AMENDED AND RESTATED SECURITY AGREEMENT dated as of July 31, 2006 among EL PASO CORPORATION, THE PERSONS REFERRED TO HEREIN AS PIPELINE COMPANY BORROWERS, THE PERSONS REFERRED TO HEREIN AS SUBSIDIARY GRANTORS and JPMORGAN CHASE BANK, N.A., as...
EXHIBIT
10.B
CONFORMED
COPY
AMENDED
AND
RESTATED SECURITY AGREEMENT
dated
as of
July 31, 2006
among
EL
PASO
CORPORATION,
THE
PERSONS
REFERRED TO HEREIN AS
PIPELINE
COMPANY BORROWERS,
THE
PERSONS
REFERRED TO HEREIN AS SUBSIDIARY GRANTORS
and
JPMORGAN
CHASE BANK, N.A.,
as
Collateral Agent and Depository Bank
TABLE
OF
CONTENTS
|
Page
|
ARTICLE
1
DEFINITIONS
|
SECTION
|
1.01.
|
Definitions
|
2
|
|
SECTION
|
1.02.
|
Principles
of Interpretation
|
7
|
ARTICLE
2
[RESERVED]
ARTICLE
3
REPRESENTATIONS
AND
WARRANTIES
|
SECTION
|
3.01.
|
Representations
and Warranties of the Credit Parties
|
8
|
ARTICLE
4
PLEDGED
ACCOUNTS
|
SECTION
|
4.01.
|
Creation
of Pledged Accounts
|
10
|
|
SECTION
|
4.02.
|
Excess
of
Cash Account; Cash Collateral Account
|
12
|
|
SECTION
|
4.03.
|
Qualified
Investments Account
|
13
|
|
SECTION
|
4.04.
|
Payments
in Trust
|
15
|
|
SECTION
|
4.05.
|
Investment
of Funds in Pledge Accounts
|
15
|
|
SECTION
|
4.06.
|
Transfers
from Accounts During the Continuance of an Event of
Default
|
17
|
|
SECTION
|
4.07.
|
Reports,
Certification and Instructions
|
17
|
|
SECTION
|
4.08.
|
Depository
Bank Undertakings
|
18
|
|
SECTION
|
4.09.
|
Force
Majeure
|
20
|
|
SECTION
|
4.10.
|
Clearing
Agency
|
21
|
|
SECTION
|
4.11.
|
Return
of
Funds to the Company
|
21
|
ARTICLE
5
SECURITY
INTERESTS
|
SECTION
|
5.01.
|
Grant
of
Security Interests
|
21
|
|
SECTION
|
5.02.
|
Security
for Obligations
|
24
|
|
SECTION
|
5.03.
|
Delivery
and Control of Collateral
|
24
|
|
SECTION
|
5.04.
|
Further
Assurances; Etc
|
25
|
|
SECTION
|
5.05.
|
Grantors
Remain Liable
|
26
|
|
SECTION
|
5.06.
|
Additional
Equity Interests
|
26
|
|
SECTION
|
5.07.
|
Release
of Collateral
|
27
|
|
SECTION
|
5.08.
|
Voting
Rights, Dividends, Payments, Etc.
|
28
|
|
SECTION
|
5.09.
|
The
Collateral Agent Appointed Attorney-in-Fact
|
31
|
|
SECTION
|
5.10.
|
Netting
of Accounts
|
31
|
ARTICLE
6
REMEDIES
AND
ENFORCEMENT
|
SECTION
|
6.01.
|
Remedies
and Enforcement
|
31
|
|
SECTION
|
6.02.
|
Application
and Proceeds
|
33
|
|
SECTION
|
6.03.
|
Other
Remedies of Secured Parties
|
34
|
ARTICLE
7
DEPOSITORY
BANK
|
SECTION
|
7.01.
|
Depository
Bank
|
35
|
ARTICLE
8
[RESERVED]
ARTICLE
9
MISCELLANEOUS
|
SECTION
|
9.01.
|
Indemnity
and Expenses
|
35
|
|
SECTION
|
9.02.
|
Amendments;
Waivers, Etc.
|
36
|
|
SECTION
|
9.03.
|
Security
Interest Absolute and Waivers
|
36
|
|
SECTION
|
9.04.
|
Notices;
Etc.
|
39
|
|
SECTION
|
9.05.
|
Continuing
Security Interest; Assignments
|
40
|
|
SECTION
|
9.06.
|
[Reserved]
|
40
|
|
SECTION
|
9.07.
|
Execution
in Counterparts
|
40
|
|
SECTION
|
9.08
|
Severability
|
40
|
|
SECTION
|
9.09
|
Integration
|
40
|
|
SECTION
|
9.10.
|
No
Partnership
|
40
|
|
SECTION
|
9.11.
|
No
Reliance
|
40
|
|
SECTION
|
9.12.
|
Release
|
40
|
|
SECTION
|
9.13.
|
No
Impairment
|
41
|
|
SECTION
|
9.14.
|
Equitable
Remedies
|
41
|
|
SECTION
|
9.15.
|
Remedies
|
41
|
|
SECTION
|
9.16.
|
Limitations
|
42
|
|
SECTION
|
9.17.
|
Survival
|
42
|
|
SECTION
|
9.18.
|
[Reserved]
|
42
|
|
SECTION
|
9.19.
|
Jurisdiction,
Etc
|
42
|
|
SECTION
|
9.20.
|
GOVERNING
LAW
|
43
|
|
SECTION
|
9.21.
|
Waiver
of
Jury Trial
|
43
|
SCHEDULES:
|
Schedule
I
|
Subsidiary
Grantors
|
|
Schedule
II
|
Initial
Pledged Equity
|
|
Schedule
III
|
Name,
Location, Chief Executive Office, Type of Organization, Jurisdiction
of
Organization and Organizational Identification Number
|
|
Schedule
IV
|
Changes
in
Name, Location, Etc.
|
|
Schedule
V
|
Secured
Hedging Agreements
|
EXHIBITS:
|
Exhibit
A
|
Form
of
Officer’s Certificate for Qualified
Investments
|
i
AMENDED
AND
RESTATED SECURITY AGREEMENT
AMENDED
AND
RESTATED SECURITY AGREEMENT, dated as of July 31, 2006, made by and
among:
EL
PASO CORPORATION, a Delaware corporation (the “Company”);
COLORADO
INTERSTATE
GAS COMPANY, a Delaware corporation (“CIG”),
EL PASO NATURAL
GAS COMPANY, a Delaware corporation (“EPNGC”),
TENNESSEE GAS
PIPELINE COMPANY, a Delaware corporation (“TGPC”)
(CIG, EPNGC and
TGPC, collectively, the “Pipeline
Company Borrowers”
and,
together
with the Company, the “Borrowers”);
Each
of the Persons
listed on Schedule I hereto as a Subsidiary Grantor (collectively, the
“Subsidiary
Grantors”
and,
together
with the Company, the “Grantors”)
(the Borrowers
and the Subsidiary Grantors are sometimes referred to herein, collectively,
as
the “Credit
Parties”;
and the Credit
Parties, together with the other Restricted Subsidiaries that are not Project
Financing Subsidiaries, are sometimes referred to herein, collectively, as
the
“Credit
Related Parties”);
JPMorgan
Chase
Bank, N.A. (“JPMCB”),
not in its
individual capacity but solely as collateral agent for the Secured Parties
(solely in such capacity, the “Collateral
Agent”);
and
JPMCB,
not in its
individual capacity but solely in its capacity as the Depository Bank (solely
in
such capacity, the “Depository
Bank”).
PRELIMINARY
STATEMENTS
(1) Certain
of the
parties hereto are party to an Amended and Restated Credit Agreement dated
as of
the date hereof (the “Credit
Agreement”)
pursuant to
which the Lenders have agreed to make Loans to the Borrowers and participate
in
Letters of Credit, the Issuing Banks have agreed to issue Letters of Credit
for
the account of the Borrowers, and the Administrative Agent and the Collateral
Agent have agreed to serve in such capacities.
(2) The
Credit Parties,
the Depository Bank, the Collateral Agent (on behalf of the Lenders, the Issuing
Banks, the Agents and the other Secured Parties) and certain other parties
have
heretofore entered into that certain Amended and Restated Security Agreement
dated as of November 23, 2004 (the “Existing
Security Agreement”)
with respect to
their respective rights in respect of the Collateral and certain other matters
related to the Financing Documents.
NOW,
THEREFORE, to
secure the Secured Obligations, and in consideration of the premises and to
induce each of the Lenders, the Issuing Banks and the Agents to enter into
the
Credit Agreement and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Credit Parties and
the
Collateral Agent (on behalf of the Lenders, the Issuing Banks, the Agents and
the other Secured Parties) agrees that the Existing Security Agreement shall
be
amended and restated in its entirety as follows:
ARTICLE
1
Definitions
And
Interpretation
Section
1.01 .
Definitions.
(a) Capitalized
terms
used but not defined herein shall have the respective meanings assigned to
such
terms in the Credit Agreement.
(b) As
used in this
Agreement, the following terms have the meanings specified below:
“Account
Collateral”
has
the meaning
set forth in Section 5.01(d).
“Agreement”
means
this
Security Agreement.
“Applicable
Law”
means,
with
respect to any Person, any and all laws, statutes, regulations, rules, orders,
injunctions, decrees, writs, determinations, awards and judgments issued by
any
Governmental Authority applicable to such Person.
“Bankruptcy
Code”
means
the Federal
Bankruptcy Reform Act of 1978, as amended from time to time (11 U.S.C. §101,
et seq.).
“Borrowers”
has
the meaning
set forth in the Preamble.
“Cash
Collateral Account”
has
the
meaning
set forth in
Section 4.01(a)(ii).
“CIG”
has
the meaning set
forth in the Preamble.
“Clearing
Agency”
has
the meaning
set forth in Section 4.10.
“Collateral”
means,
subject to
Section 5.01(e),
the Account
Collateral, the Security Collateral, the Payment Collateral and all other
property or assets with respect to which a Security Document executed by a
Grantor creates or grants, or states that it creates or grants, a Transaction
Lien.
“Collateral
Account”
has
the meaning
set forth in Section 4.01(a)(i).
"Collateral
Agent" has the meaning set forth in the Preamble.
“Company”
has
the meaning
set forth in the Preamble.
“Company
Payment
Collateral”
has
the meaning
set forth in Section 5.01(c).
“Credit
Agreement”
has
the meaning
set forth in the Preamble.
“Credit
Parties”
has
the meaning
set forth in the Preamble.
“Credit
Related Parties”
has
the meaning
set forth in the Preamble.
“Depository
Bank”
has
the meaning
set forth in the Preamble.
“Enforcement
Action”
means
the taking
of any or all of the following actions:
(a) applying
funds in
the Pledged Accounts (including by charging or exercising any contractual or
legal setoff rights) to the payment of the Secured Obligations;
(b) making
any demand
for, or receiving any, payment under the Subsidiary Guarantee Agreement or
the
Parent Guarantee Agreement;
(c) taking
any
Foreclosure Action or exercising any other power of sale or similar other rights
or remedies under any of the Security Documents;
(d) proceeding
to
protect and enforce the rights of the Secured Parties under this Agreement
or
any other Security Document by sale of the Collateral pursuant to judicial
proceedings or by a proceeding in equity or at law or otherwise, whether for
the
enforcement of any Transaction Lien or for the enforcement of any other legal,
equitable or other remedy available under this Agreement, any other Security
Document or Applicable Law;
(e) exercising
any of
the rights and remedies of a secured party with respect to the Collateral upon
default under the Uniform Commercial Code as in effect in any applicable
jurisdiction; and
(f) exercising
any
other right or remedy provided in this Agreement or otherwise available to
the
Collateral Agent, to the extent permitted by Applicable Law.
“Enforcement
Proceeds”
means
any cash,
securities or other consideration received from time to time by the Collateral
Agent as a result of the taking of any Enforcement Action in accordance with
the
Security Documents and Applicable Law, including, without limitation (a) any
balances then outstanding in the Pledged Accounts or received therein from
time
to time thereafter, including any Net Cash Proceeds then held in any Pledged
Account, (b) the proceeds of any Disposition or other Enforcement Action taken
pursuant to Article 6, and (c) proceeds of any Foreclosure Action or judicial
or
other non-judicial proceeding.
“EPNGC”
has
the meaning set
forth in the Preamble.
“Excluded
Payment Property”
means
any
property of a Grantor of the type described in (and not excluded from)
Section 5.01(b)(i) through (iv), to the extent that the grant of a security
interest therein or a Lien thereon would result in (i) a breach of or a default
under a provision which is not rendered ineffective by the UCC contained in
any
agreement in existence on the Effective Date to which the Company or any
Subsidiary of the Company is a party (other than (x) an agreement listed on
Annex I to the Officer’s Certificate delivered in connection with the legal
opinion rendered by Xxxxxxx Xxxxx LLP dated the date hereof or (y) an agreement
that can be amended solely by the Company and/or one or more of its
Subsidiaries), or (ii) a mandatory prepayment obligation under any such
agreement, or allow any party to any such agreement (other than the Company
or
any Subsidiary of the Company) to accelerate obligations due thereunder,
terminate any material contract right thereunder or exercise any put or call
right, right of refusal, purchase option or similar right thereunder.
