EXHIBIT 10.8
[Execution Copy]
GUARANTY
This Guaranty dated as of July 31, 2002 ("Guaranty") is by Xxxxxxxx Gas
Pipeline Company, L.L.C. ("Guarantor"), in favor of the Financial Institutions
(as defined below). Capitalized terms used in this Guaranty but not defined
herein shall have the meanings set forth for such terms in the Credit Agreement
dated as of July 31, 2002 (the "New Credit Agreement"), among The Xxxxxxxx
Companies, Inc., a Delaware corporation (the "Company"), and the banks named
therein.
INTRODUCTION
A. The Company and/or its Subsidiaries (i) have entered into certain
financing transactions with and (ii) prior to the date hereof, have caused
certain other existing letters of credit to be issued by, certain agents,
lenders and financial institutions (such agents, lenders and financial
institutions collectively, the "Financial Institutions"). Such financing
transactions, including those entered into in connection with the New Credit
Agreement, and the existing letters of credit are documented by certain credit,
security, and letter of credit documents, all as more fully set forth on
Schedule I attached hereto (collectively, as the same may be amended and
modified from time to time, the "Credit Documents"). "Borrowers" as used herein
shall mean the borrowers under any one or more of the Credit Documents.
B. It is a condition to certain transactions under the Credit Documents,
that the Guarantor shall have executed and delivered this Guaranty.
C. The Company is the principal financing entity for all capital
requirements of some of its Subsidiaries, and from time to time the Company has
made capital contributions and advances to the Guarantor. The Guarantor is a
wholly owned Subsidiary of the Company and will derive substantial direct or
indirect benefit from the transactions contemplated by the Credit Documents.
Therefore, in order to induce the Financial Institutions to enter into and/or
continue certain financing transactions and letters of credit described in the
Credit Documents, the Guarantor hereby agrees for the ratable benefit of the
Financial Institutions as follows:
Section 1. Guaranty. Guarantor hereby unconditionally and irrevocably guarantees
the punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of the obligations and indebtedness of the Company and the other
Borrowers under the Credit Documents (such obligations being referred to herein
as the "Guaranteed Obligations"); provided that Guaranteed Obligations shall not
include any increases which occur after the date hereof in the principal amount
of the obligations under the Credit Documents (other than increases in the
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principal amount of such obligations that are provided for as of the date of the
execution of this Agreement but not yet funded) and/or the commitments to
advance funds or letters of credit thereunder. Without limiting the generality
of the foregoing, Guarantor's liability shall extend to all amounts which
constitute part of the Guaranteed Obligations even if such Guaranteed
Obligations are declared unenforceable or not allowable in a bankruptcy,
reorganization, or similar proceeding involving any Borrowers, or any guarantor
of any portion of the foregoing Guaranteed Obligations (collectively such
guarantors together with the Guarantor and the Borrowers are referred to herein
as the "Obligors"). This Guaranty is a guarantee of payment, not of collection,
and Guarantor is primarily liable for the payment of the Guaranteed Obligations.
Section 2. Limit of Liability. The liabilities and obligations of the Guarantor
hereunder shall be limited to an aggregate amount equal to the largest amount
that would not render such Guarantor's obligations hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
Section 3. Guaranty Absolute. Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the Credit Documents,
regardless of any law, regulation, or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Financial
Institution with respect thereto. The obligations of Guarantor under this
Guaranty are independent of the Guaranteed Obligations in each and every
particular, and a separate action or actions may be brought and prosecuted
against any other Obligor, or any other Person regardless of whether any other
Obligor or any other Person is joined in any such action or actions. The
liability of Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(a) The lack of validity or unenforceability of the Guaranteed
Obligations or any Credit Document (other than this Guaranty against the
Guarantor) for any reason whatsoever, including that the act of creating the
Guaranteed Obligations is ultra xxxxx, that the officers or representatives
executing the documents creating the Guaranteed Obligations exceeded their
authority, that the Guaranteed Obligations violate usury or other laws, or that
any Obligor has defenses to the payment of the Guaranteed Obligations, including
breach of warranty, statute of frauds, bankruptcy, statute of limitations,
lender liability, or accord and satisfaction;
(b) Any change in the time, manner, or place of payment of, or in any
term of, any of the Guaranteed Obligations, any increase, reduction, extension,
or rearrangement of the Guaranteed Obligations, any amendment, supplement, or
other modification of the Credit Documents, or any waiver or consent granted
