<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 1-9864
---------------------
EL PASO TENNESSEE PIPELINE CO.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 76-0233548
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
EL PASO ENERGY BUILDING
1001 LOUISIANA STREET
HOUSTON, TEXAS 77002
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
Registrant's Telephone Number, Including Area Code: (713) 420-2131
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Common Stock, par value $.01 per share. Shares outstanding on November 12,
1999: 1,971
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
GLOSSARY
The following abbreviations, acronyms, or defined terms used in this Form
10-Q are defined below:
<TABLE>
<CAPTION>
DEFINITIONS
-----------
<S> <C>
ALJ....................... Administrative Law Judge
Company................... El Paso Tennessee Pipeline Co. and its subsidiaries
Court of Appeals.......... United States Court of Appeals for the District of Columbia
Circuit
EAPRC..................... East Asia Power Resources Corporation, a publicly traded
Philippine company
EBIT...................... Earnings before interest expense and income taxes, excluding
affiliate interest income
EnCap..................... EnCap Investments L.L.C., a Delaware limited liability
company
EPA....................... United States Environmental Protection Agency
EPEC...................... El Paso Energy Corporation, the parent of El Paso Tennessee
Pipeline Co.
EPFS...................... El Paso Field Services Company, a wholly owned subsidiary of
El Paso Tennessee Pipeline Co.
EPME...................... El Paso Merchant Energy segment, which is comprised of El
Paso Energy Marketing Company, a wholly owned indirect
subsidiary of El Paso Tennessee Pipeline Co.
EPNG...................... El Paso Natural Gas Company, a wholly owned subsidiary of El
Paso Energy Corporation
EPTPC..................... El Paso Tennessee Pipeline Co., a direct subsidiary of El
Paso Energy Corporation
FERC...................... Federal Energy Regulatory Commission
GSR....................... Gas supply realignment
PCB(s).................... Polychlorinated-biphenyl(s)
PLN....................... Perusahaan, Listrik Negra, the Indonesian government-owned
electric utility
PRP(s).................... Potentially responsible party(ies)
TGP....................... Tennessee Gas Pipeline Company, a wholly owned subsidiary of
El Paso Tennessee Pipeline Co.
</TABLE>
<PAGE> 3
PART I -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
EL PASO TENNESSEE PIPELINE CO.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
QUARTER NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------- ----------------
1999 1998 1999 1998
------ ------ ------ ------
<S> <C> <C> <C> <C>
Operating revenues...................................... $1,146 $1,498 $3,167 $4,174
------ ------ ------ ------
Operating expenses
Cost of gas and other products........................ 870 1,245 2,287 3,373
Operation and maintenance............................. 132 122 375 374
Depreciation, depletion, and amortization............. 54 52 158 151
Taxes, other than income taxes........................ 12 15 45 44
------ ------ ------ ------
1,068 1,434 2,865 3,942
------ ------ ------ ------
Operating income........................................ 78 64 302 232
------ ------ ------ ------
Other income
Equity investment earnings............................ (8) (10) (46) (33)
Other, net............................................ (20) (26) (64) (54)
------ ------ ------ ------
(28) (36) (110) (87)
------ ------ ------ ------
Income before interest, income taxes and cumulative
effect of accounting change........................... 106 100 412 319
------ ------ ------ ------
Non-affiliated interest and debt expense................ 33 31 106 93
Affiliated interest expense, net........................ 6 12 10 28
Income tax expense...................................... 21 19 92 64
------ ------ ------ ------
60 62 208 185
------ ------ ------ ------
Income before cumulative effect of accounting change.... 46 38 204 134
Cumulative effect of accounting change, net of income
taxes................................................. -- -- (13) --
------ ------ ------ ------
Net income.............................................. $ 46 $ 38 $ 191 $ 134
====== ====== ====== ======
Comprehensive income.................................... $ 43 $ 35 $ 181 $ 126
====== ====== ====== ======
</TABLE>
The accompanying Notes are an integral part of these
Condensed Consolidated Financial Statements.
1
<PAGE> 4
EL PASO TENNESSEE PIPELINE CO.
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN MILLIONS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1999 1998
------------- ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents................................. $ 24 $ 28
Accounts and notes receivable, net........................ 665 433
Materials and supplies.................................... 22 21
Assets from price risk management activities.............. 304 151
Other..................................................... 141 118
------ ------
Total current assets.............................. 1,156 751
Property, plant, and equipment, net......................... 5,723 5,628
Investment in unconsolidated affiliates..................... 848 579
Other....................................................... 710 476
------ ------
Total assets...................................... $8,437 $7,434
====== ======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts and notes payable................................ $2,081 $1,200
Short-term borrowings (including current maturities of
long-term debt)........................................ 24 194
Other..................................................... 403 471
------ ------
Total current liabilities......................... 2,508 1,865
------ ------
Long-term debt, less current maturities..................... 1,466 1,467
------ ------
Deferred income taxes....................................... 1,375 1,277
------ ------
Other....................................................... 686 607
------ ------
Commitments and contingencies (See Note 3)
Minority interest........................................... 65 65
------ ------
Stockholders' equity
Preferred stock, 20,000,000 shares authorized;
Series A, no par; 6,000,000 shares issued; stated at
liquidation value..................................... 300 300
Common stock, par value $0.01 per share; authorized
100,000 shares; issued 1,971 shares.................... -- --
Additional paid-in capital................................ 1,561 1,540
Retained earnings......................................... 500 327
Accumulated comprehensive income.......................... (24) (14)
------ ------
Total stockholders' equity........................ 2,337 2,153
------ ------
Total liabilities and stockholders' equity........ $8,437 $7,434
====== ======
</TABLE>
The accompanying Notes are an integral part of these
Condensed Consolidated Financial Statements.
2
<PAGE> 5
EL PASO TENNESSEE PIPELINE CO.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN MILLIONS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30
----------------
1999 1998
----- -----
<S> <C> <C>
Cash flows from operating activities
Net income................................................ $ 191 $ 134
Adjustments to reconcile net income to net cash from
operating activities
Depreciation, depletion, and amortization.............. 158 151
Deferred income taxes.................................. 77 59
Undistributed earnings in equity investees............. (22) (20)
Cumulative effect of accounting change, net of income
taxes................................................. 13 --
Net gain on sale of assets............................. (20) (29)
Working capital changes, net of the effect of
acquisitions........................................... (230) 14
Other..................................................... (13) (41)
----- -----
Net cash provided by operating activities......... 154 268
----- -----
Cash flows from investing activities
Capital expenditures...................................... (154) (169)
Investment in joint ventures and equity investees......... (313) (440)
Return of investment in joint ventures and equity
investees.............................................. 11 --
Net change in advances from EPEC.......................... 535 450
Cash paid for acquisitions, net of cash received ......... (76) --
Restricted cash deposited in escrow related to equity
investee............................................... (101) --
Proceeds from sale of assets.............................. 40 56
Other..................................................... (12) (7)
----- -----
Net cash used in investing activities............. (70) (110)
----- -----
Cash flows from financing activities
Net commercial paper repayments........................... (170) --
Net proceeds from long-term note payable.................. 101 --
Dividends paid on preferred stock......................... (19) (19)
Revolving credit repayments............................... -- (117)
Long-term debt retirements................................ -- (45)
----- -----
Net cash used in financing activities............. (88) (181)
----- -----
Decrease in cash and temporary investments.................. (4) (23)
Cash and temporary investments
Beginning of period............................... 28 35
----- -----
End of period..................................... $ 24 $ 12
===== =====
</TABLE>
The accompanying Notes are an integral part of these
Condensed Consolidated Financial Statements.
3
<PAGE> 6
EL PASO TENNESSEE PIPELINE CO.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The 1998 Annual Report on Form 10-K for the Company includes a summary of
significant accounting policies and other disclosures and should be read in
conjunction with this Quarterly Report on Form 10-Q. The condensed consolidated
financial statements at September 30, 1999, and for the quarters and nine months
ended September 30, 1999 and 1998, are unaudited. The condensed consolidated
balance sheet at December 31, 1998, is derived from audited financial statements
at that date. These financial statements do not include all disclosures required
by generally accepted accounting principles, but have been prepared pursuant to
the rules and regulations of the U.S. Securities and Exchange Commission. In the
opinion of management, all material adjustments necessary to present fairly the
results of operations for such periods have been included. All such adjustments,
except for those relating to the change in Company structure as described below,
are of a normal, recurring nature. Results of operations for any interim period
are not necessarily indicative of the results of operations for the entire year
due to the seasonal nature of the Company's businesses. Financial statements for
the previous periods include certain reclassifications which were made to
conform to the current presentation. Such reclassifications have no effect on
reported net income or stockholders' equity.
Change in Company Structure
On December 31, 1998, EPEC completed a series of steps to effect a tax-free
internal reorganization in which certain energy marketing operations of EPME,
certain field services operations of EPFS, and certain international operations
of El Paso Energy International were transferred to EPTPC. The transactions were
treated as a transfer of ownership between entities under common control and
were accounted for in a manner similar to a pooling of interests. Accordingly,
the information for the quarter and nine months ended September 30, 1998, has
been presented as though the transactions occurred on January 1, 1998.
Cumulative Effect of Accounting Change
In April 1998, the American Institute of Certified Public Accountants
issued Statement of Position 98-5, Reporting on the Costs of Start-Up
Activities. The statement defines start-up activities and requires start-up and
organization costs be expensed as incurred. In addition, it requires that any
such cost that exists on the balance sheet be expensed upon adoption of this
pronouncement. The Company adopted this pronouncement effective January 1, 1999,
and reported a charge of $13 million, net of income taxes, in the first quarter
of 1999 as a cumulative effect of an accounting change.
2. ACQUISITIONS AND DISPOSITIONS
East Asia Power
In February 1999, the Company acquired a 46 percent ownership interest in
EAPRC along with an interest in a convertible loan. Following its acquisition,
the Company converted its interest in the convertible loan to equity, increasing
its ownership interest to 65 percent, and in September 1999, the Company
acquired an additional 17 percent from another shareholder, increasing its
overall ownership interest to 82 percent. As of September 30, 1999, the
Company's total investment in EAPRC was approximately $92 million. EAPRC owns
and operates seven power generation facilities in the Philippines with a total
generating capacity of 388 megawatts. Electric power generated by the facilities
is supplied to a diversified base of customers including National Power
Corporation, the Philippine state-owned utility, private distribution companies
and industrial users. Since the Company is currently evaluating bids to
partially sell-down the Company's interest in EAPRC and expects to complete its
sell down prior to the end of the first quarter of 2000, the Company's
4
<PAGE> 7
majority ownership is expected to be temporary. Therefore, this investment is
accounted for under the equity method of accounting.
EnCap
In March 1999, the Company acquired EnCap for $52 million, net of cash
acquired. The purchase price included $17 million in Company common stock, of
which $7 million is issuable upon the occurrence of certain events. The
acquisition was accounted for as a purchase. EnCap is an institutional funds
management firm specializing in financing independent oil and gas producers.
EnCap manages three separate institutional oil and gas investment funds in the
U.S., and serves as investment advisor to Energy Capital Investment Company PLC,
a publicly traded investment company in the United Kingdom.
Other
In June 1999, the Company acquired a 26 percent interest in a power plant
in Tamil Nadu, India for $37 million. Approximately $11 million was paid in June
1999, and the remaining amount will be paid in the first quarter of 2001. The
project consists of a 346 megawatt combined cycle power plant which will serve
as a base load facility and sell power to the state-owned Tamil Nadu Electricity
Board under a thirty-year power purchase agreement. Construction began in
January 1999, and operations are expected to commence in early 2001.
In June 1999, the Company transferred a 49 percent interest in Viosca Knoll
Gathering Company to Leviathan Gas Pipeline Partners, L.P. ("Leviathan") for
total consideration of approximately $80 million. Total consideration included
cash of approximately $20 million with the balance in Leviathan common units.
The gain from the transaction is included in Other, net in the Condensed
Consolidated Statements of Income. In November 1999, Leviathan announced a name
change to El Paso Energy Partners, L.P. effective December 1, 1999.
In August 1999, the Company acquired a 100% interest in the 158 megawatt
Rio Negro power plant located in Manaus, Brazil for $110 million. Electricity
from the Rio Negro facility will be sold under a long-term contract to
Eletronorte, a subsidiary of the Brazilian federal electric utility.
As a result of a Federal Trade Commission order related to the merger of
Sonat Inc. into EPEC, the Company must dispose of certain operations, including
its wholly owned East Tennessee Natural Gas Company. The impact of the required
divestiture is not expected to have a material effect on the Company's financial
position, results of operations, or cash flows.
3. COMMITMENTS AND CONTINGENCIES
Indonesia
The Company owns a 47.5 percent ownership interest in a power generating
plant in Sengkang, South Sulawesi, Indonesia. Under the terms of the project's
power purchase agreement, PLN purchases power from the Company in Indonesian
rupiah indexed to the U.S. dollar at the date of payment. Due to the devaluation
of the rupiah beginning in 1997, the cost of power to PLN has increased. PLN has
been unable to pass this increased cost on to its customers and has requested
financial aid from Indonesia's Minister of Finance to help ease the effects of
the devaluation. PLN has been paying the Company in rupiah indexed to the U.S.
dollar at the rate in effect prior to the rupiah devaluation. The difference
between the current and prior exchange rate has resulted in an outstanding
balance due from PLN of $18 million at September 30, 1999. During September
1999, the Company entered into an interim agreement with PLN, pursuant to which
PLN and the Company will attempt to negotiate long-term resolutions to the
existing difficulties. The total investment in the Sengkang project was
approximately $27 million at September 30, 1999. All project debt is
non-recourse, and the Company has political risk insurance on the Sengkang
project. The Company believes the current economic difficulties in Indonesia
will not have a material adverse effect on the Company's financial position,
results of operations, or cash flows.
5
<PAGE> 8
Brazil
The Company owns 100 percent of a 240 megawatt power generating plant in
Manaus, Brazil. Power from the plant is currently sold to a subsidiary of
Centrais Electricas do Norte do Brasil, S.A., ("Eletronorte"), denominated in
Brazilian real. In January 1999, the real was devalued. Under a provision in the
contract, the Company is entitled to adjust its forward tariff rate for
devaluations. In April 1999, the contract with Eletronorte was amended to extend
the term from four to six years. The Company believes the current economic
difficulties in Brazil will not have a material adverse effect on the Company's
financial position, results of operations, or cash flows.
The contract for the Manaus power project provides for delay and
availability damages to be paid to Eletronorte if the specified construction
schedule is not met or the project does not meet certain availability standards.
Completion of the project was delayed beyond the originally scheduled completion
dates provided in the contract, and the availability standards were not met.
Such delays resulted in claims by Eletronorte for damages. In the second quarter
of 1999, the Company reached a settlement with all parties which resolved all
claims for availability damages and continues to negotiate toward the settlement
of the claims on delay damages. The Company does not believe the ultimate
resolution of claims for delay damages will have a material adverse effect on
the Company's financial position, results of operations, or cash flows.
Pakistan
The Company owns a 42 percent interest in a 151 megawatt natural gas-fired
combined cycle plant in Kabirwala, Pakistan. Upon its completion, the plant will
sell electricity to the state owned Water & Power Development Authority
("WAPDA") under a 30-year contract. Due to an inlet filter fire and other
miscellaneous delays, the commencement of commercial operations of the power
plant has been delayed. The project company has received a claim from WAPDA for
liquidated damages due to this delay in commercial operations. The Company is
disputing this claim. In addition, the project company has certain claims for
delay damages against the project contractor. The Company believes that this
delay and any resolution regarding these damages will not have a material
adverse effect on the Company's financial position, results of operations, or
cash flows.