“Excluded
Subsidiary Grantor Assets”
has
the meaning
set forth in Section 5.01(b).
“Federal
Book Entry Regulations”
means
(a) the
federal regulations contained in Subpart B (“Treasury/Reserve
Automated Debt Entry System (TRADES)”)
governing
book-entry securities consisting of U.S. Treasury bonds, notes and bills and
Subpart D of 31 C.F.R. Part 357, 31 C.F.R. § 357.2, § 357.10 through
§ 357.14 and § 357.41 through § 357.44 and (b) to the extent
substantially identical to the federal regulations referred to in clause (a)
above (as in effect from time to time), the federal regulations governing other
book-entry securities.
“Financing
Documents”
means
the Loan
Documents and the Secured Hedging Agreements.
“Foreclosure
Action”
means
the sale,
transfer or other Disposition by the Collateral Agent of all or any part of
the
Collateral at any public or private sale at such place and at such time as
the
Collateral Agent shall determine and in compliance with Applicable
Law.
“Grantors”
has
the meaning
set forth in the Preamble.
“Indemnified
Party”
has
the meaning
set forth in Section 9.01(a).
“Initial
Pledged Equity”
means,
with
respect to any Grantor, the Equity Interests set forth opposite such Grantor’s
name on and as otherwise described in Schedule II and issued by the Persons
named therein.
“Insolvency
Proceeding”
means,
with
respect to any Person, that (a) such Person shall (i) admit in writing its
inability to pay its debts generally, or shall fail to pay its debts generally
as they become due; or (ii) make a general assignment for the benefit of
creditors; or (b) any proceeding shall be instituted or consented to by such
Person seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for
it or for any substantial part of its property; or (c) any such proceeding
shall
have been instituted against such Person and either such proceeding shall not
be
stayed or dismissed for 60 consecutive days or any of the actions referred
to
above sought in such proceeding (including the entry of an order for relief
against it or the appointment of a receiver, trustee, custodian or other similar
official for it or any substantial part of its property) shall occur; or (d)
such Person shall take any corporate (or other Business Entity) action to
authorize any of the actions set forth above in this definition.
“JPMCB”
has
the meaning
set forth in the Preamble.
“Officer’s
Certificate”
means,
with
respect to any Person, a certificate substantially in the form of Exhibit A
hereto, signed by the president, any vice-president, the treasurer or the chief
financial officer of such Person.
“Payment
Collateral”
has
the meaning
set forth in Section 5.01(c).
“Pipeline
Company Borrowers”
has
the meaning
set forth in the Preamble.
“Pledged
Accounts”
has
the meaning
set forth in Section 4.01(a).
“Pledged
Company”
means
any issuer
of the Initial Pledged Equity or any successor entity to any such issuer;
provided
that, if all of
the Equity Interests issued by a Pledged Company and pledged by a Grantor to
the
Collateral Agent hereunder are released from the Transaction Liens in accordance
with the terms of this Agreement and the Credit Agreement, then from and after
such release, such issuer shall no longer be a Pledged Company.
“Pledged
Equity”
has
the meaning
set forth in Section 5.01(a)(ii).
“Pledged
Financial Assets”
means
all
financial assets credited from time to time to the Pledged
Accounts.
“Pledged
Security Entitlement”
means
all
security entitlements with respect to the Pledged Financial Assets.
“Process
Agent”
has
the meaning
set forth in Section 9.19(c).
“Qualified
Investments Account”
has
the meaning
set forth in Section 4.01(a)(iii).
“Remaining
Reinvestment Amount”
has
the meaning
set forth in Section 4.03(c).
“Secured
Hedging Agreement”
means
any Hedging
Agreement that (i) was entered into by any Borrower with a Person which was
at
the time such Hedging Agreement was entered into a Lender or an Affiliate of
a
Lender and (ii) either (A) is listed on Schedule VI hereto or (B) has been
designated as a Secured Hedging Agreement by the Company in a certificate signed
by a Financial Officer delivered to the Collateral Agent and the Administrative
Agent which (I) identifies such Hedging Agreement, including the name and
address of the other party thereto (which must be a Lender or an Affiliate
of a
Lender at the time of such designation), the notional amount thereof and the
expiration or termination date thereof, and (II) states that the applicable
Borrower’s obligations thereunder shall from and after the date of delivery of
such certificate be Secured Obligations for purposes hereof and of the other
Security Documents.
“Secured
Obligations”
means,
with
respect to each Grantor, the obligations, including all “Obligations” (as
defined in the Credit Agreement) and all “Guaranteed Obligations” (as defined in
the Parent Guarantee Agreement and the Subsidiary Guarantee Agreement) of such
Grantor, under (a) the Credit Agreement, the Parent Guarantee Agreement and/or
the Subsidiary Guarantee Agreement, as applicable, (b) this Agreement, (c)
any
other Loan Document to which such Grantor is a party, (d) any Secured Hedging
Agreement to which such Grantor is a party and (e) any agreement relating to
the
refinancing of the obligations referred to in the foregoing clauses (a) through
(d), and in the case of each of clauses (a) through (e) including interest
accruing at any post-default rate and Post-Petition Interest.
“Secured
Parties”
means,
collectively, the Lenders, the Issuing Banks, the Administrative Agent, the
Collateral Agent, each counterparty to a Secured Hedging Agreement and each
other Person that is a holder of any Secured Obligations.
“Security
Collateral”
has
the meaning
set forth in Section 5.01(a).
“Subsidiary
Grantor Payment
Collateral”
has
the meaning
set forth in Section 5.01(b).
“Subsidiary
Grantors”
has
the meaning
set forth in the Preamble.
“TGPC”
has
the meaning
set forth in the Preamble.
“UCC”
means
the Uniform
Commercial Code as in effect from time to time in the State of New York;
provided
that, if
perfection or the effect of perfection or non-perfection or the priority of
any
Transaction Liens on any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than New York, “UCC” means the Uniform
Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions hereof relating to such perfection, effect of
perfection or non-perfection or priority.
“Unused
Cash
Collateral”
has
the
meaning
set forth in
Section 4.02(c).
(c) Terms
defined in
Article 8 or 9 of the UCC and/or in the Federal Book Entry Regulations are
used
in this Agreement as such terms are defined in such Article
8
or
9
and/or the Federal
Book Entry Regulations.
Section
1.02 .
Principles of
Interpretation. 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 and Schedules shall be construed to
refer
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
and
(f)
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, and
(g)
all references to
“days” shall mean calendar days. This Agreement is the result of negotiations
among the parties thereto and their respective counsel. Accordingly, this
Agreement shall be deemed the product of all parties thereto, and no ambiguity
in this Agreement shall be construed in favor of or against any Credit Party
or
any Secured Party.
ARTICLE
2
[Reserved]
ARTICLE
3
Representations
And
Warranties
Section
3.01 .
Representations and Warranties of the Credit Parties. Each
Credit Party,
with respect to itself and its Subsidiaries, represents and warrants to the
Collateral Agent, for the benefit of the Secured Parties, that:
(a) With
respect to any
Credit Party that is a Grantor: (i)
such Credit
Party’s exact legal name is correctly set forth in Schedule III, (ii)
such Credit Party
is located (within the meaning of Section 9-307 of the UCC) and has its chief
executive office, in the state or jurisdiction set forth in Schedule III,
(iii)
the information
set forth in Schedule III with respect to such Credit Party is true and accurate
in all respects and (iv)
such Credit Party
has not, within the last five years, changed its legal name, location, chief
executive office, type of organization, jurisdiction of organization or
organizational identification number from those set forth in Schedule III,
except as disclosed in Schedule IV.
(b) Such
Credit Party
is duly organized or formed, validly existing and, if applicable, in good
standing in its jurisdiction of organization or formation. Such Credit Party
possesses all applicable Business Entity powers and all other authorizations
and
licenses necessary to engage in its business and operations as now conducted,
the failure to obtain or maintain which would have a Material Adverse
Effect.
(c) The
execution,
delivery and performance by such Credit Party of the Security Documents to
which
it is a party are within such Credit Party’s applicable Business Entity powers,
have been duly authorized by all necessary applicable Business Entity action,
and do not contravene (i) such Credit Party’s organizational documents or (ii)
any material contractual restriction binding on or affecting such Credit
Party.
(d) 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 such
Credit Party of any Security Document to which it is a party, except those
necessary to comply (i) with Applicable Laws in the ordinary course of such
Credit Party’s business or (ii) with ongoing obligations of such Credit Party
under the Security Documents to which it is a party and Sections 5.01, 5.02
and
5.07 of the Credit Agreement.
(e) This
Agreement
constitutes, and the other Security Documents when delivered shall constitute,
the legal, valid and binding obligations of each Credit Party that is a party
thereto, enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally or by general principles of equity.
(f) With
respect to any
Credit Party that is a Grantor, all Collateral pledged by such Credit Party
hereunder consisting of certificated securities has been delivered to the
Collateral Agent.
(g) With
respect to any
Credit Party that is a Grantor, this Agreement is effective to create in favor
of the Collateral Agent, for the ratable benefit of the Secured Parties, a
Lien
on, and security interest in, all right, title and interest of such Grantor
in
the Collateral pledged by such Credit Party hereunder as security for the
Secured Obligations, prior and superior in right to any other Lien (except
for
Collateral Permitted Liens), except in each case above as may be limited by
any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally. All financing statements have been filed
that are necessary to perfect any Transaction Lien that can be perfected by
the
filing of such financing statements and all actions necessary to provide control
to the Collateral Agent with respect to Collateral pledged by such Credit Party
hereunder for which control can be established have been taken, including
delivery of such Collateral consisting of certificated securities to the
Collateral Agent, duly endorsed for transfer or accompanied by duly executed
instruments of transfer.
(h) With
respect to any
Credit Party that is a Grantor, the Pledged Equity pledged as Collateral by
such
Credit Party to the Collateral Agent hereunder has (to the extent applicable)
been duly authorized and validly issued and is fully paid and non-assessable.
With respect to any Equity Interests pledged by such Credit Party to the
Collateral Agent hereunder that are uncertificated securities, such Credit
Party
has caused the issuer thereof to agree in an authenticated record with such
Credit Party and the Collateral Agent that such issuer will comply with
instructions with respect to such uncertificated securities originated by the
Collateral Agent without further consent of such Credit Party and has delivered
a copy of such authenticated record to the Collateral Agent. If such Credit
Party is a Pledged Company, such Credit Party confirms that it has received
notice of such security interest.
(i) With
respect to any
Credit Party that is a Grantor, the Initial Pledged Equity pledged as Collateral
by such Credit Party to the Collateral Agent hereunder constitutes 100% of
the
issued and outstanding Equity Interests of each issuer thereof.
All
representations
and warranties made by the Credit Parties herein, and in any other Security
Document delivered pursuant hereto, shall survive the execution and delivery
by
the Credit Parties of the Security Documents. The Credit Parties shall deliver
to the Collateral Agent amended and restated schedules (the “Amended
Schedules”)
to this
Agreement in the event that any information contained on the schedules attached
hereto becomes inaccurate. Such Amended Schedules shall replace the schedules
provided by the Credit Parties on the Effective Date, and shall be deemed the
schedules to this Agreement. Each Credit Party will
not change its
name, identity, corporate structure (including, without limitation, its
jurisdiction of formation) or the location of its registered office without
(i)
giving the Collateral Agent at least 30 days’ prior written notice clearly
describing such new name, identity, corporate structure or new location and
providing such other information in connection therewith as the Collateral
Agent
may reasonably request, (ii) receiving approval from the Collateral Agent to
effect such change and (iii) taking all action satisfactory to the Collateral
Agent at the expense of such Credit Party as the Collateral Agent may request
to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected with the same
priority and in full force and effect.
ARTICLE
4
Pledged
Accounts
Section
4.01 .
Creation of
Pledged Accounts. (a)
The Collateral
Agent is hereby directed by the Company and each Grantor to cause to be
established on or before the date hereof with, and maintained thereafter by,
the
Depository Bank at its offices in New York City, New York (ABA No. 000000000),
in the name of the Collateral Agent as entitlement holder and under the sole
control and dominion of the Collateral Agent and subject to the terms of this
Agreement, the following segregated securities accounts (collectively, the
“Pledged
Accounts”):
(i) a
master collateral
account, Account No. 00000000 (the “Collateral
Account”),
into which
Mandatory Asset Prepayment Amounts will be deposited and to which Unused Cash
Collateral and certain amounts described in Section
4.03(f)
will be
transferred;
(ii) (A)
a cash
collateral account, Account No. 00000000 (the “Cash
Collateral Account”),
into which
certain amounts will be deposited in respect of Letters of Credit and (B) a
cash
collateral account, Account No. 00000000.1 (the “Excess
Cash
Account”),
into which
certain amounts will be deposited in respect of Secured Hedging Agreements;
and
(iii) an
account, Account
No. 00000000 (the “Qualified
Investments Account”),
from which the
Company, on behalf of the Restricted Subsidiaries, may direct the Collateral
Agent to direct the Depository Bank to pay funds to the Company to make
Qualified Investments as permitted under the Loan Documents.
