AMENDED AND RESTATED SUBSIDIARY GUARANTEE AGREEMENT made by CERTAIN SUBSIDIARIES OF EL PASO CORPORATION in favor of JPMORGAN CHASE BANK, N.A., as Collateral Agent, for the benefit of the Secured Parties referred to herein Dated as of July 31, 2006
EXHIBIT
10.D
CONFORMED
COPY
AMENDED
AND
RESTATED
made
by
CERTAIN
SUBSIDIARIES OF
EL
PASO
CORPORATION
in
favor
of
JPMORGAN
CHASE BANK, N.A.,
as
Collateral
Agent,
for
the benefit of
the Secured Parties referred to herein
Dated
as of July
31, 2006
TABLE
OF
CONTENTS
|
Page
|
ARTICLE
1
DEFINITIONS
|
Section
|
1.01.
|
Definitions
|
2
|
|
Section
|
1.02.
|
Other
Definitional Provisions
|
3
|
ARTICLE
2
GUARANTEE
|
Section
|
2.01.
|
Guarantee
|
4
|
|
Section
|
2.02.
|
Right
of
Contribution
|
5
|
|
Section
|
2.03.
|
No
Subrogation
|
5
|
|
Section
|
2.04.
|
Amendments,
etc. with Respect to the Guaranteed Obligations
|
6
|
|
Section
|
2.05.
|
Guarantee
Absolute and Unconditional
|
6
|
|
Section
|
2.06.
|
Reinstatement
|
7
|
|
Section
|
2.07.
|
Payments
|
8
|
ARTICLE
3
MISCELLANEOUS
|
Section
|
3.01.
|
Amendments
in Writing
|
8
|
|
Section
|
3.02.
|
Notices
|
8
|
|
Section
|
3.03.
|
No
Waiver
by Course of Conduct; Cumulative Remedies
|
8
|
|
Section
|
3.04.
|
Enforcement
Expenses; Indemnification
|
8
|
|
Section
|
3.05.
|
Successors
and Assigns
|
9
|
|
Section
|
3.06.
|
Set-off
|
10
|
|
Section
|
3.07.
|
Counterparts
|
10
|
|
Section
|
3.08.
|
Severability
|
10
|
|
Section
|
3.09.
|
Section
Headings
|
11
|
|
Section
|
3.10.
|
Integration
|
11
|
|
Section
|
3.11.
|
Governing
Law
|
11
|
|
Section
|
3.12.
|
Submission
to Jurisdiction; Waivers; Process Agent
|
11
|
|
Section
|
3.13.
|
Acknowledgements
|
12
|
|
Section
|
3.14.
|
Releases
|
12
|
|
Section
|
3.15.
|
WAIVER
OF
JURY TRIAL
|
13
|
|
Section
|
3.16.
|
Sole
Right of Enforcement; Demand Not Required
|
13
|
AMENDED
AND
RESTATED
This
AMENDED
AND
RESTATED SUBSIDIARY GUARANTEE AGREEMENT (this
“Agreement”),
dated as of
July 31, 2006, made by each of the signatories hereto (each individually, a
“Subsidiary
Guarantor”
and
collectively,
the “Subsidiary
Guarantors”),
in favor of
JPMorgan Chase Bank, N.A. (“JPMCB”),
as Collateral
Agent (in such capacity, the “Collateral
Agent”)
for the ratable
benefit of (i) the banks and other financial institutions or entities (the
“Lenders”)
from time to
time parties to the Amended and Restated Credit Agreement, dated as of July
31,
2006 (as amended, supplemented or otherwise modified from time to time, the
“Credit
Agreement”),
among El Paso
Corporation, a Delaware corporation (the “Company”),
certain of its
Subsidiaries as Pipeline Company Borrowers (the “Pipeline
Company Borrowers”),
the Lenders and
JPMCB, as administrative agent and collateral agent thereunder, and (ii) the
other Secured Parties (as defined in the Security Agreement identified
below).