under the Credit Documents, including waivers of the payment and performance of
the Guaranteed Obligations;
(c) Any release, exchange, subordination, waste, or other impairment
(including negligent impairment) of any collateral securing payment of the
Guaranteed Obligations; the failure of any Financial Institution or any other
person to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale, or other handling of the collateral; the fact that any
security interest, lien, or assignment related to any collateral for the
Guaranteed Obligations
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shall not be properly perfected, or shall prove to be unenforceable or
subordinate to any other security interest, lien, or assignment;
(d) Any full or partial release of any Obligor (other than the full or
partial release of the Guarantor);
(e) The failure to apply or the manner of applying collateral or
payments of the proceeds of collateral against the Guaranteed Obligations;
(f) Any change in the organization or structure of any Obligor; any
change in the shareholders, directors, or officers of any Obligor; or the
insolvency, bankruptcy, liquidation, or dissolution of any Obligor or any
defense that may arise in connection with or as a result of any such insolvency,
bankruptcy, liquidator or dissolution;
(g) The failure to give notice of any extension of credit made by any
Financial Institution to any Obligor, notice of acceptance of this Guaranty,
notice of any amendment, supplement, or other modification of any Credit
Document, notice of the execution of any document or agreement creating new
Guaranteed Obligations, notice of any default or event of default, however
denominated, under the Credit Documents, notice of intent to demand, notice of
demand, notice of presentment for payment, notice of nonpayment, notice of
intent to protest, notice of protest, notice of grace, notice of dishonor,
notice of intent to accelerate, notice of acceleration, notice of bringing of
suit, notice of any Financial Institution's transfer of the Guaranteed
Obligations, notice of the financial condition of or other circumstances
regarding any Obligor, or any other notice of any kind relating to the
Guaranteed Obligations;
(h) Any payment or grant of collateral by any Obligor to any Financial
Institution being held to constitute a preference under bankruptcy laws, or for
any reason any Financial Institution is required to refund such payment or
release such collateral;
(i) Any other action taken or omitted which affects the Guaranteed
Obligations, whether or not such action or omission prejudices the Guarantor or
increases the likelihood that the Guarantor will be required to pay the
Guaranteed Obligations pursuant to the terms hereof;
(j) The fact that all or any of the Guaranteed Obligations cease to
exist by operation of law, including, without limitation, by way of discharge,
limitation or tolling thereof under applicable bankruptcy laws; and
(k) Any other circumstances which might otherwise constitute a defense
available to, or a discharge of any Obligor (other than the discharge of the
Guarantor).
Section 4. Financial Institutions' Rights and Certain Waivers.
4.01. Notice and Other Remedies. Guarantor hereby waives promptness,
diligence, notice of acceptance, notice of acceleration, notice of intent to
accelerate, and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that
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any Financial Institution protect, secure, perfect or insure any security
interest or other Lien or any property subject thereto or exhaust any right to
take any action against any Obligor or any other Person or any collateral.
4.02. Waiver of Subrogation and Contribution. (a) Until such time as the
Guaranteed Obligations are irrevocably paid in full, Guarantor hereby
irrevocably waives any claim or other rights which it may acquire against any
Obligor that arise from the Guarantor's Guaranteed Obligations under this
Guaranty or any other Credit Document, including, without limitation, any right
of subrogation (including, without limitation, any statutory rights of
subrogation under Section 509 of the Bankruptcy Code, 11 U.S.C. Section 509),
reimbursement, exoneration, contribution, indemnification, or any right to
participate in any claim or remedy of any Financial Institution against any
Obligor, or any collateral which any Financial Institution now has or acquires.
If any amount shall be paid to Guarantor in violation of the preceding sentence
and the Guaranteed Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of the Financial Institutions, and shall
promptly be paid to the Financial Institutions to be applied to the Guaranteed
Obligations, whether matured or unmatured. Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by the Credit Documents and that the waiver set forth in this
Section 4.02(a) is knowingly made in contemplation of such benefits.
(b) Guarantor agrees that, to the extent that any Borrower makes
payments to any Financial Institution, or any Financial Institution receives any
proceeds of collateral, and such payments or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside,
or otherwise required to be repaid, then to the extent of such repayment the
Guaranteed Obligations shall be reinstated and continued in full force and
effect as of the date such initial payment or collection of proceeds occurred.