(b) Commencing
with the
date hereof and continuing until the termination of the Transaction Liens in
accordance with Section 5.07(b), each Pledged Account shall be established
and
maintained by the Depository Bank as a securities account at its offices in
New
York City, New York, in the name of and under the sole dominion and control
of
the Collateral Agent; provided
that the Cash
Collateral Account may be terminated at such time as: (i)
all Letters of
Credit shall have expired or been paid, settled, satisfied, released, or
otherwise terminated, (ii) all LC Disbursements shall have been reimbursed,
(iii) all LC Commitments and all commitments of the Lenders to participate
in
Letters of Credit shall have been terminated and (iv) all amounts on deposit
in
the Cash Collateral Account shall have been distributed to the Administrative
Agent or the Collateral Agent or have been transferred to the Collateral Account
as Unused Cash Collateral. The Collateral Agent shall cause each of the Pledged
Accounts to be, and each Pledged Account shall be, separate from all other
accounts held by or under the control or dominion of the Collateral Agent.
The
Company irrevocably confirms the authority of (and directs and authorizes)
the
Collateral Agent to, or to direct the Depository Bank to, and the Collateral
Agent agrees to, or to direct the Depository Bank to, deposit into, or credit
to, and transfer funds from the Pledged Accounts to the Collateral Agent, the
Administrative Agent, the other Secured Parties and the Company (or its
designee) in accordance with this Agreement and the other Loan
Documents.
(c) The
Secured Parties
and the Credit Parties acknowledge that the Collateral Agent may cause the
Depository Bank to establish subaccounts of the Qualified Investments Account,
and that such subaccounts may, at the Collateral Agent’s election, be either (i)
actual, separate accounts or (ii) notional accounts reflected in the Collateral
Agent’s records as accounting entries with respect to the actual Qualified
Investments Account maintained by the Depository Bank. Each such subaccount
shall constitute a Pledged Account hereunder, and each actual subaccount shall
be established and maintained by the Depository Bank as a securities account
at
its offices in New York City, New York, in the name of the Collateral
Agent.
(d) Unless
otherwise
specified in this Agreement, all references to the Qualified Investments Account
shall include references to all subaccounts thereof, and such subaccounts shall
be subject to the same restrictions and limitations as the Qualified Investments
Account.
(e) The
Company shall
not have any rights against or to moneys or funds on deposit in, or credited
to,
the Pledged Accounts, as third-party beneficiary or otherwise, except the right
of the Company to receive moneys or funds on deposit in, or credited to, the
Pledged Accounts, as required or permitted by this Agreement, and to direct
the
Collateral Agent as to the investment of moneys held in the Pledged Accounts
as
permitted by Section
4.04.
In no event shall any amounts or Cash Equivalents deposited into, or credited
to, any Pledged Account, be registered in the name of the Company, payable
to
the order of the Company, or specially endorsed to the Company, except to the
extent that the foregoing have been specially endorsed to the Depository Bank
or
endorsed in blank.
Section
4.02 .
Excess Cash
Account; Cash Collateral Account. (a)
The Company shall
deposit, or cause to be deposited, cash in the Excess Cash Account at the times
and in the amounts required by Section 5.09 of the Credit Agreement.
Amounts deposited
in the Excess Cash Account shall be held therein as Collateral for the Secured
Obligations, provided
that the
Collateral Agent shall, to the extent required by (and otherwise on the terms
set forth in) the proviso to Section 5.09 of the Credit Agreement, release
and
pay over to the Company free of the Transaction Liens such amounts as provided
in such proviso. If an Event of Default shall have occurred and be continuing,
the Collateral Agent may, at the direction of the Majority Lenders, apply funds
in the Excess Cash Account in accordance with Section
6.02.
(b) Amounts
deposited
in the Cash Collateral Account shall be held therein, subject to the following
provisions :
(i) If
any Letter of
Credit is drawn, in whole or in part, and not reimbursed by the applicable
Borrower within the period specified in Section 2.04(e) of the Credit Agreement,
the Issuing Bank with respect to such Letter of Credit may request, whereupon
the Collateral Agent shall within three Business Days after receipt of such
request, direct the Depository Bank to promptly distribute to such Issuing
Bank
an amount equal to the lesser of (x) the amount of the LC Disbursement in
respect of such Letter of Credit that has not been reimbursed by or on behalf
of
such Borrower and (y) the total amount available in the Cash Collateral Account
at such time.
(ii) Upon
the request of
the Company at a time when no Event of Default is continuing, the Collateral
Agent shall direct the Depository Bank to distribute any funds in the Cash
Collateral Account (other than, prior to the Final Payment Date, funds deposited
in the Cash Collateral Account pursuant to Section 2.09(c) of the Credit
Agreement) to the Company (or to the Company’s designee) to be used by the
Company for general corporate purposes, or to be used by such designee for
any
lawful purpose.
(iii) If
an Event of
Default shall have occurred and be continuing, the Collateral Agent may, at
the
direction of the Majority Lenders, apply funds in the Cash Collateral Account
in
accordance with Section
6.02.
(c) If
any Letter of
Credit, or any portion thereof, has terminated, expired or otherwise been
released or satisfied undrawn and, as a result, the total amount of funds in
the
Cash Collateral Account, as of such date, exceeds 105% of the aggregate amount
of LC Exposure, as of such date, then (i) the Collateral Agent shall, upon
any
request therefor from the Company, direct the Depository Bank to transfer such
excess of funds on deposit in the Cash Collateral Account (any such amount,
“Unused
Cash
Collateral”)
into the
Collateral Account; and (ii) such Unused Cash Collateral shall be applied in
accordance with Section 2.09 of the Credit Agreement and Section
6.02.
Section
4.03 .
Qualified
Investments Account. (a)
If a
FERC-Regulated Restricted Subsidiary receives Net Cash Proceeds from the
Disposition of a Covered Asset as described in clause (d) of the definition
of
“Mandatory Asset Reduction Event”, then the Company shall deposit, or cause to
be deposited, into the Collateral Account, within five days after such receipt,
the amount, if any, by which the portion of such Net Cash Proceeds that is
not
deemed to have been invested in Qualified Investments described in clause
(a)(ii) or (a)(iii) of the definition thereof exceeds $100,000,000.
(b) If
an Unregulated
Restricted Subsidiary receives Net Cash Proceeds from the Disposition of a
Covered Asset as described in clause (d) of the definition of “Mandatory Asset
Reduction Event”, then the Company shall deposit, or cause to be deposited, into
the Collateral Account, within five days after such receipt, the portion of
such
Net Cash Proceeds that is not deemed to have been invested in Qualified
Investments described in clause (b)(ii) or (b)(iii) of the definition
thereof.
(c) So
long as no Event
of Default has occurred and is continuing within one Business Day after receipt,
the Collateral Agent shall direct the Depository Bank to transfer the funds
deposited into the Collateral Account pursuant to Section
4.03(a)
or 4.03(b)
(in either case,
for each Disposition, the “Remaining
Reinvestment Amount”)
to the Qualified
Investments Account.
(d) If
funds are to be
transferred to the Qualified Investments Account pursuant to Section 4.03(c)
and
after giving effect to such transfer the Qualified Investments Account would
contain funds in respect of the Covered Assets of more than one Restricted
Subsidiary, or in respect of more than one Covered Asset of a single Restricted
Subsidiary, the Collateral Agent shall cause the Depository Bank to establish
and maintain individual securities subaccounts, or the Collateral Agent shall
establish in its accounting records notional subaccounts (each, a “Qualified
Investments Subaccount”),
in each case
within the Qualified Investments Account, for each such Restricted Subsidiary
or
each such Covered Asset.
(e) For
the period from
the initial transfer of the Remaining Reinvestment Amount to the Qualified
Investments Account, until the date, if ever, on which the failure of the
applicable Restricted Subsidiary to invest such Remaining Reinvestment Amount
in
Qualified Investments, requires application of all or a portion thereof in
accordance with Section 2.07(d) of the Credit Agreement, the Collateral Agent
shall, at the written direction of the Company from time to time, direct the
Depository Bank to pay such funds on deposit in the Qualified Investments
Account (or any applicable Qualified Investments Subaccount) to the Restricted
Subsidiary identified by the Company in the Officer’s Certificate described in
the following sentence. The written direction described in the preceding
sentence shall be accompanied by an Officer’s Certificate (i) setting forth the
name of the Restricted Subsidiary whose Disposition of Covered Assets resulted
in the deposit of the Remaining Reinvestment Amount that is being requested
to
be paid pursuant to such written direction, (ii) if such Restricted Subsidiary
is a FERC-Regulated Restricted Subsidiary, stating that all funds retained
by
such FERC-Regulated Restricted Subsidiary pursuant to Section
4.03(a) from
the Net Cash
Proceeds of all of its Dispositions of Covered Assets prior to the date of
such
certificate have been, or (by making the currently proposed Qualified
Investment(s)) will be, used to make Qualified Investments, and (iii) describing
the Qualified Investment(s) to be made (or deemed made) by such Restricted
Subsidiary with such funds, pursuant to the definition of “Qualified
Investment”. Notwithstanding the foregoing, the Company shall have the right to
direct that funds on deposit in the Qualified Investments Account or any
applicable Qualified Investments Subaccount be paid to a FERC-Regulated
Restricted Subsidiary in respect of new Qualified Investments made or deemed
made by such FERC-Regulated Restricted Subsidiary only if, on the proposed
date
of such payment from the Qualified Investments Account or applicable Qualified
Investments Subaccount, the aggregate amount of Qualified Investments made
by
such FERC-Regulated Restricted Subsidiary after April 16, 2003 equals or exceeds
the sum of (1)
the product of (x)
$100,000,000 times (y) the number of such Dispositions of Covered Assets by
such
FERC-Regulated Restricted Subsidiary that have resulted in a deposit in the
Collateral Account, plus (2)
the aggregate Net
Cash Proceeds of Dispositions of Covered Assets by such FERC-Regulated
Restricted Subsidiary after April 16, 2003 that have not resulted in deposits
into the Collateral Account.
(f) If
a Mandatory
Asset Reduction Event described in clause (d) of the definition thereof shall
occur with the result that the Company is required to cause Loans to be prepaid
or Letters of Credit to be Cash Collateralized pursuant to Section 2.09(c)
of
the Credit Agreement (a “2.09 Application”), the Collateral Agent shall direct
the Depository Bank to transfer (i) if such Mandatory Asset Reduction Event
does
not occur during the pendency of an Event of Default, (A) an amount equal to
the
lesser of (x) the required 2.09 Application and (y) 80% of the funds remaining
in the Qualified Investments Account (or the applicable Qualified Investments
Subaccount) in respect of the applicable Disposition of Covered Assets to the
Collateral Account to be applied in accordance with Section 2.09(c) of the
Credit Agreement, and (B) any remaining funds in the Qualified Investments
Account (or the applicable Qualified Investments Subaccount) to the Company,
or
as the Company directs, to be used for general corporate purposes, or (ii)
if
such Mandatory Asset Reduction Event occurs concurrently with or during the
pendency of an Event of Default, 100% of the funds remaining in the Qualified
Investments Account (and in all applicable Qualified Investments Subaccounts)
in
respect of the applicable Disposition of Covered Assets to the Collateral
Account to be applied (x) to the extent of the required 2.09 Application, in
accordance with Section 2.09(c) of the Credit Agreement and (y) the balance,
in
accordance with Section 6.02 hereof.
(g) If
following the
application of a Mandatory Asset Reduction Amount in accordance with Section
2.07(d) of the Credit Agreement and any prepayment of Loans or Cash
Collateralization of outstanding Letters of Credit in connection therewith
pursuant to Section 2.09(c) of the Credit Agreement, there are remaining funds
in the Qualified Investments Account attributable to such Mandatory Asset
Reduction Amount, the Collateral Agent shall direct the Depository Bank to
transfer such remaining funds (i) if no Event of Default exists at the time,
to
the Company, or as the Company directs, to be used for general corporate
purposes, or (ii) if an Event of Default exists at the time, to the Collateral
Account to be applied in accordance with Section 6.02 hereof.
(h) The
Collateral
Agent shall effectuate any transfer required pursuant to Section
4.03(f)
or 4.03(g)
by giving
appropriate entitlement orders to the Depository Bank.
Section
4.04 .
