THIRD AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT made by CERTAIN SUBSIDIARIES OF 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 November...
EXHIBIT
10.C
EXECUTION
VERSION
THIRD
AMENDED AND RESTATED
made
by
CERTAIN
SUBSIDIARIES OF
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
November 16, 2007
TABLE
OF
CONTENTS
|
ARTICLE
1
DEFINED
TERMS
|
Page
|
||
|
Section
1.01
|
Definitions
|
2
|
|
|
Section
1.02
|
Other
Definitional Provisions
|
3
|
|
|
ARTICLE
2
GUARANTEE
|
|||
|
Section
2.01
|
Guarantee
|
4
|
|
|
Section
2.02
|
Right
of
Contribution
|
5
|
|
|
Section
2.03
|
No
Subrogation
|
5
|
|
|
Section
2.04
|
Amendments,
etc. with Respect to The Guaranteed Obligations
|
6
|
|
|
Section
2.05
|
Guarantee
Absolute and Unconditional
|
6
|
|
|
Section
2.06
|
Reinstatement
|
7
|
|
|
Section
2.07
|
Payments
|
7
|
|
|
ARTICLE
3
MISCELLANEOUS
|
|||
|
Section
3.01
|
Amendments
in Writing
|
8
|
|
|
Section
3.02
|
Notices
|
8
|
|
|
Section
3.03
|
No
Waiver
by Course of Conduct; Cumulative Remedies
|
8
|
|
|
Section
3.04
|
Enforcement
Expenses; Indemnification
|
8
|
|
|
Section
3.05
|
Successors
and Assigns
|
9
|
|
|
Section
3.06
|
Set-off
|
9
|
|
|
Section
3.07
|
Counterparts
|
10
|
|
|
Section
3.08
|
Severability
|
10
|
|
|
Section
3.09
|
Section
Headings
|
10
|
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|
Section
3.10
|
Integration
|
10
|
|
|
Section
3.11
|
Governing
Law
|
11
|
|
|
Section
3.12
|
Submission
To Jurisdiction; Waivers
|
11
|
|
|
Section
3.13
|
Acknowledgements
|
11
|
|
|
Section
3.14
|
Releases
|
12
|
|
|
Section
3.15
|
WAIVER
OF
JURY TRIAL
|
12
|
|
|
Section
3.16
|
Sole
Right of Enforcement; Demand Not Required
|
12
|
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THIRD
AMENDED AND RESTATED
This
THIRD
AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT (this
“Agreement”), dated as of November 16, 2007, made by each
of
the signatories hereto (each individually, a “Subsidiary
Guarantor” and collectively, the “Subsidiary
Guarantors”), 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 Third Amended and Restated Credit Agreement,
dated as of November 16, 2007 (as amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among El Paso
Corporation, a Delaware corporation (the “Company”), 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 Company 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 Subsidiary Guarantors and the Collateral Agent on behalf of the Lenders
and
other Secured Parties have entered into that certain Amended and Restated
Subsidiary Guarantee Agreement dated as of July 31, 2006 (the “Existing
Subsidiary Guarantee Agreement”) with respect to the guarantees made by
the Subsidiary Guarantors to the Collateral Agent;
WHEREAS,
the Company and the Pipeline Company Borrowers are members of an affiliated
group of companies that includes each Subsidiary Guarantor (the
“Affiliated Group”);
WHEREAS,
the Company, the Pipeline Company Borrowers and the Subsidiary Guarantors
have
entered into the Third 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
Company 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 Company and the Subsidiary
Guarantors under the Credit Agreement and this Agreement; and
WHEREAS,
the proceeds of the extensions of credit made under the Credit Agreement
may be
used in part to enable the Borrowers to make valuable transfers to one or
more
of the Subsidiary Guarantors and the other Restricted Subsidiaries in connection
with the operation of their respective businesses;
WHEREAS,
the Company, the Pipeline Company Borrowers, the Subsidiary Guarantors and
the
other Restricted Subsidiaries are engaged in related businesses, and each
Subsidiary Guarantor will derive substantial direct and indirect benefit
from
the making and availability of the extensions of credit under the Credit
Agreement; and
WHEREAS,
it is a condition precedent to the effectiveness of the Credit Agreement
that
the Subsidiary Guarantors 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, each
Subsidiary Guarantor hereby agrees, jointly and severally, with the Collateral
Agent, for the benefit of the Secured Parties that the Existing Subsidiary
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.
“Company”: 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(d).
“Guaranteed
Obligations”: means, with respect to each Subsidiary
Guarantor, collectively, the payment obligations of the Company, the Pipeline
Company Borrowers and each other Subsidiary Guarantor with respect to the
Financing Documents to which such person is a party, in each case 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 obligations of the Company, the Pipeline
Company Borrowers, or any other Subsidiary Guarantor (as applicable) under
the
Financing Documents and any amendment, restatement or modification of any
of the
foregoing, including, in each case to the extent owing by the Company, the
Pipeline Company Borrowers, or any Subsidiary Guarantor, as the case may
be, 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 and (y)
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.
