FIRST AMENDMENT, CONSENT AND WAIVER AGREEMENT
EXHIBIT
10.B
FIRST
AMENDMENT, CONSENT AND WAIVER AGREEMENT
THIS
FIRST
AMENDMENT, CONSENT AND WAIVER AGREEMENT (herein called this “Amendment”)
made as of the
20th day of December, 2005 by and among EL PASO CORPORATION (“EPC”),
a Delaware
corporation, EL PASO PRODUCTION OIL & GAS USA, L.P. (“EPPG”),
a Delaware
limited partnership (individually, a “Borrower”
and
collectively,
the “Borrowers”),
FORTIS
CAPITAL
CORP.
(“Fortis”),
as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”),
and the several
banks, financial institutions and other entities from time to time parties
to
this Agreement (collectively, the “Lenders”).
W
I T N E S
S E T H :
WHEREAS,
Borrowers
and the Administrative Agent have entered into that certain Credit Agreement
dated as of November 3, 2005, (as amended, supplemented, or restated to the
date
hereof, the “Credit
Agreement”),
for the
purposes and consideration therein expressed, pursuant to which the Lenders
became obligated to make loans to Borrowers and letters of credit as therein
provided;
WHEREAS,
EPC has
advised the Lenders that it has adopted a plan to restructure its production
and
pipeline operations (the “Restructuring
Plan”),
which includes
the steps affecting EPPG set forth in Annex A to this Amendment (the
“Steps”);
WHEREAS,
pursuant
to the Restructuring Plan:
(a) Several
Subsidiaries of EPC engaged in the production of oil and gas will merge into
EPPG with EPPG as the surviving entity;
(b) EPPG
will change
its name to “El Paso E&P Company,
L.P.”
(“EPEP”);
(c) EPEP
will assume
the indebtedness of certain of the merged entities and become a Borrower under
the Amended and Restated Credit Agreement dated as of October 19, 2005 (the
“EPPHC
Credit
Agreement”)
among El Paso
Production Holding Company, El Paso Production Company, El Paso Energy Raton
Corporation, and El Paso Production GOM Inc. as Borrowers, Fortis Capital Corp.
as Administrative Agent, and the Lenders party to the EPPHC Credit Agreement;
and
(d) EPEP
will guaranty
the obligations of El Paso Production Holding Company with respect to the 7¾%
Senior Notes due 2013 (the “Senior
Notes”)
issued and
outstanding pursuant to the Indenture dated as of May 23, 2003;
WHEREAS,
in order
to implement the Restructuring Plan the Borrowers have requested that the
Lenders consent to the Steps and amend certain provisions of the Credit
Agreement as set forth herein;
NOW,
THEREFORE, in
consideration of the premises and the mutual covenants and agreements contained
herein and in the Credit Agreement, in consideration of the loans which may
hereafter be made by the Lenders to the Borrowers, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE
I
Definitions
and References
1.1. Terms
Defined in
the Credit Agreement.
Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Credit Agreement shall have the same meanings whenever
used
in this Amendment.
ARTICLE
II
Amendments
2.1. Definitions.
The following
definitions are hereby added to Section 1.1 of the Credit Agreement in
appropriate alphabetical order:
“EPPHC”
means
El Paso
Production Holding Company”.
“EPPHC
Credit
Agreement”
means
the Amended
and Restated Credit Agreement dated as of October 19, 2005, among El Paso
Production Holding Company, El Paso Production Company, El Paso Energy Raton
Corporation and El Paso Production GOM, Inc., as borrowers, the lenders party
thereto, and Fortis Capital Corp., as administrative agent for such
lenders.
“EPPHC
Indenture”
means
the
Indenture dated as of May 23, 2003, between El Paso Production Holding Company
and Wilmington Trust Company, as amended, relating to the issuance by El Paso
Production Holding Company of its 7¾% Senior Notes due 2013.
“ISDA
Agreement”
means
the ISDA
Master Agreement dated January 1, 2001 between El Paso Merchant Energy, L.P.
and
El Paso Production Company.
2.2. Section
7.1.
Section 7.1(b) of
the Credit is hereby amended to read as follows:
“(b) For
so long as
EPPHC is required to file periodic reports with the SEC, furnish to the
Administrative Agent and to each of the Lenders:
(i) as
soon as
available, but in any event within one hundred twenty (120) days after the
end
of each fiscal year of EPPHC, a copy of EPPHC’s Form 10-K, as filed;
and
(ii) as
soon as
available, but in any event not later than sixty (60) days after the end of
each
of the first three quarterly fiscal periods of each fiscal year of EPPHC, a
copy
of EPPHC’s Form 10-Q, as filed.”
