THIRD AMENDED AND RESTATED SECURITY AGREEMENT dated as of November 16, 2007 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.,...
EXHIBIT
10.B
EXECUTION
VERSION
THIRD
AMENDED AND RESTATED SECURITY AGREEMENT
dated
as of
November 16, 2007
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
ARTICLE
1
DEFINITIONS
|
Page
|
||
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 Partner
|
8
|
|
ARTICLE
4
PLEDGED
ACCOUNTS
|
|||
Section
4.01
|
Creation
of Pledged Accounts
|
10
|
|
Section
4.02
|
Cash
Collateral Account
|
12
|
|
Section
4.03
|
Qualified
Investments Accounts
|
12
|
|
Section
4.04
|
Payments
in Trust
|
15
|
|
Section
4.05
|
Investment
of Funds in Pledged 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
|
20
|
|
Section
4.11
|
Return
of
Funds to the Company
|
20
|
|
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
|
30
|
|
Section
5.10
|
Netting
of Accounts
|
31
|
|
ARTICLE
6
REMEDIES
AND
ENFORCEMENT
|
|||
Section
6.01
|
Remedies
and Enforcement
|
31
|
|
Section
6.02
|
Application
of Proceeds
|
33
|
|
Section
6.03
|
Other
Remedies of Secured Parties
|
34
|
|
ARTICLE
7
DEPOSITORY
BANK
|
|||
Section
7.01
|
Depository
Bank
|
34
|
|
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.
|
38
|
|
Section
9.05
|
Continuing
Security Interest; Assignments
|
39
|
|
Section
9.06
|
[Reserved]
|
39
|
|
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
|
40
|
|
Section
9.14
|
Equitable
Remedies
|
40
|
|
Section
9.15
|
Remedies
|
41
|
|
Section
9.16
|
Limitations
|
41
|
|
Section
9.17
|
Survival
|
41
|
|
Section
9.18
|
[Reserved]
|
42
|
|
Section
9.19
|
Jurisdiction,
Etc.
|
42
|
|
Section
9.20
|
GOVERNING
LAW
|
42
|
|
Section
9.21
|
Waiver
of
Jury Trial
|
42
|
|
SCHEDULES:
|
|
Schedule
I
|
Subsidiary
Grantors
|
Schedule
II
|
Initial
Pledge 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
|
Schedule
VI
|
Material
Agreements of El Paso Corporation
|
EXHIBITS:
|
|
EXHIBIT
A
|
Form
of
Officer’s Certificate for Qualified Investments
|
THIRD
AMENDED AND RESTATED SECURITY AGREEMENT
THIRD
AMENDED AND
RESTATED SECURITY AGREEMENT, dated as of November 16, 2007, made by and
among:
EL
PASO CORPORATION, a Delaware corporation (the
“Company”);
EL
PASO NATURAL GAS COMPANY, a Delaware corporation (“EPNGC”),
TENNESSEE GAS PIPELINE COMPANY, a Delaware corporation (“TGPC”)
(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, 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 a Third 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 July 31, 2006 (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, etseq.).
“Borrowers”
has the meaning set forth in the Preamble.
“Cash
Collateral Account” has the meaning set forth in Section
4.01(a)(ii).
“Clearing
Agency” has the meaning set forth in Section
4.10.
“Collateral”
means 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;
(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 Schedule VI hereto 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.
“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 V 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 Subsidiary Guarantee Agreement) of
such Grantor, under (a) the Credit 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. All actions
required by Section 5.03 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 (to the extent applicable) 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 as set forth on
Schedule II (as such schedule may be amended or supplemented from time to time)
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 10 Business 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, and (ii) 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 Reduction Amounts will be deposited and to which Unused
Cash Collateral and certain amounts described in Section
4.03(f) will be transferred;
(ii) 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
(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 or as a deposit 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 transferred to the Collateral Account as Unused Cash Collateral,
to be
applied in accordance with Section 2.09 of the Credit Agreement and Section 6.02. 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 each case in accordance
with this Agreement and the other Loan Documents.