W
I T N E S
S E T H:
WHEREAS,
pursuant to the
Credit Agreement, the Lenders have severally agreed to make extensions of credit
to the Company and the Pipeline Company Borrowers, the Issuing Banks have agreed
to issue Letters of Credit and the Administrative Agent and the Collateral
Agent
have agreed to serve in such capacities, in each case upon the terms and subject
to the conditions set forth therein;
WHEREAS,
the Subsidiary
Guarantors and the Collateral Agent on behalf of the Lenders and other Secured
Parties have entered into that certain Amended and Restated Subsidiary Guarantee
Agreement dated as of November 23, 2004 (the “Existing
Subsidiary Guarantee Agreement”)
with respect to
the guarantees made by the Subsidiary Guarantors to the Collateral
Agent;
WHEREAS,
the Company and
the Pipeline Company Borrowers are members of an
affiliated group
of companies that includes each Subsidiary Guarantor (the “Affiliated
Group”);
WHEREAS,
the Company, the
Pipeline Company Borrowers and the Subsidiary Guarantors have entered into
the
Amended and Restated Security Agreement dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the “Security
Agreement”)
with the
Collateral Agent and JPMCB, in its capacity as Depository Bank, pursuant to
which, inter
alia,
the Company and
the Subsidiary Guarantors have pledged certain property and assets as collateral
to the Collateral Agent for the ratable benefit of the Secured Parties to secure
the respective obligations of the Company and the Subsidiary Guarantors under
the Credit Agreement, this Agreement and the Amended and Restated Parent
Guarantee Agreement dated as of the date hereof (as amended, supplemented or
otherwise modified from time to time, the “Parent
Guarantee Agreement”)
in favor of the
Collateral Agent for the ratable benefit of the Secured Parties;
and
WHEREAS,
the proceeds of
the extensions of credit made under the Credit Agreement may be used in part
to
enable the Borrowers to make valuable transfers to one or more of the Subsidiary
Guarantors and the other Restricted Subsidiaries in connection with the
operation of their respective businesses;
WHEREAS,
the Company, the
Pipeline Company Borrowers, the Subsidiary Guarantors and the other Restricted
Subsidiaries are engaged in related businesses, and each Subsidiary Guarantor
will derive substantial direct and indirect benefit from the making and
availability of the extensions of credit under the Credit Agreement;
and
WHEREAS,
it is a condition
precedent to the effectiveness of the Credit Agreement that the Subsidiary
Guarantors shall have executed and delivered this Agreement to the Collateral
Agent for the ratable benefit of the Secured Parties;
NOW,
THEREFORE,
in consideration
of the premises and to induce the Agents, the Issuing Banks and the Lenders
to
enter into the Credit Agreement, each Subsidiary Guarantor hereby agrees,
jointly and severally, with the Collateral Agent, for the benefit of the Secured
Parties that the Existing Subsidiary Guarantee Agreement shall be amended and
restated in its entirety as follows:
ARTICLE
1
Defined
Terms
Section
1.01 .
Definitions.
(a) Unless
otherwise
defined herein, terms defined in the Credit Agreement and/or the Security
Agreement are used herein as therein defined.
(b) The
following terms
have the following meanings:
“Agreement”:
has the meaning
set forth in the introductory paragraph hereof.
“Company”:
has the meaning
set forth in the introductory paragraph hereof.
“Credit
Agreement”:
has the meaning
set forth in the introductory paragraph hereof.
“Guarantee
Release Date”
has
the meaning
set forth in Section 2.01(d).