Rates and Regulatory Matters
In July 1998, FERC issued a Notice of Proposed Rulemaking ("NOPR") in which
it sought comments on a wide range of initiatives to change the manner in which
short-term (less than one year) transportation markets are regulated. Among
other things, the NOPR proposes the following: (i) removing the price cap for
the short-term capacity market; (ii) establishing procedures to make pipeline
and shipper-owned capacity comparable; (iii) auctioning all available short-term
pipeline capacity on a daily basis with the pipeline unable to set a reserve
price above variable costs; (iv) changing policies or pipeline penalties,
nomination procedures and services; (v) increasing pipeline reporting
requirements; (vi) permitting the negotiation of terms and conditions of
service; and (vii) potentially modifying the procedures for certificating new
pipeline construction. Also in July 1998, FERC issued a Notice of Inquiry
("NOI") seeking comments on FERC's policy for pricing long-term capacity. The
Company provided comments on the NOPR and NOI in April 1999.
In April 1997, FERC approved the settlement of all issues related to the
recovery of TGP's GSR and other transition costs and related proceedings (the
"GSR Stipulation and Agreement"). Under the terms of the GSR Stipulation and
Agreement, TGP is entitled to collect up to $770 million from its customers,
$693 million through a demand surcharge and $77 million through an interruptible
transportation surcharge. The demand portion has been fully collected. As of
September 30, 1999, $45 million of the interruptible transportation portion had
been collected. There is no time limit for collection of the interruptible
transportation surcharge. The terms of the GSR Stipulation and Agreement also
provide for a rate case moratorium through November 2000 (subject to certain
limited exceptions) and an escalating rate cap, indexed to inflation, through
October 2005, for certain of TGP's customers. In March 1999, TGP filed a GSR
reconciliation report with FERC in accordance with the terms of its GSR
Stipulation and Agreement. The
6
<PAGE> 9
report indicated that collections from firm customers through the demand
surcharge were $14 million more than the $693 million TGP was entitled to
collect. In June 1999, FERC accepted the report as complying with the GSR
Stipulation and Agreement, and in July 1999, TGP refunded the overcollections to
its firm customers. TGP will be required to refund to firm customers amounts
collected in excess of each firm customer's share of the final transition costs
based on the final GSR reconciliation report, which will be filed in March 2001.
Any future refund is not expected to have a material adverse effect on the
Company's financial position, results of operations, or cash flows.
In December 1994, TGP filed for a general rate increase with FERC and in
October 1996, FERC approved a settlement resolving that proceeding. The
settlement included a structural rate design change that results in a larger
portion of TGP's transportation revenues being dependent upon throughput. One
party, a competitor of TGP, filed a Petition for Review of the FERC approved
settlement with the Court of Appeals, which subsequently remanded the case to
FERC to respond to the competitor's argument that TGP's cost allocation
methodology deterred the development of market centers (centralized locations
where buyers and sellers can physically exchange gas). At FERC's request,
comments were filed in January 1999. This matter is still pending before FERC.
All cost of service issues related to TGP's 1991 general rate proceeding
were resolved pursuant to a settlement agreement approved by FERC which now has
become final. In a subsequent ruling, FERC remanded to an ALJ the issue of the
proper allocation of TGP's New England lateral costs. In October 1998, FERC
issued an order establishing the proper allocation of the New England lateral
costs and in April 1999 FERC denied requests for rehearing of that order. The
methodology approved by FERC economically approximates the methodology
previously used by TGP. In April 1999, TGP filed with FERC revised rates to be
effective May 1, 1999, consistent with the FERC's decision. TGP refunded
approximately $1 million to certain of its customers in the third quarter of
1999. The refunds resolved this proceeding.
In April 1999, FERC approved a settlement which resolved all outstanding
FERC proceedings relating to the cashout reports that TGP had filed for the
period September 1993 through August 1998. The settlement also established a new
cashout mechanism to account for customer imbalances. The new cashout mechanism
was implemented in the second quarter of 1999, retroactive to September 1998.
As previously reported, contracts representing 70 percent of TGP's firm
transportation capacity were due to expire by November 2000. As a result of
negotiations with existing customers to extend or restructure these contracts,
those contracts expiring by November 2000 now only represent approximately 20
percent of firm transportation capacity. To date, the conditions of settlements
and extensions have been similar to the original contracts. Currently, 80
percent of TGP's contracted firm transportation capacity has an average term in
excess of four years. TGP continues to pursue future markets and customers for
the capacity that is not committed beyond November 2000 and expects that this
capacity will be placed under a combination of long-term and short-term
contracts. However, there can be no assurance as to whether TGP will be able to
replace these contracts or that the terms of new contracts will be as favorable
to TGP as the existing contracts.
As an interstate pipeline, TGP is subject to FERC audits of its books and
records. As part of an
industry-wide initiative, TGP's property retirements are currently under review
by the FERC audit staff.
As the aforementioned rate and regulatory matters are fully and
unconditionally resolved, the Company may either recognize an additional refund
obligation or a non-cash benefit to finalize previously estimated liabilities.
Management believes the ultimate resolutions of these matters, which are in
various stages of finalization, will not have a material adverse effect on the
Company's financial position, results of operations, or cash flows.
Legal Proceedings
In February 1998, the United States and the State of Texas filed in a
United States District Court a Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA" or "Superfund") cost recovery action
against fourteen companies including the Company and certain of its affiliated
companies relating to the Sikes Disposal Pits Superfund Site ("Sikes") located
in Harris County, Texas. The suit claims
7
<PAGE> 10
that the United States and the State of Texas have expended over $125 million in
remediating the site, and seeks to recover that amount plus interest from all
defendants to the suit. Although factual investigation relating to Sikes is in
the preliminary stages, the Company believes that the amount of material, if
any, disposed at Sikes by the Company was small, possibly de minimis. However,
the plaintiffs have alleged that the defendants are each jointly and severally
liable for the entire remediation costs and have also sought a declaration of
liability for future response costs such as groundwater monitoring. While the
outcome of this matter cannot be predicted with certainty, management does not
expect this matter to have a material adverse effect on the Company's financial
position, results of operations, or cash flows.
TGP is a party in proceedings involving federal and state authorities
regarding the past use by TGP of a lubricant containing PCBs in its starting air
systems. TGP has executed a consent order with the EPA governing the remediation
of certain of its compressor stations and is working with the EPA and the
relevant states regarding those remediation activities. TGP is also working with
the Pennsylvania and New York environmental agencies regarding remediation and
post-remediation activities at the Pennsylvania and New York stations.
Management believes that the ultimate resolution of these matters will not have
a material adverse effect on the Company's financial position, results of
operations, or cash flows.
In November 1988, the Kentucky environmental agency filed a complaint in a
Kentucky state court alleging that TGP discharged pollutants into the waters of
the state without a permit and disposed of PCBs without a permit. The agency
sought an injunction against future discharges, sought an order to remediate or
remove PCBs, and sought a civil penalty. TGP has entered into agreed orders with
the agency to resolve many of the issues raised in the original allegations, has
received water discharge permits for its Kentucky compressor stations from the
agency, and continues to work to resolve the remaining issues. The relevant
Kentucky compressor stations are scheduled to be characterized and remediated
under the consent order with the EPA. Management believes that the resolution of
this issue will not have a material adverse effect on the Company's financial
position, results of operations, or cash flows.
A number of subsidiaries of EPEC, including wholly and partially owned
subsidiaries of the Company, have been named defendants in actions brought by
Jack Grynberg on behalf of the U.S. Government under the False Claims Act.
Generally, the complaints allege an industry-wide conspiracy to underreport the
heating value as well as the volumes of the natural gas produced from federal
and Indian lands, thereby depriving the U.S. Government of royalties. The
Company believes the complaint to be without merit and that the ultimate
resolution of this issue will not have a material adverse effect on the
Company's financial position, results of operations, or cash flows.
The Company is a named defendant in numerous lawsuits and a named party in
numerous governmental proceedings arising in the ordinary course of business.
While the outcome of such lawsuits or other proceedings cannot be predicted with
certainty, management currently does not expect these matters to have a material
adverse effect on the Company's financial position, results of operations, or
cash flows.
Environmental
The Company is subject to extensive federal, state, and local laws and
regulations governing environmental quality and pollution control. These laws
and regulations require the Company to remove or remedy the effect on the
environment of the disposal or release of specified substances at current and
former operating sites. As of September 30, 1999, the Company had reserves of
approximately $137 million for expected environmental costs.
In addition, the Company estimates that its subsidiaries will make capital
expenditures for environmental matters of approximately $4 million for the
remainder of 1999. These expenditures primarily relate to compliance with air
regulations and, to a lesser extent, control of water discharges. The Company
expects to incur expenditures of approximately $96 million in the aggregate for
the years 2000 through 2007.
Since 1988, TGP has been engaged in an internal project to identify and
deal with the presence of PCBs and other substances of concern, including
substances on the EPA List of Hazardous Substances, at compressor stations and
other facilities operated by both its interstate and intrastate natural gas
pipeline
8
<PAGE> 11
systems. While conducting this project, TGP has been in frequent contact with
federal and state regulatory agencies, both through informal negotiation and
formal entry of consent orders, to assure that its efforts meet regulatory
requirements.
In May 1995, following negotiations with its customers, TGP filed with FERC
a Stipulation and Agreement (the "Environmental Stipulation") that establishes a
mechanism for recovering a substantial portion of the environmental costs
identified in the internal project. The Environmental Stipulation was effective
July 1, 1995. As of September 30, 1999, all amounts have been collected under
the Environmental Stipulation. Refunds may be required to the extent actual
eligible expenditures are less than estimated eligible expenditures used to
determine amounts collected under the Environmental Stipulation.
The Company and certain of its subsidiaries have been designated, have
received notice that they could be designated, or have been asked for
information to determine whether they could be designated as a PRP with respect
to 11 sites under CERCLA or state equivalents. The Company has sought to resolve
its liability as a PRP with respect to these Superfund sites through
indemnification by third parties and/or settlements which provide for payment of
the Company's allocable share of remediation costs. Since the clean-up costs are
estimates and are subject to revision as more information becomes available
about the extent of remediation required, and because in some cases the Company
has asserted a defense to any liability, the Company's estimate of its share of
remediation costs could change. Moreover, liability under the federal Superfund
statute is joint and several, meaning that the Company could be required to pay
in excess of its pro rata share of remediation costs. The Company's
understanding of the financial strength of other PRPs has been considered, where
appropriate, in the determination of its estimated liability. The Company
presently believes that the costs associated with the current status of such
other entities as PRPs at the Superfund sites referenced above will not have a
material adverse effect on the Company's financial position, results of
operations, or cash flows.
The Company has initiated proceedings against its historic liability
insurers seeking payment or reimbursement of costs and liabilities associated
with various environmental matters. In these proceedings, the Company contends
that certain environmental costs and liabilities associated with various
entities or sites, including costs associated with former operating sites, must
be paid or reimbursed by certain of its historic insurers. The proceedings are
in the discovery stage, and it is not yet possible to predict the outcome.
It is possible that new information or future developments could require
the Company to reassess its potential exposure related to environmental matters.
The Company may incur significant costs and liabilities in order to comply with
existing environmental laws and regulations. It is also possible that other
developments, such as increasingly strict environmental laws, regulations and
enforcement policies thereunder, and claims for damages to property, employees,
other persons and the environment resulting from current or discontinued
operations, could result in substantial costs and liabilities in the future. As
such information becomes available, or other relevant developments occur,
related accrual amounts will be adjusted accordingly. While there are still
uncertainties relating to the ultimate costs which may be incurred, based upon
the Company's evaluation and experience to date, the Company believes the
recorded reserves are adequate.
Other than the items discussed above, management is not aware of any other
commitments or contingent liabilities which would have a material adverse effect
on the Company's financial condition, results of operations, or cash flows.
9
<PAGE> 12
4. SEGMENT INFORMATION
During the third quarter of 1999, the Company renamed its El Paso Energy
Marketing segment El Paso Merchant Energy. The change had no impact on reported
segment results.
<TABLE>
<CAPTION>
SEGMENTS
AS OF OR FOR THE QUARTER ENDED SEPTEMBER 30, 1999
--------------------------------------------------------
TENNESSEE EL PASO EL PASO EL PASO
GAS FIELD MERCHANT ENERGY
PIPELINE SERVICES ENERGY INTERNATIONAL TOTAL
--------- -------- -------- ------------- ------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Revenues from external customers.... $ 173 $ 96 $ 862 $ 14 $1,145
Intersegment revenue................ 7 14 5 -- 26
Operating income (loss)............. 73 17 3 (11) 82
EBIT................................ 76 20 2 12 110
Segment assets...................... 4,938 1,065 922 1,279 8,204
</TABLE>
<TABLE>
<CAPTION>
SEGMENTS
AS OF OR FOR THE QUARTER ENDED SEPTEMBER 30, 1998
--------------------------------------------------------
TENNESSEE EL PASO EL PASO EL PASO
GAS FIELD MERCHANT ENERGY
PIPELINE SERVICES ENERGY INTERNATIONAL TOTAL
--------- -------- -------- ------------- ------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Revenues from external customers.... $ 171 $ 37 $1,275 $ 15 $1,498
Intersegment revenue................ 9 17 4 -- 30
Operating income (loss)............. 71 9 -- (9) 71
EBIT................................ 82 13 -- 12 107
Segment assets...................... 4,906 986 606 886 7,384
</TABLE>
<TABLE>
<CAPTION>
SEGMENTS
AS OF OR FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999
--------------------------------------------------------
TENNESSEE EL PASO EL PASO EL PASO
GAS FIELD MERCHANT ENERGY
PIPELINE SERVICES ENERGY INTERNATIONAL TOTAL
--------- -------- -------- ------------- ------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Revenues from external customers.... $ 556 $ 241 $2,325 $ 43 $3,165
Intersegment revenues............... 21 47 11 -- 79
Operating income (loss)............. 286 44 18 (34) 314
EBIT................................ 302 73 19 31 425
Segment assets...................... 4,938 1,065 922 1,279 8,204
</TABLE>
<TABLE>
<CAPTION>
SEGMENTS
AS OF OR FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998
--------------------------------------------------------
TENNESSEE EL PASO EL PASO EL PASO
GAS FIELD MERCHANT ENERGY
PIPELINE SERVICES ENERGY INTERNATIONAL TOTAL
--------- -------- -------- ------------- ------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Revenues from external customers.... $ 542 $ 145 $3,440 $ 43 $4,170
Intersegment revenues............... 28 41 13 -- 82
Operating income (loss)............. 230 43 (4) (22) 247
EBIT................................ 252 54 -- 23 329
Segment assets...................... 4,906 986 606 886 7,384
</TABLE>
10
<PAGE> 13
The reconciliations of EBIT to income before income taxes and cumulative
effect of accounting change are presented below:
<TABLE>
<CAPTION>
QUARTER NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1999 1998 1999 1998
----- ----- ---- ----
(IN MILLIONS)
<S> <C> <C> <C> <C>
Total EBIT for segments............................ $110 $107 $425 $329
Corporate expenses, net............................ (4) (7) (13) (10)
---- ---- ---- ----
Income before interest, income taxes and cumulative
effect of accounting change...................... $106 $100 $412 $319
==== ==== ==== ====
</TABLE>
5. DEBT AND OTHER CREDIT FACILITIES
In August 1999, EPEC established a new $1,250 million 364-day renewable
revolving credit and competitive advance facility. As of September 30, 1999,
EPEC's interest rate for borrowings under this facility was equal to LIBOR plus
50 basis points. The rate will vary based on EPEC's long-term unsecured debt
rating. This facility replaced EPEC's $750 million 364-day renewable revolving
credit and competitive advance facility established in October 1997. TGP is a
designated borrower under this credit facility. As of September 30, 1999, no
amounts were outstanding under this facility.
