El Paso Cgp Co

SECURITIES AND EXCHANGE COMMISSION

FORM 10-K405 Annual report pursuant to section 13 and 15(d), Regulation S-K Item 405

Filing Date: 2001-03-23 | Period of Report: 2000-12-31 SEC Accession No. 0000950129-01-001612

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FILER EL PASO CGP CO Mailing Address Business Address 1001 LOUISIANA STREET EL PASO BUILDING CIK:21267| IRS No.: 741734212 | State of Incorp.:DE | Fiscal Year End: 1231 1001 LOUISIANA STREET 1001 LOUISIANA STREET Type: 10-K405 | Act: 34 | File No.: 001-07176 | Film No.: 1577783 HOUSTON TX 77002 HOUSTON TX 77002 SIC: 4922 Natural gas transmission 7134202131

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SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549

FORM 10-K

(MARK ONE) [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

FOR THE FISCAL YEAR ENDED DECEMBER 31, 2000 OR

[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

FOR THE TRANSITION PERIOD FROM TO

COMMISSION FILE NUMBER 1-7176

EL PASO CGP COMPANY (FORMERLY THE COASTAL CORPORATION) (Exact name of registrant as specified in its charter)

DELAWARE 74-1734212 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.)
EL PASO BUILDING 1001 LOUISIANA STREET HOUSTON, TEXAS 77002 (Address of principal executive offices) (Zip Code)

~~Registrant's telephone number, including area code: (713) 420-2131~~

~~Securities registered pursuant to Section 12(b) of the Act:~~

~~Securities registered Pursuant to Section 12(g) of the Act: NONE~~

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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ] Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X] Common Stock, par value $1.00 per share. Shares outstanding on March 19, 2001: 1,000

~~EL PASO CGP COMPANY MEETS THE CONDITIONS OF GENERAL INSTRUCTION I(1)(A) AND (B) TO FORM 10-K AND IS, THEREFORE, FILING THIS REPORT WITH A REDUCED DISCLOSURE FORMAT AS PERMITTED BY SUCH INSTRUCTION.~~

~~DOCUMENTS INCORPORATED BY REFERENCE: None~~

~~EL PASO CGP COMPANY~~

~~TABLE OF CONTENTS~~

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* We have not included a response to this item in this document since no response is required pursuant to the reduced disclosure format permitted by General Instruction I to Form 10-K.

~~Below is a list of terms that are common to our industry and used throughout this document:~~

/d = per day Bbls = barrels Bcf = billion cubic feet Bcfe = billion cubic feet of gas equivalents Btu = British thermal units MMBtu = million British thermal units MBbls = thousand barrels MMBbls = million barrels Mcf = thousand cubic feet Mcfe = thousand cubic feet of gas equivalents MMcf = million cubic feet MMcfe = million cubic feet of gas equivalents

When we refer to natural gas and oil in "equivalents," we are doing so to compare quantities of oil with quantities of natural gas or to express these different commodities in a common unit. In calculating equivalents, we use a generally recognized standard in which one Bbl is equal to six Mcf. Also, when we refer to cubic feet measurements, all measurements are at 14.73 pounds per square inch.

~~PART I~~

~~ITEM 1. BUSINESS.~~

~~INTRODUCTION~~

In January 2001, we became a wholly owned subsidiary of El Paso Corporation through our merger with a wholly owned El Paso subsidiary. In the merger, each share of our common stock and Class A common stock was converted on a tax-free basis into 1.23 shares of El Paso common stock. Our outstanding convertible preferred stock was exchanged tax free for El Paso common stock on the same basis as if the preferred stock had been converted into our common stock immediately prior to the merger. El Paso issued a total of approximately 271 million shares of its common stock, including approximately 4 million shares issued in exchange for our outstanding stock options.