Payments in
Trust. If,
notwithstanding
the instructions given or required to be given in accordance with this
Article
4,
any
payments required by any Security Document to be remitted to the Collateral
Agent are instead remitted to the Company or its Affiliates (it being the intent
and understanding of the parties hereto that such payments are not to be made
directly to the Company but directly to the Collateral Agent for deposit into,
or credit to, the relevant Pledged Account for application in accordance with
this Article
4),
then, to the fullest extent permitted by Applicable Law, the Company or such
other Person shall receive such payments into a constructive trust for the
benefit of the Secured Parties and subject to the Secured Parties’ security
interest, and shall (or shall use its best efforts to cause the Person receiving
such payments to) promptly remit them to the Collateral Agent for deposit into,
or credit to, the applicable Pledged Account designated by this Article
4.
Section
4.05 .
Investment of
Funds in Pledged Accounts. (a) The
Collateral
Agent will promptly direct the Depository Bank to (i)
invest amounts on
deposit in, or credited to, the Pledged Accounts in Cash Equivalents which
are
deposited into, or credited to, each such Pledged Account, (ii)
invest any
interest paid on the Cash Equivalents referred to in clause (i)
above, and
(iii)
reinvest other
proceeds of any such Cash Equivalents that may mature or be sold, in each case,
in Cash Equivalents which are deposited into, or credited to, such Pledged
Account, in each case as the Company may select and instruct the Collateral
Agent, unless, to the knowledge of the Collateral Agent, any Event of Default
has occurred and is continuing, in which event the Collateral Agent shall direct
the Depository Bank to invest such amounts in Cash Equivalents as the Collateral
Agent may direct. If no Event of Default then exists, interest and proceeds
resulting from an investment of funds in any Pledged Account in Cash Equivalents
that are not invested or reinvested in Cash Equivalents shall be promptly
transferred to the Company to be used for general corporate purposes. In
addition, subject to any instructions from the Company (if not during the
pendency of an Event of Default), the Collateral Agent shall have the right
at
any time to direct the Depository Bank to exchange such Cash Equivalents for
similar Cash Equivalents of smaller or larger denominations.
(b) Unless
it has
received instructions from the Company in accordance with this Section
4.05
as to the investment of such funds, the Collateral Agent may direct the
Depository Bank to invest or reinvest any funds in any Pledged Account. All
investments and reinvestments of funds in the Pledged Accounts shall be made
in
the name of the Depository Bank.
(c) Whenever
directed
to make a transfer of funds from any of the Pledged Accounts in accordance
with
this Article
4,
the
Collateral Agent is hereby directed and authorized by the Company, the Borrowers
and the Grantors (for themselves and their respective Subsidiaries) to direct
the Depository Bank to liquidate (or cause to be liquidated) Cash Equivalents
(in order of their respective maturities with the Cash Equivalents with the
shortest maturities being liquidated first), to the extent that, after
application of all other funds available for such purpose pursuant to this
Article
4,
the
liquidation of any Cash Equivalent is necessary to make such
transfer.
(d) Neither
the
Collateral Agent nor the Depository Bank shall (in the absence of gross
negligence or willful misconduct, as finally determined by a court of competent
jurisdiction) have any liability with respect to any interest, cost or penalty
on the liquidation of any Cash Equivalent pursuant to this Agreement, nor shall
the Collateral Agent (in the absence of gross negligence or willful misconduct,
as finally determined by a court of competent jurisdiction) have any liability
with respect to Cash Equivalents (including purchases or conversions of foreign
exchange) or moneys deposited into, or credited to, the Pledged Accounts (or
any
losses resulting therefrom) invested in accordance with this Agreement. Without
limiting the generality of the foregoing, the Collateral Agent shall have no
responsibility for any investment losses resulting from the investment,
reinvestment or liquidation of all or a portion of funds in the Pledged
Accounts, if the Collateral Agent has made such investment, reinvestment or
liquidation, as applicable, in accordance with this Agreement.
(e) All
references in
this Agreement to Pledged Accounts and to cash, moneys or funds therein or
balances thereof, shall include the Cash Equivalents in which such cash, moneys,
funds or balances are then invested and the proceeds thereof, and all financial
assets and security entitlements carried in or credited to such Pledged
Accounts.
(f) (i)
Neither the
Collateral Agent nor any of its Affiliates assume any duty or liability for
monitoring the rating or performance of any Cash Equivalent. Subject to
Section
4.06,
in the event an investment selection is not made by the Company in accordance
with this Section
4.05,
the funds in the Pledged Accounts shall not be required to be invested but
may
be invested at the discretion of the Collateral Agent, and the Collateral Agent
shall not incur any liability for interest or income thereon. The Collateral
Agent shall have no obligation to cause the investment or reinvestment of the
funds in the Pledged Accounts if all or a portion of such funds is deposited
with the Collateral Agent after 11:00 a.m. (New York City time) on the day
of
deposit. Instructions to invest or reinvest that are received after 11:00 a.m.
(New York City time) will be treated as if received on the following Business
Day in New York. Requests or instructions received after 11:00 a.m. (New York
City time) by the Collateral Agent to liquidate all or a portion of funds in
any
Pledged Account will be treated as if received on the following Business Day
in
New York.
(ii) The
Credit Parties
acknowledge that non-deposit investment products (A)
are not
obligations of, nor guaranteed, by JPMCB or any of its Affiliates; (B)
are not FDIC
insured; and (C)
are subject to
investment risks, including the possible loss of principal amount
invested.
Section
4.06 .
Transfers
from Accounts During the Continuance of an Event of Default. During
the
existence and continuance of an Event of Default, the Collateral Agent shall
not
accept any instructions from the Company with respect to any transfer or
withdrawal of funds on deposit in, or credited to, any Pledged Account and,
in
such circumstances, the Collateral Agent may direct the investment, transfer
or
withdrawal of funds in the Pledged Accounts without further consent by the
Company.
Section
4.07 .
Reports,
Certification and Instructions. (a)
The Collateral
Agent shall maintain all such accounts, books and records as may be necessary
to
properly record all transactions carried out by it under this Agreement. The
Collateral Agent shall permit the Company and its Affiliates and their
authorized representatives to examine such accounts, books and records;
provided
that any such
examination shall occur upon reasonable notice and during normal business
hours.
(b) The
Collateral
Agent shall deliver to the Company copies of the account statements for all
Pledged Accounts (including all subaccounts) for each month. Such account
statements shall indicate, with respect to each such account, deposits, credits
and transfers, investments made and closing balances. The Collateral Agent
shall
provide any additional information or reports relating to the Pledged Accounts
and the transactions therein reasonably requested from time to time by the
Company or any Secured Party.
(c) Each
time the
Company directs the Collateral Agent to make or cause to be made a transfer
or
withdrawal from a Pledged Account, it shall be deemed to represent and warrant
for the benefit of the Collateral Agent and the other Secured Parties that
such
transfer or withdrawal is being made in an amount, and shall be applied solely
for the purposes permitted by, and is and will otherwise be in accordance with,
this Agreement and the Credit Agreement. Except to the extent any officer or
officers of the Collateral Agent responsible for the administration of this
Agreement has actual knowledge to the contrary, the Collateral Agent may
conclusively rely on, and shall incur no liability in so relying on, any such
direction.
(d) Notwithstanding
any
provision to the contrary contained in this Agreement, all notices,
certifications, approvals, directions, instructions or other communication
given
to the Collateral Agent with respect to any payments, transfers, credits,
deposits, withdrawals or investments with respect to, or otherwise relating
to,
any Pledged Account, in each case, by the Company or by any other Secured Party
shall be given in writing, and the Collateral Agent shall not be required to
take any action with respect to any payments, transfers, credits, deposits,
withdrawals or investments unless it has received such written instructions
specifying the date, amount and Pledged Account with respect to which such
payment, transfer, credit, deposit, withdrawal or investment is to be
made.
Section
4.08 .
Depository
Bank Undertakings. The
Depository Bank
hereby represents and warrants to, and agrees with the Company and the
Collateral Agent as follows:
(a) The
Depository Bank
(i)
is a securities
intermediary on the date hereof and (ii)
so long as this
Agreement remains in effect and JPMCB remains the Depository Bank hereunder,
shall remain a securities intermediary, and shall act as such with respect
to
the Company, the Collateral Agent, the Pledged Accounts and all of the Account
Collateral and any other property (including all financial assets and security
entitlements maintained or carried in the Pledged Accounts) from time to time
transferred to, credited to, deposited in, or maintained in the Pledged
Accounts.
(b) Each
of the Pledged
Accounts is, and shall remain, and the Depository Bank shall maintain each
of
the Pledged Accounts as, a securities account, with the Collateral Agent (and
no
other Person) as the entitlement holder and under the sole dominion and control
of the Collateral Agent for the ratable benefit of the Collateral Agent and
the
other Secured Parties.
(c) The
Depository Bank
(i)
has identified
(and will continue to identify) the Collateral Agent for the ratable benefit
of
the Secured Parties in its records as, and will treat the Collateral Agent
as
(A)
the sole Person
having a security entitlement against the Depository Bank with respect to the
Pledged Accounts and the Account Collateral from time to time carried in the
Pledged Accounts, (B)
the sole
entitlement holder against the Depository Bank with respect to each of the
Pledged Accounts, (C)
the sole Person
having dominion and control over each of the Pledged Accounts and any and all
assets, property and items from time to time carried in such Pledged Accounts
(including cash) and (D)
the sole Person
entitled to exercise the rights with respect to the Pledged Accounts; and
(ii)
has credited and
will continue to credit such assets, property and items to the Pledged Accounts
in accordance with written instructions given pursuant to, and the other terms
and conditions of, this Agreement.
(d) All
of the
property, including Account Collateral and cash, from time to time carried
in or
credited to the Pledged Accounts, shall constitute financial assets, and the
Depository Bank shall treat all such property as financial assets under Article
8 of the UCC.
(e) Notwithstanding
any
other provision in this Agreement to the contrary, the Depository Bank (i)
shall
comply with any and all entitlement orders and other directions originated
by,
and only by, the Collateral Agent in respect of the Pledged Accounts and the
Account Collateral from time to time carried therein without any further consent
or action by the Company or any other Person and (ii) shall not comply with
the
entitlement orders of any other Person.
(f) The
“securities
intermediary’s jurisdiction” (within the meaning of Section 8-110(e) of the UCC)
of the Depository Bank is and will continue to be the State of New
York.
(g) To
be binding on
the Depository Bank, all instructions by the Collateral Agent pursuant to this
Agreement with respect to the Account Collateral carried in the Pledged Accounts
must be given to the Depository Bank, and only pursuant to and subject to the
terms and conditions of this Agreement.
(h) Anything
herein to
the contrary notwithstanding, the Depository Bank will not be required to follow
any instruction that would violate any Applicable Law, decree, regulation or
order of any Governmental Authority (including any court or tribunal) or the
terms of this Agreement.
(i) The
Depository Bank
has not entered into and will not enter into any agreement with any other Person
relating to the Pledged Accounts or any Pledged Financial Assets credited
thereto pursuant to which it has agreed or will agree to comply with entitlement
orders of such Person. The Depository Bank has not entered into any other
agreement with the Company or any other Person purporting to limit or condition
the duties of the Depository Bank to comply with entitlement orders originated
by the Collateral Agent as set forth in Section
4.08(e).
(j) The
Depository Bank
hereby permanently waives and releases any Lien, right of setoff or other right
it may have against the Pledged Accounts and any Pledged Financial Assets or
Pledged Security Entitlements carried in or credited to the Pledged Accounts
and
any credit balance or cash in the Pledged Accounts, and agrees that it will
not
assert any such Lien or other right in, to or against the Pledged Accounts
or
any Pledged Financial Asset or Pledged Security Entitlement carried therein
or
credited thereto, or any credit balance or cash in the Pledged
Accounts.
(k) The
Depository Bank
will send copies of all statements and confirmations for and in respect of
the
Pledged Accounts simultaneously to the Company and the Collateral
Agent.
(l) All
securities or
other property underlying any financial assets consisting of Account Collateral
deposited in or credited to a Pledged Account shall be registered in the name
of
the Depository Bank, endorsed to the Depository Bank or in blank or credited
to
another securities account or securities accounts maintained in the name of
the
Depository Bank, and in no case will any financial asset consisting of Account
Collateral deposited in or credited to a Pledged Account be registered in the
name of the Company, payable to the order of the Company or specially endorsed
to the Company, except to the extent the foregoing have been specially endorsed
by the Company to the Depository Bank or in blank.
(m) If
any Person
(other than the Collateral Agent) asserts to the Depository Bank any Lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against any Account Collateral,
the
Depository Bank will as promptly as practicable thereafter notify the Company
and the Collateral Agent thereof.
Section
4.09 .
Force
Majeure. Neither
the
Collateral Agent nor the Depository Bank shall incur any liability for not
performing any act or fulfilling any obligation hereunder by reason of any
occurrence beyond its control (including any provision of any present or future
law or regulation or any act of any Governmental Authority, any act of God,
war
or terrorism, or the unavailability of the Federal Reserve Bank wire services
or
any electronic communication facility).
Section
4.10 .