GUARANTOR SHALL INDEMNIFY EACH FINANCIAL INSTITUTION AND EACH AFFILIATE THEREOF
AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES FROM, AND DISCHARGE,
RELEASE, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL ACTUAL LOSSES,
LIABILITIES, GUARANTEED OBLIGATIONS, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, DISBURSEMENTS, CLAIMS OR DAMAGES TO WHICH ANY OF THEM MAY BECOME SUBJECT,
INSOFAR AS SUCH LOSSES, LIABILITIES, GUARANTEED OBLIGATIONS, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, DISBURSEMENTS, CLAIMS OR DAMAGES ARISE OUT OF OR RESULT
FROM (I) ANY ACTUAL OR PROPOSED USE BY ANY BORROWER, OR ANY AFFILIATE OF ANY
BORROWER OF THE PROCEEDS OF ANY ADVANCE, (II) ANY BREACH BY GUARANTOR OF ANY
PROVISION OF THIS GUARANTY OR ANY OTHER CREDIT DOCUMENT, (III) ANY
INVESTIGATION, LITIGATION OR OTHER PROCEEDING (INCLUDING ANY THREATENED
INVESTIGATION OR PROCEEDING) RELATING TO THE FOREGOING, OR (IV) ANY
ENVIRONMENTAL CLAIM OR REQUIREMENT OF ENVIRONMENTAL LAWS CONCERNING OR RELATING
TO THE PRESENT OR PREVIOUSLY-OWNED OR OPERATED PROPERTIES, OR THE OPERATIONS OR
BUSINESS, OF ANY OBLIGOR, AND GUARANTOR SHALL REIMBURSE EACH FINANCIAL
INSTITUTION, AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE DIRECTORS, OFFICERS
AND EMPLOYEES, UPON DEMAND FOR ANY REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING
LEGAL FEES) INCURRED IN CONNECTION WITH ANY SUCH INVESTIGATION, LITIGATION OR
OTHER PROCEEDING; AND EXPRESSLY INCLUDING ANY SUCH LOSSES, LIABILITIES,
GUARANTEED OBLIGATIONS, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
DISBURSEMENTS, CLAIMS, DAMAGES, OR EXPENSE INCURRED BY REASON OF
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THE PERSON BEING INDEMNIFIED'S OWN NEGLIGENCE, BUT EXCLUDING ANY SUCH LOSSES,
LIABILITIES, GUARANTEED OBLIGATIONS, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, DISBURSEMENTS, CLAIMS, DAMAGES OR EXPENSES INCURRED BY REASON OF THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON TO BE INDEMNIFIED.
4.03. Modifications and Amendment to the Credit Documents. As provided
in Section 1 above, certain increases in the principal indebtedness outstanding
under the Credit Documents shall not constitute Guaranteed Obligations. Except
as to the foregoing, the parties to the Credit Documents shall have the right to
amend or modify such Credit Agreements without affecting the rights provided for
in this Guaranty.
Section 5. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
(a) Business Existence. Guarantor is duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its organization and
in good standing and qualified to do business in each jurisdiction where its
ownership or lease of property or conduct of its business requires such
qualification and where a failure to be qualified could reasonably be expected
to cause a material adverse effect.
(b) Power. The execution, delivery, and performance by Guarantor of this
Guaranty and the other Credit Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby (a) are within
Guarantor's powers, (b) have been duly authorized by all necessary action, (c)
do not contravene (i) Guarantor's organizational and constitutional documents or
(ii) any law or any contractual restriction binding on or affecting Guarantor or
its property, and (d) will not result in or require the creation or imposition
of any Lien prohibited by the Credit Documents.
(c) Authorization and Approvals. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority is
required for the due execution, delivery and performance by the Guarantor of
this Guaranty or the other Credit Documents to which Guarantor is a party or the
consummation of the transactions contemplated thereby.
(d) Enforceable Obligations. This Guaranty and the other Credit
Documents to which Guarantor is a party have been duly executed and delivered by
Guarantor. Each Credit Document to which Guarantor is a party is the legal,
valid, and binding obligation of Guarantor and is enforceable against Guarantor
in accordance with its terms, except as such enforceability may be limited by
any applicable bankruptcy, insolvency, reorganization, moratorium, or similar
law affecting creditors' rights generally.
(e) Solvency. After giving effect to this Guaranty, Guarantor,
individually and together with its Subsidiaries, is Solvent.