The weighted average interest rate of short-term borrowings was 5.5% and
5.8% at September 30, 1999 and December 31, 1998, respectively. The Company had
short-term borrowings, including current maturities of long-term debt, at
September 30, 1999 and December 31, 1998, as follows:
<TABLE>
<CAPTION>
1999 1998
----- -----
(IN MILLIONS)
<S> <C> <C>
Commercial paper............................................ $20 $190
Current maturities of other long-term debt.................. 4 4
--- ----
$24 $194
=== ====
</TABLE>
6. PROPERTY, PLANT, AND EQUIPMENT
Property, plant, and equipment at September 30, 1999 and December 31, 1998,
consisted of the following:
<TABLE>
<CAPTION>
1999 1998
------ ------
(IN MILLIONS)
<S> <C> <C>
Property, plant, and equipment, at cost
Tennessee Gas Pipeline.................................... $2,460 $2,438
El Paso Field Services.................................... 1,131 1,117
El Paso Merchant Energy................................... 15 15
El Paso Energy International.............................. 295 162
Corporate and Other....................................... 78 73
------ ------
3,979 3,805
Less accumulated depreciation and depletion................. 620 577
------ ------
3,359 3,228
Additional acquisition cost assigned to utility plant, net
of accumulated amortization............................... 2,364 2,400
------ ------
Total property, plant, and equipment, net................... $5,723 $5,628
====== ======
</TABLE>
Current FERC policy does not permit the Company to recover amounts in
excess of original cost allocated in purchase accounting to its regulated
operations through rates.
11
<PAGE> 14
7. INVESTMENT IN AFFILIATED COMPANIES
The Company holds investments in various affiliates which are accounted for
using the equity method of accounting. The principal equity method investments
are the Company's investments in international pipelines, interstate pipelines,
power generation plants, gathering systems and natural gas storage facilities.
Summarized financial information of the Company's proportionate share of 50
percent or less owned companies and majority owned unconsolidated subsidiaries
accounted for by the equity method of accounting is as follows:
<TABLE>
<CAPTION>
NINE MONTHS
QUARTER ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1999 1998 1999 1998
----- ----- ----- -----
(IN MILLIONS)
<S> <C> <C> <C> <C>
Operating results data:
Revenues and other income............................ $88 $64 $248 $148
Costs and expenses................................... 76 53 198 113
Income from continuing operations.................... 12 11 50 35
Net income........................................... 8 10 46 33
</TABLE>
8. NEW ACCOUNTING PRONOUNCEMENTS NOT YET ADOPTED
Accounting for Derivative Instruments and Hedging Activities
In June 1998, Statement of Financial Accounting Standards No. 133,
Accounting for Derivative Instruments and Hedging Activities, was issued by the
Financial Accounting Standards Board to establish accounting and reporting
standards for derivative instruments, including certain derivative instruments
embedded in other contracts, and for hedging activities. This pronouncement
requires that an entity classify all derivatives as either assets or liabilities
in the statement of financial position and measure those instruments at fair
value. If certain conditions are met, a derivative may be specifically
designated as (i) a hedge of the exposure to changes in the fair value of a
recognized asset or liability or an unrecognized firm commitment, (ii) a hedge
of the exposure to variable cash flows of a forecasted transaction, or (iii) a
hedge of the foreign currency exposure of a net investment in a foreign
operation, an unrecognized firm commitment, an
available-for-sale security or a foreign-currency-denominated forecasted
transaction. The accounting for the changes in the fair value of a derivative
depends on the intended use of the derivative and the resulting designation. The
standard was amended by Statement of Financial Accounting Standards No. 137
issued in June 1999. The amendment defers the effective date to fiscal years
beginning after June 15, 2000. The Company is currently evaluating the effects
of this pronouncement.
12
<PAGE> 15
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The information contained in Item 2 updates, and should be read in
conjunction with, information set forth in Part II, Items 7, 7A, and 8, in the
Company's Annual Report on Form 10-K for the year ended December 31, 1998, in
addition to the interim condensed consolidated financial statements and
accompanying notes presented in Item 1 of this Quarterly Report on Form 10-Q.
GENERAL
On December 31, 1998, EPEC completed a series of steps to effect a tax-free
internal reorganization in which certain energy marketing operations of EPME,
certain field services operations of EPFS, and certain international operations
of El Paso Energy International were transferred to EPTPC. The transactions were
treated as a transfer of ownership between entities under common control and
were accounted for in a manner similar to a pooling of interests. Accordingly,
the information for the quarter and nine months ended September 30, 1998,
presented in the Management's Discussion and Analysis of Financial Condition and
Results of Operations has been restated as though the transactions occurred on
January 1, 1998.
As a result of a Federal Trade Commission order related to the merger of
Sonat Inc. into EPEC, the Company must dispose of certain operations, including
its wholly owned East Tennessee Natural Gas Company. The impact of the required
divestiture is not expected to have a material effect on the Company's financial
position, results of operations, or cash flows.
RESULTS OF OPERATIONS
SEGMENT RESULTS
<TABLE>
<CAPTION>
QUARTER NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1999 1998 1999 1998
----- ----- ----- -----
(IN MILLIONS)
<S> <C> <C> <C> <C>
EARNINGS BEFORE INTEREST EXPENSE AND INCOME TAXES
Tennessee Gas Pipeline................................ $ 76 $ 82 $302 $252
El Paso Field Services................................ 20 13 73 54
El Paso Merchant Energy............................... 2 -- 19 --
El Paso Energy International.......................... 12 12 31 23
Corporate expenses, net............................... (4) (7) (13) (10)
---- ---- ---- ----
Total EBIT.................................. $106 $100 $412 $319
==== ==== ==== ====
</TABLE>
TENNESSEE GAS PIPELINE
<TABLE>
<CAPTION>
QUARTER NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1999 1998 1999 1998
----- ----- ----- -----
(IN MILLIONS)
<S> <C> <C> <C> <C>
Operating revenues................................ $ 180 $ 180 $ 577 $ 570
Operating expenses................................ (107) (109) (291) (340)
Other, net........................................ 3 11 16 22
----- ----- ----- -----
EBIT............................................ $ 76 $ 82 $ 302 $ 252
===== ===== ===== =====
</TABLE>
13
<PAGE> 16
Third Quarter 1999 Compared to Third Quarter 1998
Operating expenses for the quarter ended September 30, 1999, were $2
million lower than for the same period of 1998. This decrease was attributable
to lower system fuel usage associated with operating efficiencies achieved as a
result of lower throughput levels and lower direct operating and maintenance
costs.
Other, net for the quarter ended September 30, 1999, was $8 million lower
than for the same period of 1998 primarily due to interest income on a favorable
sales and use tax settlement received in the third quarter of 1998 and lower
earnings from equity investments in the third quarter of 1999.
Nine Months Ended 1999 Compared to Nine Months Ended 1998
Operating revenues for the nine months ended September 30, 1999, were $7
million higher than for the same period of 1998 primarily due to the favorable
resolution of regulatory issues during 1999 and the impact of a downward
revision in the amount of recoverable interest on GSR costs in 1998. The
increase was partially offset by a favorable customer settlement in the second
quarter of 1998 and lower system throughput in 1999 due to milder temperatures.
Operating expenses for the nine months ended September 30, 1999, were $49
million lower than for the same period of 1998. The decrease was primarily due
to the favorable resolution of certain regulatory issues during 1999 and lower
fuel usage associated with operating efficiencies achieved as a result of lower
system throughput.
Other, net for the nine months ended September 30, 1999, was $6 million
lower than for the same period of 1998 primarily due to interest income received
in the third quarter of 1998 on a favorable sales and use tax settlement and
lower earnings from equity investments during 1999. The decrease was partially
offset by the impact of a favorable settlement of a regulatory issue in the
first quarter of 1999.
EL PASO FIELD SERVICES
<TABLE>
<CAPTION>
QUARTER NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- -------------
1999 1998 1999 1998
----- ----- ---- -----
(IN MILLIONS)
<S> <C> <C> <C> <C>
Gathering and treating margin........................ $ 39 $ 34 $115 $ 111
Processing margin.................................... 12 10 32 36
Other margin......................................... 3 -- 7 2
---- ---- ---- -----
Total gross margin......................... 54 44 154 149
Operating expenses................................... (37) (35) (110) (106)
Other, net........................................... 3 4 29 11
---- ---- ---- -----
EBIT....................................... $ 20 $ 13 $ 73 $ 54
==== ==== ==== =====
</TABLE>
Third Quarter 1999 Compared to Third Quarter 1998
Total gross margin for the quarter ended September 30, 1999, was $10
million higher than for the same period of 1998. The increase in the gathering
and treating margin is primarily due to higher volumes and average gathering
rates in the San Juan basin, partially offset by the sale of assets in the
Anadarko Basin in September 1998. The increase in the processing margin resulted
from higher volumes and realized liquids prices during the third quarter of 1999
compared to the same period of 1998. The increase in other margin resulted from
the acquisition of EnCap in the first quarter of 1999.
Operating expenses for the quarter ended September 30, 1999, were $2
million higher than for the same period of 1998 due to an increase in
amortization and depreciation expense attributable to acquisitions.
14
<PAGE> 17
Other, net for the quarter ended September 30, 1999, was $1 million lower
than for the same period of 1998 due to a decrease in earnings on equity
investments.
Nine Months Ended 1999 Compared to Nine Months Ended 1998
Total gross margin for the nine months ended September 30, 1999, was $5
million higher than for the same period of 1998. The increase in the gathering
and treating margin is primarily due to higher volumes in the San Juan basin.
The increase was partially offset by the sale of assets in the Anadarko Basin in
September 1998. The decrease in the processing margin resulted from lower
realized liquids prices in 1999 compared to the same period of 1998. The
increase in other margin resulted from the acquisition of EnCap in the first
quarter of 1999.
Operating expenses for the nine months ended September 30, 1999, were $4
million higher than for the same period of 1998 primarily due to an increase in
amortization and depreciation expense attributable to acquisitions.
Other, net for the nine months ended September 30, 1999, was $18 million
higher than for the same period of 1998 primarily due to net gains on the sale
of assets in 1999.
EL PASO MERCHANT ENERGY
<TABLE>
<CAPTION>
QUARTER NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1999 1998 1999 1998
----- ----- ----- -----
(IN MILLIONS)
<S> <C> <C> <C> <C>
Natural gas margin..................................... $10 $13 $ 40 $ 11
Power margin........................................... -- (4) -- 15
--- --- ---- ----
Total gross margin........................... 10 9 40 26
Operating expenses..................................... (7) (9) (22) (30)
Other, net............................................. (1) -- 1 4
--- --- ---- ----
EBIT......................................... $ 2 $-- $ 19 $ --
=== === ==== ====
</TABLE>
Third Quarter 1999 Compared to Third Quarter 1998
Total gross margin for the quarter ended September 30, 1999, was $1 million
higher than for the same period of 1998. The decrease in the natural gas margin
was primarily due to decreased physical trading margins coupled with increases
in broker expenses resulting from increases in financial volumes and positions.
These decreases were partially offset by income recognition on long-term gas
contracts closed in the quarter. The power margin was zero in 1999 compared to a
loss of $4 million in 1998 due to the January 1999 transfer of EPME's power
trading activities to El Paso Power Services Company, a wholly owned direct
subsidiary of EPEC.
Operating expenses for the quarter ended September 30, 1999, were $2
million lower than for the same period of 1998 due to a decrease in general and
administrative expenses, principally those associated with the transfer of power
trading activities to El Paso Power Services Company.
Nine Months Ended 1999 Compared to Nine Months Ended 1998
Total gross margin for the nine months ended September 30, 1999, was $14
million higher than for the same period of 1998. The increase in the natural gas
margin was primarily due to the income recognition from long-term natural gas
transactions closed during 1999. The increase was partially offset by increased
broker expenses resulting from increases in financial volumes and positions. The
power margin was zero in 1999 compared to income of $15 million in 1998 due to
the January 1999 transfer of EPME's power trading activities to El Paso Power
Services Company, a wholly owned direct subsidiary of EPEC.
15
<PAGE> 18
Operating expenses for the nine months ended September 30, 1999, were $8
million lower than for the same period of 1998 primarily due to a decrease in
general and administrative expenses, including those associated with power
trading activities transferred to El Paso Power Services Company.
Other, net for the nine months ended September 30, 1999, was $3 million
lower than for the same period of 1998 primarily due to a gain on the sale of
assets in the second quarter of 1998.
EL PASO ENERGY INTERNATIONAL
<TABLE>
<CAPTION>
QUARTER NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------
1999 1998 1999 1998
----- ----- ----- -----
(IN MILLIONS)
<S> <C> <C> <C> <C>
Operating revenues.................................... $ 14 $ 15 $ 43 $ 43
Operating expenses.................................... (25) (24) (77) (65)
Other, net............................................ 23 21 65 45
---- ---- ---- ----
EBIT................................................ $ 12 $ 12 $ 31 $ 23
==== ==== ==== ====
</TABLE>
Third Quarter 1999 Compared to Third Quarter 1998
Operating revenues for the quarter ended September 30, 1999, were $1
million lower than for the same period of 1998 primarily due to a decrease in
revenues from EMA Power, partially offset by revenues on
Rio Negro which was consolidated in the third quarter of 1999.
Operating expenses for the quarter ended September 30, 1999, were $1
million higher than for the same period of 1998 primarily due to higher
operating expenses on consolidated projects. The increase was largely offset by
lower project development costs.
Other, net for the quarter ended September 30, 1999, was $2 million higher
than for the same period of 1998 due to higher earnings on equity investments,
principally the Samalayuca Power, East Asia Power, and Kladno projects. The 1998
earnings included a gain on the sale of surplus power equipment and a loss on an
equity swap agreement.
Nine Months Ended 1999 Compared to Nine Months Ended 1998
Operating expenses for the nine months ended September 30, 1999, were $12
million higher than for the same period of 1998 primarily due to an increase in
operating expenses in consolidated projects partially offset by lower project
development costs.
Other, net for the nine months ended September 30, 1999, was $20 million
higher than for the same period of 1998 primarily due to higher earnings from
equity investments, principally the Samalayuca Power and East Asia Power
projects. The 1998 earnings included certain gains from project-related
activities and a gain on the sale of surplus power equipment in 1998.
16
<PAGE> 19
CORPORATE EXPENSES, NET
Third Quarter 1999 Compared to Third Quarter 1998
Net corporate expenses for the quarter ended September 30, 1999, were $3
million lower than for the same period of 1998 primarily due to the timing of
corporate allocations in the third quarter of 1999.