“Indemnified
Party”: has the meaning set forth in Section 3.04(a).
“Lenders”: has
the meaning set forth in the introductory paragraph hereof.
“Maximum
Liability”: has the meaning set forth in Section 2.01(b).
“Pipeline
Company Borrowers”: has the meaning set forth in the
introductory paragraph hereof.
“Security
Agreement”: has the meaning set forth in the recitals
hereof.
“Subsidiary
Guarantors”: has the meaning set forth in the introductory
paragraph 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) Each
of the Subsidiary Guarantors hereby, jointly and severally, 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) Each
Subsidiary
Guarantor, and by its acceptance of this Agreement and the rights hereunder
or
benefits hereof the Collateral Agent and each other Secured Party, hereby
agrees
and confirms that (i) it is the intention of all such Persons that this
Agreement and the obligations of such Subsidiary Guarantor under this Article
2
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law (as defined below), the Uniform Fraudulent Conveyance Act (as adopted
by any
applicable state), the Uniform Fraudulent Transfer Act (as adopted by any
applicable state) or any similar foreign, federal or state law to the extent
applicable to this Agreement and the obligations of such Subsidiary Guarantor
under this Article 2 and (ii) the aggregate liability of each Subsidiary
Guarantor under this Article 2 and under the other Security Documents at
any
time (but after giving effect to the right of contribution described in Section 2.02) shall not exceed the maximum amount (as
to any Subsidiary Guarantor, its “Maximum Liability”) that will
result in the aggregate obligations of such Subsidiary Guarantor under this
Article 2 and under the Security Documents not constituting a fraudulent
transfer or conveyance under Bankruptcy Law or any of the other aforementioned
acts and laws. For purposes hereof, “Bankruptcy Law”
means the Bankruptcy Code, or any similar foreign, federal
or state law for the
relief of debtors.
(c) Each
Subsidiary
Guarantor agrees that the Guaranteed Obligations may at any time and from
time
to time exceed the Maximum Liability of such Subsidiary Guarantor hereunder
without impairing the guarantee contained in this Article 2 or affecting
the
rights and remedies of the Collateral Agent or any Secured Party
hereunder.
(d) 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, if any, of each
Subsidiary Guarantor in respect of the Guaranteed Obligations and the payment
obligations, if any, under the guarantee contained in this Article 2 shall
have
been satisfied by indefeasible payment in full in cash.
(e) No
payment or
payments made by the Company, any Pipeline Company Borrower, 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 Company,
any
Pipeline Company Borrower, 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 any Subsidiary Guarantor under this
Article
2 which shall, notwithstanding any such payment or payments (other than any
payment or payments made by such Subsidiary Guarantor in respect of the
Guaranteed Obligations or any payment received or collected from such Subsidiary
Guarantor in respect of Guaranteed Obligations), remain liable for the
Guaranteed Obligations up to the Maximum Liability of such Subsidiary Guarantor
under this Article 2 until the Guarantee Release Date.
Section
2.02. Right
of Contribution. Each Subsidiary Guarantor hereby agrees that to
the extent that a Subsidiary Guarantor shall have paid or be obligated to
pay
more than its proportionate share of any payment made hereunder, such Subsidiary
Guarantor shall be entitled to contribution from and against any other
Subsidiary Guarantor that has not paid its proportionate share of such
payment. Each Subsidiary Guarantor’s right of contribution shall be
subject to the terms and conditions of Section
2.03. The provisions of this Section
2.02 shall in no respect limit the obligations and liabilities of any
Subsidiary Guarantor to the Collateral Agent and the Secured Parties, and
each
Subsidiary Guarantor shall remain liable to the Collateral Agent and the
Secured
Parties for the full amount guaranteed by such Subsidiary Guarantor
hereunder.
Section
2.03. No
Subrogation. Notwithstanding any payment made by any Subsidiary
Guarantor hereunder or any set-off or application of funds of any Subsidiary
Guarantor by the Collateral Agent or any Secured Party, no Subsidiary Guarantor
shall be entitled to be subrogated to any of the rights of the Collateral
Agent
or any Secured Party against the Company or any other 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
any Subsidiary Guarantor seek or be entitled to seek any contribution or
reimbursement from the Company or any other Subsidiary Guarantor in respect
of
payments made by such Subsidiary Guarantor hereunder, until the Guarantee
Release Date. If any amount shall be paid to any Subsidiary Guarantor
on account of such subrogation rights prior to the Guarantee Release Date,
such
amount shall be held by such Subsidiary Guarantor in trust for the Collateral
Agent and the Secured Parties, segregated from other funds of such Subsidiary
Guarantor, and shall, forthwith upon receipt by such Subsidiary Guarantor,
be
turned over to the Collateral Agent in the exact form received by such
Subsidiary Guarantor (duly indorsed by such Subsidiary Guarantor to the
Collateral Agent, if required), to be applied against Guaranteed Obligations,
whether matured or unmatured, in accordance with the terms and provisions
of the
Credit Agreement and Security Agreement.