Section 6. Covenants.
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(a) Guarantor will comply with all provisions of the Credit Documents
that are applicable to Guarantor including the provisions of Article V of the
New Credit Agreement.
(b) In the event that a Financial Institution wishes to enforce the
guarantee contained in Section 1 hereof against Guarantor, it shall make written
demand for payment from Guarantor, provided that no such demand shall be
required if Guarantor is in bankruptcy, liquidation, or other insolvency
proceedings, and provided that failure by a Financial Institution to make such
demand shall not affect Guarantor's obligations under this Guaranty.
(c) All indebtedness of Guarantor to another Obligor or any Borrower or
any Subsidiary of a Borrower shall be subordinated to all indebtedness of
Guarantor to any Financial Institution under any of the Credit Documents (the
"Senior Indebtedness"), as follows:
(i) In the event of any insolvency or bankruptcy proceedings, or any
receivership liquidation, reorganization, or other similar proceedings
in connection therewith, relative to Guarantor, or to its property, or
in the event of any proceedings for voluntary liquidation, dissolution,
or other winding up of Guarantor, whether or not involving insolvency or
bankruptcy, then the holders of the Senior Indebtedness shall be
entitled to receive payment in full of all Senior Indebtedness before
any Obligor or any Subsidiary of a Borrower shall receive any payment on
account of principal or interest due such Person from Guarantor;
(ii) After the occurrence and during the continuance of any default
or event of default, however denominated, under any Credit Document (an
"Event of Default"), Guarantor shall not exercise or attempt to exercise
any right of offset or counterclaim in respect of any of its obligations
to any other Obligor or any Subsidiary of a Borrower if the effect
thereof shall be to reduce the amount of any payment to which the
holders of Senior Indebtedness would be entitled in the absence of such
offset or counterclaim; and if and to the extent that, notwithstanding
the foregoing, Guarantor is required by any mandatory provisions of law
to exercise any such right of offset or counterclaim, each reduction of
the amount owing on the account of the principal of or premium (if any)
or interest owed to any Obligor or any Subsidiary of a Borrower by
reason of such offset or counterclaim shall be deemed to be a payment by
Guarantor in a like amount in respect of such amounts which clause (iv)
below shall apply;
(iii) Following the occurrence and during the continuance of any
Event of Default, (A) payment of the principal or interest upon any
indebtedness owed to any Obligor or any Subsidiary of a Borrower shall
not be made thereunder until payment in full of all Senior Indebtedness
has been made and (B) the holders of the Senior Indebtedness shall be
entitled to receive payment in full of all Senior Indebtedness prior to
the entitlement of any Obligor or any Subsidiary of a Borrower to
receive any payment of the principal or interest (except for payments
which have been made prior to the occurrence of such event of default);
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(iv) If, notwithstanding the provisions of the foregoing
subparagraphs (i) through (iii), any payment or distribution on any
indebtedness shall be received by Guarantor or any Obligor or any
Subsidiary of a Borrower while an Event of Default exists and before the
holders of the Senior Indebtedness shall have received payment in full
on all Senior Indebtedness, such payment or distribution shall be (and
shall be deemed to be) held in trust for the benefit of, and shall be
paid over or delivered or transferred to, the holders of the Senior
Indebtedness for application to the payment of all Senior Indebtedness
held by such holder to the extent necessary to satisfy such Senior
Indebtedness; and
(v) No present or future holder of Senior Indebtedness shall be
prejudiced in its right to enforce subordination of any Obligor or any
Subsidiary of a Borrower by any act or failure to act on the part of
Guarantor whether or not such act or failure shall give rise to any
right of rescission or other claim or cause of action on the part of
Guarantor or any Borrower or any Subsidiary of a Borrower. The
provisions of the foregoing paragraphs with respect to subordination are
solely for the purpose of defining the relative rights of the holders of
Senior Indebtedness on the one hand, and any Obligor or any Subsidiary
of a Borrower on the other hand, and none of such provisions shall
impair, as between Guarantor and any Obligor or any Subsidiary of a
Borrower, the obligation of Guarantor, which is unconditional and
absolute, to pay to any Obligor or any Subsidiary of a Borrower the
principal and interest of any indebtedness in accordance with its terms,
nor shall anything in such provisions prevent any other Obligor or any
Subsidiary of a Borrower from exercising all remedies otherwise
permitted by applicable law or hereunder upon default hereunder, subject
to the rights of holders of Senior Indebtedness under such provisions.