~~On January 30, 2001, we changed our name from The Coastal Corporation to El Paso CGP Company.~~

We are a Delaware corporation, incorporated in 1972 and originally founded in 1955. We are a diversified energy company with operations in natural gas gathering, marketing, processing, storage and transmission; petroleum refining, marketing and chemicals; gas and oil exploration and production; coal mining; and power.

~~NATURAL GAS SYSTEMS~~

Our natural gas systems are involved in the production, purchase, gathering, processing, transportation, and storage of natural gas. We also market and sell natural gas to and for utilities, industrial customers, marketers, producers, distributors, other pipeline companies and end users.

~~REGULATED GAS OPERATIONS~~

ANR. ANR Pipeline Company is involved in the open access transportation, storage and gathering of natural gas owned by third parties. ANR's two interconnected, large-diameter multiple pipeline systems transport natural gas from gas-producing fields in Texas, Oklahoma, Louisiana, the Gulf of Mexico, and Canada to markets in the Midwest and Northeast regions of the United States, including the metropolitan areas of Detroit, Chicago, and Milwaukee.

ANR's system consists of 10,600 miles of pipeline and 74 compressor stations, with a design peak capacity of approximately 6.6 Bcf/d. During 2000, ANR transported natural gas volumes averaging approximately 71 percent of its capacity. Along its system, ANR also has approximately 202 Bcf of underground working gas storage capacity, with a maximum daily delivery capacity of 3 Bcf. Working gas storage capacity operated by ANR of 126.3 Bcf is available from five owned and five leased underground storage facilities in Michigan. ANR also has contracted rights for 75.4 Bcf of working gas storage capacity, of which 45.4 Bcf is provided by Blue Lake Gas Storage Company and 30 Bcf is provided by ANR Storage Company.

ANR has a 50 percent indirect interest in the East Breaks, High Island Offshore, Stingray and U-T Offshore systems, all of which are located in the Gulf of Mexico. ANR also owns an indirect 16 percent interest in the Iroquois pipeline system that transports gas from Canada to the northeastern U.S. As a result of the El Paso merger, ANR was required, under a Federal Trade Commission consent order, to dispose of its interests in the U-T Offshore and Stingray systems. These sales were completed in February 2001. Under that same consent order, ANR will dispose of its 16 percent interest in the Iroquois Gas Transmission System. The sale of ANR's interest in the Iroquois system is expected to be completed in the first half 2001.

~~Deliveries on the ANR system for the years 2000, 1999, and 1998 were as follows:~~

CIG. Colorado Interstate Gas Company is involved in the production, purchase, gathering, processing, transportation, storage and sale of natural gas. CIG's gas transmission system extends from natural gas production areas in the Panhandle Field of Texas and is directly or indirectly connected to every major supply basin in the Rocky Mountain region. CIG's pipeline system serves two major markets, one along the Front Range of the Rocky Mountains in Colorado and Wyoming and the second interconnects with other pipelines transporting gas to California and the Midwest.

CIG's principal transmission facilities consist of approximately 4,400 miles of pipeline and 56 compressor stations, with a design capacity of 2,290 MMcf/d. During 2000, CIG transported natural gas volumes averaging approximately 60 percent of its capacity. Along its system, CIG also has approximately 29 Bcf of working gas storage capacity and owns four underground natural gas storage fields; three located in Colorado and one in Kansas.

~~Deliveries on the CIG system for the years 2000, 1999, and 1998 were as follows:~~

In addition to its transmission and storage activities, CIG owns or controls proved reserves that were estimated to total 202 Bcf, 228 Bcf, and 243 Bcf at December 31, 2000, 1999, and 1998. These estimates are based on a report by Huddleston & Co., Inc., our independent engineers. CIG also maintains, for its own account, 2.5 Bcf of natural gas in underground storage fields and has an additional 37.8 Bcf of base natural gas in its four storage fields. From its total reserves, primarily located in the Panhandle Field, CIG is committed to sell 77 percent to Pioneer Natural Resources USA, Inc. The remaining production may be sold to third parties.