(c) 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 (a) to receive moneys or funds on deposit in, or credited to,
the
Pledged Accounts, as required or permitted by this Agreement or by the
provisions of any other Loan Document (to the extent such provisions are not
inconsistent with this Agreement), and (b) to direct the Collateral Agent as
to
the investment of moneys held in the Pledged Accounts as permitted by Section 4.05. 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. Cash
Collateral Account. (a) [Reserved]
(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
connection with a reduction of the Commitments pursuant to 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, (ii) reinvest any interest paid on
the
amounts referred to in clause (i) above, and (iii)
reinvest other proceeds of any such amounts 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 shall be, promptly upon request of the Company, 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, in the absence of gross negligence
or
willful misconduct, as finally determined by a court of competent jurisdiction,
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 on the day of deposit if all or a portion of such funds is deposited
with the Collateral Agent after 11:00 a.m. (New York City time) on such 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 be obligated to 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 such Depository Bank 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
GrantorPayment 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 the Exempted Guarantor by the Company,
(2) payment intangibles owing to the Exempted Guarantor by the Company, (3)
instruments owing to the Exempted Guarantor by the Company or (4) chattel paper
in respect of obligations payable to the 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 the Exempted Guarantor);
(ii) all
instruments
owing to the Company by (A) any Pipeline Company Borrower or (B) any Grantor
(other than the 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 the 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 in connection with the Account
Collateral, 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 reasonably 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 Payment
Collateral consisting 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
to
the extent permitted under Section 6.04(a)(iv) of the Credit Agreement and
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)(iii). 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)(iii). 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 an Event of 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)(iii), 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, until payment in full of all such
other Secured Obligations shall have been made; 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 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 shall be construed to mean that such a demand
is required in order to cause any obligation under the Subsidiary Guarantee
Agreement to become due and payable, it being understood that obligations under
the Subsidiary Guarantee Agreement shall become due and payable at such times
as
they become due and payable under the terms of the Subsidiary 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. 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:
|
EL
PASO
NATURAL GAS COMPANY
|
|
By:
|
/s/ Xxxx Xxxxxx | |
Name:
Xxxx Xxxxxx
|
||
Title:
Vice
President
|
|
|
By:
|
/s/ Xxxx Xxxxxx |
Name:
Xxxx
Xxxxxx
|
|
Title:
Vice President
|
SUBSIDIARY
GRANTORS:
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EL
PASO EPNG
INVESTMENTS, L.L.C.
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By:
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/s/ Xxxx Xxxxxx | |
Name:
Xxxx Xxxxxx
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Title:
Vice
President
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EL
PASO
TENNESSEE PIPELINE CO.
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By:
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/s/ Xxxx Xxxxxx |
Name:
Xxxx
Xxxxxx
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Title:
Vice President
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EL
PASO TGPC
INVESTMENTS, L.L.C.
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By:
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/s/ Xxxx Xxxxxx |
Name:
Xxxx
Xxxxxx
|
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Title:
Vice President
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RELEASED
PARTIES:
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EL
PASO CNG
COMPANY, L.L.C.
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By:
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/s/ Xxxx Xxxxxx | |
Name:
Xxxx Xxxxxx
|
||
Title: Vice
President
|
EL
PASO NORIC
INVESTMENTS III, L.L.C.
|
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By:
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/s/ Xxxx Xxxxxx |
Name:
Xxxx
Xxxxxx
|
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Title:
Vice President
|
EPPP
CIG GP
HOLDINGS, L.L.C.
|
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By:
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/s/ Xxxx Xxxxxx |
Name:
Xxxx Xxxxxx
|
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Title:
Vice President
|
COLLATERAL
AGENT:
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JPMORGAN
CHASE BANK, N.A., as Collateral Agent
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By:
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Name:
|
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Title:
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DEPOSITORY
BANK:
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JPMORGAN
CHASE BANK, N.A., as Depository Bank
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By:
|
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Name:
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||
Title:
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