“Guaranteed
Obligations”:
means, with
respect to each Subsidiary Guarantor, collectively, the payment obligations
of
the Company, the Pipeline Company Borrowers and each other Subsidiary Guarantor
with respect to the Financing Documents to which such person is a party, in
each
case of whatsoever nature and howsoever evidenced, due or to become due, now
existing or hereafter arising, whether direct or indirect, absolute or
contingent, which may arise under, out of or in connection with the obligations
of the Company, the Pipeline Company Borrowers, or any other Subsidiary
Guarantor (as applicable) under the Financing Documents and any amendment,
restatement or modification of any of the foregoing, including, in each case
to
the extent owing by the Company, the Pipeline Company Borrowers, or any
Subsidiary Guarantor, as the case may be, the full and punctual payment when
due
of any unpaid principal, interest (including interest accruing at any
post-default rate and Post-Petition Interest), fees, reimbursement obligations,
guaranty obligations, penalties, indemnities, legal and other fees, charges
and
expenses, and amounts advanced and expenses incurred in order to (x) preserve
any Collateral or the Transaction Liens, (y) cause any Restricted Equity
Interests to remain free of Liens prohibited by the Credit Agreement and (z)
preserve any other property pledged to secure such obligations as collateral
or
the Liens and security interests with respect thereto, whether due at stated
maturity or by acceleration or otherwise.
“Indemnified
Party”:
has the meaning
set forth in Section
3.04(a).
“Lenders”:
has the meaning
set forth in the introductory paragraph hereof.
“Maximum
Liability”:
has the meaning
set forth in Section
2.01(b).
“Pipeline
Company Borrowers”:
has the meaning
set forth in the introductory paragraph hereof.
“Process
Agent”
has
the meaning
set forth in Section 3.12(f).
“Security
Agreement”:
has the meaning
set forth in the recitals hereof.
“Subsidiary
Guarantors”:
has the meaning
set forth in the introductory paragraph hereof.
Section
1.02 .
Other
Definitional Provisions. The
definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires otherwise (a)
any definition of
or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b)
any reference
herein to any Person shall be construed to include such Person’s successors and
assigns, (c)
any reference
herein to any Applicable Law means such Applicable Law as amended, modified,
codified, replaced or reenacted, in whole or in part, and in effect from time
to
time, including rules and regulations promulgated thereunder and reference
to
any section or other provision of any Applicable Law means that section or
provision of such Applicable Law from time to time in effect and any amendment,
modification codification, replacement, or reenactment of such section or other
provision, (d)
the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (e)
all references
herein to Articles, Sections, Exhibits, Appendices and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits, Appendices and
Schedules to, this Agreement, (f)
all references to
“days” shall mean calendar days and (g)
the words “asset”
and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, Equity Interests, accounts and contract rights. This Agreement
is the result of negotiations among the parties hereto and their respective
counsel. Accordingly, this Agreement shall be deemed the product of all parties
hereto, and no ambiguity in this Agreement shall be construed in favor of or
against any Credit Party or any Secured Party.
ARTICLE
2
Guarantee
Section
2.01 .
Guarantee.
(a) Each
of the
Subsidiary Guarantors hereby, jointly and severally, unconditionally and
irrevocably, guarantees to the Collateral Agent, for the ratable benefit of
the
Secured Parties and their respective indorsees and transferees, the prompt
and
complete payment when due (whether at the stated maturity, by acceleration
or
otherwise) of the Guaranteed Obligations.
(b) Each
Subsidiary
Guarantor, and by its acceptance of this Agreement and the rights hereunder
or
benefits hereof the Collateral Agent and each other Secured Party, hereby agrees
and confirms that (i) it is the intention of all such Persons that this
Agreement and the obligations of such Subsidiary Guarantor under this Article
2
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law (as defined below), the Uniform Fraudulent Conveyance Act (as adopted by
any
applicable state), the Uniform Fraudulent Transfer Act (as adopted by any
applicable state) or any similar foreign, federal or state law to the extent
applicable to this Agreement and the obligations of such Subsidiary Guarantor
under this Article 2 and (ii) the aggregate liability of each Subsidiary
Guarantor under this Article 2 and under the other Security Documents at any
time (but after giving effect to the right of contribution described in
Section
2.02)
shall not exceed the maximum amount (as to any Subsidiary Guarantor, its
“Maximum
Liability”)
that will result
in the aggregate obligations of such Subsidiary Guarantor under this Article
2
and under the Security Documents not constituting a fraudulent transfer or
conveyance under Bankruptcy Law or any of the other aforementioned acts and
laws. For purposes hereof, “Bankruptcy
Law”
means
the
Bankruptcy Code, or any similar foreign, federal or state law for the relief
of
debtors.