Nine Months Ended 1999 Compared to Nine Months Ended 1998
Net corporate expenses for the nine months ended September 30, 1999, were
$3 million higher than for the same period of 1998. The change was primarily due
to lower income from investments in 1999 partially offset by the timing of
corporate allocations in 1999.
NON-AFFILIATED INTEREST AND DEBT EXPENSE
Non-affiliated interest and debt expense for the quarter and nine months
ended September 30, 1999, was higher than for the same period of 1998 due to
increased borrowings related to acquisitions, capital expenditures, and other
investing expenditures.
AFFILIATED INTEREST EXPENSE, NET
Affiliated interest expense, net for the quarter and nine months ended
September 30, 1999, was lower than for the same period of 1998, primarily due to
reduction in affiliated average debt balance.
LIQUIDITY AND CAPITAL RESOURCES
CASH FROM OPERATING ACTIVITIES
Net cash provided by operating activities was $154 million for the nine
months ended September 30, 1999, compared to $268 million for the same period of
1998. Higher income was offset by lower GSR recoveries in 1999, tax refunds
received in 1998, and higher receivable balances in 1999.
CASH FROM INVESTING ACTIVITIES
Net cash used in investing activities was $70 million for the nine months
ended September 30, 1999. Expenditures related to joint ventures and equity
investments were primarily attributable to the acquisition of an 82 percent
ownership interest in EAPRC. Other investment activity included expenditures for
expansion and construction projects, as well as the acquisition of EnCap.
Internally generated funds and advances from EPEC, supplemented by other
financing activities, were used to fund these expenditures.
Future funding for capital expenditures, acquisitions, and other investing
expenditures is expected to be provided by internally generated funds,
commercial paper issuances, available capacity under existing credit facilities,
and/or contributions from EPEC.
CASH FROM FINANCING ACTIVITIES
Net cash used in financing activities was $88 million for the nine months
ended September 30, 1999. Long-term borrowings, supplemented by internally
generated funds, were used to reduce short-term borrowings, pay dividends, fund
capital and equity investments, and for other corporate purposes.
In August 1999, EPEC established a new $1,250 million 364-day renewable
revolving credit and competitive advance facility. As of September 30, 1999,
EPEC's interest rate for borrowing under this facility was equal to LIBOR plus
50 basis points. The rate will vary based on EPEC's long-term unsecured debt
rating. This facility replaced EPEC's $750 million 364-day renewable revolving
credit and competitive advance facility established in October 1997. TGP is a
designated borrower under this credit facility. As of September 30, 1999, no
amounts were outstanding under this facility.
17
<PAGE> 20
Future funding for long-term debt retirements, dividends, and other
financing expenditures is expected to be provided by internally generated funds,
commercial paper issuances, available capacity under existing credit facilities,
and/or contributions from EPEC.
COMMITMENTS AND CONTINGENCIES
See Note 3, which is incorporated herein by reference.
OTHER
In October 1999, the Company agreed to acquire Crystal Gas Storage, Inc.
for approximately $220 million. The transaction will be accounted for as a
purchase. Crystal Gas Storage owns and operates two natural gas storage
facilities near Hattiesburg, Mississippi and holds interests in natural gas
producing properties in northern Louisiana and southern Arkansas.
In October 1999, the Company acquired for $13 million the remaining
interest in Interenergy Company from Clan Energy International. Interenergy is a
Cayman company that holds a 38 percent interest in Triunion Energy Company
("Triunion"). This increased the Company's ownership in Triunion to 71 percent.
As a result, the Company will begin to consolidate Triunion in the fourth
quarter of 1999. Triunion's principle asset is a 21 percent interest in the
Argentina to Chile pipeline. With the acquisition, the Company's overall
interest in the Argentina to Chile pipeline increased to 15 percent.
In October 1999, the Company acquired a 25 percent interest in a 762
megawatt coal-fired power plant in the People's Republic of China. The Meizhou
Wan power plant, located in the Fujian Province, is expected to be operational
in the first quarter of 2001.
YEAR 2000
EPEC has established an executive steering committee and a project team to
coordinate the phases of its Year 2000 project to assure that the Company's key
automated systems, equipment, and related processes will remain functional
through the Year 2000. Those phases are: (i) awareness; (ii) assessment; (iii)
remediation; (iv) testing; (v) implementation of the necessary modifications and
(vi) contingency planning. The Company has participated in EPEC's Year 2000
project as described below.
In recognition of the importance of Year 2000 issues and their potential
impact on the Company, the initial phase of the Year 2000 project involved the
establishment of a company-wide awareness program. The awareness program is
directed by the executive steering committee and project team and includes
participation of senior management in each core business area. The awareness
phase is substantially completed, although the Company will continually update
awareness efforts for the duration of the Year 2000 project.
The Company's assessment phase consists of conducting a company-wide
inventory of its key automated systems and related processes, analyzing and
assigning levels of criticality to those systems and processes, identifying and
prioritizing resource requirements, developing validation strategies and testing
plans, and evaluating business partner relationships. The assessment phase is
substantially complete. The assessment phase of the project, among other things,
involves efforts to obtain representations and assurances from third parties,
including third party vendors, that their hardware and equipment products,
embedded chip systems, and software products being used by or impacting the
Company are or will be modified to be Year 2000 compliant. Increasingly, the
responses from such third parties are generally encouraging. Nonetheless, many
of these responses lack the substantive detail to allow the Company to make a
meaningful evaluation of such third-parties' Year 2000 readiness. Furthermore,
in some circumstances, third parties are refusing to provide any response beyond
those contained in their publicly-disseminated information. As a result, the
overall evaluation of the Company's business partners' Year 2000 readiness
remains inconclusive. Accordingly, the Company cannot predict the potential
consequences if these or other third parties or their products are not Year 2000
compliant. The Company continues to evaluate the exposure associated with such
business partner
18
<PAGE> 21
relationships, and will use the contingency planning process to attempt to
mitigate the uncertainty concerning third-party readiness.
The remediation phase involves converting, modifying, replacing or
eliminating key automated systems identified in the assessment phase. The
testing phase involves the validation of the identified key automated systems.
The Company is utilizing test tools and written test procedures to document and
validate, as necessary, its unit, system, integration and acceptance testing.
The implementation phase involves placing the converted or replaced key
automated systems into operation. One system that was not substantially complete
with respect to Year 2000 issues as of June 30, 1999, was the nominations,
scheduling and volume accounting applications utilized by TGP. That system is
now substantially complete. In October 1999, the Company, in cooperation with
other Interstate Natural Gas Association of America members, reported that its
regulated pipelines, Tennessee Gas Pipeline, East Tennessee Natural Gas Pipeline
and Midwestern Gas Transmission, will be Year 2000 compliant on the rollover
date of January 1, 2000. The Company is substantially complete with its
remediation, testing and implementation phases for domestic systems.
The Company had previously identified the contingency planning phase as a
subset of the implementation phase, but has now established the process as its
own phase of the overall Year 2000 program. The contingency planning phase
consists of developing a risk profile of the Company's critical business
processes and then providing for actions the Company will pursue to keep such
processes operational in the event of Year 2000 disruptions. The focus of such
contingency planning is on prompt response to any Year 2000 events, and a plan
for subsequent resumption of normal operations. The plan attempts to assess the
risk of a significant failure to critical processes performed by the Company,
and to address the mitigation of those risks. The plan will also consider any
significant failures related to the most reasonably likely worst case scenario,
discussed below, as they may occur. In addition, the plan attempts to factor in
the severity and duration of the impact of a significant failure. The Company
has developed contingency plans for each business unit and significant business
process. By September 30, 1999, the Company had conducted desk-top testing of
its contingency plans and had conducted drills and mock outages, including some
testing with certain customers and other significant third parties. The Year
2000 contingency plans will continue to be tested, modified and adjusted
throughout the year as additional information becomes available.
The goal of the Year 2000 project is to ensure that all of the critical
systems and processes which are under the Company's direct control remain
functional. Certain systems and processes may be interrelated with or dependent
upon systems outside the Company's control. However, systems within the
Company's control may also have unpredicted problems. Accordingly, there can be
no assurance that significant disruptions will be avoided. The Company's present
analysis of its most reasonably likely worst case scenario for Year 2000
disruptions includes sporadic Year 2000 failures in the telecommunications and
electricity industries, as well as interruptions from suppliers that might cause
disruptions in the Company's operations, thus causing temporary financial losses
and an inability to deliver products and services to customers. Virtually all of
the natural gas transported through the Company's interstate pipelines is owned
by third parties. Accordingly, failures of natural gas producers to be ready for
the Year 2000 could significantly disrupt the flow of product to the Company's
customers. In many cases, the producers have no direct contractual relationship
with the Company, and the Company relies on its customers to verify the Year
2000 readiness of the producers from whom they purchase natural gas. Since most
of the Company's revenues from the delivery of natural gas are based upon fees
paid by its customers for the reservation of capacity, and not based upon the
volume of actual deliveries, short-term disruptions in deliveries caused by
factors beyond the Company's control should not have a significant financial
impact on the Company, although it could cause operational problems for the
Company's customers. Longer-term disruptions, however, could materially impact
the Company's results of operations, financial condition, and cash flows.
While the Company owns or controls most of its domestic facilities and
projects, nearly all of the Company's international investments have been made
in conjunction with unrelated third parties. In many cases, the operators of
such international facilities are not under the sole or direct control of the
Company. As a consequence, the Year 2000 programs instituted at some of the
international facilities may be different from the Year 2000 program implemented
by the Company domestically, and the party responsible for the results of such
program may not be under the direct or indirect control of the Company. In
addition, many foreign
19
<PAGE> 22
countries appear to be substantially behind the United States in addressing
potential Year 2000 disruption of critical infrastructure and in developing a
framework governing the reporting requirements and relative liabilities of
business entities. Accordingly, the Year 2000 risks posed by international
operations as a whole are different than those presented domestically. While
management believes that most of the international facilities in which it has
significant investments are addressing Year 2000 issues in an adequate manner,
it is possible that some of them may experience significant Year 2000
disruption, and that the aggregate effect of problems experienced at multiple
international locations may be material and adverse. The Company is
incorporating this possibility into the relevant contingency plans.
While the total cost of the Company's Year 2000 project continues to be
evaluated, the Company estimates that the costs remaining to be incurred in 1999
and 2000 associated with assessing, remediating and testing internally developed
computer applications, hardware and equipment, embedded chip systems, and
third-party-developed software will be between $2 million and $5 million. Of
these estimated costs, the Company expects between $1 million and $2 million to
be capitalized and the remainder to be expensed. As of September 30, 1999, the
Company has incurred expenses of approximately $9 million and has capitalized
costs of approximately $4 million. The Company has previously only traced
incremental expenses related to its Year 2000 project. This means that the costs
of the Year 2000 project related to salaried employees of the Company, including
their direct salaries and benefits, are not available, and have not been
included in the estimated costs of the project. Since the earlier phases of the
project primarily involved work performed by such salaried employees, the costs
expended to date do not reflect the percentage completion of the project. The
Company anticipates that it will expend a substantial amount of the remaining
costs in the contingency planning phase of the project, including the potential
acquisition of back-up assets and systems that may be deployed in the event
primary systems fail to perform fully according to expectations.
Furthermore, for the Company's international investments, the Company
understands that many of the operators of such foreign facilities are incurring
Year 2000 costs but obtaining detailed information regarding Year 2000
international cost expenditures has been slow and, at times, difficult. For this
reason, the Year 2000 costs incurred may fall somewhat short of the estimated
costs discussed above.
Although the Company does not expect the costs of its Year 2000 project to
have a material adverse effect on its financial position, results of operations,
or cash flows, based on information available at this time, the Company cannot
conclude that disruption caused by internal or external Year 2000 related
failures will not have such an effect. Specific factors which might affect the
success of the Company's Year 2000 efforts and the frequency or severity of a
Year 2000 disruption or the amount of expense include the failure of the Company
or its outside consultants to properly identify deficient systems, the failure
of the selected remedial action to adequately address the deficiencies, the
failure of the Company or its outside consultants to complete the remediation in
a timely manner (due to shortages of qualified labor or other factors), the
failure of other parties to joint ventures in which the Company is involved to
meet their obligations, both financial and operational, under the relevant joint
venture agreements to remediate assets used by the joint venture, unforeseen
expenses related to the remediation of existing systems or the transition to
replacement systems, the failure of third parties to become Year 2000 compliant
or to adequately notify the Company of potential noncompliance and the effects
of any significant disruption at international facilities in which the Company
has significant investments.
The above disclosure is a "YEAR 2000 READINESS DISCLOSURE" made with the
intention to comply fully with the Year 2000 Information and Readiness
Disclosure Act of 1998, Pub. L. No. 105-271, 112 Stat, 2386, signed into law
October 19, 1998. All statements made herein shall be construed within the
confines of that Act. To the extent that any reader of the above Year 2000
Readiness Disclosure is other than an investor or potential investor in the
Company's -- or an affiliate's -- equity or debt securities, this disclosure is
made for the SOLE PURPOSE of communicating or disclosing information aimed at
correcting, helping to correct and/or avoiding Year 2000 failures.
NEW ACCOUNTING PRONOUNCEMENTS NOT YET ADOPTED
See Note 8, which is incorporated herein by reference.
20
<PAGE> 23
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR" PROVISIONS OF
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995.
This report contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. Where any such forward-looking
statement includes a statement of the assumptions or bases underlying such
forward-looking statement, the Company cautions that, while such assumptions or
bases are believed to be reasonable and are made in good faith, assumed facts or
bases almost always vary from the actual results, and the differences between
assumed facts or bases and actual results can be material, depending upon the
circumstances. Where, in any forward-looking statement, the Company or its
management expresses an expectation or belief as to future results, such
expectation or belief is expressed in good faith and is believed to have a
reasonable basis, but there can be no assurance that the statement of
expectation or belief will result or be achieved or accomplished. The words
"believe," "expect," "estimate," "anticipate" and similar expressions may
identify forward-looking statements.
Important factors that could cause actual results to differ materially from
those in the forward-looking statements herein include increasing competition
within the Company's industry, the timing and extent of changes in commodity
prices for natural gas and power, uncertainties associated with customer
contract expirations on the TGP pipeline system, uncertainties associated with
acquisitions and joint ventures, potential environmental liabilities, potential
contingent liabilities and tax liabilities related to the Company's
acquisitions, political and economic risks associated with current and future
operations in foreign countries, conditions of the equity and other capital
markets during the periods covered by the forward-looking statements, and other
risks, uncertainties and factors, including the effect of the Year 2000 date
change, discussed more completely in the Company's other filings with the U.S.
Securities and Exchange Commission, including its Annual Report on Form 10-K for
the year ended December 31, 1998.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The information contained in Item 3 updates, and should be read in
conjunction with, information set forth in Part II, Item 7A in the Company's
Annual Report on Form 10-K for the year ended December 31, 1998, in addition to
the interim consolidated financial statements, accompanying notes and
Management's Discussion and Analysis of Financial Condition and Results of
Operations presented in Items 1 and 2 of this Quarterly Report on Form 10-Q.
There have been no material changes in market risks faced by the Company
from those reported in the Company's Annual Report on Form 10-K for the year
ended December 31, 1998.
