE>
<CAPTION>
Amount of Base Rate
Amount Amount of Principal of Advances Converted to Unpaid Principal
Amount of Base Rate Converted to Base Rate Advances Eurodollar Rate Balance of Base Rate Notation
Date Advances Base Rate Advances Repaid Advances Advances Made By
---------- -------------------- ------------------ ---------------------- --------------------- -------------------- --------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 92
1
Schedule B to Note
<TABLE>
<CAPTION>
ADVANCES, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE ADVANCES
Amount of Eurodollar Unpaid Principal
Amount of Amount Converted Interest Period and Amount of Principal Rate Advances Balance of
Eurodollar Rate to Eurodollar Rate Eurodollar Rate with of Eurodollar Rate Converted to Base Eurodollar Rate Notation
Date Advances Advances Respect Thereto Advances Repaid Rate Advances Advances Made By
----- --------------- ------------------ -------------------- -------------------- -------------------- ---------------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 93
B-1
EXHIBIT B
FORM OF
NOTICE OF BORROWING
The Chase Manhattan Bank, as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017 [Date]
Attention: El Paso Energy Corporation
Ladies and Gentlemen:
The undersigned, EL PASO ENERGY CORPORATION, refers to the $1,000,000,000
3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of
August 4, 2000 (the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, El Paso Natural Gas Company,
Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase
Manhattan Bank, as Administrative Agent and CAF Advance Agent for said Lenders,
Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of
America, N.A., as Syndication Agent, 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 Borrower for the Proposed Borrowing is ______________.
(ii) The Business Day of the Proposed Borrowing is ___________, 200_.
(iii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is $__________.
(v) The Interest Period for each Eurodollar Rate Advance made as part
of the Proposed Borrowing is [______ month[s]].
<PAGE> 94
B-2
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
(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:
<PAGE> 95
1
EXHIBIT C
FORM OF
CAF ADVANCE REQUEST
[Date]
The Chase Manhattan Bank, as CAF Advance Agent
270 Park Avenue
New York, New York 10017
Reference is made to the $1,000,000,000 3-Year Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 4, 2000, among El
Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline
Company, certain Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V.,
as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as
the same may be amended, 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.
This is a [Fixed Rate] [LIBO Rate] CAF Advance Request* pursuant to Section
2.5 of the Credit Agreement requesting quotes for the following CAF Advances:
<TABLE>
<CAPTION>
Loan 1 Loan 2 Loan 3
----------- ----------- ----------
<S> <C> <C> <C>
Aggregate Principal Amount $ $ $
---------- ---------- ---------
CAF Advance Date
Maturity Date
Interest Payment Dates
</TABLE>
----------
* Pursuant to the Credit Agreement, a CAF Advance Request may be transmitted
in writing, by telecopy, or by telephone, immediately confirmed by
telecopy. In any case, a CAF Advance Request shall contain the information
specified in the second paragraph of this form.
<PAGE> 96
2
Very truly yours,
[Borrower]
By:
----------------------------------------
Name:
Title:
<PAGE> 97
EXHIBIT D
FORM OF
CAF ADVANCE OFFER
[Date]
The Chase Manhattan Bank, as CAF Advance Agent
270 Park Avenue
New York, New York 10017
Reference is made to the $1,000,000,000 3-Year Day Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 4, 2000, among El
Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline
Company, certain Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V.,
as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as
the same may be amended, 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.
In accordance with Section 2.5 of the Credit Agreement, the undersigned
Lender offers to make CAF Advances thereunder in the following amounts with the
following maturity dates:
<TABLE>
<S> <C>
CAF Advance Date: , 200 Aggregate Maximum Amount: $
---------- -- ---------
Maturity Date 1: Maximum Amount: $
-----------
, 200 $ offered at *
---------- -- --------- -------
$ offered at *
--------- -------
Maturity Date 2: Maximum Amount: $
-----------
, 200 $ offered at *
---------- -- --------- -------
$ offered at *
--------- -------
Maturity Date 3: Maximum Amount: $
-----------
, 200 $ offered at *
---------- -- --------- -------
$ offered at *
--------- -------
</TABLE>
----------
* Insert the interest rate offered for the specified CAF Advance. In the case
of LIBO Rate CAF Advances, insert a margin bid. In the case of Fixed Rate
CAF Advances, insert a fixed rate bid.