(c) Each
Subsidiary
Guarantor agrees that the Guaranteed Obligations may at any time and from time
to time exceed the Maximum Liability of such Subsidiary Guarantor hereunder
without impairing the guarantee contained in this Article 2 or affecting the
rights and remedies of the Collateral Agent or any Secured Party
hereunder.
(d) The
guarantee
contained in this Article 2 shall remain in full force and effect until the
later (the “Guarantee
Release Date”)
of (i) the Final
Payment Date and (ii) the date on which all payment obligations of each
Subsidiary Guarantor in respect of the Guaranteed Obligations and the payment
obligations under the guarantee contained in this Article 2 shall have been
satisfied by indefeasible payment in full in cash.
(e) No
payment or
payments made by the Company, any Pipeline Company Borrower, any of the
Subsidiary Guarantors, any other guarantor or any other Person, or received
or
collected by the Collateral Agent or any Secured Party from the Company, any
Pipeline Company Borrower, any of the Subsidiary Guarantors, any other guarantor
or any other Person, by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction
of or
in payment of Guaranteed Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of any Subsidiary Guarantor under this Article
2 which shall, notwithstanding any such payment or payments (other than any
payment or payments made by such Subsidiary Guarantor in respect of the
Guaranteed Obligations or any payment received or collected from such Subsidiary
Guarantor in respect of Guaranteed Obligations), remain liable for the
Guaranteed Obligations up to the Maximum Liability of such Subsidiary Guarantor
under this Article 2 until the Guarantee Release Date.
Section
2.02 .
Right of
Contribution. Each
Subsidiary
Guarantor hereby agrees that to the extent that a Subsidiary Guarantor shall
have paid or be obligated to pay more than its proportionate share of any
payment made hereunder, such Subsidiary Guarantor shall be entitled to
contribution from and against any other Subsidiary Guarantor that has not paid
its proportionate share of such payment. Each Subsidiary Guarantor’s right of
contribution shall be subject to the terms and conditions of Section
2.03.
The provisions of this Section
2.02
shall in no respect limit the obligations and liabilities of any Subsidiary
Guarantor to the Collateral Agent and the Secured Parties, and each Subsidiary
Guarantor shall remain liable to the Collateral Agent and the Secured Parties
for the full amount guaranteed by such Subsidiary Guarantor
hereunder.
Section
2.03 .
No
Subrogation. Notwithstanding
any
payment made by any Subsidiary Guarantor hereunder or any set-off or application
of funds of any Subsidiary Guarantor by the Collateral Agent or any Secured
Party, no Subsidiary Guarantor shall be entitled to be subrogated to any of
the
rights of the Collateral Agent or any Secured Party against the Company or
any
other Subsidiary Guarantor or any collateral security or guarantee or right
of
offset held by the Collateral Agent or any Secured Party for the payment of
Guaranteed Obligations, nor shall any Subsidiary Guarantor seek or be entitled
to seek any contribution or reimbursement from the Company or any other
Subsidiary Guarantor in respect of payments made by such Subsidiary Guarantor
hereunder, until the Guarantee Release Date. If any amount shall be paid to
any
Subsidiary Guarantor on account of such subrogation rights prior to the
Guarantee Release Date, such amount shall be held by such Subsidiary Guarantor
in trust for the Collateral Agent and the Secured Parties, segregated from
other
funds of such Subsidiary Guarantor, and shall, forthwith upon receipt by such
Subsidiary Guarantor, be turned over to the Collateral Agent in the exact form
received by such Subsidiary Guarantor (duly indorsed by such Subsidiary
Guarantor to the Collateral Agent, if required), to be applied against
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms and provisions of the Credit Agreement and Security
Agreement.