21
<PAGE> 24
PART II -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
See Part I, Financial Information, Note 3, which is incorporated herein by
reference.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
Each exhibit identified below is filed as a part of this report.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.A -- $1,250,000,000 364-Day Revolving Credit and Competitive
Advance Facility Agreement dated as of August 16, 1999,
by and among EPEC, EPNG, TGP, the several banks and other
financial institutions from time to time parties to the
Agreement, The Chase Manhattan Bank, as administrative
agent and as CAF Advance Agent for the Lenders
thereunder, Citibank N.A. and ABN Amro Bank, N.V. as
co-documentation agents for the Lenders and Bank of
America, N.A. as syndication agent for the Lenders.
27 -- Financial Data Schedule.
</TABLE>
Undertaking
The undersigned hereby undertakes, pursuant to Regulation S-K, Item
601(b), paragraph (4)(iii), to furnish to the U.S. Securities and Exchange
Commission, upon request, all constituent instruments defining the rights
of holders of long-term debt of EPTPC and its consolidated subsidiaries not
filed herewith for the reason that the total amount of securities
authorized under any of such instruments does not exceed 10 percent of the
total consolidated assets of EPTPC and its consolidated subsidiaries.
b. Reports on Form 8-K
None.
22
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EL PASO TENNESSEE PIPELINE CO.
Date: November 12, 1999 /s/ H. BRENT AUSTIN
------------------------------------
H. Brent Austin
Executive Vice President and
Chief Financial Officer
Date: November 12, 1999 /s/ JEFFREY I. BEASON
------------------------------------
Jeffrey I. Beason
Senior Vice President and Controller
(Chief Accounting Officer)
23
<PAGE> 26
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.A -- $1,250,000,000 364-Day Revolving Credit and Competitive
Advance Facility Agreement dated as of August 16, 1999,
by and among EPEC, EPNG, TGP, the several banks and other
financial institutions from time to time parties to the
Agreement, The Chase Manhattan Bank, as administrative
agent and as CAF Advance Agent for the Lenders
thereunder, Citibank N.A. and ABN Amro Bank, N.V. as
co-documentation agents for the Lenders and Bank of
America, N.A. as syndication agent for the Lenders.
27 -- Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT 10.A
EXECUTION COPY
================================================================================
EL PASO ENERGY CORPORATION
-------------------------------------
$1,250,000,000 364-DAY
REVOLVING CREDIT AND COMPETITIVE
ADVANCE FACILITY AGREEMENT
DATED AS OF AUGUST 16, 1999
-------------------------------------
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
AND CAF ADVANCE AGENT
CITIBANK, N.A.
AND
ABN AMRO BANK, N.V.,
AS CO-DOCUMENTATION AGENTS
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS ..................... 1
SECTION 1.1 Certain Defined Terms .................................................. 1
SECTION 1.2 Computation of Time Periods ............................................ 16
SECTION 1.3 Accounting Terms ....................................................... 16
SECTION 1.4 References ............................................................. 16
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES ..................... 17
SECTION 2.1 The Revolving Credit Advances .......................................... 17
SECTION 2.2 Making the Revolving Credit Advances ................................... 17
SECTION 2.3 Evidence of Debt ....................................................... 18
SECTION 2.4 CAF Advances ........................................................... 19
SECTION 2.5 Procedure for CAF Advance Borrowings ................................... 19
SECTION 2.6 CAF Advance Payments ................................................... 23
SECTION 2.7 Evidence of Debt ....................................................... 23
SECTION 2.8 Fees ................................................................... 24
SECTION 2.9 Reduction of the Commitments ........................................... 24
SECTION 2.10 Repayment of Advances .................................................. 24
SECTION 2.11 Interest on Revolving Credit Advances .................................. 25
SECTION 2.12 Additional Interest on Eurodollar Rate Advances ........................ 25
SECTION 2.13 Interest Rate Determination ............................................ 26
SECTION 2.14 Voluntary Conversion of Advances ....................................... 27
SECTION 2.15 Optional and Mandatory Prepayments ..................................... 28
SECTION 2.16 Increased Costs ........................................................ 28
SECTION 2.17 Increased Capital ...................................................... 29
SECTION 2.18 Illegality ............................................................. 30
SECTION 2.19 Pro Rata Treatment, Payments and Computations .......................... 30
SECTION 2.20 Taxes .................................................................. 32
SECTION 2.21 Sharing of Payments, Etc ............................................... 34
SECTION 2.22 Use of Proceeds ........................................................ 34
SECTION 2.23 Extension of Stated Termination Date ................................... 35
SECTION 2.24 Commitment Increases ................................................... 36
SECTION 2.25 Replacement of Lenders ................................................. 38
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
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 ............................... 39
SECTION 3.3 Conditions Precedent to Initial Advances
to Any Borrowing Subsidiary ............................................ 40
SECTION 3.4 Conditions Precedent to Each Borrowing ................................. 40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES ...................... 41
SECTION 4.1 Representations and Warranties of the Borrowers ........................ 41
ARTICLE V
COVENANTS OF THE BORROWERS ........................ 44
SECTION 5.1 Affirmative Covenants .................................................. 44
SECTION 5.2 Negative Covenants ..................................................... 45
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
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE CAF ADVANCE AGENT .............. 58
SECTION 8.1 Authorization and Action ............................................... 58
SECTION 8.2 Administrative Agent's and CAF Advance Agent's Reliance, Etc ........... 58
SECTION 8.3 Chase and Affiliates ................................................... 59
SECTION 8.4 Lender Credit Decision ................................................. 59
SECTION 8.5 Indemnification ........................................................ 59
SECTION 8.6 Successor Administrative Agent and CAF Advance Agent ................... 60
ARTICLE IX
MISCELLANEOUS................................ 60
SECTION 9.1 Amendments, Etc ........................................................ 60
SECTION 9.2 Notices, Etc ........................................................... 61
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 ......................................................... 63
SECTION 9.7 Assignments and Participations ......................................... 63
SECTION 9.8 Confidentiality ........................................................ 66
SECTION 9.9 Consent to Jurisdiction ................................................ 66
SECTION 9.10 GOVERNING LAW .......................................................... 67
SECTION 9.11 Rate of Interest ....................................................... 67
SECTION 9.12 Execution in Counterparts .............................................. 68
</TABLE>
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
<PAGE> 5
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
<PAGE> 6
$1,250,000,000 364-DAY REVOLVING CREDIT AND COMPETITIVE ADVANCE
FACILITY AGREEMENT, dated as of August 16, 1999, 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 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"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.
"Agreement" means this $1,250,000,000 364-Day 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
Principal Subsidiary which is in addition to or in replacement of the
program evidenced by either
<PAGE> 7
2
Receivables Purchase and Sale Agreement (whether or not either Receivables
Purchase and Sale Agreement shall then be in effect), provided that such
program is on terms (a) substantially similar to either Receivables
Purchase and Sale Agreement (as modified 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:
<TABLE>
<CAPTION>
Bond Rating Applicable Eurodollar
(S&P/Moody's) Level Rate Margin
----------------- ----- ---------------------
<S> <C> <C>
A/A2 or higher I .180%
A-/A3 II .270%
BBB+/Baa1 III .300%
BBB/Baa2 IV .375%
BBB-/Baa3 V .550%
BB+/Ba1 or lower VI .800%;
</TABLE>
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 are 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
<PAGE> 8
3
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 CD Rate" means the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate.
"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 greatest of (a) the Prime Rate
in effect on such day, (b) the Base CD Rate in effect on such day plus 2 of
1% and (c) the Effective Federal Funds Rate in effect on such day plus 2 of
1%. Any change in the Base Rate due to a change in the Prime Rate, the
Three-Month Secondary CD 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, the Three-Month Secondary CD 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, 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
<PAGE> 9
4
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.
"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.
"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
<PAGE> 10
5
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 entered into by such Person and
its consolidated Subsidiaries, plus (c) the consolidated common and
preferred stockholders' equity of such Person and its consolidated
Subsidiaries.
"C/D Assessment Rate" means for any day as applied to any Base Rate
Advance, the annual assessment rate determined by Chase to be payable on
such day to the Federal Deposit Insurance Corporation (the "FDIC") for the
FDIC's (or any successor's) insuring time deposits at offices of Chase in
the United States.
"C/D Reserve Percentage" means for any day as applied to any Base Rate
Advance, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) (the "Board"), for determining the then current
reserve requirement for the Administrative Agent in respect of new
non-personal time deposits in Dollars having a maturity of 30 days or more.
"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.
<PAGE> 11
6
"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.
"Debt" means, as to any Person, all Indebtedness of such Person other
than (a) any Project Financing of such Person, (b) in the case of the
Company or a Principal Subsidiary, any liabilities of the Company or such
Principal Subsidiary, as the case may be, under any Alternate Program, or
any document executed by the Company or such Principal Subsidiary, as the
case may be, in connection therewith and (c) any obligations of the Company
or a Principal Subsidiary with respect to lease payments for the
headquarters building of the Company located in Houston, Texas; 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
<PAGE> 12
7
(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.
"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.
"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
<PAGE> 13
8
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 corporation 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 corporation 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 $750,000,000 364-Day Revolving
Credit and Competitive Advance Facility Agreement dated as of October 29,
1997, 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., as
Documentation Agent and Morgan Guaranty Trust Company of New York, as
Syndication Agent.
"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 Administrative Agent and CAF Advance Agent,
Citibank, N.A., as Documentation Agent
<PAGE> 14
9
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).
"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, without limitation, 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 performance of the completion of the project which is financed
by such Project Financing, until such time, if any, that such guaranty
becomes 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
<PAGE> 15
10
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 generally
accepted accounting principles, 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 first anniversary of the Termination Date and would otherwise end
after the first anniversary of the Termination Date shall end on the
first anniversary of 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 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; and
<PAGE> 16
11
(d) with respect to Advances made by an Objecting Lender, no
Interest Period with respect to such Advances shall end after the
first anniversary of such Objecting Lender's Commitment Expiration
Date.
"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.
"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 consolidated net property,
plant and equipment 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.
<PAGE> 17
12
"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 with respect to the Company, 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.
"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, without limitation, 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
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, without limitation, 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).
<PAGE> 18
13
"Permitted Claims" has the meaning assigned to such term in Section
9.9(a).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other 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.
"Process Agent" has the meaning specified in Section 9.9(a).
"Project Financing" means any Indebtedness incurred to finance a
project, other than any portion of such Indebtedness permitting or
providing for recourse against the Company or any of its Subsidiaries other
than (a) recourse to the stock or assets of the Project Financing
Subsidiary, if any, incurring or Guaranteeing such Indebtedness, 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
partner, member or other equity participant in a partnership, limited
liability company or other entity so created, and substantially all the
assets of which Subsidiary, partnership limited liability company or other
entity are limited to those assets being financed (or to be financed) in
whole or in part by a Project Financing.
"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,
<PAGE> 19
14
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, Citibank, N.A., ABN Amro Bank, N.V.
and Bank of America, N.A..
"Register" has the meaning specified in Section 9.7(c).
"Required Lenders" means Lenders (a) which are not Objecting Lenders
with respect to any previous Extension Request and (b) which have
Commitment Percentages aggregating at least 66-2/3% of the aggregate
Commitment Percentages of such non-Objecting Lenders.
"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 14, 2000 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 corporation of which at
least a majority of the outstanding stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly
<PAGE> 20
15
beneficially owned or controlled by such Person or one or more of its
Subsidiaries or such Person and one or more of the Subsidiaries of such
Person.
"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.
"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 Areportable 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.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate (adjusted to the basis of a year of 365 or 366 days, as the
case may be) for three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the Federal Reserve
System (the "Board") through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not
be so reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of deposit
of major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Administrative
Agent from
<PAGE> 21
16
three New York City negotiable certificate of deposit dealers of recognized
standing selected by it.
"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 1.2 Computation of Time Periods. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding."
SECTION 1.3 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles either (a) consistent with those principles applied in the
preparation of the financial statements referred to in Section 4.1(e) or (b) not
materially inconsistent with such principles (so that no covenant contained in
Section 5.1 or 5.2 would be calculated or construed in a materially different
manner or with materially different results than if such covenant were
calculated or construed in accordance with clause (a) of this Section 1.3).
SECTION 1.4 References. The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Article, Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.1 The 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
<PAGE> 22
17
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 2.2 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 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,
without limitation, 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
<PAGE> 23
18
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.
SECTION 2.3 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").
<PAGE> 24
19
SECTION 2.4 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 2.5 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 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
<PAGE> 25
20
(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:
(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
<PAGE> 26
21
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;
(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.
<PAGE> 27
22
(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, 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 2.6 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%
<PAGE> 28
23
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 2.7 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, 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 2.8 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 .070%
A-/A3 II .080%
BBB+/Baa1 III .100%
BBB/Baa2 IV .125%
BBB-/Baa3 V .150%
BB+/Ba1 or lower VI .200%;
</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.
<PAGE> 29
24
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 first anniversary of the Termination Date (or if the
Lender is an Objecting Lender, the first anniversary of 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 12, 1999 from Chase Securities Inc. and Chase to the Company.
SECTION 2.9 Reduction of the Commitments. The Company shall have the
right, upon at least three Business Days' notice to the 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.
SECTION 2.10 Repayment of Advances. The Borrowers shall repay to each
Lender on the first anniversary of 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 2.11 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).
<PAGE> 30
25
(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 2.12 Additional Interest on Eurodollar Rate Advances. If any
Lender shall determine in good faith that reserves under regulations of the
Board of Governors of the Federal Reserve System are required to be maintained
by it in respect of, or a portion of its costs of maintaining reserves under
such regulations is properly attributable to, one or more of its Eurodollar Rate
Advances, the 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 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 2.13 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,
<PAGE> 31
26
(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,
(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,
<PAGE> 32
27
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 2.14 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 Objecting Lender,
the first anniversary of such Objecting Lender's Commitment Expiration Date, and
(b) in the case of all Revolving Credit Advances, the first anniversary of 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 2.15 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
<PAGE> 33
28
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 2.16 Increased Costs. (a) If, due to either (i) the
introduction after the date of this Agreement of or any change after the date of
this Agreement (including any change by way of imposition or increase of reserve
requirements or assessments other than those referred to in the definition of
"Eurodollar Reserve Percentage," "C/D Reserve Percentage" or "C/D Assessment
Rate" 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 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, without limitation, 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.
<PAGE> 34
29
SECTION 2.17 Increased Capital. If either (a) the introduction of or
any change in or in the interpretation of any law or regulation or (b)
compliance by any Lender with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and such Lender determines
that the amount of such capital is increased by or based upon the existence of
such Lender's commitment to lend hereunder and other commitments of this type,
then, within ten days after demand, and delivery to the Company of the
certificate referred to in the last sentence of this Section 2.17 by such Lender
(with a copy of such demand to the 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 agrees to use its best
efforts promptly to notify the Company of any event referred to in clause (a) or
(b) above, provided that the failure to give such notice shall not affect the
rights of any Lender under this Section 2.17 (except as otherwise expressly
provided above in this Section 2.17). A certificate in reasonable detail as to
the basis for, and the amount of, such compensation submitted to the Company by
such Lender shall, in the absence of manifest error, be conclusive and binding
for all purposes.
SECTION 2.18 Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
governmental authority shall assert that it is unlawful, for any Lender or its
lending office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain such Advances hereunder, such Lender
may, by notice to the Company and the 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, without limitation, a reasonable effort to change its lending office
or to transfer its affected Advances to an affiliate) to avoid any such
illegality.