2.3. Section
8.2.
Section 8.2 of
the Credit Agreement is hereby amended by (i) deleting the word “and” at the end
of paragraph (g) thereof, (ii) deleting the period at the end of paragraph
(h)
thereof and replacing it with “; and”, and (iii) adding at the end thereof the
following new paragraph:
“(i) Debt
arising under
the EPPHC Credit Agreement and Debt arising under the ISDA Agreement.”
2.4. Section
8.3.
Section 8.3 of
the Credit Agreement is hereby amended by (i) deleting the word “and” at the end
of paragraph (o) thereof, (ii) deleting the period at the end of paragraph
(p)
thereof and replacing it with “; and” and (ii) adding at the end thereof the
following new paragraph:
“(q) Liens
securing the
obligations arising under the EPPHC Credit Agreement.”
2.5. Section
8.4.
Section 8.4 of
the Credit Agreement is hereby amended by (i) deleting the word “and” at the end
of clause (d) thereof, (ii) deleting the period at the end of such section
and
replacing it with the word “and” and (iii) adding the following new clause
(f):
“(f) Guarantee
Obligations issued by EPPG with respect to obligations under the EPPHC Indenture
and the EPPHC Credit Agreement.”
2.6. Section
8.8.
Section 8.8 of
the Credit Agreement is hereby amended by (i) deleting the word “and” at the end
of clause (g) thereof, (ii) deleting the period at the end of clause (h) thereof
and replacing it with “; and” and (iii) adding the following new clause
(i):
“(i) Guarantee
Obligations issued by EPPG with respect to obligations under the EPPHC Indenture
and the EPPHC Credit Agreement.”
2.7. Section
8.12.
Section 8.12 is
hereby amended by inserting after the phrase “other than this Agreement” the
phrase “and the EPPHC Credit Agreement”.
ARTICLE
III.
Consent
and Waiver
3.1. Consent
and
Waiver.
The
Administrative Agent and the Lenders hereby consent to the Steps and each of
the
transactions contemplated by such Steps and hereby waive any and all Defaults
and Events of Default that might arise on account of the implementation of
such
Restructuring Plan, including, but not limited to, possible violations of the
following Sections of the Credit Agreement:
(a) Section
8.2, to
permit EPPG to incur and assume Debt under the EPPHC Credit
Agreement;
(b) Section
8.3, to
permit EPPG to create and assume Liens on its properties in order to secure
Debt
under the EPPHC Credit Agreement, provided that no such Lien encumbers Borrowing
Base Properties;
(c) Sections
8.4 and
8.8, to permit EPPG to guaranty the obligations of El Paso Production Holding
Company under the Senior Notes;
(d) Section
8.10, to
permit the transfer of property to EPPG pursuant to the mergers referred to
in
the third Whereas clause hereof; and
(e) Section
8.12, to
permit EPPG to enter into negative pledge clauses under the EPPHC Credit
Agreement.
3.2. Additional
Consents.
The
Administrative Agent and the Lenders further consent to the
following:
(a) The
change of
EPPG’s name to “El Paso E&P Company, L.P.;”
(b) The
substitution of
“El Paso E&P Company, L.P.” for “El Paso Production Oil & Gas USA,
L.P.,” and the substitution of “EPEP” for “EPPG” in each instance where the
latter names appear in the Credit Agreement; and
(c) The
deletion of all
references to “CGP” or “El Paso CGP Company” in the Credit
Agreement.
ARTICLE
IV
Conditions
of Effectiveness
4.1. Effective
Date.
This Amendment
shall become effective (the “Effective
Date”)
when Lenders
shall have received, at Agent’s office:
(a) A
counterpart of
this Amendment executed and delivered by Borrowers; and
(b) A
confirmation of
guaranty from MBOW Four Star Corporation;
(c) Pro
forma financial
statements showing EPPG’s financial results for the 12-month period ended
September 30, 2005, assuming that the Steps had been implemented on October
1,
2004;
(d) A
certificate of a
duly authorized officer of each Borrower to the effect that all of the
representations and warranties set forth in Article VI hereof are true and
correct at and as of the time of such effectiveness and that there exists no
Default or Event of Default under the Credit Agreement;
(e) Payment
of all fees
and expenses due and owing on the Effective Date; and
(f) Consummation
of
item 2 of the Steps.