Section
2.04 .
Amendments,
etc. with Respect to The Guaranteed Obligations. Each
Subsidiary
Guarantor shall remain obligated under this Article 2 notwithstanding that,
without any reservation of rights against such Subsidiary Guarantor and without
notice to or further assent by such Subsidiary Guarantor, (a) any demand for
payment of any of the Guaranteed Obligations made by the Collateral Agent or
any
other Secured Party may be rescinded by the Collateral Agent or any other
Secured Party and any of the Guaranteed Obligations continued, (b) any
Guaranteed Obligations, or the liability of any other Person upon or for any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Collateral Agent or any Secured Party, and (c)
the Credit Agreement or the other Financing Documents and any other documents
executed and delivered in connection therewith, in each case may be amended,
modified, supplemented or terminated, in whole or in part, pursuant to the
terms
and conditions of each such applicable document from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Collateral Agent or any other Secured Party for the payment of any Guaranteed
Obligations may be sold, exchanged, waived, surrendered or
released.
Section
2.05 .
Guarantee
Absolute and Unconditional. Each
Subsidiary
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by the Collateral Agent or any other Secured Party upon the guarantee contained
in this Article 2 or acceptance of the guarantee contained in this Article
2.
Each Subsidiary Guarantor waives diligence, presentment, protest, demand for
payment, notice of intent to accelerate, notice of acceleration and notice
of
default or nonpayment to or upon the Company, any Pipeline Company Borrower
or
any of the Subsidiary Guarantors with respect to Guaranteed Obligations. Each
Subsidiary Guarantor understands and agrees that the guarantee contained in
this
Article 2 shall be construed as a continuing, absolute, irrevocable and
unconditional guarantee of payment without regard to (a) the validity or
enforceability or perfection of the Credit Agreement or any other Financing
Document, any of the Guaranteed Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Collateral Agent or any Secured Party, (b) any
defense, set-off or counterclaim whatsoever (other than a defense of payment
or
performance) which may at any time be available to or be asserted by the Company
or any other Person against the Collateral Agent or any other Secured Party,
or
(c) any other circumstance whatsoever (with or without notice to or knowledge
of
the Company or such Subsidiary Guarantor or any other Credit Party), other than
payment or performance, which constitutes, or might be construed to constitute,
an equitable or legal discharge of the Company, any Pipeline Company Borrower
or
any other Subsidiary Guarantor for any of its respective portion of the
Guaranteed Obligations or of such Subsidiary Guarantor under the guarantee
contained in this Article 2, in bankruptcy or in any other instance. When making
any demand hereunder or otherwise pursuing its rights and remedies hereunder
against any Subsidiary Guarantor, the Collateral Agent may, but shall be under
no obligation to, make a similar demand on or otherwise pursue such rights
and
remedies as it may have against the Company, any Pipeline Company Borrower,
any
other Subsidiary Guarantor or any other Person or against any collateral
security or guarantee for the Guaranteed Obligations or any right of offset
with
respect thereto, and any failure by the Collateral Agent to make any such
demand, to pursue such other rights or remedies or to collect any payments
from
the Company, any Pipeline Company Borrower, any other Subsidiary Guarantor
or
any other Person or to realize upon any such collateral security or guarantee
or
to exercise any such right of offset, or any release of the Company, any
Pipeline Company Borrower, any other Subsidiary Guarantor or any other Person
or
any such collateral security, guarantee or right of offset, shall not relieve
such Subsidiary Guarantor of any obligation or liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Collateral Agent against such Subsidiary
Guarantor. For the purposes hereof “demand”
shall
include the
commencement and continuance of any legal proceedings.
Section
2.06 .