<PAGE> 35
30
SECTION 2.19 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, without limitation, 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 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, the Base CD 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
<PAGE> 36
31
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 2.20 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, without limitation, in the case of each Lender, the jurisdiction of
such Lender's lending office) or any political subdivision thereof, other than
by any jurisdiction with which the Indemnified Party's connection arises solely
from having executed, delivered or performed obligations or received a payment
under, or enforced, this Agreement or any Note (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If 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
<PAGE> 37
32
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,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.20) paid by such Indemnified Party and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto except as a result of the gross negligence (which shall in any
event include the failure of such Indemnified Party to provide to the 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
<PAGE> 38
33
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.
(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 2.21 Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances made by it (other than
pursuant to Section 2.12, 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 2.22 Use of Proceeds. Proceeds of the Advances may be used for
general corporate purposes of the Borrowers and their respective Subsidiaries,
including, without limitation, for acquisitions and for payment of commercial
paper issued by the Borrowers, to refinance the Existing 364-Day Facility, and,
upon the merger of the Company (or a wholly owned Subsidiary of the Company)
with Sonat, Inc., to refinance the Sonat Agreement.
<PAGE> 39
34
SECTION 2.23 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 364 days and (ii) the Commitment of any Lender that does not
consent in writing, or which revokes, in accordance with the provisions of this
Section 2.23, its consent to such extension not less than 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, 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 the date that is one year after 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
<PAGE> 40
35
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, without
limitation, any amounts owing pursuant to Section 9.4(b) and any amounts that
would be owing under said Section if such Advances were prepaid on the date of
such assignment, and (B) such assignment does not conflict with any law, rule or
regulation or order of any governmental authority. Any assignee which becomes a
Lender as a result of such an assignment made pursuant to this paragraph (d)
shall be deemed to have consented to the applicable Extension Request and,
therefore, shall not be an Objecting Lender.
SECTION 2.24 [Intentionally Left Blank]
SECTION 2.25 Replacement of Lenders. If any Lender requests
compensation under Sections 2.12, 2.16 or 2.17 or if 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 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.
<PAGE> 41
36
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.1 Conditions Precedent to Effectiveness of this Agreement.
This Agreement shall become effective (the "Effective Date") when (i) it shall
have been executed by the Company, 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 September 15, 1999, (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 September 15, 1999; 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 September 15, 1999, 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 3.2 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 corporate 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.
<PAGE> 42
37
(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 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 3.3 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
<PAGE> 43
38
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.
SECTION 3.4 Conditions Precedent to Each Borrowing. The obligation of
each Lender to make an Advance (including the initial Advance, but excluding any
continuation or Conversion of an Advance) on the occasion of any Borrowing shall
be subject to the conditions precedent that on the date of such Borrowing this
Agreement shall have become effective pursuant to Section 3.1 and, before and
immediately after giving effect to such Borrowing and to the application of the
proceeds therefrom, the following statements shall be true and correct, and the
giving by the 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 4.1 Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. Each
Principal Subsidiary is duly incorporated, validly existing and in good
standing in the jurisdiction of its incorporation. The Company and each
Principal Subsidiary possess all corporate powers and all other
authorizations and licenses necessary to engage in its business and
operations as now conducted, the failure to obtain or maintain which would
have a Material Adverse Effect.
(b) The execution, delivery and performance by 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 corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (A) such Borrower's charter or
<PAGE> 44
39
by-laws 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 filings 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, 1998, 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
generally accepted accounting principles consistently applied, and since
December 31, 1998, 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, 1999, 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 generally accepted accounting principles
consistently applied (except as approved by the chief financial officer of
the Company and as disclosed therein) and subject to normal year-end audit
adjustments.
(f) Each of the Company and its Subsidiaries is in compliance with all
laws, rules, regulations and orders of any governmental authority
applicable to it or its property except where the failure to comply,
individually or in the aggregate, would not in the reasonable judgment of
the Company be expected to result in a Material Adverse Effect.
(g) There is no action, suit or proceeding pending, or to the
knowledge of any Borrower threatened, against or involving the Company or
any Principal Subsidiary in
<PAGE> 45
40
any court, or before any arbitrator of any kind, or before or by any
governmental body, 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 pay which would have a Material Adverse
Effect, unless and to the extent only that the same are being contested in
good faith and by appropriate proceedings by the Company or the appropriate
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 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
<PAGE> 46
41
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) The Borrowers are not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance will be used to extend credit to others (other than to any
Subsidiary of the Company) for the purpose of purchasing or carrying Margin
Stock.
(p) 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.
(q) 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.
(r) 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.
(s) Except as set forth in the Company=s or any of its Subsidiaries=
SEC reports filed prior to the date of this Agreement, the systems operated
or used by the Company or such Subsidiaries are capable of providing or
being adapted to provide uninterrupted functionality on or after January 1,
2000 to share, record, process and present data in substantially the same
manner and with the same functionality as such systems share, record,
process and present such data in the period immediately preceding December
31, 1999, except, in the aggregate, as would not have, or reasonably be
expected to have, a Material Adverse Effect. The costs of the adaptions
referred to in the prior sentence, in the aggregate, will not have a
Material Adverse Effect.
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 5.1 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:
<PAGE> 47
42
(a) Preservation of Corporate Existence, Etc. Preserve and maintain,
and, in the case of the Company, cause each Principal Subsidiary to
preserve and maintain, its corporate existence, rights (charter and
statutory) and material franchises, except as otherwise permitted by
Section 5.2(d) or 5.2(e).
(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, without limitation, all environmental laws and laws requiring
payment of all taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent contested in good faith by
appropriate proceedings) the failure to comply with which would have a
Material Adverse Effect.
(c) Visitation Rights. At any reasonable time and from time to time,
permit the 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 generally accepted
accounting principles 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 5.2 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:
<PAGE> 48
43
(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 the capital stock of 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 Guaranties in an aggregate amount (determined without
duplication of amount (so that the amount of a Guarantee will be excluded
to the extent the Indebtedness Guaranteed thereby is included in computing
such aggregate amount)) exceeding $100,000,000; provided, however, that
this subsection (a) shall not apply to:
(A) Liens on the stock or assets of any Project Financing
Subsidiary (or any partnership, member or other equity interest in or
assets of any partnership, limited liability company or other entity
of which the Project Financing Subsidiary is a partner, member or
other equity participant) securing the payment of a Project Financing
and related obligations;
(B) Liens on 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;
(C) Liens created by any Alternate Program or any document
executed by any Borrower in connection therewith;
(D) Liens on Margin Stock; and
(E) Liens for taxes, assessments or governmental charges or
levies not yet overdue.
(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 create or suffer to exist 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
<PAGE> 49
44
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 (other than any
Project Financing) determined on a consolidated basis would exceed
$300,000,000; 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 that has been permanently repaid in full on the "Closing Date"
under and as defined in the Existing 364-Day Facility or (y) this Agreement
or the Existing 5-Year Facility, (C) Debt, Guaranties or reimbursement
obligations incurred by El Paso Field Services Company up to an amount not
to exceed at any time outstanding the tangible net worth of El Paso Field
Services Company, provided that such Debt may be guaranteed by the Company,
(D) Excluded Acquisition Debt, (E) successive extensions, refinancings or
replacements (at the same Subsidiary or at any other consolidated
Subsidiary of the Company) of Debt, Guaranties or reimbursement obligations
(or commitments in respect thereof) referred to in clauses (A), (B) and (D)
above and in an amount not in excess of the amounts so extended, refinanced
or replaced (or the amount of commitments in respect thereof) and (F) Debt,
Guarantees or reimbursement obligations incurred by Tennessee pursuant to
one or more commercial paper programs allowing for the issuance by
Tennessee of items of commercial paper having maturity dates not later than
one year from the dates of their respective issuance provided that such
Debt, Guarantees or reimbursement obligations of Tennessee shall be in an
aggregate amount not to exceed at any time the excess of (x) the sum of (1)
the aggregate amount of Commitments and (2) the aggregate amount of
Commitments as defined in the Existing 5-Year 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 Existing 5-Year Facility,
and (3) the aggregate principal amount of commercial paper outstanding from
time to time that (I) is issued by the Company and its Subsidiaries (other
than Tennessee) and (II) relies upon credit availability under either this
Agreement or the Existing 5-Year 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 a material portion 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;
<PAGE> 50
45
(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 corporation's equity
securities;
(vi) any sale, lease or other transfer to the Company or any
Principal Subsidiary, or to any corporation which 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 event that with the giving of notice or lapse of time or
both would constitute an Event of Default, shall have occurred and be
continuing before and after giving effect to such transfer.
(e) Mergers, Etc. Merge or consolidate with any person, or permit any
of its Principal Subsidiaries to merge or consolidate with any Person,
except that (i) any Principal Subsidiary may merge or consolidate with (or
liquidate into) any other Subsidiary (other than a Project Financing
Subsidiary, unless the successor corporation is not treated as a Project
Financing Subsidiary under this Agreement) or may merge or consolidate with
(or liquidate into) the Company, provided that (A) if such Principal
Subsidiary merges or consolidates with (or liquidates into) the Company,
the Company shall be the continuing or surviving corporation and (B) if any
such Principal Subsidiary merges or consolidates with (or liquidates into)
any other Subsidiary of the Company, one of such Subsidiaries is the
surviving corporation and, if either such Subsidiary is not 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 corporation (that is, in addition to the Company or any Principal
Subsidiary of the Company), provided that (A) if the Company merges or
consolidates with any such other corporation, the Company is the surviving
corporation, (B) if any Principal Subsidiary merges or consolidates with
any such other corporation, the surviving corporation is a wholly-owned
Principal Subsidiary of the Company, and (C) if either the Company or any
Principal Subsidiary merges or consolidates with any such other
corporation, after giving effect to such merger or consolidation no Event
of Default, and no event which with lapse of time or the giving of notice,
or both, would constitute an Event of Default, shall have occurred and be
continuing.
SECTION 5.3 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
<PAGE> 51
46
Commitment hereunder, the Company will furnish to each Lender in such reasonable
quantities as shall from time to time be requested by such Lender:
(a) as soon as publicly available and in any event within 60 days
after the end of each of the first three fiscal quarters of each fiscal
year of each of the Company and EPNGC, a consolidated balance sheet of each
of the Company and EPNGC and its respective consolidated subsidiaries as of
the end of such quarter, and consolidated statements of income and cash
flows of each of the Company and EPNGC and its respective consolidated
subsidiaries each for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified (subject to
normal year-end adjustments) as being fairly stated in all material
respects by the chief financial officer, controller or treasurer of the
Company and accompanied by a certificate of such officer stating (i)
whether or not such officer has knowledge of the occurrence of any Event of
Default which is continuing hereunder or of any event not theretofore
remedied which with notice or lapse of time or both would constitute such
an Event of Default and, if so, stating in reasonable detail the facts with
respect thereto, (ii) all relevant facts in reasonable detail to evidence,
and the computations as to, whether or not the Company is in compliance
with the requirements set forth in subsections (b) and (c) of Section 5.2,
and (iii) a listing of all Principal Subsidiaries and consolidated
Subsidiaries of the Company showing the extent of its direct and indirect
holdings of their stocks;
(b) as soon as publicly available and in any event within 120 days
after the end of each fiscal year of each of the Company and EPNGC, a copy
of the annual report for such year for each of the Company and EPNGC and
its respective consolidated Subsidiaries containing financial statements
for such year reported by nationally recognized independent public
accountants acceptable to the Lenders, accompanied by (i) a report signed
by said accountants stating that such financial statements have been
prepared in accordance with generally accepted accounting principles 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;
<PAGE> 52
47
(d) promptly after the sending or filing thereof, copies of all
publicly available reports which the Company or any Principal Subsidiary
sends to any of its security holders and copies of all publicly available
reports and registration statements which the Company or any Principal
Subsidiary files with the Securities and Exchange Commission or any
national securities exchange other than registration statements relating to
employee benefit plans and to registrations of securities for selling
security holders;
(e) within 10 days after sending or filing thereof, a copy of FERC
Form No. 2: Annual Report of Major Natural Gas Companies, sent or filed by
the Company to or with the FERC with respect to each fiscal year of the
Company;
(f) promptly in writing, notice of all litigation and of all
proceedings before any governmental or regulatory agencies against or
involving the Company or any Principal Subsidiary, except any litigation or
proceeding which in the reasonable judgment of the Company (taking into
account the exhaustion of all appeals) is not likely to have a material
adverse effect on the consolidated financial condition of the Company and
its consolidated Subsidiaries taken as a whole;
(g) within three Business Days after an executive officer of the
Company obtains knowledge of the occurrence of any Event of Default which
is continuing or of any event not theretofore remedied which with notice or
lapse of time, or both, would constitute an Event of Default, notice of
such occurrence together with a detailed statement by a responsible officer
of the Company of the steps being taken by the Company or the appropriate
Subsidiary to cure the effect of such event;
(h) as soon as practicable and in any event (i) within 30 days after
the Company or any ERISA Affiliate knows or has reason to know that any
Termination G1 Event described in clause (a) of the definition of
Termination Event with respect to any Plan has occurred and (ii) within 10
days after the Company or any ERISA Affiliate knows or has reason to know
that any other Termination Event has occurred, a statement of the chief
financial officer or treasurer of the Company describing such Termination
Event and the action, if any, which the Company or such ERISA Affiliate
proposes to take with respect thereto;
(i) promptly and in any event within two Business Days after receipt
thereof by the Company or any ERISA Affiliate, copies of each notice
received by the Company or any ERISA Affiliate from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to
administer any Plan;
(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
<PAGE> 53
48
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 the presentation required in Form 10-Q and 10-K,
as appropriate, under the Securities Exchange Act of 1934, as amended.
SECTION 5.4 Restrictions on Material Subsidiaries. The Company will
not, and will not permit any Material Subsidiary, to enter into any agreement or
understanding pursuant to which (a) any non-equity interest claim the Company
may have against any Material Subsidiary would be subordinate in any manner to
the payment of any other obligation of such Material Subsidiary (other than
waivers or subordination of subrogation, contribution or similar rights under
Guaranties and similar agreements) or (b) by its terms limits or restricts the
ability of such Material Subsidiary to make funds available to the Company
(whether by dividend or other distribution, by replacement of any inter-company
advance or otherwise) if, in any such case referred to in this Section 5.4,
there is, at the time any such agreement is entered into, a reasonable
likelihood that all such agreements and understandings, considered together,
would materially and adversely affect the ability of the Company to meet its
obligations as they become due.
ARTICLE VI
GUARANTEES
SECTION 6.1 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
<PAGE> 54
49
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
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 6.2 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 6.3 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
<PAGE> 55
50
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 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 6.4 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
<PAGE> 56
51
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.
SECTION 6.5 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 7.1 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
<PAGE> 57
52
(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 $100,000,000
or more, or any installment of principal thereof or interest or premium
thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt or Guaranty; or any other default under
any agreement or instrument relating to any such Debt, or any other event,
shall occur and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such default or
event is to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be required to be prepaid (other than by
a regularly scheduled required prepayment), prior to the stated maturity
thereof, as a result of either (i) any default under any agreement or
instrument relating to any such Debt or (ii) the occurrence of any other
event (other than an issuance, sale or other disposition of stock or other
assets, or an incurrence or issuance of Indebtedness or other obligations,
giving rise to a repayment or prepayment obligation in respect of such
Debt) the effect of which would otherwise be to accelerate or to permit the
acceleration of 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 sought in such proceeding
(including, without limitation, the
<PAGE> 58
53
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 $50,000,000 shall be rendered against the Company or any
Principal Subsidiary and either (i) enforcement proceedings shall have been
commenced 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) or
(ii) there shall be any period of 30 consecutive days during which a stay
of execution or of enforcement proceedings (other than those referred to in
the parenthesis in clause (i) above) in respect of such judgment or order,
by reason of a pending appeal, bonding or otherwise, shall not be in
effect; or
(g) (i) Any Termination Event with respect to a Plan shall have
occurred and, 30 days after notice thereof shall have been given to the
Company by the 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 the Net Worth of the Company.