(d) The Guarantor will not create, assume, incur or suffer to exist, or
permit any of its Subsidiaries to create, assume, incur or suffer to exist, any
Lien on or in respect of any of its property, whether now owned or hereafter
acquired, or assign or otherwise convey, or permit any Subsidiary to assign or
otherwise convey, any right to receive income, in each case to secure or provide
for the payment of any Debt, trade payable or other obligation or liability of
any Person; provided, however, that notwithstanding the foregoing (i) Guarantor
may create, incur, assume or suffer to exist Permitted Liens except that
Guarantor may not create Liens permitted pursuant to paragraph (y) of Schedule
III to the New Credit Agreement and (ii) its Subsidiaries may create, incur,
assume or suffer to exist Permitted Liens.
(e) The Guarantor will not create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Debt, except that Guarantor and its Subsidiaries may create, incur, assume and
suffer to exist Debt to the extent permitted by the Credit Documents.
(f) The Guarantor will not create, incur, assume or suffer to exist any
obligation or liability other than this Guaranty and other obligations not
exceeding $100,000 in the aggregate.
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(g) The Guarantor will at times maintain a Consolidated Tangible Net
Worth greater than $3,250,000,000.00.
(h) The Guarantor will not sell, issue or otherwise dispose of, or
create, assume, incur of suffer to exist any Lien on or in respect of, or permit
any of its Subsidiaries to sell, issue or otherwise dispose of or create,
assume, incur or suffer to exist any Lien on or in respect of, any Equity
Interests or any direct or indirect interest in any Equity Interests in any
Important Subsidiary, as used herein "Important Subsidiary" means (i) any
Subsidiary of the Guarantor with assets having a book value of $1,000,000,000 or
more, (ii) any Subsidiary of the Guarantor that itself (on an unconsolidated,
stand alone basis) owns in excess of 5% of the book value of the Consolidated
Assets of the Guarantor and its Consolidated Subsidiaries, and (iii) each of
TGPL, TGT, and NWP. "TGPL", "TGT", and "NWP" are used herein as defined in the
Multiyear Xxxxxxxx Credit Agreement.
(i) The Guarantor will not make or permit to remain outstanding, or
allow any of its Subsidiaries to make or permit to remain outstanding, any loan
or advance to, or own, purchase or acquire any obligations or debt or equity
securities of, any Subsidiary of the Company, except that the Guarantor may make
and permit to remain outstanding loans and advances to, and own, purchase and
acquire obligations and securities of any of its Subsidiaries so long as the
proceeds thereof are used only by such Subsidiary in the ordinary course of its
business consistent with past practices.
(j) Guarantor shall timely comply with the same reporting requirements
imposed on the Borrower pursuant to Section 5.1(b) of the New Credit Agreement.
Further, not more than 60 days (or 105 days in the case of the last fiscal
quarter of a fiscal year of the Guarantor) after the end of each fiscal quarter
of the Guarantor, the Guarantor shall deliver a certificate of an authorized
financial officer of the Guarantor stating that Guarantor is in compliance with
the terms of Section 6(g) above. All of the foregoing information shall be
delivered to each of the Financial Institutions.
Section 7. [Intentionally Deleted].
Section 8. Miscellaneous.
8.01. Amendments, Etc. Any amendment or waiver to this Guaranty shall be
effective only if approved by Financial Institutions holding at least 51% of the
principal amount of the Guaranteed Obligations at the time thereof and only in
the specific instance and for the specific purpose for which given. Provided,
however, that any amendment or waiver releasing any Guarantor from any liability
hereunder shall require the unanimous consent of all Financial Institutions and
be effective only in the specific instance and for the specific purpose for
which given.
8.02. Addresses for Notices. All notices and other communications to
Guarantor shall be delivered to the address set forth beneath its signature on
the signature page hereto, or to such other address as shall be designated by
the Guarantor by written notice to all of the Financial Institutions. All
notices and other communications provided for under this Guaranty shall be in
writing (including telecopy communication), shall be mailed, telecopied, or
delivered, and shall, when mailed or telecopied, be effective when received in
the mail or sent by telecopier.