Reinstatement. The
guarantee
contained in this Article 2 shall continue to be effective, or be reinstated,
as
the case may be, if at any time payment, or any part thereof, of any of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned
by
the Collateral Agent or any Secured Party upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Company, any Pipeline Company
Borrower, or any Subsidiary Guarantor, or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or similar officer
for,
the Company, any Pipeline Company Borrower, or any Subsidiary Guarantor or
any
substantial part of its property, or otherwise, all as though such payments
had
not been made.
Section
2.07 .
Payments.
Each
Subsidiary
Guarantor hereby agrees that payments required to be made by it hereunder will
be paid to the Collateral Agent without set-off or counterclaim in dollars
at
the office of the Collateral Agent identified in Section 9.04 of the Security
Agreement.
ARTICLE
3
Miscellaneous
Section
3.01 .
Amendments in
Writing. None
of the terms
or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except in accordance with Section 9.02 of the Security
Agreement and Section 10.02 of the Credit Agreement.
Section
3.02 .
Notices.
All
notices,
requests and demands to or upon the Collateral Agent or any Subsidiary Guarantor
hereunder shall be effected in the manner provided for in Section 9.04 of the
Security Agreement.
Section
3.03 .
No Waiver by
Course of Conduct; Cumulative Remedies. Neither
the
Collateral Agent nor any other Secured Party shall by any act (except by a
written instrument in accordance with Section
3.01),
delay, indulgence, omission or otherwise be deemed to have waived any right
or
remedy hereunder or to have acquiesced in any Default. No failure to exercise,
nor any delay in exercising, on the part of the Collateral Agent or any Secured
Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Agent or
any
Secured Party of any right or remedy hereunder on any one occasion shall not
be
construed as a bar to any right or remedy which the Collateral Agent or any
Secured Party would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any other rights or remedies provided by
law.
Section
3.04 .
Enforcement
Expenses; Indemnification.
(a) Each
Subsidiary
Guarantor (without duplication) agrees to indemnify, defend and save and hold
harmless the Collateral Agent, each other Secured Party and each of their
respective Affiliates and their respective officers, directors, employees,
agents, advisors and trustees (each, an “Indemnified
Party”)
from and
against, and (without duplication) shall pay, any and all claims, damages,
losses, liabilities and expenses (including reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or as a result of
the
execution or delivery of this Agreement or the performance by the Subsidiary
Guarantors of their respective obligations hereunder, except to the extent
such
claim, damage, loss, liability or expense is found in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from, or to
be
attributable to, the gross negligence or willful misconduct of such Indemnified
Party or its employees or agents.
(b) Each
Subsidiary
Guarantor (without duplication) will pay to the Collateral Agent the amount
of
any and all reasonable out-of-pocket expenses, including the reasonable fees
and
expenses of its counsel and of any experts and agents, that the Collateral
Agent
may incur in connection with (i) the administration of this Agreement, (ii)
the
exercise or enforcement of any of the rights of the Collateral Agent or any
other Secured Party hereunder or (iii) the failure by such Subsidiary Guarantor
to perform or observe any of the provisions hereof required to be performed
or
observed by it.
(c) Each
Subsidiary
Guarantor (without duplication) shall pay or reimburse the Collateral Agent
for
any transfer taxes or other taxes relating to or incurred in connection with
this Agreement and shall indemnify and hold harmless the Collateral Agent and
each other Secured Party from any amounts that it is obligated to pay in the
way
of such taxes.
(d) Each
Subsidiary
Guarantor (without duplication) agrees to indemnify and hold harmless the
Collateral Agent (in its agency capacity), and each other Secured Party from,
and shall reimburse the Collateral Agent (in its agency capacity) and each
other
Secured Party for any present or future claim for liability for any stamp or
other similar tax and any penalties or interest with respect thereto, which
may
be assessed, levied or collected by any jurisdiction in connection with this
Agreement.
(e) The
indemnities and
reimbursement provided by the Subsidiary Guarantors pursuant to this Agreement
shall survive the expiration, cancellation, termination or modification of
this
Agreement, the resignation or removal of the Collateral Agent, and the provision
of any subsequent or additional indemnity or any agreement to reimburse by
any
Person.