<PAGE> 98
Very truly yours,
[NAME OF CAF ADVANCE LENDER]
By:
--------------------------------------
Name:
Title:
Telephone No.:
Telecopy No.:
<PAGE> 99
EXHIBIT E
FORM OF
CAF ADVANCE CONFIRMATION
[Date]
The Chase Manhattan Bank, as CAF Advance Agent
270 Park Avenue
New York, New York 10017
Reference is made to the $1,000,000,000 3-Year Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 4, 2000, among El
Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline
Company, certain Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V.,
as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as
the same may be amended, 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.
In accordance with Section 2.5(d) of the Credit Agreement, the undersigned
accepts and confirms the offers by the CAF Advance Lender(s) to make CAF
Advances to the undersigned on , [date of CAF Advance Borrowing] under Section
2.5(d) in the (respective) amount(s) set forth on the attached list of CAF
Advances offered.
Very truly yours,
[Borrower]
By
----------------------------------------
Name:
Title:
[The Borrower must attach CAF Advance offer list prepared by the CAF Advance
Agent with accepted amount entered by the Borrower to the right of each CAF
Advance offer].
<PAGE> 100
EXHIBIT F
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated _____________, ____
Reference is made to the $1,000,000,000 3-Year Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 4, 2000 (as the same
may be amended or otherwise modified from time to time, the "Credit Agreement")
among EL PASO ENERGY CORPORATION, a Delaware corporation (the "Company"), EL
PASO NATURAL GAS COMPANY, a Delaware corporation, TENNESSEE GAS PIPELINE
COMPANY, a Delaware corporation, the Lenders (as defined in the Credit
Agreement), The Chase Manhattan Bank, as administrative agent (the
"Administrative Agent") and as CAF Advance Agent (the "CAF Advance Agent") for
the Lenders, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and
Bank of America, N.A. , as Syndication 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,
without limitation, 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 each Borrower or the
performance or observance by each Borrower 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 Administrative 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
<PAGE> 101
F-2
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 analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative 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 Administrative Agent and CAF Advance Agent to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent and CAF Advance 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]*.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date of this
Assignment and Acceptance shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto (the
"Effective Date").
5. Upon such acceptance and recording by the Administrative 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 Administrative Agent, from and
after the Effective Date, the Administrative Agent shall make all payments under
the Credit Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, 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.
----------
* If the Assignee is organized under the laws of a jurisdiction outside the
United States.
<PAGE> 102
F-3
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.
<PAGE> 103
Schedule 1
to
Assignment and Acceptance
Dated _________, ____
<TABLE>
<S> <C> <C>
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*: ,
-------- ----
</TABLE>
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
----------------------------------- -------------------------------
Title: Title:
Address for notices:
[Address]
----------
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
<PAGE> 104
2
Consented to:
EL PASO ENERGY CORPORATION THE CHASE MANHATTAN BANK, as
Administrative Agent
By: By:
------------------------------- -------------------------------
Title: Title:
<PAGE> 105
3
Accepted this __ day
of __________, ___
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
--------------------------------
Title:
<PAGE> 106
EXHIBIT G
FORM OF OPINION OF [ASSOCIATE GENERAL][SENIOR] COUNSEL OF THE COMPANY
August 4, 2000
To Each of the Lenders, the Administrative Agent
and the CAF Advance Agent
Referred to Below
c/o The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Re: El Paso Energy Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.2(b)(iii) of the
$1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility
Agreement, dated as of August 4, 2000 (the "Credit Agreement"), among El Paso
Energy Corporation (the "Company"), El Paso Natural Gas Company ("EPNGC"),
Tennessee Gas Pipeline Company ("Tennessee") (Tennessee, together with the
Company and EPNGC, the "Borrowers"), the banks and other financial institutions
from time to time party thereto (each a "Lender", and together the "Lenders"),
The Chase Manhattan Bank, as Administrative Agent (in such capacity, the
"Administrative Agent") and as CAF Advance Agent (in such capacity, the "CAF
Advance Agent") for the Lenders, ABN Amro, N.A. and ABN Amro, N.V., as
Co-Documentation Agents (in such capacity, the "Co-Documentation Agents") , and
ABN Amro, N.A., as Syndication Agent (in such capacity, the "Syndication
Agent"). 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
Borrowers 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;
(2) the Notes, executed by the Borrowers; and
(3) the other documents furnished by the Borrowers pursuant to Sections 3.1
and 3.2 of the Credit Agreement.