Wyoming Interstate. Wyoming Interstate Company, Ltd. owns an interstate pipeline system located primarily in Wyoming. The Wyoming Interstate system consists of approximately 400 miles of pipeline with a total design capacity of 1,157 MMcf/d. During 2000, Wyoming Interstate transported natural gas volumes averaging approximately 75 percent of its capacity. The system has two large-diameter pipelines that come together in northern Colorado to feed into the CIG-Trailblazer interconnect on the 800-mile Trailblazer system and into other interstate and intrastate pipelines at that interconnect.

Alliance Pipeline. We own an approximate 14 percent interest in the Alliance Pipeline. Alliance consists of approximately 2,300 miles of pipeline, including lateral lines, with a design capacity of 1,325 MMcf/d and extends from supply fields in western Canada to the Chicago area market center. Alliance commenced service in late 2000.

Great Lakes Gas Transmission. We own a 50 percent interest in Great Lakes Gas Transmission, LP. Great Lakes owns a 2,100-mile pipeline with a design capacity of 2,895 MMcf/d. The system extends from the Manitoba-Minnesota border to an interconnection on the Michigan-Ontario border at St. Clair, Michigan. During 2000, Great Lakes transported volumes averaging approximately 84 percent of its capacity.

ANR Storage. ANR Storage Company develops and operates underground natural gas storage facilities. ANR Storage owns four underground storage facilities in northern Michigan. These facilities have a working

~~5 storage capacity of approximately 56 Bcf, of which 30 Bcf is contracted by ANR. In addition, ANR Storage has joint ownership interests in three storage~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document facilities located in Michigan and New York with a total working storage capacity of approximately 65 Bcf. All of ANR Storage's jointly owned capacity is under long-term contracts, including 45 Bcf contracted to ANR.

~~REGULATORY ENVIRONMENT~~

Our interstate natural gas systems and our storage operations are regulated by the Federal Energy Regulatory Commission (FERC) under the Natural Gas Act of 1938 and the Natural Gas Policy Act of 1978. Each system operates under separate FERC approved tariffs that establish rates, terms, and conditions under which each system provides services to its customers. Generally, FERC's authority extends to:

~~- transportation and storage of natural gas, rates and charges;~~

~~- certification and construction of new facilities;~~

~~- extension or abandonment of services and facilities;~~

~~- maintenance of accounts and records;~~

~~- depreciation and amortization policies;~~

~~- acquisition and disposition of facilities;~~

~~- initiation and discontinuation of services; and~~

~~- various other matters.~~

Our wholly owned and domestic investee pipelines have tariffs established through filings with FERC and have a variety of terms and conditions, each of which affects the pipeline's operations and its ability to recover fees for the services it provides. By and large, changes to these fees or terms can only be implemented upon approval by FERC.

Our interstate pipeline systems are also subject to the Natural Gas Pipeline Safety Act of 1968 that establishes pipeline and liquefied natural gas plant safety requirements. We are also subject to environmental legislation and regulations. Each of our systems has a continuing program of inspection designed to keep all of our facilities in compliance with pollution control and pipeline safety requirements. We believe that our systems are in substantial compliance with the applicable requirements.

We are also subject to regulation with respect to safety requirements in the design, construction, operation and maintenance of our interstate natural gas transmission and storage facilities by the U.S. Department of Transportation. Additionally, we are subject to similar safety requirements from the U.S. Department of Labor's Occupational Safety and Health Administration related to our processing plants. Operations on U.S. government land are regulated by the U.S. Department of the Interior.

In Canada, Alliance's operating activities are regulated by the National Energy Board. Similar to FERC, the National Energy Board governs tariffs and rates and the construction and operation of natural gas pipelines in Canada.