Section
2.04. Amendments,
etc. with Respect to The Guaranteed Obligations. Each Subsidiary
Guarantor shall remain obligated under this Article 2 notwithstanding that,
without any reservation of rights against such Subsidiary Guarantor and without
notice to or further assent by such Subsidiary 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
2.05. Guarantee
Absolute and Unconditional. Each Subsidiary 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. Each
Subsidiary 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 the Company, any Pipeline Company Borrower or any of
the
Subsidiary Guarantors with respect to Guaranteed Obligations. Each
Subsidiary 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
Company
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 Company or such 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 Company, any Pipeline Company Borrower
or
any other Subsidiary Guarantor for any of its respective portion of the
Guaranteed Obligations or of such Subsidiary Guarantor under the guarantee
contained in this Article 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Subsidiary 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 the Company,
any Pipeline Company Borrower, any other 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 the Company, any Pipeline Company
Borrower, any other 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 the Company, any Pipeline Company Borrower, any
other
Subsidiary Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve such Subsidiary 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 such Subsidiary Guarantor. For the purposes
hereof “demand” shall include the commencement and continuance of any
legal proceedings.
Section
2.06. 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 Company, any
Pipeline Company Borrower, 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 Company, any Pipeline Company Borrower, or any
Subsidiary Guarantor or any substantial part of its property, or otherwise,
all
as though such payments had not been made.
Section
2.07. Payments. Each
Subsidiary 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 any Subsidiary
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) Each
Subsidiary
Guarantor (without duplication) 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 (without duplication) 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
Subsidiary Guarantors of their respective 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) Each
Subsidiary
Guarantor (without duplication) 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 such Subsidiary Guarantor
to perform or observe any of the provisions hereof required to be performed
or
observed by it.
(c) Each
Subsidiary
Guarantor (without duplication) 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) Each
Subsidiary
Guarantor (without duplication) 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 Subsidiary Guarantors 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 any 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 applicable Subsidiary
Guarantor therefor.
Section
3.05. Successors
and Assigns. This Agreement shall be binding upon the successors
and assigns of each Subsidiary 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, no Subsidiary Guarantor may 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. Each
Subsidiary 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 such Subsidiary
Guarantor or any other Subsidiary Guarantor, any such notice being expressly
waived by each Subsidiary 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 such Subsidiary 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 such
Subsidiary 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 such Subsidiary Guarantor,
in any
currency, whether arising hereunder, under the Credit Agreement or 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 such Subsidiary 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 Party may have under Applicable Law 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 each Subsidiary Guarantor
is a
party represent the agreement of such Subsidiary 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. Each Subsidiary 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 such Subsidiary 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 ▇▇▇ in any other
jurisdiction; and
(e) waives,
to the
maximum extent not prohibited by law, any right it may have to claim or recover
in any legal action or proceeding referred to in this Section 3.12 any special, indirect, exemplary, punitive
or consequential damages.
Section
3.13. Acknowledgements. Each
Subsidiary 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 such Subsidiary Guarantor arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between
the
Subsidiary Guarantors, 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
Subsidiary Guarantors and the Secured Parties.
Section
3.14. Releases. (a)
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 2.06 hereof) of each Subsidiary 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 Company or any Subsidiary Guarantor following any
such
termination, the Collateral Agent shall promptly execute and deliver to the
Company or such Subsidiary Guarantor, as the case may be, such agreements,
instruments and other documents as such Subsidiary Guarantor shall reasonably
request to evidence such termination.
(b)
On the date
hereof, without further action by any party to this Agreement or the Existing
Subsidiary Guarantee Agreement, each of the Released Parties shall cease
to be a
Subsidiary Guarantor under the Existing Subsidiary Guarantee Agreement, and
shall not be deemed a Subsidiary Guarantor under this Agreement.
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, each of the undersigned has caused this Amended and Restated
Subsidiary Guarantee Agreement to be duly executed and delivered as of the
date
first above written.
|
SUBSIDIARY
GUARANTORS:
|
EL
PASO EPNG
INVESTMENTS, L.L.C.
|
|
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇
▇▇▇▇▇▇
|
||
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Title:
Vice President
|
||
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EL
PASO
TENNESSEE PIPELINE CO.
|
|
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇ |
|
Name:
▇▇▇▇
▇▇▇▇▇▇
|
|
|
Title:
Vice President
|
|
|
EL
PASO TGPC
INVESTMENTS, L.L.C.
|
|
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇ |
|
Name:
▇▇▇▇
▇▇▇▇▇▇
|
|
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Title:
Vice President
|
|
|
RELEASED
PARTIES:
|
EL
PASO CNG
COMPANY, L.L.C.
|
|
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇▇▇▇▇▇
|
||
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Title:
Vice
President
|
||
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EL
PASO NORIC
INVESTMENTS III, L.L.C.
|
|
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By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇ |
|
Name:
▇▇▇▇
▇▇▇▇▇▇
|
|
|
Title:
Vice President
|
|
|
EPPP
CIG GP
HOLDINGS, L.L.C.
|
|
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By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇ |
|
Name:
▇▇▇▇
▇▇▇▇▇▇
|
|
|
Title:
Vice President
|
|