8.03. No Waiver; Remedies. No failure on the part of any Financial
Institution to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise
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thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
8.04. Right of Set-Off. Upon the occurrence and during the continuance
of any default or event of default however described under a Credit Document,
each Financial Institution party to such Credit Document is hereby authorized at
any time, to the fullest extent permitted by law, to set off and apply any
deposits (general or special, time or demand, provisional or final) and other
indebtedness owing by such Financial Institution to the accounts of the
Guarantor against any and all of the obligations of the Guarantor under this
Guaranty, irrespective of whether or not such Financial Institution shall have
made any demand under this Guaranty and although such obligations may be
contingent and unmatured. Each Financial Institution agrees promptly to notify
the Guarantor after any such set-off and application made by such Financial
Institution provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Financial
Institutions under this Section 8.04 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Financial Institutions may have.
8.05. Continuing Guaranty; Assignments under Credit Documents. This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the indefeasible payment in full of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (b) be binding upon Guarantor and its
respective successors and assigns, (c) inure to the benefit of, and be
enforceable by, each of the Financial Institutions and their respective
successors, transferees and assigns, and (d) not be terminated by Guarantor or
any other Person. Without limiting the generality of the foregoing clause (c),
any Financial Institution may assign or otherwise transfer all or any portion of
its rights and Guaranteed Obligations and the assignee shall thereupon become
vested with all the benefits in respect thereof granted to such Financial
Institution herein or otherwise. Upon the indefeasible payment in full and
termination of the Guaranteed Obligations, each guaranty granted hereby shall
terminate and all rights hereunder shall revert to the Guarantor to the extent
such rights have not been applied pursuant to the terms hereof. Upon any such
termination, each Financial Institution will, at Guarantor's expense, execute
and deliver to Guarantor such documents as Guarantor shall reasonably request
and take any other actions reasonably requested to evidence or effect such
termination. This Guaranty is not assignable by Guarantor without the written
consent of each Financial Institution.
8.06 Incorporated Definitions. All defined terms that are incorporated
from other agreements into this Guaranty by reference shall have the meanings
assigned to such terms as of the date hereof but shall not be modified by any
subsequent amendment or modification that takes place after the date hereof
unless consented to by the parties hereto.
8.07. Governing Law; Submission to Jurisdiction; Suits and Claims.
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(a) This Guaranty shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, except to the extent
provided in Section 8.07(b) hereof and to the extent that the federal laws of
the United States of America may otherwise apply.
(b) Notwithstanding anything in Section 8.07(a) hereof to the contrary,
nothing in this Guaranty shall be deemed to constitute a waiver of any rights
which any of the Financial Institutions may have under the National Bank Act or
other federal law, including without limitation the right to charge interest at
the rate permitted by the laws of the State where the applicable Financial
Institution is located.
(c) ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, ANY CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE FINANCIAL
INSTITUTIONS OR GUARANTOR IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND
MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK AT THE ADDRESS SET FORTH BENEATH ITS SIGNATURE ON THE
SIGNATURE PAGE HERETO. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT GUARANTOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, GUARANTOR HEREBY
IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE CREDIT DOCUMENTS.
(d) GUARANTOR AND THE FINANCIAL INSTITUTIONS HEREBY IRREVOCABLY WAIVE
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(e) The provisions set forth in this Guaranty shall only be enforceable
by the Financial Institutions and their respective successors and assigns, and
no other Person shall have the right to bring any claim or cause of action based
on this Guaranty.
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Guarantor has caused this Guaranty to be duly executed as of the date
first above written.
XXXXXXXX GAS PIPELINE COMPANY, L.L.C.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
---------------------------------
Title: Assistant Treasurer
--------------------------------
Address for Notices:
One Xxxxxxxx Center
Attn: Treasurer
Xxxxx, XX 00000
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SCHEDULE I
CREDIT DOCUMENTS
NEW CREDIT FACILITY:
Credit Agreement dated as of July 31, 2002 executed by The Xxxxxxxx Companies,
Inc., as borrower, Citicorp USA, Inc., as agent and collateral agent, Bank of
America N.A. as syndication agent, Citibank, N.A. and Bank of America N.A. as
issuing bank, Xxxxxxx Xxxxx Barney Inc., as arranger, and the banks named
therein.
All documents, instruments, agreements, certificates and notices at any time
executed and/or delivered in connection with the foregoing.