Clearing
Agency. The
Account
Collateral in the Pledged Accounts may be held by the Collateral Agent directly
or through any clearing agency or depository including the Federal
Reserve/Treasury Book-Entry System for United States and federal agency
securities, and the Depository Trust Company (collectively, the “Clearing
Agency”).
The Collateral
Agent shall not have any responsibility or liability for the actions or
omissions to act on the part of any Clearing Agency. The Collateral Agent is
authorized, for any Collateral at any time held hereunder, to register the
Collateral in the name of one or more of its nominee(s) or the nominee(s) of
any
Clearing Agency in which the Collateral Agent has a participant account, and
such nominee(s) may sign the name of any Credit Party and guarantee such
signature in order to transfer securities or certify ownership thereof to tax
or
other Governmental Authorities.
Section
4.11 .
Return of
Funds to the Company. Upon
any request by
the Company following the release of the Transaction Liens in accordance with
Section 5.07(b), the Collateral Agent shall direct the Depository Bank to,
and
the Depository Bank shall promptly pay, transfer and deliver to or to the order
of the Company all moneys, investments, and other property held in, or credited
to, the Pledged Accounts, in each case, in accordance with the instructions
of
the Company and at the Company’s expense.
ARTICLE
5
Security
Interests
Section
5.01 .
Grant of
Security Interests. (a) Each
Subsidiary
Grantor hereby grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in such Subsidiary Grantor’s right, title
and interest in and to the following, in each case, as to each type of property
described below, whether now owned or hereafter acquired by such Subsidiary
Grantor, wherever located, and whether now or hereafter existing or arising
(collectively, the “Security
Collateral”):
(i) the
Initial Pledged
Equity and the certificates, if any, representing the Initial Pledged Equity,
and all dividends, distributions, return of capital, cash, instruments and
other
property from time to time received, receivable or otherwise distributed in
respect of, in exchange for, or in conversion of, any or all of the Initial
Pledged Equity and all subscription warrants, rights or options issued thereon
or with respect thereto;
(ii) all
additional
shares of stock and other Equity Interests of or in any Pledged Company from
time to time acquired by such Subsidiary Grantor in any manner (such shares
and
other Equity Interests, together with the Initial Pledged Equity, being the
“Pledged
Equity”),
and the
certificates, if any, representing such additional shares or other Equity
Interests, and all dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
Pledged Equity and all subscription warrants, rights or options issued thereon
or with respect thereto;
(iii) all
books and
records of such Grantor pertaining to the Security Collateral;
(iv) all
supporting
obligations, general intangibles and contract rights (including rights under
limited liability company agreements, limited partnership agreements and any
other organizational or constituent documents pursuant to which Pledged Equity
has been issued or which sets out rights with respect thereto), warranties,
indemnities or guaranties, in each case to the extent relating to, or payable
in
respect of, interests in the Security Collateral, and any tort claims (including
all commercial tort claims) arising in connection with interests in the Security
Collateral; and
(v) all
proceeds of the
foregoing Security Collateral.
(b) Each
Subsidiary
Grantor hereby grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in such Subsidiary Grantor’s right, title
and interest in and to the following (but excluding Excluded Subsidiary Grantor
Assets), in each case, as to each type of property described below, whether
now
owned or hereafter acquired by such Subsidiary Grantor, wherever located, and
whether now or hereafter existing or arising (all such property in which a
security interest is granted under this Section
5.01(b)
being,
collectively, the “Subsidiary
Grantor Payment
Collateral”):
(i) all
accounts and
payment intangibles owing to such Subsidiary Grantor by (A)
any Pipeline
Company Borrower or (B)
any other
Grantor;
(ii) all
instruments
owing to such Subsidiary Grantor by (A)
any Pipeline
Company Borrower or (B)
any other Grantor;
(iii) all
chattel paper
in respect of obligations payable to such Subsidiary Grantor with respect to
which the account debtor is (A)
any Pipeline
Company Borrower or (B)
any other Grantor;
and
(iv) all
proceeds of the
foregoing Subsidiary Grantor Payment Collateral.
Notwithstanding
the
foregoing, the Subsidiary Grantor Payment Collateral shall not include,
and
the Liens created under this Section
5.01(b)
shall not
encumber, (A)
any (1)
accounts owing to
any Exempted Guarantor by the Company, (2)
payment
intangibles owing to any Exempted Guarantor by the Company, (3)
instruments owing
to any Exempted Guarantor by the Company or (4)
chattel paper in
respect of obligations payable to any Exempted Guarantor with respect to which
the account debtor is the Company, or (B) any Excluded Payment Property of
any
Grantor (all of the property described in clause (A) and (B) of this sentence
being, collectively, the “Excluded
Subsidiary Grantor Assets”).
(c) The
Company hereby
grants to the Collateral Agent, for the ratable benefit of the Secured Parties,
a security interest in the Company’s right, title and interest in and to the
following (but excluding Excluded Payment Property of the Company), in each
case, as to each type of property described below, whether now owned or
hereafter acquired by the Company, wherever located, and whether now or
hereafter existing or arising (all such property in which a security interest
is
granted under this Section 5.01(c) being, collectively, the “Company
Payment Collateral”,
and together
with the Subsidiary Grantor Payment Collateral, the “Payment
Collateral”):
(i) all
accounts or
payment intangibles owing to the Company by (A) any Pipeline Company Borrower
or
(B) any Grantor (other than any Grantor that is an Exempted
Guarantor);
(ii) all
instruments
owing to the Company by (A) any Pipeline Company Borrower or (B) any Grantor
(other than any Grantor that is an Exempted Guarantor);
(iii) all
chattel paper
in respect of obligations payable to the Company with respect to which the
account debtor is (A) any Pipeline Company Borrower or (B) any Grantor
(other than any Grantor that is an Exempted Guarantor); and
(iv) all
proceeds of the
foregoing Company Payment Collateral.
Notwithstanding
the
foregoing, the Company Payment Collateral shall not include, and the Liens
created under this Section 5.01(c) shall not encumber, any Excluded Payment
Property of the Company.
(d) Each
Grantor hereby
grants to the Collateral Agent, for the ratable benefit of the Secured Parties,
a security interest in such Grantor’s right, title and interest in and to the
following, in each case, as to each type of property described below, whether
now owned or hereafter acquired by such Grantor, wherever located, and whether
now owned or hereafter existing or arising (collectively, the “Account
Collateral”):
(i) the
Pledged
Accounts, all Pledged Financial Assets, all Pledged Security Entitlements and
all property, funds, interest, dividends, distributions, cash, instruments
and
other property from time to time carried in or credited to any Pledged Account
or received, receivable or otherwise distributed in respect of or in exchange
for any or all of the foregoing, and all certificates and instruments, if any,
from time to time representing or evidencing the Pledged Accounts;
(ii) all
promissory
notes, certificates of deposit, deposit accounts, checks and other instruments
delivered (or required to be delivered) to or otherwise possessed by the
Collateral Agent for or on behalf of such Grantor, including those received
in
substitution for or in addition to any or all of the Account
Collateral;
(iii) all
interest,
dividends, distributions, cash, instruments and other property from time to
time
received, receivable or otherwise distributed in respect of or in exchange
for
any or all of the Account Collateral;
(iv) all
books and
records of such Grantor pertaining to any of the Account
Collateral;
(v) all
supporting
obligations, general intangibles, contract rights, warranties, indemnities
and
guaranties, in each case to the extent relating to, or payable in respect of,
the Account Collateral; and
(vi) all
proceeds of the
foregoing Account Collateral.
Section
5.02 .
Security for
Obligations. (a) In
the case of each
Grantor, the security interests granted by such Grantor pursuant to Sections
5.01(a) through (d) secure the payment and performance of all such Grantor’s
Secured Obligations, whether now existing or hereafter arising.
(b) Without
limiting
the generality of subsection (a) of this Section
5.02,
as to each Grantor, the security interests granted by such Grantor pursuant
to
Sections 5.01(a) through (d) secure the payment of all amounts that constitute
part of such Grantor’s Secured Obligations and would be owed by such Grantor but
for the fact they are unenforceable or not allowable due to the existence of
an
Insolvency Proceeding involving such Grantor.
Section
5.03 .
Delivery and
Control of Collateral. (a)
All certificates
or instruments representing or evidencing Security Collateral shall be delivered
to and held by or on behalf of the Collateral Agent pursuant hereto and shall
be
in suitable form for transfer by delivery, or shall be accompanied by duly
indorsed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Collateral Agent, but excluding checks,
certificates of title and other similar instruments. If an Event of Default
has
occurred and is continuing, the Collateral Agent shall have the right, in its
discretion and without notice to any Credit Party, to transfer to or to register
in the name of the Collateral Agent or any of its nominees any or all of the
Security Collateral, subject only to the revocable rights specified in
Section
5.08.
In addition, the Collateral Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Security Collateral
for
certificates or instruments of smaller or larger denominations.
(b) With
respect to any
Security Collateral in which any Grantor has any right, title or interest and
that constitutes an uncertificated security, such Grantor will cause the issuer
thereof to agree in an authenticated record with such Grantor and the Collateral
Agent that such issuer will comply with instructions with respect to such
Security Collateral originated by the Collateral Agent without further consent
of such Grantor, such authenticated record to be in form and substance
satisfactory to, and to be delivered to, the Collateral Agent. With respect
to
any Security Collateral in which any Grantor has any right, title or interest
and that is not an uncertificated security, upon the request of the Collateral
Agent, such Grantor will notify each such issuer of Pledged Equity that such
Pledged Equity is subject to the security interest granted
hereunder.
(c) Each
Grantor shall
deliver to the Collateral Agent all Payment Collateral pledged by it that
constitutes instruments or tangible chattel paper, accompanied by duly indorsed
instruments of transfer or assignment in blank, which instruments of transfer
or
assignment shall be in form reasonably satisfactory to the Collateral
Agent.
Section
5.04 .
Further
Assurances; Etc.. (a)
Each Grantor
agrees that from time to time, at the expense of such Grantor, such Grantor
will
promptly do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, pledge agreements,
collateral assignments, account control agreements, financing statements and
continuations thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as the Collateral Agent or the
Depository Bank may reasonably require from time to time in order to
(i)
carry out more
effectively the purposes of the Security Documents with respect to the
Collateral, (ii)
to the fullest
extent permitted by Applicable Law, subject its right, title and interest in
and
to the Collateral to the Transaction Liens, (iii)
perfect and
maintain the validity and effectiveness of the Security Documents and the
validity, effectiveness and priority of the Transaction Liens and (iv)
assure, grant,
collaterally assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter stated to be
granted to the Secured Parties in respect of the Collateral under any Security
Document or under any other instrument executed in connection with any Security
Document to which it is a party. Without limiting the generality of the
foregoing, each Grantor will promptly with respect to Collateral of such
Grantor: (A)
execute or
authenticate and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Collateral Agent may request, in order to perfect and
preserve the Transaction Liens; (B)
deliver and pledge
to the Collateral Agent for benefit of the Secured Parties certificates
representing Security Collateral that constitutes certificated securities,
accompanied by undated stock powers indorsed in blank, and deliver and pledge
to
the Collateral Agent for the benefit of the Secured Parties all tangible chattel
paper and all instruments constituting Collateral, together with duly indorsed
instruments of transfer or assignment in blank; (C)
take all action
necessary to ensure that the Collateral Agent has control of Collateral, if
any,
consisting of deposit accounts, as provided in Section 9-104 of the UCC, control
of the Account Collateral as provided in Sections 8-106 and 9-106 of the UCC,
and control of electronic chattel paper as provided in Section 9-105 of the
UCC;
and (D)
deliver to the
Collateral Agent evidence that all other action that the Collateral Agent may
reasonably request as necessary or desirable to perfect and preserve Transaction
Liens has been taken.
(b) Each
Grantor hereby
authorizes the Collateral Agent to file one or more financing or continuation
statements, and amendments thereto, including one or more financing statements
indicating that such financing statements cover all right, title and interest
of
such Grantor in and to the Collateral, in each case without the signature of
such Grantor. The Collateral Agent shall provide a copy of each such financing
statement to each Grantor. A photocopy or other reproduction of this Agreement
or any financing statement covering the Collateral or any part thereof shall
be
sufficient as a financing statement where permitted by law. Each Grantor
ratifies its authorization for the Collateral Agent to have filed such financing
statements, continuation statements or amendments filed prior to the date
hereof.
Section
5.05 .
Grantors
Remain Liable. Anything
herein to
the contrary notwithstanding, (a)
each Grantor shall
remain liable under any contracts and agreements included in such Grantor’s
Collateral (including, with respect to Security Collateral, any obligations
under limited liability company agreements, limited partnership agreements
and
any other organizational or constituent documents pursuant to which Pledged
Equity has been issued or which sets out obligations with respect to Security
Collateral) to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (b)
the exercise by
the Collateral Agent of any of the rights hereunder shall not release any
Grantor from any of its duties or obligations under the contracts and agreements
included in the Collateral and (c)
no Secured Party
shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement or any other Security
Document, nor shall any Secured Party be obligated to perform any of the
obligations or duties of any Grantor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
Section
5.06 .