~~For further discussion of our regulatory matters, see Item 8, Financial Statements and Supplementary Data, Note 15.~~

~~MARKETS AND COMPETITION~~

Our natural gas interstate systems face varying degrees of competition from alternative energy sources, such as electricity, hydroelectric power, coal, and fuel oil. Also, the potential consequences of proposed and ongoing restructuring and deregulation of the electric power industry are currently unclear. Restructuring and deregulation may benefit the natural gas industry by creating more demand for natural gas turbine generated electric power, or it may hamper demand by allowing a more effective use of surplus electric capacity through increased wheeling as a result of open access. 3

In its historical market areas of Wisconsin and Michigan, ANR competes with other interstate and intrastate pipeline companies and local distribution companies in the transportation and storage of natural gas. ANR has been successful in restructuring the service portfolios of a number of its major Wisconsin customers. This restructuring has enabled ANR to extend contracts that were set to expire in 2003, with the restructured contracts providing for a combined winter maximum daily quantity of 674 MMcf/d that will expire in 2008 and 2010. ANR continues to work with its largest customer, Wisconsin Gas

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Company, to restructure and extend contracts that are set to expire in 2003. However, Wisconsin Gas is a sponsor of the proposed Guardian Pipeline, which received a FERC certificate on March 14, 2001, and that pipeline will directly compete for a portion of this expiring capacity. ANR also has 900 MMcf/d of capacity under contract with Michigan Consolidated Gas Company. Of that amount, 110 MMcf/d is due to expire in March 2002, another 175 MMcf/d will expire in 2003, and the remainder of the capacity will expire between 2006 and 2011. Extensions of these contracts are under negotiation.

~~ANR also faces competition in the Northeast markets from other interstate pipelines serving electric generation and local distribution companies.~~

CIG serves two major markets, its "on-system" market, consisting of the utilities along the Front Range of the Rocky Mountains in Colorado and Wyoming, and its "off-system" market, consisting of the transportation of Rocky Mountain production from multiple supply basins to interconnections with other pipelines bound for the Midwest or California. CIG faces different types of competition in both markets. In the on-system market, competition comes from local supply in the Denver-Julesburg basin, from an intrastate pipeline directly serving Denver, and from off-system shippers who can deliver their gas in that market, supplanting CIG transportation for utility customers. The primary criterion for success in this market is the ability to serve a very volatile load reliably, at a competitive price. In the off-system market, CIG faces competition in its supply area from two major pipelines serving the California and Pacific Northwest markets. It also faces competition from competitors whose supply is produced in Texas, Oklahoma, and Kansas. These competitors can displace CIG deliveries into the pipelines serving the Midwestern markets. The primary criterion for success in this market is the strength of pricing differentials between Wyoming and Oklahoma.

CIG's full capacity is contracted under firm transportation agreements, with the bulk of these agreements expiring within the next several years. The largest portion of these agreements is with Public Service Company of Colorado and will expire in the 2002 to 2005 timeframe. CIG is actively negotiating with all shippers for contract renewal and is optimistic that its ability to serve the Front Range market reliably and competitively, coupled with reasonably strong pricing differentials affecting off-system markets, will result in successful renewal of the expiring contracts. New firm transportation contracts have not yet been executed for the bulk of the volumes involved, but CIG has reached agreement in principle with Public Service Company to renew its contracts at revenue levels close to historical levels.

WIC's two lines are subject to different competitive forces. Both lines are currently fully contracted and are subject to take-away capacity constraints at their intersection in northern Colorado. Both of WIC's lines feed into the Trailblazer system going east, the CIG system going south and other interstate and intrastate pipelines connected at the CIG-Trailblazer interconnect. Due to the full capacity demand on the Trailblazer system and the near capacity demand on the CIG system, shippers on WIC's two lines must compete with each other for scarce capacity to the markets of choice. On WIC's main line, contracts for approximately 500 MMcf/d out of approximately 750 MMcf/d expire in 2003. Success in renewing or replacing these contracts will depend on the availability of eastbound capacity. WIC's contracts generally have between six and ten years remaining.