PROGENY AGREEMENTS
$200,000,000 Parent Support Agreement dated as of December 23, 1998, made by The
Xxxxxxxx Companies, Inc. in favor of Castle Associates L. P. and Colchester LLC
and the other Indemnified Persons listed therein, as amended.
Amended and Restated Guarantee dated as of July 25, 2000, issued by The Xxxxxxxx
Companies, Inc. for the benefit of The Commonwealth Plan, Inc. and CBL Capital
Corporation, as amended. WFS-Pipeline Company, as lessee and Commonwealth, as
lessor entered into a Lease Agreement dated as of December 29, 1995.
WFS-Offshore Gathering Company, as lessee, and CBL, as lessor, entered into a
Lease Agreement dated December 29, 1995, as amended and restated.
$400,000,000 Term Loan Agreement dated as of April 7, 2000, among The Xxxxxxxx
Companies, Inc., as Borrower, and Credit Lyonnais New York Branch, as
Administrative Agent, and the Lenders named therein, as amended.
$192,570,931 aggregate Second Amended and Restated Participation Agreements (2
separate leases) dated as of January 28, 2002, among Xxxxxxxx Oil Gathering,
L.L.C. and Xxxxxxxx Field Services - Gulf Coast Company, L.P., as Lessees,
Xxxxxxxx Field Services Company, as Construction Agent, The Xxxxxxxx Companies,
Inc., as Guarantor, First Security Bank, N.A. as Certificate Trustee, Xxxxx
Fargo Bank Nevada, N.A., as Collateral Agent, Bank of America, N.A., as
Administrative Agent and Administrator, and financial institutions named therein
as Certificate Holders, as amended.
$200,000,000 Term Loan Agreement dated as of January 29, 1999, among The
Xxxxxxxx Companies, Inc., as Borrower, and The Fuji Bank, Limited, as
Administrative Agent, and the Banks named therein, as amended.
$611,788,868 Joint Venture Sponsor Agreement dated as of December 28, 2000,
among The Xxxxxxxx Companies, Inc., as Sponsor and Xxxxxxxx Field Services
Company, in favor of Prairie Wolf Investors, Arctic Fox Assets, L.L.C., Xxxxxxxx
Energy (Canada), Inc. and the other
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Indemnified Persons listed therein, as amended.
Letter of Credit and Reimbursement Agreement dated as of May 15, 1994, among
Tulsa Parking Authority, The Xxxxxxxx Companies, Inc., Bank of Oklahoma,
National Association, and Bank of America, N.A. (formerly Nationsbank of Texas,
N.A.), relative to Tulsa Parking Authority First Mortgage Revenue Bonds, as
amended.
$127,000,000 Master Agreement dated as of March 6, 2000, among The Xxxxxxxx
Companies, Inc., as Guarantor, Xxxxxxxx TravelCenters, Inc., as Lessee, Atlantic
Financial Group, Ltd., as Lessor, SunTrust Bank, as Agent, and the Lenders named
therein, as amended.
$100,000,000 PPH Sponsor Agreement dated as of December 31, 2001, by The
Xxxxxxxx Companies, Inc., as Sponsor, in favor of Piceance Production Holdings
LLC, Plowshare Investors LLC, and other Indemnified Persons listed in the
agreement, as amended.
All documents, instruments, agreements, certificates and notices at any time
executed and/or delivered in connection with any of the foregoing.
LEGACY L/CS
See Attachment 1 attached hereto
All documents, instruments, agreements, certificates and notices at any time
executed and/or delivered in connection with the letters of credit described on
Attachment 1.