<PAGE> 107
G-2
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
Borrowers' ability to perform their respective obligations under the Credit
Agreement or the Notes (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 Borrowers, certificates of public officials and of officers of
the Borrowers, 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 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
Borrowers), 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 Borrowers
and others.
I have assumed that the parties to the Documents other than the
Borrowers 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. Each Borrower (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 each Borrower of the
Documents to which it is a party are within such Borrower's corporate
powers and have been duly authorized by all necessary corporate action in
respect of or by such Borrower, and do not contravene (i) such Borrower's
charter or by-laws, each as amended to date, (ii) any federal law, rule or
regulation applicable to such Borrower (excluding provisions of federal law
expressly referred to in and covered by the opinion of Jones, Day, Reavis &
<PAGE> 108
G-3
Pogue 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 such Borrower, or (iii) any contractual restriction
binding on or affecting such Borrower. The Documents to which it is a party
have been duly executed and delivered on behalf of each Borrower.
3. No authorization or approval or other action by, and no notice to
or filing with, any federal governmental authority or regulatory body
(including, without limitation, the FERC) is required for the due
execution, delivery and performance by any Borrower of the Documents to
which it is a party, except those required in the ordinary course of
business in connection with the performance by each Borrower 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,
<PAGE> 109
EXHIBIT H
FORM OF OPINION OF NEW YORK COUNSEL TO THE COMPANY
August 4, 2000
To Each of the Lenders, the Administrative Agent, the CAF Advance Agent, the
Co-Documentation Agents and the Syndication Agent Referred to Below
c/o The Chase Manhattan Bank
270 Park Avenue, 10th Floor
New York, New York 10017
Re: $1,000,000,000 3-Year Revolving Credit
and Competitive Advance Facility Agreement
dated as of August 4, 2000
Dear Ladies and Gentlemen:
We have acted as special New York counsel for El Paso Energy
Corporation, a Delaware corporation (the "Company"), El Paso Natural Gas
Company, a Delaware corporation ("EPNGC") and Tennessee Gas Pipeline Company, a
Delaware corporation ("Tennessee") (Tennessee together with the Company and
EPNGC, the "Borrowers"), in connection with the $1,000,000,000 3-Year Revolving
Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000
(the "Financing Agreement"), among the Company, EPNGC, Tennessee, the banks and
other financial institutions from time to time party thereto (each a "Lender",
and together the "Lenders"), The Chase Manhattan Bank, as administrative agent
(in such capacity, the "Administrative Agent") and as CAF Advance Agent (in such
capacity, the "CAF Advance Agent") for the Lenders, Citibank, N.A. and ABN Amro,
N.V., as Co-Documentation Agents (in such capacity, the Co-Documentation
Agents"), and Bank of America, N.A., as Syndication Agent (in such capacity, the
"Syndication Agent"). This opinion is delivered to you pursuant to Section
3.2(b)(iv) of the Financing Agreement. Capitalized terms used herein and not
otherwise defined have the meanings assigned such terms in the Financing
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.
<PAGE> 110
H-2
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 Financing 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 Borrowers and
others and assume compliance on the part of all 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 Borrowers' 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 Borrowers,
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, the CAF
Advance Agent, the Co-Documentation Agents, the Syndication Agent and the
Lenders by each Borrower of the Documents to which it is a party and the
performance by each Borrower of its obligations thereunder (i) do not require
under present law any filing or registration by such Borrower with, or approval
or consent to such 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 such
Borrower of its obligations under certain covenants and warranties contained in
the Documents to which it is a party 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 such Borrower or its property.
<PAGE> 111
H-3
(b) The Documents to which it is a party constitute legal, valid and
binding obligations of each Borrower enforceable against such Borrower in
accordance with their respective terms.