(h) Upon completion of, and pursuant to, a transaction, or a series of
transactions (which may include prior acquisitions of capital stock of the
Company in the open market or otherwise), involving a tender offer (i) a
"person" (within the meaning of Section 13(d) of the Securities Exchange
Act of 1934) other than the Company or a Subsidiary of the Company or any
employee benefit plan maintained for employees of the Company and/or any of
its Subsidiaries or the trustee therefor, shall have acquired direct or
indirect ownership of and paid for in excess of 50% of the outstanding
capital stock of the Company entitled to vote in elections for directors of
the Company and (ii) at any time before the later of (A) six months after
the completion of such tender offer and (B) the next annual meeting of the
shareholders of the Company following the completion of such tender offer
more than half of the directors of the Company consists of individuals who
(1) were not directors before the completion of such tender offer and (2)
were not appointed, elected or nominated by the Board of Directors in
office prior to the completion of such tender offer (other than any such
appointment, election or
<PAGE> 59
54
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;
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 8.1 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, without
limitation, 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. Notwithstanding anything to the contrary contained in this
Agreement, the parties hereto hereby
<PAGE> 60
55
agree that neither the Documentation Agent nor the Syndication Agent shall have
any rights, duties or responsibilities in its capacity as Documentation Agent or
Syndication Agent, as applicable, hereunder and neither the Documentation Agent
nor the Syndication Agent shall have the authority to take any action hereunder
in its capacity as such.
SECTION 8.2 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 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 8.3 Chase and Affiliates. With respect to its Commitment, the
Advances made by it and the Note issued to it, Chase shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it were not the 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 8.4 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
<PAGE> 61
56
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement.
SECTION 8.5 Indemnification. The Lenders agree to indemnify the
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 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 8.6 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 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
<PAGE> 62
57
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.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Amendments, Etc. An amendment or waiver of any provision
of this Agreement or the Notes, or a consent to any departure by 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 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) 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 9.2 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: Peter Ling, Telecopier: (212) 270-3897; 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
otherwise transmitted, be effective
<PAGE> 63
58
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 9.3 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 9.4 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, without limitation, 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, without limitation,
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.
<PAGE> 64
59
(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, without limitation, 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 9.5 Right of Set-Off. Upon the declaration of the Advances and
the Notes as due and payable pursuant to the provisions of Section 7.1, each
Lender is hereby 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, without limitation, other rights of
set-off) which such Lender may have.
SECTION 9.6 Binding Effect. This Agreement shall become effective in
accordance with the provisions of Section 3.1, and thereafter shall be binding
upon and inure to the benefit of the 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 without the prior written consent of all of the
Lenders.
SECTION 9.7 Assignments and Participations. (a) Each Lender may assign
to one or more banks or other financial institutions all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Advances owing to it and the Notes held by
it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement, (ii) the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $15,000,000 (or, if less, the entire Commitment of the assigning
Lender) and shall be an integral multiple of $1,000,000, (iii) each
<PAGE> 65
60
such assignment shall be to an Eligible Assignee, and (iv) the parties to each
such assignment 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 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 for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error,
<PAGE> 66
61
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, without limitation, 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, without
limitation, 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 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
<PAGE> 67
62
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, without limitation, the Advances owing
to it) and the Notes issued to it hereunder in favor of any Federal Reserve Bank
in accordance with Regulation A of the Board of Governors of the Federal Reserve
System (or any successor regulation) and the applicable operating circular of
such Federal Reserve Bank.
SECTION 9.8 Confidentiality. Each Lender, 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 9.9 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 CAF Advance Agent, any Lender or
the holder of any Note in respect of, but only in respect of,
<PAGE> 68
63
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 9.10 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 9.11 Rate of Interest. It is the intention of the parties
hereto that each Lender shall each conform strictly to usury laws applicable to
it. Accordingly, if the transactions contemplated hereby would be usurious as to
any Lender under laws applicable to it, then, in that event, notwithstanding
anything to the contrary in this Agreement or in the Notes to the order of such
Lender, it is agreed as follows: (a) the aggregate of all consideration which
constitutes interest under law applicable to such Lender that is contracted for,
taken, reserved, charged or received by such Lender hereunder, or under such
Notes or otherwise, shall under no circumstances exceed the maximum amount
allowed by such applicable law, and any excess shall be credited by such Lender
on the principal amount of the sums owed to such Lender (or, if all amounts
owing to such Lender shall have been paid in full, refunded by such Lender to
the 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 may never include more than the
maximum amount allowed by such applicable law, and excess
<PAGE> 69
64
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 9.12 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery to the 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.
<PAGE> 70
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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: Vice President & Treasurer
EL PASO NATURAL GAS COMPANY
By: /s/ C. Dana Rice
------------------------------------------------
Title: Vice President & Treasurer
TENNESSEE GAS PIPELINE COMPANY
By: /s/ C. Dana Rice
------------------------------------------------
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent, CAF Advance
Agent and a Lender
By: /s/ Peter M. Ling
------------------------------------------------
Peter M. Ling
Title: Vice President
CITIBANK, N.A., as Co-Documentation
Agent and a Lender
By: /s/ Mark Stanfield Packard
------------------------------------------------
Mark Stanfield Packard
Title: Vice President
<PAGE> 71
ABN AMRO BANK N.V., as Co-Documentation
Agent and a Lender
By: /s/ Michael W. Nepveux
------------------------------------------------
Michael W. Nepveux
Title: Group Vice President
By: /s/ Charles W. Randall
------------------------------------------------
Charles W. Randall
Title: Senior Vice President
BANK OF AMERICA, N.A., as Syndication
Agent and a Lender
By: /s/ Patrick M. Delaney
------------------------------------------------
Patrick M. Delaney
Title: Managing Director
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, as a Lender
By: /s/ [ILLEGIBLE]
------------------------------------------------
Title: Regional Credit Executive-Americas
ARAB BANKING CORPORATION (B.S.C.), as
a Lender
By: /s/ Stephen A. Plauche
------------------------------------------------
Stephen A. Plauche
Title: Vice President
<PAGE> 72
BANCA COMMERCIALE ITALIANA- LOS ANGELES
FOREIGN BRANCH, as a Lender
By: /s/ C. Dougherty
------------------------------------------------
C. Dougherty
Title: VP
By: /s/ E. Bermant
------------------------------------------------
E. Bermant
Title: FVP/Deputy Manager
BANCA DI ROMA- CHICAGO BRANCH, as a Lender
By: /s/ Aurora Pensa
------------------------------------------------
Title: Aurora Pensa (97974) Vice President
By: /s/ Claudio Perna
------------------------------------------------
Title: Claudio Perna (19690) Sr. Vice President &
Manager
BANKBOSTON, N.A., as a Lender
By: /s/ Michael Kane
------------------------------------------------
MICHAEL KANE
Title: Managing Director
THE BANK OF NEW YORK, as a Lender
By: /s/ Ian K. Stewart
------------------------------------------------
IAN K. STEWART
Title: SENIOR VICE PRESIDENT
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ [ILLEGIBLE]
------------------------------------------------
Title: Senior Manager Loan Operations
<PAGE> 73
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Warren Ross
------------------------------------------------
Warren Ross
Title: Assistant Vice President
BARCLAYS BANK PLC, as a Lender
By: /s/ [ILLEGIBLE]
------------------------------------------------
Title: Director
CIBC, INC., as a Lender
By: /s/ [ILLEGIBLE]
------------------------------------------------
Title: Authorized Signatory
CREDIT AGRICOLE INDOSUEZ, as a Lender
By: /s/ Douglas A. Whiddon
------------------------------------------------
Douglas A. Whiddon
Title: Vice President, Senior Relationship Manager
By: /s/ Patrick Cocquerel
------------------------------------------------
PATRICK COCQUEREL
Title: FIRST VICE PRESIDENT, MANAGING DIRECTOR
HEAD OF HOUSTON REPRESENTATIVE OFFICE
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By: /s/ W. Jay Buckley
------------------------------------------------
W. JAY BUCKLEY
Title: VICE PRESIDENT
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Douglas E. Maher
------------------------------------------------
DOUGLAS E. MAHER
Title: VICE PRESIDENT
By: /s/ James P. Moran
------------------------------------------------
JAMES P. MORAN
Title: DIRECTOR
<PAGE> 74
THE DAI-ICHI KANGYO BANK, LTD. NEW YORK BRANCH,
as a Lender
By: /s/ [ILLEGIBLE]
------------------------------------------------
Title: Assistant Vice President
DEUTSCHE BANK AG NEW YORK BRANCH a/o Cayman Islands
Branch, as a Lender
By: /s/ Paul L. Harinstein
------------------------------------------------
Paul L. Harinstein
Title: Managing Director
By: /s/ Catherine Ruhland
------------------------------------------------
CATHERINE RUHLAND, V.P.
Title: CREDIT RISK MANAGEMENT
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: /s/ Thomas Lake
------------------------------------------------
THOMAS LAKE
Title: Vice President
By: /s/ Frederic O. Lahner
------------------------------------------------
FREDERIC O. LAHNER
Title: ASSISTANT VICE PRESIDENT
THE FIRST NATIONAL BANK OF CHICAGO, as a Lender
By: /s/ Karen C. Patterson
------------------------------------------------
Title: Authorized Signer
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Robert R. Wetteroff
------------------------------------------------
ROBERT R. WETTEROFF
Title: SENIOR VICE PRESIDENT
<PAGE> 75
THE FUJI BANK, LIMITED, as a Lender
By: /s/ [ILLEGIBLE]
------------------------------------------------
Title: Senior Vice President & Manager
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY, as a Lender
By: /s/ Mike Oakes
------------------------------------------------
Mike Oakes
Title: Senior Vice President
The Industrial Bank of Japan, Limited,
Houston Office (Authorized Representative)
KBC BANK N.V., as a Lender
By: /s/ Robert Snauffer
------------------------------------------------
ROBERT SNAUFFER
Title: FIRST VICE PRESIDENT
By: /s/ Raymond F. Murray
------------------------------------------------
RAYMOND F. MURRAY
Title: FIRST VICE PRESIDENT
MEES PIERSON CAPITAL CORP., as a Lender
By: /s/ Darrell W. Holley
------------------------------------------------
Darrell W. Holley
Title: Senior Vice President
By: /s/ Karel Louman
------------------------------------------------
Karel Louman
Title: Managing Director
MELLON BANK, N.A., as a Lender
By: /s/ Roger E. Howard
------------------------------------------------
Title: Vice President
<PAGE> 76
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as a Lender
By: /s/ Robert Bottamedi
------------------------------------------------
ROBERT BOTTAMEDI
Title: VICE PRESIDENT
NATIONAL WESTMINSTER BANK PLC, NEW YORK BRANCH,
as a Lender
By: /s/ Patricia J. Dundee
------------------------------------------------
PATRICIA J. DUNDEE
Title: SENIOR VICE PRESIDENT
NATIONAL WESTMINSTER BANK PLC, NASSAU
BRANCH, as a Lender
By: /s/ Patricia J. Dundee
------------------------------------------------
PATRICIA J. DUNDEE
Title: SENIOR VICE PRESIDENT
THE NORINCHUKIN BANK, NEW YORK
BRANCH, as a Lender
By: /s/ Yoshiro Niiro
------------------------------------------------
Yoshiro Niiro
Title: General Manager
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ David J. Mitchell
------------------------------------------------
DAVID J. MITCHELL
Title: VICE PRESIDENT
PARIBAS, as a Lender
By: /s/ Marian Livingston
------------------------------------------------
MARIAN LIVINGSTON
Title: VICE PRESIDENT
By: /s/ John H. Roberts
------------------------------------------------
John H. Roberts
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ [ILLEGIBLE]
------------------------------------------------
Title: Vice President
<PAGE> 77
ROYAL BANK OF CANADA, as a Lender
By: /s/ J.D. Frost
------------------------------------------------
J.D. FROST
Title: SENIOR MANAGER
SOCIETE GENERALE, SOUTHWEST AGENCY, as a Lender
By: /s/ Richard A. Gould
------------------------------------------------
Richard A. Gould
Title: Director
SUNTRUST BANK, ATLANTA as a Lender
By: /s/ Deborah S. Armstrong
------------------------------------------------
Deborah S. Armstrong
Title: Vice President
TORONTO DOMINION (TEXAS), INC., as a Lender
By: /s/ Jimmy Simien
------------------------------------------------
Jimmy Simien
Title: Vice President
WELLS FARGO BANK (TEXAS) N.A., as a Lender
By: /s/ Christina Faith
------------------------------------------------
Title: AVP
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH, as a Lender
By: /s/ Kheil A. McIntyre
------------------------------------------------
KHEIL A. MCINTYRE
Title: VICE PRESIDENT
By: /s/ Walter T. Duffy III
------------------------------------------------
Walter T. Duffy III
Title: Vice President
THE SUMITO BANK, LIMITED
NEW YORK BRANCH, as a Lender
By: /s/ [ILLEGIBLE]
------------------------------------------------
Title: Senior Vice President
AMSOUTH BANK, as a Lender
By: /s/ David A. Simmons
------------------------------------------------
David A. Simmons
Title: Senior Vice President
BANCO BILBAO VIZCAYA, as a Lender
By: /s/ Manuel Sanchez
------------------------------------------------
Manuel Sanchez
Title: Global Relationship Manager
By: /s/ John Martini Carreras
------------------------------------------------
John Martini Carreras
Title: Vice President
<PAGE> 78
SCHEDULE I
COMMITMENTS, ADDRESSES, ETC.
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
<S> <C>
The Chase Manhattan Bank
270 Park Avenue $70,888,463
New York, NY 10017
Attention: Peter Ling
Telephone: 212-270-4676
Telecopier: 212-270-3897
Citibank, N.A.
1200 Smith Street, Suite 2000 $70,888,469
Houston, TX 77002
Attention: James Reilly/Steve Baillie
Telephone: 713-654-2820/713-654-2887
Telecopier: 713-654-2849/713-654-2849
ABN AMRO Bank, N.V.
Three Riverway, Suite 1700 $70,888,469
Houston, TX 77056
Attention: Michael Nepveux
Telephone: 713-964-3316
Telecopier: 713-621-5801
Bank of America, N.A.