(f) All
amounts due
under this Section
3.04
shall be payable not later than 30 days after the delivery of written demand
to
the applicable Subsidiary Guarantor therefor.
Section
3.05 .
Successors
and Assigns. This
Agreement
shall be binding upon the successors and assigns of each Subsidiary Guarantor
and shall inure to the benefit of the Collateral Agent and its successors and
assigns for the ratable benefit of the Secured Parties and their successors
and
assigns; provided
that, except in
connection with a transaction expressly permitted by Section 6.05 of the Credit
Agreement, no Subsidiary Guarantor may assign, transfer or delegate any of
its
rights or obligations under this Agreement without the prior written consent
of
the Collateral Agent.
Section
3.06 .
Set-off.
Each
Subsidiary
Guarantor hereby irrevocably authorizes the Collateral Agent and each Secured
Party at any time and from time to time while an Event of Default shall have
occurred and be continuing, without prior notice to such Subsidiary Guarantor
or
any other Subsidiary Guarantor, any such notice being expressly waived by each
Subsidiary Guarantor, to set-off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by the Collateral Agent or such Secured Party to or for the credit
or the account of such Subsidiary Guarantor, or any part thereof in such amounts
as the Collateral Agent or such Secured Party may elect, subject in all respects
to the terms and provisions of the Credit Agreement, against and on account
of
the obligations and liabilities of such Subsidiary Guarantor to the Collateral
Agent or such Secured Party hereunder or under the other Loan Documents and
claims of every nature and description of the Collateral Agent or such Secured
Party against such Subsidiary Guarantor, in any currency, whether arising
hereunder, under the Credit Agreement or any other Loan Document, as the
Collateral Agent or such Secured Party may elect, subject in all respects to
the
terms and provisions of the Credit Agreement, whether or not the Collateral
Agent or such Secured Party has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The
Collateral Agent or the applicable Secured Party shall notify such Subsidiary
Guarantor promptly of any such set-off and the application made by the
Collateral Agent or such Secured Party of the proceeds thereof, provided
that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of the Collateral Agent and the Secured Parties under
this Section
3.06
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Collateral Agent and the Secured Party may
have under Applicable Law pursuant to the terms and provisions of the Credit
Agreement.
Section
3.07 .
Counterparts.
This
Agreement may
be executed in any number of counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one
and the same agreement. Delivery of an executed counterpart of a signature
page
to this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
Section
3.08 .
Severability.
Any
provision of
this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction.
Section
3.09 .
Section
Headings. The
Section
headings used in this Agreement are for convenience of reference only and are
not to affect the construction hereof or be taken into consideration in the
interpretation hereof.
Section
3.10 .
Integration.
This
Agreement and
the other Loan Documents to which each Subsidiary Guarantor is a party represent
the agreement of such Subsidiary Guarantor, the Collateral Agent and the Secured
Parties with respect to the subject matter hereof and thereof, and there are
no
promises, undertakings, representations or warranties by the Collateral Agent
or
any Secured Party relative to the subject matter hereof and thereof not
expressly set forth or referred to herein or in such other Loan
Documents.
Section
3.11 .
Governing
Law. THIS
AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF
NEW YORK.
Section
3.12 .