(c) The borrowings by each Borrower under the Financing Agreement and
the applications of the proceeds thereof as provided in the Financing 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 Borrowers under the Documents to the extent limited by
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, the CAF Advance Agent, the
Co-Documentation Agents, the Syndication 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
<PAGE> 112
H-4
with the execution, delivery and performance by any Borrower of the
Documents to which it is a party, 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 any 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
(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, the CAF Advance Agent,
the Co-Documentation Agents, the Syndication 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, the CAF Advance Agent, the
Co-Documentation Agents, the Syndication Agent, any of the Lenders or any of
their respective affiliates has extended or will extend any other credit to any
of the Borrowers directly or indirectly secured by Margin Stock and (iii) none
of the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents
and the Syndication Agents 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 Financing Agreement.
(E) For purposes of our opinions above insofar as they relate to the
Borrowers, we have assumed that (i) each 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
<PAGE> 113
H-5
Documents to which it is a party (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 such Borrower or its properties (except
to the extent noted in paragraph (a) above), and (ii) the Documents to which
each Borrower is a party have been duly executed and delivered by such Borrower.
The opinions expressed herein are limited to the federal laws of the
United States of America (in the case of the matters covered in paragraph (c)
above) and the laws of the State of New York, as currently in effect, except
that we express no opinion with respect to laws, rules or regulations of the
State of New York, or of any governmental agency or authority thereof,
applicable to companies engaged in the gathering, processing, transmission,
distribution or marketing of natural gas or other hydrocarbon derivatives or
power generation or the generation, transmission, distribution or marketing of
electricity, or as to filings, registrations, approvals or consents under or by
such laws, rules or regulations.
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.
The opinions expressed herein are solely for the benefit of the
Administrative Agent, CAF Advance Agent, the Co-Documentation Agents, the
Syndication 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,
JONES, DAY, REAVIS & POGUE
By:
-----------------------------------
<PAGE> 114
EXHIBIT I
[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 Administrative Agent and
CAF Advance Agent for said Lenders
c/o The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
To El Paso Energy Corporation
1001 Louisiana Street
Houston, Texas 77002
El Paso Energy Corporation/El Paso Natural Gas Company/Tennessee
Gas Pipeline Company
Gentlemen:
Reference is made to that certain $1,000,000,000 3-Year Revolving
Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000
(said Agreement, as it may hereafter be amended, 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"), El Paso Natural Gas Company ("EPNGC"), Tennessee
Gas Pipeline Company ("Tennessee") (Tennessee, together with the Company and
EPNGC, the "Borrowers") , certain banks and other financial institutions from
time to time party thereto as Lenders thereunder (the "Lenders"), The Chase
Manhattan Bank, as Administrative Agent and CAF Advance Agent (in such
capacities, the "Administrative Agent" and the "CAF Advance Agent") for the
Lenders, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank
of America, N.A., as Syndication Agent.
Pursuant to Section 9.9(a) of the Credit Agreement each of the
Borrowers has appointed the undersigned (with an office on the date hereof at
1633 Broadway, New York, New York 10019) as Process Agent to receive on behalf
of such Borrower and its property service of copies of the summons and complaint
and any other process which may be served by the
<PAGE> 115
I-2
Administrative Agent, the CAF Advance Agent, any Lender or the holder of any
Note in any action or proceeding by the Administrative Agent, the CAF Advance
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 Agent prior to ______ __, 200_ (and hereby
acknowledges that the undersigned has been paid in full by the Borrower 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 Administrative
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 Borrower 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 Borrower:
[Address]
<PAGE> 116
EXHIBIT J
FORM OF
JOINDER AGREEMENT
Reference is made to the $1,000,000,000 3-Year Revolving Credit and
CAF Advance Facility Agreement, dated as of August 4, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
terms defined therein being used herein as therein defined), among El Paso
Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company,
certain banks and other financial institutions from time to time party thereto,
The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent,
Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of
America, N.A., as Syndication Agent.
The undersigned hereby acknowledges that it has received and reviewed
a copy (in execution form) of the Credit Agreement, and agrees to:
(a) join the Credit Agreement as a Borrower party thereto;
(b) be bound by all covenants, agreements and acknowledgments
attributable to a Borrower in the Credit Agreement and any Note to which it is a
party; and
(c) perform all obligations required of it by the Credit Agreement and
any Note to which it is a party.
The undersigned hereby represents and warrants that the
representations and warranties with respect to it contained in, or made or
deemed made by it in, Article IV of the Credit Agreement are true and correct on
the date hereof.
THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement
to be duly executed and delivered in New York, New York by its proper and duly
authorized officer as of this ____ day of ______,___ .