Additional
Equity Interests. (a) Pledged
Equity.
Each Grantor
agrees that (i)
it will cause each
Pledged Company the Pledged Equity in which has been pledged by such Grantor
hereunder, not to issue any Equity Interests or other securities in addition
to
or in substitution for the Pledged Equity issued by such Pledged Company, except
to such Grantor, (ii)
it will pledge
hereunder, immediately upon such Grantor’s acquisition (directly or indirectly)
thereof, any and all additional Equity Interests issued by such Pledged Company,
and (iii)
it will cause all
such Equity Interests issued by such Pledged Company to be certificated
securities under Article 8 of the UCC and under Article 8 or Chapter 8 of the
Uniform Commercial Code as in effect in the jurisdiction of organization of
such
Pledged Company; provided,
however,
that this
Section
5.06
shall not limit any Grantor’s rights under Section
5.07(a)(ii).
(b) Ownership
of
Equity Interests in Grantors.
The Company
agrees and covenants that it will at all times own, directly or indirectly,
100%
of the outstanding Equity Interests (including all voting, economic and other
rights associated therewith) in each Grantor, except for the rights of the
Collateral Agent hereunder with respect to the Equity Interests in any Grantor
that is a Pledged Company.
(c) Ownership
of
Equity Interests in Pledged Companies.
Each Grantor
(including any successor thereto pursuant to a merger or consolidation permitted
under Section 6.05 of the Credit Agreement) agrees and covenants that (i) it
will at all times remain a registered organization, as defined in Section
9-102(70) of the UCC, and (ii) with respect to each Pledged Company in which
such Grantor has pledged Equity Interests hereunder, such Grantor will at all
times own directly 100% of the outstanding Equity Interests issued by such
Pledged Company (including voting, economic and other rights associated
therewith), except for the rights of the Collateral Agent
hereunder.
Section
5.07 .
Release of
Collateral. (a)
Partial
Release of Collateral.
(i) Payments
out of
Pledged Accounts.
Upon any payment
of amounts out of any Pledged Account (and not deposited into, or transferred
to, another Pledged Account) to (A)
the Administrative
Agent, the Collateral Agent or the Depository Bank in respect of amounts due
and
payable hereunder to such Persons or other Secured Parties, (B)
any Secured Party
or (C)
the Company or any
Restricted Subsidiary (or any other Person designated in writing by the Company
to the Collateral Agent to receive such payment), in each case in accordance
with the Security Documents, the Transaction Liens on such amount shall be
automatically released without further action or consent by the Collateral
Agent
or any other Person (including any Secured Party).
(ii) Release
of Lien
on Collateral.
Upon the
Disposition of any Collateral in a transaction permitted under the Credit
Agreement and the other Loan Documents, the Transaction Liens on such Collateral
shall be automatically released without further action or consent by the
Collateral Agent or any other Person (including any other Secured
Party).
(b) Full
Release of
Collateral.
On the earlier of
(A)
the Final Payment
Date or (B)
the date on which
the requisite percentage of the Lenders have approved the release of the
Transaction Liens in accordance with Section 10.02 of the Credit Agreement,
the
Transaction Liens shall be fully and automatically released without further
action by the Collateral Agent or any other Person (including any other Secured
Party), and all rights to the Collateral shall revert to the applicable
Grantor.
(c) Delivery
of
Releases and Return of Collateral.
Upon the release
of any Transaction Lien pursuant to this Section 5.07, the Collateral Agent
will, at the applicable Grantor’s expense, (i) execute and deliver to such
Grantor such release or releases (including Uniform Commercial Code partial
release or termination statements) as such Grantor shall reasonably request
to
evidence such release, and (ii) deliver to the applicable Grantors or their
designees designated in writing to the Collateral Agent such Collateral,
including any Assets in the Pledged Accounts and any certificates or instruments
representing or evidencing any such Collateral that is Security
Collateral.
Section
5.08 .
Voting
Rights, Dividends, Payments, Etc. (a)
So long as no
Event of Default shall have occurred and be continuing:
(i) each
Grantor shall
be entitled to exercise any and all voting and other consensual rights
pertaining to the Security Collateral (including rights relating to conversion
or exchange thereof) of such Grantor or any part thereof at any time and for
any
purpose; provided
that such Grantor
will not exercise or refrain from exercising any such right if such action
would
violate this Agreement;
(ii) except
as provided
in Section
5.08(b),
each Grantor
shall be entitled to receive and retain any and all cash dividends, interest
and
other cash distributions paid in respect of the Security Collateral of such
Grantor;
(iii) each
Grantor shall
be entitled to receive and retain all payments made on or in respect of Payment
Collateral pledged by such Grantor; and
(iv) the
Collateral
Agent will (A)
execute and
deliver (or cause to be executed and delivered) to each Grantor all such proxies
and other instruments as such Grantor may reasonably request for the purpose
of
enabling such Grantor to exercise the voting and other rights that it is
entitled to exercise pursuant to paragraph (i)
above (including,
in the case of a conversion or exchange of Pledged Equity, the Collateral
Agent’s delivering to the Pledged Company, as applicable, on behalf of the
applicable Grantor, the certificate(s) or instrument(s) representing or
evidencing any such Collateral for the purpose of effecting the exchange of
such
certificate(s) or instrument(s) for new certificate(s) or instrument(s)) and
to
receive the dividends, interest or other distributions that it is authorized
to
receive and retain pursuant to paragraph (ii)
above, and
(B)
with respect to
Payment Collateral, provide such instructions to account debtors and Persons
obligated to make payments on instruments as will enable each Grantor to receive
all payments it is authorized to receive and retain pursuant to paragraph
(iii)
above. In the
absence of instructions to vote or exercise other rights, the Collateral Agent
shall not be obligated and shall incur no liability for its failure to take
any
action in respect of such rights.
(b) The
Collateral
Agent shall be entitled to receive (whether or not an Event of Default has
occurred and is continuing), (i)
all non-cash
dividends and distributions (including distributions upon conversion or exchange
of Security Collateral) paid in respect of Security Collateral, which shall
be
held by the Collateral Agent as Security Collateral, and (ii)
all cash
dividends, interest and other cash distributions in respect of Security
Collateral distributed in exchange for, in redemption of, or in connection
with
a partial or total liquidation or dissolution or with a reduction of capital,
capital surplus or paid-in-surplus, which distributions described in this clause
(ii)
shall be deposited
in the Collateral Account and held and administered as Account Collateral,
provided,
however,
that a Credit
Related Party that receives a dividend from a FERC-Regulated Restricted
Subsidiary shall not be required to deliver such funds to the Collateral Agent
so long as (x) such funds are not proceeds of a Mandatory Asset Reduction Event
and (y) such funds are otherwise transferred to the Company. Each issuer of
Pledged Equity that is a party to this Agreement agrees to pay and deliver
all
dividends, distributions and interest described in this Section
5.08(b)
on such Pledged
Equity directly to the Collateral Agent. With respect to any Pledged Equity
issued in conversion or exchange of Pledged Equity issued by an issuer that
is
not a Pledged Company, the Grantor that has pledged such Pledged Equity shall
instruct the issuer to deliver directly to the Collateral Agent the Pledged
Equity so issued in the exchange or conversion. Any and all dividends,
distributions and interest described in this Section
5.08(b)
that are received
by a Grantor contrary to the provisions of this Section
5.08(b),
shall be received
in trust for the benefit of the Collateral Agent, shall be segregated from
the
other property or funds of such Grantor, and shall promptly be delivered or
paid
over to the Collateral Agent and held and administered as above provided in
this
Section
5.08(b).
(c) Upon
the occurrence
and during the continuance of any Event of Default:
(i) all
rights of each
Grantor to exercise or refrain from exercising the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to Section
5.08(a)(i)
shall, upon
delivery by the Collateral Agent to such Grantor of a written notice of such
Event of Default, cease, and all such rights shall thereupon become vested
in
the Collateral Agent, which shall thereupon have the sole right to exercise
or
refrain from exercising such voting and other consensual rights;
(ii) all
rights of each
Grantor to receive the dividends, interest and other distributions that it
would
otherwise be authorized to receive and retain pursuant to Section
5.08(a)(ii)
shall, upon
delivery by the Collateral Agent to such Grantor of a written notice of such
Event of Default, cease, and all such rights shall thereupon become vested
in
the Collateral Agent, and any and all such cash dividends, interest and other
cash distributions received by such Grantor shall be promptly delivered to
the
Collateral Agent who shall cause the Depository Bank to deposit same in a
subaccount of the Cash Collateral Account to be administered in accordance
with
Section
4.02(b)(ii)
as Account
Collateral. With respect to any issuer of Pledged Equity that is a party to
this
Agreement, upon delivery by the Collateral Agent to such issuer of a written
notice of such Event of Default, such issuer shall thereafter pay and deliver
all dividends, distributions and interest described in this Section
5.08(c)(ii)
directly to the
Collateral Agent, until such issuer has received written notice from the
Collateral Agent that such Event of Default no longer exists. Each Grantor
that
has granted a security interest in Pledged Equity under this Agreement in an
issuer that is not a party to this Agreement, agrees to cause such issuer to
pay
and deliver all dividends, distributions and interest described in this
Section
5.08(c)(ii)
directly to the
Collateral Agent. Any such dividends, interest and distributions received by
a
Grantor contrary to the provisions of this Section
5.08(c)(ii)
shall be received
in trust for the benefit of the Collateral Agent, shall be segregated from
the
other funds of such Grantor and shall be promptly paid over to the Collateral
Agent who shall cause the Depository Bank to deposit same in a subaccount of
the
Cash Collateral Account to be administered as above provided in this
Section
5.08(c)(ii);
and
(iii) all
rights of each
Grantor to receive the payments on Payment Collateral that it would otherwise
be
authorized to receive and retain pursuant to Section
5.08(a)(iii)
shall, upon
delivery by the Collateral Agent to the Grantors and the Pipeline Company
Borrowers of a written notice of such Event of Default, cease and thereafter
all
such payments shall be made by the Grantor or the Pipeline Company Borrower,
as
applicable, that is the account debtor or Person obligated to make payment
on
such Payment Collateral, directly to the Collateral Agent, who shall cause
the
Depository Bank to deposit same in a subaccount of the Cash Collateral Account
to be administered in accordance with Section
4.02(b)(ii)
as Account
Collateral. Any such payments received by a Grantor contrary to the provisions
of this Section
5.08(c)(iii)
shall be received
in trust for the benefit of the Collateral Agent, shall be segregated from
the
other funds of such Grantor and shall be promptly paid over by such Grantor
to
the Collateral Agent who shall cause the Depository Bank to deposit same in
a
subaccount of the Cash Collateral Account to be administered in accordance
with
this Section
5.08(c)(iii).
Section
5.09 .
The
Collateral Agent Appointed Attorney-in-Fact. Each
Grantor hereby
irrevocably appoints the Collateral Agent such Grantor’s attorney-in-fact, with
full authority in the place and stead of such Grantor and in the name of such
Grantor or otherwise, from time to time, in the Collateral Agent’s discretion,
to take any action and to execute any instrument that the Collateral Agent
may
deem necessary or advisable to accomplish the purposes of this Agreement and
any
other Security Document with respect to the Collateral and the Collateral
Agent’s rights and remedies with respect thereto, including:
(a) to
ask for, demand,
collect, xxx for, recover, compromise, receive and give acquittance and receipts
for moneys due and to become due under or in respect of any of the
Collateral;
(b) to
receive, indorse
and collect any drafts or other instruments, documents and chattel paper, in
connection with clause (a)
above;
and
(c) to
file any claims
or take any action or institute any proceedings that the Collateral Agent may
deem necessary or desirable for the collection of any of the Collateral or
otherwise to enforce the rights of the Collateral Agent and any other Secured
Party with respect to any of the Collateral;
provided
that the
Collateral Agent shall not exercise the power and authority granted to it
pursuant to this Section 5.09 except during such period as a Default has
occurred and is continuing.
Section
5.10 .
Netting of
Accounts. Notwithstanding
any
other provision of this Agreement or the Credit Agreement, so long as no Event
of Default has occurred and in continuing, any Credit Related Party may reduce
(through the exercise of set-off or similar rights) the principal amount of
any
accounts, payment intangibles, instruments or chattel paper owed by it to
another Credit Related Party by the amount of any accounts, payment intangibles,
instruments or chattel paper owed to it or any of its Subsidiaries by such
other
Credit Related Party or any Subsidiaries of such other Credit Related
Party.
ARTICLE
6
Remedies
and
Enforcement
Section
6.01 .