Submission To
Jurisdiction; Waivers; Process Agent. Each
Subsidiary
Guarantor hereby irrevocably and unconditionally:
(a) submits
for itself
and its property in any legal action or proceeding by the Collateral Agent
against it relating to this Agreement and the other Loan Documents to which
it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Supreme Court of
the
State of New York, sitting in New York County, the courts of the United States
of America for the Southern District of New York, and appellate courts from
any
thereof;
(b) consents
that any
such action or proceeding may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service
of process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form
of
mail), postage prepaid, to such Subsidiary Guarantor at its address referred
to
in Section
3.02
or at such other address of which the Collateral Agent shall have been notified
pursuant thereto;
(d) agrees
that nothing
herein shall affect the right to effect service of process on it in any other
manner permitted by law or shall limit the right to xxx in any other
jurisdiction;
(e) waives,
to the
maximum extent not prohibited by law, any right it may have to claim or recover
in any legal action or proceeding referred to in this Section
3.12
any special, indirect, exemplary, punitive or consequential damages;
and
(f) appoints
CT
Corporation System (the “Process
Agent”),
with an office
on the date hereof at 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as its agent to receive on behalf of such Subsidiary Guarantor
and its property service of copies of the summons and complaint and any other
process which may be served by the Collateral Agent or any Secured Party in
any
such action or proceeding in any aforementioned court in respect of any action
or proceeding arising out of or relating to this Agreement or the other Loan
Documents to which it is a party. Such service may be made by delivering a
copy
of such process to such Subsidiary Guarantor in care of the Company by courier
and by certified mail (return receipt requested), fees and postage prepaid,
both
(i) in
care of
the Process Agent at the Process Agent’s above address and (ii) at
the
Company’s address specified pursuant to Section 9.04 of the Security Agreement,
and each Subsidiary Guarantor hereby irrevocably authorizes and directs the
Process Agent or the Company to accept such service on its behalf.
Section
3.13 .
Acknowledgements. Each
Subsidiary
Guarantor hereby acknowledges that:
(a) it
has been advised
by counsel in the negotiation, execution and delivery of this Agreement and
the
other Loan Documents to which it is a party;
(b) neither
the
Collateral Agent nor any Secured Party has any fiduciary relationship with
or
duty to such Subsidiary Guarantor arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between
the
Subsidiary Guarantors, on the one hand, and the Collateral Agent and the Secured
Parties, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no
joint venture is
created hereby or by the other Loan Documents or otherwise exists by virtue
of
the transactions contemplated hereby among the Secured Parties or among the
Subsidiary Guarantors and the Secured Parties.
Section
3.14 .
Releases.
(a)
On the
Guarantee Release Date this Agreement and all obligations (other than those
expressly stated to survive such termination and in all cases subject to
Section
2.06
hereof) of each Subsidiary Guarantor and any other party hereto shall terminate,
all without delivery of any instrument or performance of any act by any Person.
At the request and sole expense of the Company or any Subsidiary Guarantor
following any such termination, the Collateral Agent shall promptly execute
and
deliver to the Company or such Subsidiary Guarantor, as the case may be, such
agreements, instruments and other documents as such Subsidiary Guarantor shall
reasonably request to evidence such termination.
(b)
On the date
hereof, without further action by any party to this Agreement or the Existing
Subsidiary Guarantee Agreement, each of the Released Parties shall cease to
be a
Subsidiary Guarantor under the Existing Subsidiary Guarantee Agreement, and
shall not be deemed a Subsidiary Guarantor under this Agreement.
Section
3.15 .
WAIVER OF
JURY TRIAL. EACH
PARTY TO THIS
AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
TO WHICH IT IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN.
Section
3.16 .
Sole Right of
Enforcement; Demand Not Required. Notwithstanding
any
other provision of this Agreement, no Secured Party other than the Collateral
Agent shall have the right to take any Enforcement Action with respect to this
Agreement and all such Enforcement Actions shall be effected solely through
the
Collateral Agent. No reference in this Agreement to the Collateral Agent’s
making a demand for payment under this Agreement shall be construed to mean
that
such a demand is required in order to cause any obligation under this Agreement
to become due and payable, it being understood that obligations under this
Agreement shall become due and payable as, and at such time as, provided in
Section
2.01(a).
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, each of the undersigned has caused this Amended and Restated
Subsidiary Guarantee Agreement to be duly executed and delivered as of the
date
first above written.
|
SUBSIDIARY
GUARANTORS:
|
EL
PASO 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:
|
AMERICAN
NATURAL RESOURCES 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 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
|
|