~~UNREGULATED GAS OPERATIONS~~

Our unregulated natural gas operations include our natural gas midstream activities (gathering, processing, natural gas liquids pipelines and storage, fractionation, gas supply, and gas and natural gas liquids marketing), marketing and trading activities, and international pipeline operations.

~~We own or operate for various affiliates domestic midstream assets in Alabama, Colorado, Kansas, Louisiana, Mississippi, Oklahoma, Texas, Utah, Wyoming and offshore in the Gulf of Mexico. These assets~~

7 include interests in over 4,000 miles of gathering pipelines, which collect gas from over 3,900 wells. In both 2000 and 1999, we gathered approximately 0.9 Bcf/d of gas and approximately 1 Bcf/d of gas in 1998. We also have an ownership interest in 16 gas processing and fractionation plants, 12 of which we operate. Our processing plant capacity is approximately 3.5 Bcf/d. Fractionation capacity is approximately 106,000 Bbls/d. We also own or have interests in over 600 miles of natural gas liquids pipelines, and we operate a natural gas liquids storage facility with a capacity of 2.4 million barrels. Natural gas liquids produced at our operated plants and from gas processed by others for us averaged more than 60,000 Bbls/d in 2000, as compared to more than 25,000 Bbls/d in 1999 and 23,000

We hold a 14.6 percent interest in the 250-mile Dauphin Island Gathering Partners pipeline system that gathers and transports natural gas from major producing areas offshore in the eastern Gulf of Mexico. Dauphin Island transports gas onshore to Louisiana and Mobile Bay, Alabama, where we hold an interest in a 600 MMcf/d gas processing plant and a 40-megawatt cogeneration plant. The cogeneration plant provides power and processes heat for the gas plant. The gas plant and associated cogeneration plant, in which we have a 42.4 percent interest, began operations in April 1999. We also have an indirect interest of 7 percent in the Tri States natural gas liquids pipeline system. Tri States, which began operations in April 1999, is a 210-mile system that transports natural gas liquids from the Mobile Bay area gas processing plants to fractionators and markets in Louisiana.

In December 2000, the Aux Sable gas processing and fractionation facilities commenced operations. We own a 14.4 percent interest in the Aux Sable gas processing and fractionation complex, which is located near Chicago at the terminus of the Alliance Pipeline system. Aux Sable has exclusive rights to process natural gas and extract natural gas liquids transported on the Alliance Pipeline system. The Aux Sable facilities are designed to process up to 2.1 Bcf/d of natural gas and recover approximately 94,000 Bbls/d of natural gas liquids.

In January 2000, we placed into service a 150 MMcf/d gas treatment plant in La Vaca County, Texas, which removes carbon dioxide from the gas produced by us from the Dry Hollow and Brushy Creek Fields. Also in January 2000, we completed construction of the Rawhide Buttes gathering system located in the Powder River Basin of Wyoming. The Rawhide Buttes system gathers gas from coal-bed methane wells and delivers the gas to an interstate pipeline in Campbell County, Wyoming.

CIG provides gathering and processing services on an unbundled or stand-alone basis. CIG's processing terms are not regulated by FERC, but CIG is required to provide open access to its processing facilities. CIG's natural gas gathering and processing facilities are located throughout the production areas adjacent to its transmission system, with most of its gathering facilities connected directly to its transmission system. CIG's gathering facilities, excluding facilities in the Panhandle Field that are used to provide gathering services regulated by FERC, consist of approximately 2,400 miles of gathering lines. CIG owned and operated four natural gas processing plants in 2000. These plants, with a total operating capacity of approximately 477 MMcf/d, recover mainly propane, butanes, natural gasoline, sulfur and other by-products, which are sold to refineries, chemical plants and other customers. CIG's gas processing plants recovered approximately 31 million gallons of liquid hydrocarbons in 2000, compared to 38 million gallons in 1999 and 46 million gallons in 1998. Additionally, CIG processed approximately 36 million gallons of liquid hydrocarbons owned by others in 2000, compared to 24 million gallons in 1999 and 25 million gallons in 1998.