Remedies and
Enforcement. (a) At
such time as any
Event of Default has occurred and is continuing, the Collateral Agent shall
have
the right to take such actions as are necessary or appropriate to enforce,
implement and administer the provisions hereof or of any other Security Document
that are applicable to any period during which an Event of Default has occurred
and is continuing, and without limiting the foregoing, the Collateral Agent
shall have and may exercise, enforce, implement and administer all rights,
privileges, powers, benefits and remedies granted to or arising in favor of
the
Collateral Agent under such provisions with respect to any such Event of
Default, including in each case referenced above the provisions of Section
4.02(b)(ii),
4.03(f),
4.05(a),
4.06,
5.03(a),
5.08,
and 5.09,
with respect to
any Net Cash Proceeds constituting Mandatory Asset Reduction Amounts, the
application or non-application of funds in Pledged Accounts, deposits or
transfers of funds into or from Pledged Accounts or subaccounts thereof,
delivery of funds from Pledged Accounts to the Collateral Agent, the right
to
direct investments, voting rights with respect to Security Collateral and powers
of attorney.
(b) At
such time as an
Event of Default has occurred and is continuing, the Collateral Agent shall
have
and in its discretion may exercise any or all of the following rights and
remedies:
(i) Enforcement
Actions.
The Collateral
Agent may take any Enforcement Action or Enforcement Actions (at such times,
places and by such methods, as the Collateral Agent shall determine, including
any actions incidental to carrying out any such Enforcement Action) in order
to
enforce the Security Documents and to realize upon the Collateral or, in the
case of any Insolvency Proceeding against the Company or any of its
Subsidiaries, seeking to enforce the claims and/or Transaction Liens, including
claims under the Security Documents.
(ii) Sale;
Incidents
of Sale.
The Grantors
agree that, to the extent notice of sale shall be required by Applicable Law
with respect to the Disposition of any Collateral, at least ten days’ notice to
the Company of the time and place of any public Disposition or the time after
which any private Disposition is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any
Disposition of Collateral regardless of notice of Disposition having been given.
The Collateral Agent may adjourn any public or private Disposition from time
to
time by announcement at the time and place fixed therefor, and such Disposition
may, without further notice, be made at the time and place to which it was
so
adjourned. With respect to any Disposition of any of the Collateral made or
caused to be made by the Collateral Agent, whether made under the power of
Disposition hereby given or pursuant to judicial proceedings, to the extent
permitted by Applicable Law:
(A) Any
Secured Party,
the Company, and any of the Company’s Affiliates (including any Grantor) may bid
for, and purchase, the Collateral offered for sale, and, upon compliance with
the terms of sale and Applicable Law, may hold and Dispose of such property;
and
(B) Pursuant
to the
power of attorney granted under Section
5.09(a),
the Collateral
Agent may, but shall not be obligated to, make all necessary deeds, bills of
sale and instruments of assignment and transfer covering the Collateral Disposed
of, and for that purpose the Collateral Agent may execute all necessary deeds,
bills of sale and instruments of assignment and transfer, and may substitute
one
or more Persons with like power.
(iii) Collateral
Agent May File Proofs of Claim.
In case of the
pendency of any Insolvency Proceeding relative to the Company or any of its
Subsidiaries or the Collateral, the Collateral Agent (irrespective of whether
any of the outstanding Secured Obligations shall then be due and payable) shall
be entitled and empowered (but not obligated), by intervention in such
proceeding or otherwise, (A)
to file and prove
a claim for the whole amount of the Secured Obligations owing and unpaid in
order to protect the rights of the Secured Parties under the Security Documents
and with respect to the Collateral, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Collateral
Agent (including any claim for the reasonable compensation, disbursements and
advances of the Collateral Agent in its individual or trust capacity and its
agents and counsel) and of any other Secured Parties in respect of the Security
Documents and the Collateral allowed in such judicial proceeding and
(B)
to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Secured Party to make payments with
respect to such claims to the Collateral Agent.
(iv) Collateral
Agent May Enforce Claims.
All rights of
action and claims under this Agreement and the other Security Documents may
be
prosecuted and enforced by the Collateral Agent; provided
that the
Collateral Agent is also hereby appointed as agent for the other Secured Parties
for the purposes of protecting their interests in and to any portion of the
Collateral and under the Security Documents, and the Collateral Agent shall
take
such action solely as agent for the Secured Parties.
Section
6.02 .
Application
of Proceeds. If
an Event of
Default shall have occurred and be continuing and the Collateral Agent applies
(i) any cash held in the Pledged Accounts or (ii) the proceeds of any
Disposition of all or any part of the Collateral, such cash and/or proceeds
shall be applied to the Secured Obligations in the following order of
priorities:
first,to
pay the expenses
of such Disposition, including reasonable compensation to agents of and counsel
for the Collateral Agent, and all expenses, liabilities and advances incurred
or
made by the Collateral Agent in connection with the Security Documents, and
any
other amounts then due and payable to the Collateral Agent in its capacity
as
such pursuant to Section 9.01 hereof or Section 10.03 of the Credit
Agreement;
second,to
pay the unpaid
principal of all Borrowings and all unreimbursed LC Disbursements and to Cash
Collateralize all outstanding Letters of Credit, all ratably until the principal
of all Borrowings and all unreimbursed LC Disbursements shall have been paid
in
full and all Letters of Credit shall have been Cash Collateralized;
third,to
pay all other
amounts owed under the Credit Agreement and the other Loan Documents ratably,
until all such other amounts shall have been paid in full;
fourth,to
pay all other
Secured Obligations ratably (or provide for the payment thereof pursuant to
Section 5.09 of the Credit Agreement), until payment in full of all such other
Secured Obligations shall have been made (or so provided for); and
finally,to
pay to the
relevant Grantor, or as a court of competent jurisdiction may direct, any
surplus then remaining from the proceeds of the Collateral owned by
it;
provided
that Collateral
owned by a Subsidiary Grantor and any proceeds thereof shall be applied pursuant
to the foregoing clauses first,
second,
third
and fourth
only to the extent
permitted by the limitation in Section 2.01(b) of the Subsidiary Guarantee
Agreement. The Collateral Agent may make such distributions hereunder in cash
or
in kind or, on a ratable basis, in any combination thereof.
Section
6.03 .
Other
Remedies of Secured Parties. Except
as the same
relates to the Collateral or as otherwise expressly prohibited by this Agreement
or any other Security Document, each Secured Party may exercise any right or
power, enforce any remedy, give any direction, consent or waiver or make any
determination, under or in respect of any provision of any Financing Document
to
which it is a party. Notwithstanding the foregoing, no Secured Party other
than
the Collateral Agent shall have the right to take any Enforcement Action with
respect to the Collateral, the Parent Guarantee Agreement or the Subsidiary
Guarantee Agreement or seek to exercise and enforce the Transaction Liens,
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 the Subsidiary Guarantee Agreement or the Parent Guarantee
Agreement shall be construed to mean that such a demand is required in order
to
cause any obligation under the Subsidiary Guarantee Agreement or the Parent
Guarantee Agreement to become due and payable, it being understood that
obligations under the Subsidiary Guarantee Agreement and the Parent Guarantee
Agreement shall, respectively, become due and payable at such times as they
become due and payable under the terms of the Subsidiary Guarantee Agreement
and
the Parent Guarantee Agreement.
ARTICLE
7
Depository
Bank
Section
7.01 .
Depository
Bank. The
provisions of
Article 9 of the Credit Agreement shall inure to the benefit of the Depository
Bank to the same extent as if it were named as an Agent therein.
ARTICLE
8
[reserved]
ARTICLE
9
Miscellaneous
Section
9.01 .
Indemnity and
Expenses. (a) Each
Credit Party
agrees to indemnify (without duplication), defend and save and hold harmless
each of the Collateral Agent, the Depository Bank and the Secured Parties and
each of their Affiliates and their respective officers, directors, employees,
agents and advisors (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 (i)
this Agreement or
the other Security Documents, or (ii)
as a result of the
execution or delivery of this Agreement or the other Security Documents or
the
performance by the Credit Parties hereto and thereto of their respective
obligations hereunder and thereunder, except in each case of clause (i)
and (ii),
as to any
particular Indemnified Party, 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. The indemnification provisions of this Section
9.01(a)
are not intended
to constitute a guaranty of payment of any principal, interest, facility or
commitment fees, rental or other lease payments, or analogous amounts, under
any
Secured Obligations;
provided
that nothing in
this Section
9.01(a)
shall limit the
liability of any Credit Party for the payment of any Secured Obligation, to
the
extent such liability arises under any other Financing Document, including
any
liability arising under this Agreement.
(b) Each
Credit Party
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 and the other Security Documents, (ii)
the custody,
preservation, or the sale of, collection from or other realization upon, any
of
the Collateral of such Credit Party, (iii)
the exercise or
enforcement of any of the rights of the Collateral Agent or any other Secured
Party hereunder, or (iv)
the failure by
such Credit Party to perform or observe any of the provisions hereof required
to
be performed or observed by it.
(c) The
indemnities
provided by the Credit Parties pursuant to this Agreement shall survive the
expiration, cancellation, termination or modification of this Agreement or
the
other Security Documents, the resignation or removal of the Collateral Agent,
Depository Bank or Secured Parties and the provision of any subsequent or
additional indemnity by any Person.
(d) All
amounts due
under this Section
9.01
shall be payable not later than 30 days after the delivery of written demand
to
the Company therefor.
Section
9.02 .
Amendments;
Waivers, Etc. No
amendment,
modification or waiver of any provision of this Agreement or any other Security
Document, and no consent with respect to any departure by the Collateral Agent,
any other Secured Party or any Credit Party herefrom or therefrom, shall be
effective unless the same shall be in writing and signed by the Credit Parties
and the Collateral Agent in accordance with the Credit Agreement. Any such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
Section
9.03 .
Security
Interest Absolute and Waivers. (a) The
obligations of
each Credit Party under or in respect of this Agreement or any other Security
Document to which such Credit Party is a party are independent of the Secured
Obligations or any other obligations of any other Credit Party under or in
respect of the Financing Documents, and a separate action or actions may be
brought and prosecuted by the Collateral Agent against each Credit Party to
enforce this Agreement or any other Security Document to which such Credit
Party
is a party, irrespective of whether any action is brought against the Company
or
any other Credit Party or whether the Company or any other Credit Party is
joined in any such action or actions. All rights of the Collateral Agent and
the
other Secured Parties and the Liens granted by the Grantors hereunder, and
all
obligations of each Credit Party hereunder, shall be unaffected by, and each
Credit Party hereby irrevocably waives (to the maximum extent permitted by
applicable law) any defenses to its obligations under the Security Documents
that it may now have or may hereafter acquire, which defenses in any way relate
to, any or all of the following:
(i) any
lack of
validity or enforceability of any Financing Document or any other agreement
or
instrument relating thereto;
(ii) any
change in the
time, manner or place of payment of, or in any other term of, all or any of
the
Secured Obligations or any other obligations of any Credit Party under or in
respect of the Financing Documents or any other amendment or waiver of or any
consent to any departure from any Financing Document, including any increase
in
the Secured Obligations resulting from the extension of additional credit to
any
Credit Party or any of its Subsidiaries or otherwise;
(iii) any
Condemnation,
exchange, release or non-perfection of any Collateral or any other collateral,
or any release, amendment or waiver of, or consent to, or departure from any
Guaranty of all or any of the Secured Obligations;
(iv) any
manner of
application of any Collateral or any other collateral, or proceeds thereof,
to
all or any of the Secured Obligations, or any manner of sale or other
disposition of any Collateral or any other collateral for all or any of the
Secured Obligations or any other obligations of any Credit Party under or in
respect of the Financing Documents or any other assets of any Credit Party
or
any of its Subsidiaries;
(v) any
change,
restructuring or termination of the corporate structure or existence of any
Credit Party or any of its Subsidiaries;
(vi) any
failure of any
Secured Party to disclose to any Credit Party any information relating to the
business, condition (financial or otherwise), operations, performance, assets,
nature of assets, liabilities or prospects of any other Credit Party now or
hereafter known to such Secured Party (each Credit Party waiving any duty on
the
part of the Secured Parties to disclose such information);
(vii) the
failure of any
other Person to execute or deliver this Agreement or any other Security
Document, guaranty or agreement or the release or reduction of liability of
any
Credit Party or other grantor or surety with respect to the Secured Obligations;
or
(viii) any
other
circumstance (including any statute of limitations) or any existence of or
reliance on any representation by any Secured Party that might otherwise
constitute a defense available to, or a discharge of, such Credit Party or
any
other Credit Party or third party grantor of a secured interest, but
specifically excluding any defense or discharge arising as a result of
performance or indefeasible payment.
(b) This
Agreement
shall continue to be effective or be reinstated, as the case may be, if at
any
time any payment of any of the Secured Obligations is rescinded or must
otherwise be returned by any Secured Party or by any other Person upon the
insolvency, bankruptcy or reorganization of any Credit Party or otherwise,
all
as though such payment had not been made.
(c) Each
Credit Party
hereby unconditionally and irrevocably waives promptness, diligence, notice
of
acceptance, presentment, demand for performance, notice of nonperformance,
default, notice of intent to accelerate, acceleration, protest or dishonor
and
any other notice with respect to any of the Secured Obligations and this
Agreement or any other Security Document to which such Credit Party is a party
and any requirement that any Secured Party protect, secure, perfect or insure
any Lien or any property subject thereto or exhaust any right or take any action
against any Credit Party or any other Person or any Collateral.