-13-
ATTACHMENT 1
OUTSTANDING LETTERS OF CREDIT
XXXXXXXX ENERGY MARKETING & TRADING EUROPE LIMITED
AS OF 7-31-02
-----------------------------------------------------------------------------------------------------------------------------
LETTER OF ACCOUNT
CREDIT # PARTY NOTE BENEFICIARY
--------- ------- ---- -----------
KBC - CASH COLLATERALISED BY E. 1 MILLION CASH ON JULY 31ST
Xxxxxxxx Energy Marketing & Trading Europe Limited The Belgian State
Xxxxxxxx Energy Marketing & Trading Europe Limited The Belgian State
RBS - RCF
G259106 Xxxxxxxx Energy Marketing & Trading Europe Limited RWE NET AG
G260899 Xxxxxxxx Energy Marketing & Trading Europe Limited LPX LEIPZIG POWER EXCHANGE GMBH
G261340 Xxxxxxxx Energy Marketing & Trading Europe Limited RESEAU DE TRANSPORT D'ELECTRICITE
G261666 Xxxxxxxx Energy Marketing & Trading Europe Limited RESEAU DE TRANSPORT D'ELECTRICITE
G262939 Xxxxxxxx Energy Marketing & Trading Europe Limited XXXX XX
X000000 Xxxxxxxx Energy Marketing & Trading Europe Limited ELTRA
G263181 Xxxxxxxx Energy Marketing & Trading Europe Limited TENNE T BV
G263374 Xxxxxxxx Energy Marketing & Trading Europe Limited EDF SERVICE NATIONAL
G264373 Xxxxxxxx Energy Marketing & Trading Europe Limited ELEXON CLEAR LIMITED
G264757 Xxxxxxxx Energy Marketing & Trading Europe Limited SHELL INTERNATIONAL
G264860 Xxxxxxxx Energy Marketing & Trading Europe Limited NATIONAL GRID COMPANY PLC
G265433 Xxxxxxxx Energy Marketing & Trading Europe Limited XXXXXX XXXXXXXX
G265560 Xxxxxxxx Energy Marketing & Trading Europe Limited APCS Power Clearing and Settlement AG
G265977 Xxxxxxxx Energy Marketing & Trading Europe Limited ENMO LTD
G266468 Xxxxxxxx Petroleos Espana SLU Vitol Espana SA
G266531 Xxxxxxxx Energy Marketing & Trading Europe Limited Texaco Limited
G266528 Xxxxxxxx Energy Marketing & Trading Europe Limited Federal Tax Administration Dept for VAT
G266763 Xxxxxxxx Energy Marketing & Trading Europe Limited Texaco Limited
RBS - BONDING LINE
G265142 Xxxxxxxx Petroleos Espana SLU TERMINALES PORTUARIAS
G265147 Xxxxxxxx Petroleos Espana SLU DECAL ESPANA S.A.
G265151 Xxxxxxxx Petroleos Espana SLU EUROENERGO ESPANA S.L.
G266709 Xxxxxxxx Energy Marketing & Trading Europe Limited Sibneft Oil Trade Company Ltd
TOTAL LC'S OUTSTANDING EM&T EUROPE LIMITED
---------------------------------------------------------------------------------------------
LETTER OF EXPIRY
CREDIT # AMOUNT CONVERSION DOLLARS DATED DATE
--------- ------ ---------- ---------- ----- ----------
KBC - CASH COLLATERALISED BY E. MILLION CASH ON JULY 31ST
E.2,144,000 1.02 $2,099,902 No Fxd Exp
E.4,037,000 1.02 $3,953,967 No Fxd Exp
RBS - RCF
G259106 E.400,000 1.02 $391,773 No Fxd Exp
G260899 E.1,100,000 1.02 $1,077,375 No Fxd Exp
G261340 E.170,000 1.02 $166,503 11/8/2002
G261666 E.170,000 1.02 $166,503 3/31/2003
G262939 E.300,000 1.02 $293,830 2/28/2003
G263006 kr2,000,000 7.62 $262,330 3/31/2003
G263181 E.250,000 1.02 $244,858 No Fxd Exp
G263374 E.550,000 1.02 $538,688 7/21/2002
G264373 L.100,000 0.64 $155,743 3/25/2007
G264757 $250,000 1.00 $250,000 10/15/2002
G264860 L.20,000 0.64 $31,149 1/31/2003
G265433 E.39,580 1.02 $38,766 No Fxd Exp
G265560 E.600,000 1.02 $587,659 No Fxd Exp
G265977 L.500,000 0.64 $778,715 6/11/2003
G266468 $1,000,000 1.00 $1,000,000 8/12/2002
G266531 $3,360,000 1.00 $3,360,000 8/9/2002
G266528 CHF250,000 1.50 $167,133 Open Ended
G266763 $3,520,000 1.00 $3,520,000 8/12/2002
RBS - BONDING LINE
G265142 E.9,992,442.00 1.02 $9,786,917 10/31/2002
G265147 E.5,538,378.00 1.02 $5,424,464 10/31/2002
G265151 E.3,029,742.00 1.02 $2,967,426 10/31/2002
G266709 $6,000,000.00 1.00 $6,000,000 8/12/2002
----------------- -----------
N/A $43,263,700
================= ===========
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