Our unregulated natural gas and power marketing and trading activities in North America are conducted through Coastal Merchant Energy, who provides wholesale energy services to natural gas and power clients and marketing services to each of our business segments. Prior to October 2000, we conducted our marketing and trading activities through Engage Energy US, L.P. and Engage Canada, L.P., a joint venture between us and Westcoast Energy Inc., a major Canadian natural gas company. During the fourth quarter 2000, we

8 terminated the Engage joint venture and Engage US became Coastal Merchant Energy, a wholly owned subsidiary of Coastal. Upon the completion of our merger with El Paso in January 2001, Coastal Merchant Energy was merged into the merchant operations of El Paso. For the years ended December 31, 2000 and 1999, Engage US and Coastal Merchant Energy, on a combined basis, had physical sales volumes of natural gas averaging 3.3 Bcf/d and 3.1 Bcf/d, and combined power sales were approximately 10 million megawatt hours for both of the years ended December 31, 2000 and 1999.

~~Our international natural gas operations consist of a 113-mile natural gas pipeline in Victoria, Australia.~~

~~REFINING, MARKETING AND CHEMICALS~~

We are involved in the operation of refineries and chemical plants; the purchase, transportation and sale of refined products, crude oil, condensate and natural gas liquids; the sale at retail of gasoline, petroleum products and convenience items; petroleum product terminaling and the marketing of crude oil

~~REFINING~~

Our subsidiaries operated their refineries at 93 percent of average combined capacity in each of 2000 and 1999 compared to 85 percent in 1998. The aggregate sales volumes (millions of barrels) of our wholly owned refineries were 181.9 in 2000, 171.3 in 1999 and 154.4 in 1998. Of the total refinery sales in 2000, 27 percent was gasoline, 50 percent was middle distillates, like jet fuel, diesel fuel and home heating oil, and 23 percent was heavy industrial fuels and other products.

~~The following table presents average daily throughput and daily capacity and storage capacity at December 31, 2000 at our wholly owned refineries:~~

Our refineries produce a full range of petroleum products ranging from transportation fuels to paving asphalt. They are operated to produce the particular products required by customers within each refinery's geographic area. In 2000, the products emphasized included premium gasolines and products for specialty markets like petrochemical feedstocks, aviation fuels and asphalt.

On July 30, 1998, we entered into an agreement with a subsidiary of Petroleos Mexicanos, Mexico's national oil company, for the supply of up to 100,000 Bbls/d of crude oil to support an upgrade of our Aruba refinery. The upgrade included the installation of a new 30,000 Bbls/d delayed coking unit and other modifications aimed at increasing the refinery's heavy crude refining and conversion capacity to approximately 280,000 Bbls/d. The upgrade was completed in April 2000.

~~MARKETING~~

Refined Products Marketing. The following table presents sales volumes for distribution activities of our subsidiaries, including products from our refineries and purchases from other suppliers, for each of the three years ended December 31, 2000.

Our subsidiaries are wholesale marketers of refined products and liquefied petroleum gas in 26 states plus Canada, the Dominican Republic, El Salvador, the Bahamas and Panama through 174 terminals. Coastal Refining & Marketing, Inc. serves customers primarily in the Midwest, Mississippi Valley and the Southwest through 94 product and liquefied petroleum gas terminals in 15 states. On the Gulf and East Coasts, we serve home, industry, utility, defense and marine energy needs. In 2000, these divisions' sales volumes were 62.7 million barrels, which accounted for approximately 20 percent of the total marketing and

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document distribution sales. International subsidiaries that acquire feedstocks for the refineries and products for the distribution system are located in Aruba, London and Singapore.