[Borrower]
By:
------------------------------------
Title:
<PAGE> 117
J-2
ACKNOWLEDGED AND AGREED TO:
[EL PASO ENERGY CORPORATION]
By:
-----------------------------
Title:
<PAGE> 118
EXHIBIT K
FORM OF OPINION OF [ASSOCIATE GENERAL]
[SENIOR] COUNSEL OF THE COMPANY
(a) Each of the Company and the Borrowing Subsidiaries (i) is a
corporation duly incorporated and existing in good standing under the laws of
the jurisdiction of its organization, 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.
(b) The execution and delivery by the Company and the Borrowing
Subsidiary of the Joinder Agreement and by the Borrowing Subsidiary of the Notes
made by it and the performance by the Borrowing Subsidiary of its obligations as
a "Borrower" under the Credit Agreement and the Notes made by it are within such
corporation's corporate powers and have been duly authorized by all necessary
corporate action in respect of or by each of the Company and the Borrowing
Subsidiary (as applicable), and do not contravene (i) the Company's or the
Borrowing Subsidiary's charter or by-laws, each as amended to date, (ii) any
federal law, rule or regulation applicable to the Company or the Borrowing
Subsidiary (excluding provisions of federal law expressly referred to in and
covered by the opinion of [New York Counsel] 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 such corporation, or
(iii) any contractual restriction binding on or affecting the Company or the
Borrowing Subsidiary. The Joinder Agreement has been duly executed and delivered
on behalf of the Company and the Borrowing Subsidiary and the Notes made by the
Borrowing Subsidiary have been duly executed and delivered on behalf of the
Borrowing Subsidiary.
(c) No authorization or approval or other action by, and no notice to
or filing with, any federal governmental authority or regulatory body
(including, without limitation, the FERC) is required for (i) the due execution
and delivery by the Company or the Borrowing Subsidiary of the Joinder
Agreement, (ii) the performance by the Borrowing Subsidiary of its obligations
as a "Borrower" under the Credit Agreement or (iii) the execution, delivery and
performance by the Borrowing Subsidiary of the Notes made by it, except those
required in the ordinary course of business in connection with the performance
by the Company or the Borrowing Subsidiary of its obligations under certain
covenants and warranties contained in the Joinder Agreement, the Credit
Agreement and the Notes and those which have been obtained and are in full force
and effect.
(d) 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
<PAGE> 119
K-2
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 the Joinder Agreement, the Credit
Agreement or the Notes.
<PAGE> 120
EXHIBIT L
FORM OF OPINION OF NEW YORK
COUNSEL TO THE COMPANY
(a) The execution and delivery to the Administrative Agent, the CAF
Advance Agent, the Co-Documentation Agents, the Syndication Agent and the
Lenders by the Company and the Borrowing Subsidiary of the Joinder Agreement and
by the Borrowing Subsidiary of the Notes made by it and the performance by the
Borrowing Subsidiary of its obligations as a "Borrower" under the Credit
Agreement and the Notes made by it (i) do not require under present law any
filing or registration by the Company or the Borrowing Subsidiary with, or
approval or consent to the Company or the Borrowing Subsidiary of, any
governmental agency or authority of the State of New York that has not been made
or obtained, except those, if any, required in the ordinary course of business
in connection with the performance by the Company or the Borrowing Subsidiary of
their respective obligations under certain covenants and warranties contained in
the Joinder Agreement, the Credit Agreement and the Notes 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 Company or the Borrowing
Subsidiary or its respective property.
(b) The Joinder Agreement, the Credit Agreement and the Notes (as
applicable) constitute the legal, valid and binding obligations of each of the
Company and the Borrowing Subsidiary enforceable against each of the Company and
the Borrowing Subsidiary in accordance with their respective terms.
(c) The borrowings by the Borrowing Subsidiary 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.
<PAGE> 121
EXHIBIT M
FORM OF
EXTENSION REQUEST
[Date]
The Chase Manhattan Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Attention: Jackie Reid
Gentlemen:
Reference is made to the $1,000,000,000 3-Year Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 4, 2000, among the
undersigned, El Paso Natural Gas Company, Tennessee Gas Pipeline Company,
certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative
Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V., as
Co-Documentation Agents, and ABN Amro, N.A., as Syndication Agent (as the same
may be amended, 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:
