AMENDED AND RESTATED PARENT GUARANTEE AGREEMENT made by EL PASO CORPORATION in favor of JPMORGAN CHASE BANK, N.A., as Collateral Agent for the benefit of the Secured Parties referred to herein Dated as of July 31, 2006
EXHIBIT
10.C
CONFORMED
COPY
AMENDED
AND
RESTATED
made
by
EL
PASO
CORPORATION
in
favor
of
JPMORGAN
CHASE BANK, N.A.,
as
Collateral
Agent
for
the benefit of
the Secured Parties referred to herein
Dated
as of July
31, 2006
TABLE
OF
CONTENTS
Page
|
ARTICLE
1
DEFINITIONS
Section
|
1.01.
|
Definitions
|
2
|
Section
|
1.02.
|
Other
Definitional :Provisions
|
3
|
ARTICLE
2
GUARANTEE
SECTION
|
2.01.
|
Guarantee
|
4
|
SECTION
|
2.02.
|
No
Subrogation
|
4
|
SECTION
|
2.03.
|
Amendments,
etc. with Respect to the Guaranteed Obligations
|
5
|
SECTION
|
2.04.
|
Guarantee
Absolute and Unconditional
|
5
|
SECTION
|
2.05.
|
Reinstatement
|
6
|
SECTION
|
2.06.
|
Payments
|
6
|
ARTICLE
3
MISCELLANEOUS
SECTION
|
3.01.
|
Amendments
in Writing
|
6
|
SECTION
|
3.02.
|
Notices
|
6
|
SECTION
|
3.03.
|
No
Waiver
by Course of Conduct; Cumulative Remedies
|
6
|
SECTION
|
3.04.
|
Enforcement
Expenses; Indemnification
|
7
|
SECTION
|
3.05.
|
Successors
and Assigns
|
8
|
SECTION
|
3.06.
|
Set-off
|
8
|
SECTION
|
3.07.
|
Counterparts
|
9
|
SECTION
|
3.08.
|
Severability
|
9
|
SECTION
|
3.09.
|
Section
Headings
|
9
|
SECTION
|
3.10.
|
Integration
|
9
|
SECTION
|
3.11.
|
GOVERNING
LAW
|
9
|
SECTION
|
3.12.
|
Submission
to Jurisdiction; Waivers; Process Agent
|
9
|
SECTION
|
3.13.
|
Acknowledgements
|
10
|
SECTION
|
3.14.
|
Releases
|
11
|
SECTION
|
3.15.
|
WAIVER
OF
JURY TRIAL
|
11
|
SECTION
|
3.16.
|
Sole
Right of Enforcement; Demand Not Required
|
11
|
AMENDED
AND
RESTATED
This
AMENDED
AND RESTATED PARENT GUARANTEE AGREEMENT (this
“Agreement”),
dated as of
July 31, 2006, made by El Paso Corporation, a Delaware corporation (the
“Guarantor”),
in favor of
JPMorgan Chase Bank, N.A. (“JPMCB”),
as Collateral
Agent (in such capacity, the “Collateral
Agent”)
for the ratable
benefit of (i) the banks and other financial institutions or entities (the
“Lenders”)
from time to
time parties to the Amended and Restated Credit Agreement, dated as of July
31,
2006 (as may be amended, supplemented or otherwise modified from time to time,
the “Credit
Agreement”),
among the
Guarantor, certain of its Subsidiaries as Pipeline Company Borrowers (the
“Pipeline
Company Borrowers”),
the Lenders and
JPMCB, as administrative agent and collateral agent thereunder, and (ii) the
other Secured Parties (as defined in the Security Agreement identified
below).
W
I T N E S
S E T H:
WHEREAS,
pursuant to the
Credit Agreement, the Lenders have severally agreed to make extensions of credit
to the Guarantor and the Pipeline Company Borrowers, the Issuing Banks have
agreed to issue Letters of Credit and the Administrative Agent and the
Collateral Agent have agreed to serve in such capacities, in each case upon
the
terms and subject to the conditions set forth therein;
WHEREAS,
the Guarantor and
the Collateral Agent on behalf of the lenders and other secured parties referred
to herein have entered into that certain Amended and Restated Parent Guarantee
Agreement dated as of November 23, 2004 (the “Existing
Parent Guarantee Agreement”)
pursuant to
which the Guarantor guaranteed certain obligations of the Pipeline Company
Borrowers to the Collateral Agent;
WHEREAS,
the Guarantor and
the Pipeline Company Borrowers are members of an affiliated group of companies
that includes each Subsidiary Guarantor (as defined in the Credit
Agreement);
WHEREAS,
the Guarantor,
the Pipeline Company Borrowers and the Subsidiary Guarantors have entered into
the Amended and Restated Security Agreement dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the “Security
Agreement”)
with the
Collateral Agent and JPMCB, in its capacity as Depository Bank, pursuant to
which, inter
alia,
the Guarantor and
the Subsidiary Guarantors have pledged certain property and assets as collateral
to the Collateral Agent for the ratable benefit of the Secured Parties to secure
the respective obligations of the Borrowers under the Credit Agreement and
this
Agreement and the Subsidiary Guarantors under the Amended and Restated
Subsidiary Guarantee Agreement dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the “Subsidiary
Guarantee Agreement”)
by the
Subsidiary Guarantors in favor of the Collateral Agent for the ratable benefit
of the Secured Parties; and
WHEREAS,
it is a condition
precedent to the effectiveness of the Credit Agreement that the Guarantor shall
have executed and delivered this Agreement to the Collateral Agent for the
ratable benefit of the Secured Parties;
NOW,
THEREFORE,
in consideration
of the premises and to induce the Agents, the Issuing Banks and the Lenders
to
enter into the Credit Agreement, the Guarantor hereby agrees with the Collateral
Agent, for the benefit of the Secured Parties, that the Existing Parent
Guarantee Agreement shall be amended and restated in its entirety as
follows:
ARTICLE
1
Defined
Terms
Section
1.01 .
Definitions.
(a)
Unless otherwise
defined herein, terms defined in the Credit Agreement and/or the Security
Agreement are used herein as therein defined.
(b) The
following terms
have the following meanings:
“Agreement”:
has the meaning
set forth in the introductory paragraph hereof.
“Credit
Agreement”:
has the meaning
set forth in the introductory paragraph hereof.
“Guarantee
Release Date”
has
the meaning
set forth in Section 2.01(b).
“Guaranteed
Obligations”:
means the
payment obligations of each Subsidiary Guarantor of whatsoever nature and
howsoever evidenced, due or to become due, now existing or hereafter arising,
whether direct or indirect, absolute or contingent, which may arise under,
out
of or in connection with the Financing Documents and any amendment, restatement
or modification thereof, including, to the extent owing by any Subsidiary
Guarantor under the Financing Documents, the full and punctual payment when
due
of any unpaid principal, interest (including interest accruing at any
post-default rate and Post-Petition Interest), fees, reimbursement obligations,
guaranty obligations, penalties, indemnities, legal and other fees, charges
and
expenses, and amounts advanced and expenses incurred in order to (x) preserve
any Collateral or the Transaction Liens, (y) cause any Restricted Equity
Interests to remain free of Liens prohibited by the Credit Agreement or (z)
preserve any other property pledged to secure such obligations as collateral
or
the Liens and security interests with respect thereto, whether due at stated
maturity or by acceleration or otherwise.
“Guarantor”:
has the meaning
set forth in the introductory paragraph hereof.
“Indemnified
Party”:
has the meaning
set forth in Section
3.04(a).
“Lenders”:
has the meaning
set forth in the introductory paragraph hereof.
“Pipeline
Company Borrowers”:
has the meaning
set forth in the introductory paragraph hereof.
“Process
Agent”
has
the meaning
set forth in Section 3.12(f).
“Security
Agreement”:
has the meaning
set forth in the recitals hereof.
“Subsidiary
Guarantee Agreement”:
has the meaning
set forth in the recitals hereof.
Section
1.02 .
Other
Definitional Provisions. The
definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires otherwise (a)
any definition of
or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b)
any reference
herein to any Person shall be construed to include such Person’s successors and
assigns, (c)
any reference
herein to any Applicable Law means such Applicable Law as amended, modified,
codified, replaced or reenacted, in whole or in part, and in effect from time
to
time, including rules and regulations promulgated thereunder and reference
to
any section or other provision of any Applicable Law means that section or
provision of such Applicable Law from time to time in effect and any amendment,
modification codification, replacement, or reenactment of such section or other
provision, (d)
the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (e)
all references
herein to Articles, Sections, Exhibits, Appendices and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits, Appendices and
Schedules to, this Agreement, (f)
all references to
“days” shall mean calendar days and (g)
the words “asset”
and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, Equity Interests, accounts and contract rights. This Agreement
is the result of negotiations among the parties hereto and their respective
counsel. Accordingly, this Agreement shall be deemed the product of all parties
hereto, and no ambiguity in this Agreement shall be construed in favor of or
against any Credit Party or any Secured Party.
ARTICLE
2
Guarantee
Section
2.01 .
Guarantee.
(a)
The Guarantor
hereby unconditionally and irrevocably guarantees to the Collateral Agent,
for
the ratable benefit of the Secured Parties and their respective indorsees and
transferees, the prompt and complete payment when due (whether at the stated
maturity, by acceleration or otherwise) of the Guaranteed
Obligations.
(b) The
guarantee
contained in this Article 2 shall remain in full force and effect until the
later (the “Guarantee
Release Date”)
of (i) the Final
Payment Date and (ii) the date on which all payment obligations in respect
of
the Guaranteed Obligations and the payment obligations of the Guarantor under
the guarantee contained in this Article 2 shall have been satisfied by
indefeasible payment in full in cash.
(c) No
payment or
payments made by the Guarantor, any of the Subsidiary Guarantors, any other
guarantor or any other Person, or received or collected by the Collateral Agent
or any Secured Party from the Guarantor or any of the Subsidiary Guarantors,
any
other guarantor or any other Person, by virtue of any action or proceeding
or
any set-off or appropriation or application at any time or from time to time
in
reduction of or in payment of Guaranteed Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of the Guarantor under this
Article 2 which shall, notwithstanding any such payment or payments (other
than
any payment or payments made by the Guarantor in respect of the Guaranteed
Obligations or any payment received or collected from the Guarantor in respect
of Guaranteed Obligations), remain liable for the Guaranteed Obligations under
this Article 2 until the Guarantee Release Date.
Section
2.02 .
No
Subrogation. Notwithstanding
any
payment made by the Guarantor hereunder or any set-off or application of funds
of the Guarantor by the Collateral Agent or any Secured Party, the Guarantor
shall not be entitled to be subrogated to any of the rights of the Collateral
Agent or any Secured Party against any Subsidiary Guarantor or any collateral
security or guarantee or right of offset held by the Collateral Agent or any
Secured Party for the payment of Guaranteed Obligations, nor shall the Guarantor
seek or be entitled to seek any contribution or reimbursement from any
Subsidiary Guarantor in respect of payments made by the Guarantor hereunder,
until the Guarantee Release Date. If any amount shall be paid to the Guarantor
on account of such subrogation rights prior to the Guarantee Release Date,
such
amount shall be held by the Guarantor in trust for the Collateral Agent and
the
Secured Parties, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Collateral Agent
in the exact form received by the Guarantor (duly indorsed by the Guarantor
to
the Collateral Agent, if required), to be applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms and
provisions of the Credit Agreement and the Security Agreement.
Section
2.03 .
Amendments,
etc. with Respect to the Guaranteed Obligations. The
Guarantor shall
remain obligated under this Article 2 notwithstanding that, without any
reservation of rights against the Guarantor and without notice to or further
assent by the Guarantor, (a)
any demand for
payment of any of the Guaranteed Obligations made by the Collateral Agent or
any
other Secured Party may be rescinded by the Collateral Agent or any other
Secured Party and any of the Guaranteed Obligations continued, (b)
any Guaranteed
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released
by
the Collateral Agent or any Secured Party, and (c)
the Credit
Agreement or the other Financing Documents and any other documents executed
and
delivered in connection therewith, in each case may be amended, modified,
supplemented or terminated, in whole or in part, pursuant to the terms and
conditions of each such applicable document from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Collateral Agent or any other Secured Party for the payment of any Guaranteed
Obligations may be sold, exchanged, waived, surrendered or
released.
Section
2.04 .
Guarantee
Absolute and Unconditional. The
Guarantor
waives any and all notice of the creation, renewal, extension or accrual of
any
of the Guaranteed Obligations and notice of or proof of reliance by the
Collateral Agent or any other Secured Party upon the guarantee contained in
this
Article 2 or acceptance of the guarantee contained in this Article 2. The
Guarantor waives diligence, presentment, protest, demand for payment, notice
of
intent to accelerate, notice of acceleration and notice of default or nonpayment
to or upon any of the Subsidiary Guarantors with respect to Guaranteed
Obligations. The Guarantor understands and agrees that the guarantee contained
in this Article 2 shall be construed as a continuing, absolute, irrevocable
and
unconditional guarantee of payment without regard to (a)
the validity or
enforceability or perfection of the Credit Agreement or any other Financing
Document, any of the Guaranteed 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 Collateral Agent or any Secured Party,
(b)
any defense,
set-off or counterclaim whatsoever (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Guarantor or any other Person against the Collateral Agent or any other Secured
Party, or (c)
any other
circumstance whatsoever (with or without notice to or knowledge of the
Guarantor, any Subsidiary Guarantor or any other Credit Party), other than
payment or performance, which constitutes, or might be construed to constitute,
an equitable or legal discharge of the Guarantor or any Subsidiary Guarantor
for
any of the Guaranteed Obligations, in bankruptcy or in any other instance.
When
making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against the Guarantor, the Collateral Agent may, but shall be under
no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against any Subsidiary Guarantor or any other Person
or
against any collateral security or guarantee for the Guaranteed Obligations
or
any right of offset with respect thereto, and any failure by the Collateral
Agent to make any such demand, to pursue such other rights or remedies or to
collect any payments from any Subsidiary Guarantor or any 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 Subsidiary Guarantor or any other Person
or any such collateral security, guarantee or right of offset, shall not relieve
the Guarantor of any obligation or liability hereunder, and shall not impair
or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Collateral Agent against the Guarantor. For the purposes
hereof “demand”
shall
include the
commencement and continuance of any legal proceedings.
Section
2.05 .
Reinstatement. The
guarantee
contained in this Article 2 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
Guaranteed Obligations is rescinded or must otherwise be restored or returned
by
the Collateral Agent or any Secured Party upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Guarantor or any Subsidiary
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Guarantor or any
Subsidiary Guarantor or any substantial part of its property, or otherwise,
all
as though such payments had not been made.
Section
2.06 .
Payments.
The
Guarantor
hereby agrees that payments required to be made by it hereunder will be paid
to
the Collateral Agent without set-off or counterclaim in dollars at the office
of
the Collateral Agent identified in Section 9.04 of the Security
Agreement.
ARTICLE
3
Miscellaneous
Section
3.01 .
Amendments in
Writing. None
of the terms
or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except in accordance with Section 9.02 of the Security
Agreement and Section 10.02 of the Credit Agreement.
Section
3.02 .
Notices.
All
notices,
requests and demands to or upon the Collateral Agent or the Guarantor hereunder
shall be effected in the manner provided for in Section 9.04 of the Security
Agreement.
Section
3.03 .
No Waiver by
Course of Conduct; Cumulative Remedies. Neither
the
Collateral Agent nor any other Secured Party shall by any act (except by a
written instrument in accordance with Section 3.01), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default. No failure to exercise, nor any delay in exercising,
on the part of the Collateral Agent or any Secured Party, any right, power
or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other
or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Collateral Agent or any Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right
or
remedy which the Collateral Agent or any Secured Party would otherwise have
on
any future occasion. The rights and remedies herein provided are cumulative,
may
be exercised singly or concurrently and are not exclusive of any other rights
or
remedies provided by law.
Section
3.04 .
Enforcement
Expenses; Indemnification.
(a) The
Guarantor
agrees to indemnify, defend and save and hold harmless the Collateral Agent,
each other Secured Party and each of their respective Affiliates and their
respective officers, directors, employees, agents, advisors and trustees (each,
an “Indemnified
Party”)
from and
against, and shall pay, any and all claims, damages, losses, liabilities and
expenses (including reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or as a result of the execution or delivery
of this Agreement or the performance by the Guarantor of its obligations
hereunder, except to the extent such claim, damage, loss, liability or expense
is found in a final, nonappealable judgment by a court of competent jurisdiction
to have resulted from, or to be attributable to, the gross negligence or willful
misconduct of such Indemnified Party or its employees or agents.
(b) The
Guarantor will
pay to the Collateral Agent the amount of any and all reasonable out-of-pocket
expenses, including the reasonable fees and expenses of its counsel and of
any
experts and agents, that the Collateral Agent may incur in connection with
(i)
the administration
of this Agreement, (ii)
the exercise or
enforcement of any of the rights of the Collateral Agent or any other Secured
Party hereunder or (iii)
the failure by the
Guarantor to perform or observe any of the provisions hereof required to be
performed or observed by it.
(c) The
Guarantor shall
pay or reimburse the Collateral Agent for any transfer taxes or other taxes
relating to or incurred in connection with this Agreement and shall indemnify
and hold harmless the Collateral Agent and each other Secured Party from any
amounts that it is obligated to pay in the way of such taxes.
(d) The
Guarantor
agrees to indemnify and hold harmless the Collateral Agent (in its agency
capacity), and each other Secured Party from, and shall reimburse the Collateral
Agent (in its agency capacity) and each other Secured Party for any present
or
future claim for liability for any stamp or other similar tax and any penalties
or interest with respect thereto, which may be assessed, levied or collected
by
any jurisdiction in connection with this Agreement.
(e) The
indemnities and
reimbursement provided by the Guarantor pursuant to this Agreement shall survive
the expiration, cancellation, termination or modification of this Agreement,
the
resignation or removal of the Collateral Agent, and the provision of any
subsequent or additional indemnity or agreement to reimburse by any
Person.
(f) All
amounts due
under this Section
3.04
shall be payable not later than 30 days after the delivery of written demand
to
the Guarantor therefor.
Section
3.05 .
Successors
and Assigns. This
Agreement
shall be binding upon the successors and assigns of the Guarantor and shall
inure to the benefit of the Collateral Agent and its successors and assigns
for
the ratable benefit of the Secured Parties and their successors and assigns;
provided
that, except in
connection with a transaction expressly permitted by Section 6.05 of the Credit
Agreement, the Guarantor may not assign, transfer or delegate any of its rights
or obligations under this Agreement without the prior written consent of the
Collateral Agent.
Section
3.06 .
Set-Off.
The
Guarantor
hereby irrevocably authorizes the Collateral Agent and each Secured Party at
any
time and from time to time while an Event of Default shall have occurred and
be
continuing, without prior notice to the Guarantor or any Subsidiary Guarantor,
any such notice being expressly waived by the Guarantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness
or
claims, in any currency, in each case whether direct or indirect, absolute
or
contingent, matured or unmatured, at any time held or owing by the Collateral
Agent or such Secured Party to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as the Collateral Agent or such
Secured Party may elect, subject in all respects to the terms and provisions
of
the Credit Agreement, against and on account of the obligations and liabilities
of the Guarantor to the Collateral Agent or such Secured Party hereunder or
under the other Loan Documents and claims of every nature and description of
the
Collateral Agent or such Secured Party against the Guarantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Loan Document,
as the Collateral Agent or such Secured Party may elect, subject in all respects
to the terms and provisions of the Credit Agreement, whether or not the
Collateral Agent or such Secured Party has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Collateral Agent or the applicable Secured Party shall notify
the
Guarantor promptly of any such set-off and the application made by the
Collateral Agent or such Secured Party of the proceeds thereof, provided
that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of the Collateral Agent and the Secured Parties under
this Section
3.06
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Collateral Agent and the Secured Parties
may
have under Applicable Law or pursuant to the terms and provisions of the Credit
Agreement.
Section
3.07 .
Counterparts.
This
Agreement may
be executed in any number of counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one
and the same agreement. Delivery of an executed counterpart of a signature
page
to this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
Section
3.08 .
Severability.
Any
provision of
this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction.
Section
3.09 .
Section
Headings. The
Section
headings used in this Agreement are for convenience of reference only and are
not to affect the construction hereof or be taken into consideration in the
interpretation hereof.
Section
3.10 .
Integration.