(d) Each
Credit Party
hereby unconditionally and irrevocably waives any right to revoke this Agreement
or any other Security Document to which such Credit Party is a party and
acknowledges that this Agreement or any other Security Document to which such
Credit Party is a party is continuing in nature and applies to all Secured
Obligations, whether existing now or in the future.
(e) Each
Credit Party
hereby unconditionally and irrevocably waives (i)
any defense
arising by reason of any claim or defense based upon an election of remedies
by
the Collateral Agent that in any manner impairs, reduces, releases or otherwise
adversely affects the subrogation, reimbursement, exoneration, contribution
or
indemnification rights of such Credit Party or other rights of such Credit
Party
to proceed against any other Credit Party, any other guarantor or any other
Person or any Collateral and (ii)
any defense based
on any right of set-off or counterclaim against or in respect of the obligations
of such Credit Party hereunder.
(f) Each
Credit Party
and each of the Secured Parties confirms that it is the intention of all such
Persons that this Agreement, the other Security Documents and the obligations
of
each Credit Party hereunder or thereunder do not constitute a fraudulent
transfer or fraudulent conveyance for purposes of the Bankruptcy Code, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar foreign, federal or state law to the extent applicable to this
Agreement, any other Security Document and the obligations of each Credit Party
hereunder or thereunder or in connection with any Insolvency Proceeding in
respect of any Credit Party. To effectuate the foregoing intention, the
Collateral Agent, the other Secured Parties and the Subsidiary Grantors hereby
irrevocably agree that the obligations of each Subsidiary Grantor under this
Agreement and the other Security Documents at any time shall not exceed the
maximum amount as will result in the obligations of such Subsidiary Grantor
under this Agreement and the other Security Documents not constituting a
fraudulent transfer or fraudulent conveyance (after giving effect to Section
2.02 of the Subsidiary Guarantee Agreement).
(g) Each
Credit Party
acknowledges that it will receive substantial direct and indirect benefits
from
the financing arrangements contemplated by the Security Documents and that
the
waivers set forth in this Section
9.03
are knowingly made in contemplation of such benefits.
Section
9.04 .
Notices; Etc.
(a) Except
in the case
of notices and other communications expressly permitted to be given by telephone
(and subject to paragraph (b)
below), all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified
or
registered mail or sent by telecopy, as follows:
(i) if
to the Company,
any Pipeline Borrower or the Collateral Agent, to it at its address specified
in
or pursuant to Section 10.01 of the Credit Agreement;
(ii) if
to any Grantor,
to it c/o the Company at the address specified in or pursuant to clause
(i)
above;
(iii) if
to the
Depository Bank, to it at JPMorgan Chase Bank, N.A., Institutional Trust
Services, 0 Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
of
Xxxxx Xxxxx-XxXxxxxx (Telecopy No. (000) 000-0000.
(b) Notices
and other
communications among the Secured Parties, the Collateral Agent and/or the
Depository Bank hereunder may be delivered or furnished by electronic
communications.
The
Administrative Agent or a Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided
that approval of
such procedures may be limited to particular notices or
communications.
(c) Any
party hereto
may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions
of
this Agreement shall be deemed to have been given and effective, if sent by
mail
or courier on the date of delivery thereof to the address specified herein
for
such notice, or if by telecopier when the answerback is received or if by other
means, on the date of receipt; provided
that
a notice given
by telecopier or electronic communication in accordance with this Section
9.04
but received on any day other than a Business Day or after business hours in
the
place of receipt, will be deemed to be received on the next Business Day in
that
place.
Section
9.05 .
Continuing
Security Interest; Assignments. This
Agreement and
each other Security Document shall create a continuing security interest in
the
Collateral and shall (a)
remain in full
force and effect until terminated in accordance with its terms, (b)
be binding upon
each Credit Party, its successors and assigns and (c)
inure, together
with the rights and remedies of the Collateral Agent hereunder, to the benefit
of the Secured Parties and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c),
each Secured
Party may assign, sell or otherwise transfer all or any portion of its rights
and obligations in respect of any Secured Obligations held by it to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Party herein or otherwise,
in each case subject to the Financing Documents.
Section
9.06 .
[Reserved].
Section
9.07 .
Execution in
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
9.08 .
Severability.
If
any provision of
this Agreement shall be invalid, illegal or unenforceable, then to the extent
permitted by law, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
9.09 .
Integration.
This
Agreement and
the other Financing Documents represent the agreement of the parties hereto
with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any party relative to subject matter hereof
not
expressly set forth or referred to herein or in the other Financing
Documents.
Section
9.10 .
No
Partnership. Nothing
contained
in this Agreement and no action by any Secured Party is intended to constitute
or shall be deemed to constitute the Secured Parties (or any of them) a
partnership, association, joint venture or other entity.
Section
9.11 .
No Reliance.
No
Secured Party
has relied on any representation or warranty of any other Secured Party with
respect to this Agreement and the transactions contemplated hereunder unless
such representation or warranty has been set forth expressly in this
Agreement.
Section
9.12 .
Release.
On
the date hereof,
without further action by any party to this Agreement or the Existing Security
Agreement, each of the Released Parties shall cease to be a Subsidiary Grantor
under the Existing Security Agreement, and shall not be deemed a Subsidiary
Grantor under this Agreement.
Section
9.13 .
No
Impairment. Nothing
in this
Agreement is intended or shall be construed to impair, diminish or otherwise
adversely affect any other rights the Secured Parties may have or may obtain
against the Company, any other Credit Party or any other Person.
Section
9.14 .
Equitable
Remedies. Each
party to this
Agreement acknowledges that the breach by it of any of the provisions of this
Agreement is likely to cause irreparable damage to the other party. Therefore,
the relief to which any party shall be entitled in the event of any such breach
or threatened breach shall include, but not be limited to, a mandatory
injunction for specific performance, injunctive or other judicial relief to
prevent a violation of any of the provisions of this Agreement, damages and
any
other relief to which it may be entitled at law or in equity.
Section
9.15 .
Remedies.
(a)
Other than as
stated expressly herein, no remedy herein conferred upon the Collateral Agent
or
any other Secured Party is intended to be exclusive of any other remedy and
each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Agreement or the other Financing Documents, or
now
or hereafter existing at law or in equity or by statute or
otherwise.
(b) As
between the
Credit Parties and each Secured Party, it is agreed that the amounts payable
by
the Company at any time in respect of the Secured Obligations shall be a
separate and independent debt and each Secured Party shall be entitled, subject
to Section
6.03,
to protect and enforce its rights arising out of the Financing Documents to
which it is a party and its right, pursuant to the terms of any Financing
Document to which it is a party, to cancel or suspend its commitments thereunder
and to accelerate the maturity of any of the Secured Obligations, in each case
in accordance with the applicable Financing Documents, and, except as aforesaid,
it shall not be necessary for any other Secured Party to consent to, or be
joined as an additional party in, any proceedings for such
purposes.
(c) In
case the
Collateral Agent shall have proceeded to enforce any right, remedy or power
under this Agreement or any other Security Document and the proceeding for
the
enforcement thereof shall have been discontinued or abandoned for any reason
or
shall have been determined adversely to the Collateral Agent, then and in every
such case the Credit Parties and the Secured Parties shall, subject to any
effect of or determination in such proceeding, severally and respectively be
restored to their former positions and rights under this Agreement or any other
Security Document and thereafter all rights, remedies and powers of the Secured
Parties shall continue as though no such proceeding had been taken.
Section
9.16 .
Limitations.
(a)
The obligations,
liabilities or responsibilities of any party hereunder shall be limited to
those
obligations, liabilities or responsibilities expressly set forth and attributed
to such party pursuant to this Agreement or otherwise applicable under
Applicable Law.
(b) In
no event shall
any Secured Party be liable for, and each of the Credit Parties hereby agrees
not to assert any claim against any Secured Party, on any theory of liability,
for consequential, incidental, indirect, punitive or special damages arising
out
of or otherwise relating to this Agreement, the other Financing Documents,
any
of the transactions contemplated herein or therein, or the actual or proposed
use of the proceeds of any Loan, Letter of Credit or Secured Hedging
Agreement.
Section
9.17 .
Survival.
Notwithstanding
anything in this Agreement to the contrary, Sections 9.01,
9.17,
9.19,
9.20
and 9.21
shall survive any
termination of this Agreement. In addition, each representation and warranty
made or deemed to be made hereunder shall survive the Effective
Date.
Section
9.18 .
[Reserved].
Section
9.19 .
Jurisdiction,
Etc. (a)
Each of the
parties hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State
of
New York, sitting in New York County, and of the United States District Court
for the Southern District of New York, and any appellate court from any thereof,
in any action or proceeding by the Collateral Agent or any Secured Party arising
out of or relating to this Agreement or any of the other Security Documents
to
which it is a party or under which it is a beneficiary, or for recognition
or
enforcement of any judgment obtained in any such action or proceeding, and
each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State court or, to the fullest extent permitted by law, in
such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any Secured Party may
otherwise have to bring any action or proceeding relating to this Agreement,
the
Security Documents or any of the other Financing Documents in the courts of
any
jurisdiction.
(b) Each
of the parties
irrevocably and unconditionally waives, to the fullest extent it may legally
and
effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any of the other Security Documents to which it is a party in
any
court referred to in paragraph (a)
of this Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each
party to this
Agreement irrevocably consents to service of process in any action or proceeding
referred to in this Section 9.19 by the mailing thereof by certified mail,
return receipt requested, addressed as provided in Section
9.04(a),
with a copy
thereof to the “General Counsel” of such Person at such same address. Each
Grantor also hereby irrevocably 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 such Grantor and its property service
of
copies of the summons and complaint and any other process which may be served
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, the Security
Documents or any other Financing Documents. Such service may be made by
delivering a copy of such process to the relevant Grantor 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
relevant Grantor’s address specified pursuant to Section
9.04(a),
and each Grantor
hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by
law.
Section
9.20 .
GOVERNING
LAW. THIS
AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF
NEW YORK.
Section
9.21 .
Waiver of
Jury Trial. EACH
PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (b) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS
SECTION.
IN
WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of the date first
above written.
|
THE
COMPANY
|
EL
PASO
CORPORATION
|
|
By:
/S/ XXXX
XXXXXX
|
|
|
Name:
Xxxx
Xxxxxx
|
|
|
Title:
Vice
President
|
|
PIPELINE
COMPANY BORROWERS:
|
COLORADO
INTERSTATE GAS COMPANY
|
|
By:
/S/ XXXX
XXXXXX
|
|
|
Name:
Xxxx
Xxxxxx
|
|
|
Title:
Vice
President
|
|
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
TENNESSEE
GAS
PIPELINE COMPANY
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
SUBSIDIARY
GRANTORS:
|
EL
PASO CNG
COMPANY, L.L.C.
|
|
By:
/S/ XXXX
XXXXXX
|
|
|
Name:
Xxxx
Xxxxxx
|
|
|
Title:
Vice
President
|
|
EL
PASO EPNG
INVESTMENTS, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
EL
PASO NORIC
INVESTMENTS III, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
EL
PASO
TENNESSEE PIPELINE CO.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
EL
PASO TGPC
INVESTMENTS, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
RELEASED
PARTIES:
|
ANR
PIPELINE
COMPANY
|
|
By:
/S/ XXXX
XXXXXX
|
|
|
Name:
Xxxx
Xxxxxx
|
|
|
Title:
Vice
President
|
|
EL
PASO ANR
INVESTMENTS, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
EL
PASO ANRS
INVESTMENTS, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
EL
PASO CNG
COMPANY, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
EL
PASO WIC
INVESTMENTS, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
SABINE
RIVER
INVESTORS III, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
SABINE
RIVER
INVESTORS IV, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
SABINE
RIVER
INVESTORS V, L.L.C.
|
|
|
By:
|
/S/
XXXX
XXXXXX
|
|
Name: Xxxx
Xxxxxx
|
|
|
Title: Vice
President
|
|
|
COLLATERAL
AGENT:
|
JPMORGAN
CHASE BANK, N.A., as Collateral Agent
|
|
By:
/S/ XXXXX
X. XXXXX
|
|
|
Name:
Xxxxx
X. Xxxxx
|
|
|
Title:
Assistant Vice President
|
|
DEPOSITORY
BANK:
|
JPMORGAN
CHASE BANK, N.A., as Depository Bank
|
|
By:
/S/ XXXXX
X. XXXXX
|
|
|
Name:
Xxxxx
X. Xxxxx
|
|
|
Title:
Assistant Vice President
|
SCHEDULE
I
SUBSIDIARY
GRANTORS
El
Paso CNG Company, L.L.C.
El
Paso EPNG Investments, L.L.C.
El
Paso Noric Investments III, L.L.C.
El
Paso Tennessee Pipeline Co.
El
Paso TGPC Investments, L.L.C.