ARTICLE
V
Covenants
5.1. Covenants.
EPC shall furnish
to the Administrative Agent:
(a) Promptly
after the
implementation of each Step, evidence of the implementation of such Step in
a
manner consistent with Annex A hereto;
(b) Promptly
after each
merger pursuant to the Steps of any Borrower or Guarantor under the EPPHC Credit
Agreement, a certificate of merger in recordable form for each such Borrower
or
Guarantor. The Administrative Agent is hereby authorized to record such
certificates of merger, as appropriate, in each jurisdiction in which a Mortgage
has been recorded; and
(c) Promptly
after the
change of name of EPPG pursuant to the Restructuring Plan, a promissory note
issued by EPEP payable to the order of the Administrative Agent and each
Lender.
ARTICLE
VI
Representations
and Warranties
6.1. Representations
and Warranties of Borrowers.
In order to
induce the Lenders to enter into this Amendment, each of the Borrowers
represents and warrants to Lenders that:
(a) The
representations
and warranties contained in Section 5 of the Credit Agreement are true and
correct at and as of the time of the effectiveness hereof, except for the
noncompliance with the terms of the Credit Agreement as described
above.
(b) Borrower
is
authorized to execute and deliver this Amendment and Borrower is and will
continue to be duly authorized to borrow and to perform its obligations under
the Credit Agreement. Borrower has duly taken all action necessary to authorize
the execution and delivery of this Amendment and to authorize the performance
of
the obligations of Borrower hereunder.
(c) The
execution and
delivery by Borrower of this Amendment, the performance by Borrower of its
obligations hereunder and the consummation of the transactions contemplated
hereby do not and will not conflict with any provisions of law, statute, rule
or
regulation or of the certificate of incorporation and bylaws or certificate
of
limited partnership and agreement of limited partnership, as applicable, of
Borrower, or of any material agreement, judgment, license, order or permit
applicable to or binding upon Borrower, or result in the creation of any lien,
charge or encumbrance upon any assets or properties of Borrower. Except for
those which have been duly obtained, no consent, approval, authorization or
order of any court or governmental authority or third party is required in
connection with the execution and delivery by Borrower of this Amendment or
to
consummate the transactions contemplated hereby.
(d) When
duly executed
and delivered, each of this Amendment and the Credit Agreement will be a legal
and binding instrument and agreement of Borrower, enforceable in accordance
with
their terms, except as limited by bankruptcy, insolvency and similar laws
applying to creditors’ rights generally and by principles of equity applying to
creditors’ rights generally.
ARTICLE
VII
Miscellaneous
7.1. Ratification
of
Agreements.
The Credit
Agreement is hereby ratified and confirmed in all respects. The execution,
delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the
Lenders under the Credit Agreement or any other Loan Document nor constitute
a
waiver of any provision of the Credit Agreement or any other Loan Document.
7.2. Survival
of
Agreements.
All
representations, warranties, covenants and agreements of Borrower herein shall
survive the execution and delivery of this Amendment and the performance hereof,
and shall further survive until all of the Obligations are paid in full. All
representations, warranties, acknowledgements and agreements contained in
Section 5 of the Credit Agreement are hereby reconfirmed on and as of the date
hereof. All statements and agreements contained in any certificate or instrument
delivered by Borrower hereunder or under the Credit Agreement to Lenders shall
be deemed to constitute representations and warranties by, or agreements and
covenants of, Borrower under this Amendment and under the Credit
Agreement.
7.3. Loan
Documents.
This Amendment is
a Loan Document, and all provisions in the Credit Agreement pertaining to Loan
Documents apply hereto.
7.4. Governing
Law.
This Amendment
shall be governed by and construed in accordance with the laws of the State
of
New York and any applicable laws of the United States of America in all
respects, including construction, validity and performance.
7.5. Counterparts.
This Amendment
may be separately executed in counterparts and by the different parties hereto
in separate counterparts, each of which when so executed shall be deemed to
constitute one and the same Amendment.
THIS
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES.
[The
Remainder
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Consent
&
Waiver Agreement-EPC
IN
WITNESS WHEREOF,
this Amendment is executed as of the date first above written.
EL
PASO CORPORATION
By:
/s/ Xxxx X.
Xxxxxx
Name:
Xxxx X.
Xxxxxx
Title:
Vice
President and Treasurer
EL
PASO PRODUCTION OIL & GAS USA, L.P.
|
By:
|
El
Paso
Production Oil & Gas Company,
|
|
Its:
|
General
Partner
|
By:
/s/ Xxxx X. Xxxxxxxxxx
Name:
Xxxx X.
Xxxxxxxxxx
Title:
Senior Vice President, Chief Financial Officer, Treasurer and
Controller
FORTIS
CAPITAL
CORP.,
as
Administrative Agent, Arranger, Bookrunner, Issuing Lender and as a
Lender
By: /s/
Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Senior Vice President
By:
/s/ Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Managing Director