This
Agreement and
the other Loan Documents to which the Guarantor is a party represent the
agreement of the Guarantor, the Collateral Agent and the Secured Parties with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Collateral Agent or any
Secured Party relative to the subject matter hereof and thereof not expressly
set forth or referred to herein or in such other Loan Documents.
Section
3.11 .
GOVERNING
LAW. THIS
AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF
NEW YORK.
Section
3.12 .
Submission
to
Jurisdiction; Waivers; Process Agent.
The Guarantor
hereby irrevocably and unconditionally:
(a) submits
for itself
and its property in any legal action or proceeding by the Collateral Agent
against it relating to this Agreement and the other Loan Documents to which
it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Supreme Court of
the
State of New York, sitting in New York County, the courts of the United States
of America for the Southern District of New York, and appellate courts from
any
thereof;
(b) consents
that any
such action or proceeding may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service
of process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form
of
mail), postage prepaid, to the Guarantor at its address referred to in
Section
3.02
or at such other address of which the Collateral Agent shall have been notified
pursuant thereto;
(d) agrees
that nothing
herein shall affect the right to effect service of process on it in any other
manner permitted by law or shall limit the right to xxx in any other
jurisdiction;
(e) waives,
to the
maximum extent not prohibited by law, any right it may have to claim or recover
in any legal action or proceeding referred to in this Section
3.12
any special, indirect, exemplary, punitive or consequential damages; and
(f) appoints
CT
Corporation System (the “Process
Agent”),
with an office
on the date hereof at 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as its agent to receive on behalf of the Guarantor and its
property service of copies of the summons and complaint and any other process
which may be served by the Collateral Agent or any Secured Party in any such
action or proceeding in any aforementioned court in respect of any action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents to which it is a party. Such service may be made by delivering a
copy
of such process to the Guarantor 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
Guarantor’s address specified pursuant to Section 9.04 of the Security
Agreement, and the Guarantor hereby irrevocably authorizes and directs the
Process Agent or the Company to accept such service on its behalf.
Section
3.13 .
Acknowledgements. The
Guarantor
hereby acknowledges that:
(a) it
has been advised
by counsel in the negotiation, execution and delivery of this Agreement and
the
other Loan Documents to which it is a party;
(b) neither
the
Collateral Agent nor any Secured Party has any fiduciary relationship with
or
duty to the Guarantor arising out of or in connection with this Agreement or
any
of the other Loan Documents, and the relationship between the Guarantor, on
the
one hand, and the Collateral Agent and the Secured Parties, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no
joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue
of
the transactions contemplated hereby among the Secured Parties or among the
Guarantor and the Secured Parties.
Section
3.14 .
Releases.
On
the Guarantee
Release Date this Agreement and all obligations (other than those expressly
stated to survive such termination and in all cases subject to Section
2.05
hereof) of the Guarantor and any other party hereto shall terminate, all without
delivery of any instrument or performance of any act by any Person. At the
request and sole expense of the Guarantor following any such termination, the
Collateral Agent shall promptly execute and deliver to the Guarantor such
termination agreements, instruments and other documents as the Guarantor shall
reasonably request to evidence such termination.
Section
3.15 .
WAIVER OF
JURY TRIAL. EACH
PARTY TO THIS
AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
TO WHICH IT IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN.
Section
3.16 .
Sole Right of
Enforcement; Demand Not Required. Notwithstanding
any
other provision of this Agreement, no Secured Party other than the Collateral
Agent shall have the right to take any Enforcement Action with respect to this
Agreement and all such Enforcement Actions shall be effected solely through
the
Collateral Agent. No reference in this Agreement to the Collateral Agent’s
making a demand for payment under this Agreement shall be construed to mean
that
such a demand is required in order to cause any obligation under this Agreement
to become due and payable, it being understood that obligations under this
Agreement shall become due and payable as, and at such time as, provided in
Section
2.01(a).
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS
WHEREOF,
the Guarantor has
caused this Amended and Restated Parent Guarantee Agreement to be duly executed
and delivered as of the date first above written.
EL
PASO CORPORATION
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By:
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/S/
XXXX
XXXXXX
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Name: Xxxx
X.
Xxxxxx
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Title: Vice
President
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