700 Louisiana Street, 8th Floor $70,888,469
Houston, TX 77002
Attention: Patrick Delaney
Telephone: 713-247-7373
Telecopier: 713-247-6568
Australia and New Zealand
Banking Group Limited $14,177,694
1177 Avenue of the Americas
New York, NY 10036
Attention: David Giacalone
Telephone: 212-801-9814
Telecopier: 212-556-4814
</TABLE>
<PAGE> 79
2
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
<S> <C>
Arab Banking Corporation (B.S.C.) $14,177,694
277 Park Avenue, 32nd Floor
New York, NY 10172-3299
Attention: Loan Department Manager
Telephone: 212-583-4771
Telecopier: 212-583-0921
Banca Commerciale Italianna-
Los Angeles Foreign Branch $23,629,490
555 South Flower Street, 43rd Floor
Los Angeles, CA 90071
Attention: Jack Wityak
Telephone: 213-624-0440
Telecopier: 213-624-0457
Banca di Roma- Chicago Branch $14,177,694
225 West Washington Street, Suite 1200
Chicago, IL 60606
Attention: Aurora Pensa
Telephone: 312-704-2630
Telecopier: 312-726-3058
BankBoston, N.A. $23,629,490
100 Federal Street
MS 01-08-04
Boston, MA 02110
Attention: Michael Kane/Jill Calebrese
Telephone: 617-434-5358/617-434-9579
Telecopier: 617-434-3652/617-434-3652
The Bank of New York $35,444,234
One Wall Street
New York, NY 10286
Attention: Peter Keller/Kevin Walker
Telephone: 212-635-7861/212-635-7609
Telecopier: 212-635-7923/24/212-635-7923
The Bank of Nova Scotia $47,258,979
600 PeachTree Street, N.A.
Suite 2700
Atlanta, GA 30308
Attention: Robert Ahern
Telephone: 404-877-1565
Telecopier: 404-888-8998
</TABLE>
<PAGE> 80
3
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
<S> <C>
Banque Nationale de Paris $35,444,234
333 Clay Street, Suite 3400
Houston, TX 77002
Attention: Warren Ross
Telephone: 713-951-1224
Telecopier: 713-659-1414
Barclays Bank PLC $35,444,234
222 Broadway
New York, NY 10038
Attention: Richard Williams/Derek Rozycki
Telephone: 212-412-7570/212-412-7633
Telecopier: 212-412-7585/212-412-7585
CIBC, Inc. $35,444,234
1600 Smith Street, Suite 3100
Houston, TX 77002
Attention: Mark Wolf/Lucia Martinea
Telephone: 713-650-2588/713-650-2549
Telecopier: 713-650-7675/713-650-7675
Credit Agricole Indosuez $14,177,694
600 Travis Street, Suite 2340
Houston, TX 77002
Attention: Doug Whiddon/Brian Knezeak
Telephone: 713-223-7003/713-223-7001
Telecopier: 713-223-7029/713-223-7029
Credit Lyonnais, New York Branch $47,258,979
1000 Louisiana Street, Suite 5360
Houston, TX 77002
Attention: Robert LaRoque
Telephone: 713-753-8733
Telecopier: 713-751-0307
Credit Suisse First Boston $23,629,490
11 Madison Avenue
New York, NY 10010-3629
Attention: Doug Maher
Telephone: 212-325-3641
Telecopier: 212-325-8615
</TABLE>
<PAGE> 81
4
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
<S> <C>
The Dai-ichi Kangyo Bank, Ltd. New York $14,177,694
Branch
One World Trade Center, Suite 4911
New York, NY 10048
Attention: Katsuya Noto/Bert Tang
Telephone: 212-432-6627/212-432-8839
Telecopier: 212-912-1879/212-912-1879
Deutsche Bank AG New York Branch a/o $35,444,234
Cayman Islands Branch
130 Liberty Street
New York, NY 10006
Attention: Mark Tarkington
Telephone: 212-250-7684
Telecopier: 212-250-8693
Dresdner Bank AG, New York and Grand $14,177,694
Cayman Branches
75 Wall Street
New York, NY 10005
Attention: Andrew Cullinan/Mike Mangan
Telephone: 212-429-2226/212-429-2112
Telecopier: 212-429-2192/212-429-2081
The First National Bank of Chicago $47,258,979
910 Travis Street, 6th Floor
Houston, TX 77002
Attention: Karen Paterson
Telephone: 713-751-3863
Telecopier: 713-751-3760
First Union National Bank $23,629,490
1001 Fannin Street
Houston, TX 77002
Attention: Paul Riddle/Phillip Trinder
Telephone: 713-346-2703/713-346-2718
Telecopier: 713-650-6354/713-650-6354
The Fuji Bank, Limited $23,629,490
One Houston Center, Suite 4100
Houston, TX 77010
Attention: Mark Polasek
Telephone: 713-650-7863
Telecopier: 713-759-0048
</TABLE>
<PAGE> 82
5
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
<S> <C>
The Industrial Bank of Japan Trust Company $23,629,490
Three Allen Center
Suite 4850
333 Clay Street
Houston, TX 77002
Attention: W. Lynn Williford
Telephone: 713-651-9444 ext. 104
Telecopier: 713-651-9209
KBC Bank, N.V. $23,629,490
125 West 55th Street, 10th Floor
New York, NY 10019
Attention: Christine Park
Telephone: 212-541-0731
Telecopier: 212-541-0784
Mees Pierson Capital Corp. $14,177,694
300 Crescent Court, Suite 1750
Dallas, TX 75201
Attention: Darrell Holley
Telephone: 214-953-9307
Telecopier: 214-754-5981
Mellon Bank, N.A. $47,258,979
Three Mellon Bank Center, Room 1203
Pittsburgh, PA 15259-0003
Attention: Roger E. Howard/Richard A.
Matthews
Telephone: 412-234-5606/412-
234-9759
Telecopier: 412-236-1840/412-
236-1840
Morgan Guaranty Trust Company $14,177,694
of New York
60 Wall Street
New York, NY 10260
Attention: Dennis Wilezek
Telephone: 212-648-1265
Telecopier: 212-648-5018
</TABLE>
<PAGE> 83
6
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
<S> <C>
National Westminster Bank PLC, $23,629,490
New York Branch
65 East 55th Street, 24th Floor
New York, NY 10022
Attention: Patricia Dundee
Telephone: 713-221-2423
Telecopier: 713-221-2430
The Norinchukin Bank, New York $14,177,694
Branch
245 Park Avenue, 29th Floor
New York, NY 10167
Attention: Keisuke Ishii/Hirotaka Shimizu
Telephone: 212-808-4186/212-808-4186
Telecopier: 212-697-5754/212-697-5754
The Northern Trust Company $14,177,694
50 South LaSalle, 11th Floor
Chicago, IL 60675
Attention: Ms. Jaron Grimm
Telephone: 312-444-2406
Telecopier: 312-630-6062
PARIBAS $14,177,694
1200 Smith Street, Suite 3100
Houston, TX 77002
Attention: John Roberts
Telephone: 713-659-4811
Telecopier: 713-659-6915
PNC Bank, National Association $23,629,490
Fiftth and Wood Street, 3rd
Floor
Pittsburgh, PA 15265
Attention: Thomas Majeski
Telephone: 412-762-2431
Telecopier: 412-762-2571
Royal Bank of Canada $14,177,694
12450 Greenspoint Drive, Suite 1450
Houston, TX 77060
Attention: Doug Frost
Telephone: 281-874-0191
Telecopier: 281-874-0081
</TABLE>
<PAGE> 84
7
<TABLE>
<CAPTION>
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
<S> <C>
Societe Generale, Southwest Agency $23,629,490
2001 Ross Avenue, Suite 4800
Dallas, TX 75201
Attention: Richard Gould/Paul Cornell
Telephone: 713-759-6324/713-759-6310
Telecopier: 713-650-0824/713-650-0824
SunTrust Bank, Atlanta $47,258,979
303 Peachtree Street
Atlanta, GA 30308
Attention: John Fields
Jr./Anne Ford
Telephone: 404-724-3667/404-724-3899
Telecopier: 404-827-6270/404-827-6270
Toronto-Dominion Bank, Houston Agency $47,258,979
909 Fannin Street, 17th Floor
Houston, TX 77010
Attention: Jimmy Simien
Telephone: 713-653-8239
Telecopier: 713-951-9929
Wells Fargo Bank (Texas), N.A. $23,629,490
1000 Louisiana Street, 3rd Floor
Houston, TX 77002
Attention: Christina Faith/Jennifer Hill
Telephone: 713-319-1370/713-319-1376
Telecopier: 713-739-1087/713-739-1087
Westdeutsche Landesbank $23,629,490
Girozentrale, New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attention: Richard Newman
Telephone: 212-852-6120
Telecopier: 212-852-6307
The Sumitomo Bank, Limited, $14,177,694
New York Branch
277 Park Avenue
New York, NY 10172
Attention: Mike Garrido
Telephone: 212-224-4128
Telecopier: 212-224-4384
</TABLE>
<PAGE> 85
<TABLE>
<CAPTION>
8
Name and Address of Lender Amount of Commitment
- -------------------------- --------------------
<S> <C>
AmSouth Bank $23,629,490
1900 5th Avenue North
Birmingham, AL 35288
Attention: David A. Simmons
Telephone: 205-801-0663
Telecopier: 205-583-4436
Banco Bilbao Vizcaya $14,177,694
1345 Avenue of the Americas 5th Floor
New York, NY 10105
Attention: Manuel Sanchez
Telephone: 212-728-1511
Telecopier: 212-333-2904
</TABLE>
<PAGE> 86
EXHIBIT A
---------
FORM OF
NOTE
$ New York, New York
----------- August__, 1999
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 first anniversary of the Termination
Date (or if the Lender is an Objecting Lender, the first anniversary of 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 $1,250,000,000 364-Day
Revolving Credit and Competitive Advance Facility Agreement, dated as of August
16, 1999 (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
Bank, 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> 87
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> 88
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
Amount of Base Rate Converted to Base Rate Advances Eurodollar Rate Unpaid Principal Balance Notation
Date Advances Base Rate Advances Repaid Advances of Base Rate Advances Made By
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 89
Schedule B to Note
ADVANCES, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE ADVANCES
<TABLE>
<CAPTION>
Amount of Rate Unpaid Principal
Amount of Amount Converted Interest Period and Amount of Principal Advances Eurodollar Balance of
Eurodollar Eurodollar Eurodollar Rate of Eurodollar Eurodollar Converted to Eurodollar Notation
Date Rate Advances to Rate Advances with Respect Thereto Rate Advances Repaid Base Rate Advances Rate Advances Made By
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 90
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 $1,250,000,000
364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of
August 16, 1999 (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 Bank, 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 ___________, 199__.
(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]].
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:
<PAGE> 91
(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> 92
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 $1,250,000,000 364-Day Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 16, 1999, 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 Bank,
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>
Very truly yours,
[Borrower]
By:
--------------------------------------
Name:
Title:
- -------------------
* 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> 93
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 $1,250,000,000 364-Day Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 16, 1999, 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 Bank,
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>
<CAPTION>
CAF Advance Date: ,199 Aggregate Maximum Amount: $
---------- -- ---------
- -------------------------------------------------------------------------------
<S> <C>
Maturity Date 1: Maximum Amount: $
,199 $ offered at ----------*
--------- -- ------- ----------
$ offered at *
------- ----------
- --------------------------------------------------------------------------------
Maturity Date 2: Maximum Amount: $
,199 $ offered at ----------*
--------- -- ------- ----------
$ offered at *
------- ----------
- --------------------------------------------------------------------------------
Maturity Date 3: Maximum Amount: $
,199 $ offered at ----------*
--------- -- ------- ----------
$ offered at *
------- ----------
- --------------------------------------------------------------------------------
</TABLE>
Very truly yours,
[NAME OF CAF ADVANCE LENDER]
By:
-----------------------------------
Name:
Title:
Telephone No.:
Telecopy No.:
- ----------------------------
* 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> 94
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 $1,250,000,000 364-Day Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 16, 1999, 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 Bank,
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> 95
EXHIBIT F
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated _____________, ____
Reference is made to the $1,250,000,000 364-Day Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 16, 1999 (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 Bank, 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> 96
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> 97
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> 98
Schedule 1
to
Assignment and Acceptance
Dated _________, ____
Section 1.
- ----------
Percentage Interest: %
-----
Section 2.
- ----------
Assignee's Commitment: $
Aggregate Outstanding Principal -----
Amount of Advances owing to the Assignee: $
-----
Note payable to the order of the Assignee
Dated: ,
---- -----
Principal amount: $
-----
Note payable to the order of the Assignor
Dated: ,
---- -----
Principal amount: $
-----
Section 3.
- ----------
Effective Date*: ,
------ -----
[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> 99
2
Consented to:
EL PASO ENERGY CORPORATION THE CHASE MANHATTAN BANK, as
Administrative Agent
By: By:
------------------------ --------------------------------
Title: Title:
<PAGE> 100
3
Accepted this day
--
of ,
---------- ---
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
---------------------------
Title:
<PAGE> 101
EXHIBIT G
---------
FORM OF OPINION OF [ASSOCIATE GENERAL][SENIOR] COUNSEL OF THE COMPANY
August 16, 1999
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
$1,250,000,000 364-Day Revolving Credit and Competitive Advance Facility
Agreement, dated as of August 16, 1999 (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, Citibank, N.A. and ABN Amro Bank, 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"). 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> 102
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> 103
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> 104
EXHIBIT H
---------
FORM OF OPINION OF NEW YORK COUNSEL TO THE COMPANY
August 16, 1999
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: $1,250,000,000 364-Day Revolving Credit
and Competitive Advance Facility Agreement
dated as of August 16, 1999
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 $1,250,000,000 364-Day Revolving
Credit and Competitive Advance Facility Agreement, dated as of August 16, 1999
(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
Bank, 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> 105
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> 106
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> 107
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> 108
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> 109
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 $1,250,000,000 364-Day Revolving Credit
and Competitive Advance Facility Agreement, dated as of August 16, 1999 (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 Bank, 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> 110
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 August 26, 2004 (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> 111
EXHIBIT J
---------
FORM OF
JOINDER AGREEMENT
Reference is made to the $1,250,000,000 364-Day Revolving Credit and CAF
Advance Facility Agreement, dated as of August 16, 1999 (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 Bank, 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> 112
J-2
ACKNOWLEDGED AND AGREED TO:
- ---------------------------
[EL PASO ENERGY CORPORATION]
By:
-------------------------
Title:
<PAGE> 113
EXHIBIT K
---------
FORM OF OPINION OF [ASSOCIATE GENERAL]
[SENIOR] COUNSEL OF THE COMPANY
(a) [Each of the Company and the Borrowing Subsidiary] (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> 114
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> 115
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> 116
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 $1,250,000,000 364-Day Revolving Credit and
Competitive Advance Facility Agreement, dated as of August 16, 1999, 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 Bank, 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.
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:
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
STATEMENTS OF INCOME AND CONSOLIDATED BALANCE SHEETS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 24
<SECURITIES> 0
<RECEIVABLES> 665
<ALLOWANCES> 0<F1>
<INVENTORY> 22
<CURRENT-ASSETS> 1,156
<PP&E> 5,723
<DEPRECIATION> 0<F1>
<TOTAL-ASSETS> 8,437
<CURRENT-LIABILITIES> 2,508
<BONDS> 1,466
0
300
<COMMON> 0
<OTHER-SE> 2,037
<TOTAL-LIABILITY-AND-EQUITY> 8,437
<SALES> 0
<TOTAL-REVENUES> 3,167
<CGS> 0
<TOTAL-COSTS> 2,865
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 116
<INCOME-PRETAX> 296
<INCOME-TAX> 92
<INCOME-CONTINUING> 204
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> (13)
<NET-INCOME> 191
<EPS-BASIC> 0.00
<EPS-DILUTED> 0.00
<FN>
<F1>Not separately identified in the Consolidated Financial Statements or
accompanying notes thereto.
</FN>
</TABLE>