We lease petroleum storage facilities located at the former U.S. naval base at Subic Bay in the Philippines. We are leasing 304 acres of land, with 68 individual storage tanks totaling 2.4 million barrels of storage, most of which are underground, and 40 miles of pipeline connecting the terminal with other facilities within the Subic Bay Freeport Zone. A joint venture between our subsidiary and the Petroleum Authority of Thailand rehabilitated the petroleum products pipeline between the Subic Bay Freeport Zone and the Clark Special Economic Zone, formerly Clark Air Force Base, along with a petroleum storage facility in the Clark Special Economic Zone. Both facilities are used to support the joint venture's marketing activities in the Philippines.

We have a 50 percent interest in a terminal and port facility near Tallinn, Estonia on the Baltic Sea. The terminal operation handled imports and exports of approximately 35.1 million barrels of petroleum products in 2000, primarily from Russia and the former republics of the Soviet Union to markets in Europe, North and South America and the Caribbean.

Through Coastal Mart, Inc. and branded marketers, we conduct retail marketing, using the C-MART(R), C and Design and/or COASTAL(R) trademarks, in 34 states and Aruba through 1,529 Coastal branded outlets, of which we operate 374 outlets. Fleet fueling operations include 23 outlets in Texas and six in Florida. In December 2000, we entered into agreements to sell approximately 100 company-operated outlets in New Jersey, Pennsylvania, Virginia, West Virginia, Tennessee, North Carolina and South Carolina and approximately 100 company-operated outlets in Colorado, Iowa, Kansas, Nebraska, Oklahoma, South Dakota and Wyoming. The sale of the outlets in the northeastern and eastern states was completed in February 2001, and the sale of the outlets in the Midwest is expected to be completed in the second quarter 2001. The agreements also include the sale of branded marketer and contract dealer accounts covering 355 locations in 19 states. After completion of the proposed sales, the Company's retail marketing operations will be conducted in 23 states and Aruba through 973 Coastal-branded outlets, of which 176 will be company operated.

Through Coastal Unilube, Inc., we blend, package and distribute lubricants and automotive products under the COASTAL(R), C and Design and other trademarks through 8 warehouses servicing customers in 44 states, plus the District of Columbia, Puerto Rico, the U.S. Virgin Islands and 28 foreign countries.

To support our refining and marketing operations, we have transportation facilities including petroleum liquids pipelines, tank cars, tankers, tank trucks and barges. We operate almost 1,900 miles of pipeline for gathering and transporting an average of 251,626 Bbls/d of crude oil, condensate, natural gas liquids and refined products. These pipelines include 304 miles of crude oil pipelines, 848 miles of refined products 7

10 pipelines, and 582 miles of natural gas liquids pipelines, located mainly in Texas and in which we have approximately a 28 percent ownership interest. We have a 50 percent ownership in 13 miles of refined products pipelines located in New Jersey and New York. We also have a 33.3 percent interest in 80 miles of refined products pipelines in New Jersey and 28 miles of crude pipelines in Louisiana. We also have 26-mile crude pipeline located in Utah and Wyoming. In 2000, throughput of crude oil pipelines averaged 31,798 Bbls/d, compared to 38,877 Bbls/d in 1999 and 15,323 Bbls/d in 1998. In 2000, throughput of refined products and natural gas liquid pipelines averaged 219,828 Bbls/d, compared to 210,529 Bbls/d in 1999 and 207,800 Bbls/d in 1998.

~~Our marine transportation fleet at December 31, 2000 consisted of 15 tug boats, 19 oil barges, 3 owned tankers and 11 time-chartered tankers.~~

~~CHEMICALS~~

Our chemical production facilities, located in Cheyenne, Wyoming; Battle Mountain, Nevada; and St. Helens, Oregon, produce a variety of nitrogen-based chemicals and oxygenates that are marketed to serve agricultural and industrial markets throughout the western United States.

Coastal Chem, Inc. operates a plant near Cheyenne, Wyoming, which produces anhydrous ammonia, ammonium nitrate, nitric acid, liquid carbon dioxide, methanol and urea for use as agricultural fertilizers, livestock feed supplements, blasting agents and various other industrial applications. Our Cheyenne, Wyoming plant has the capacity to produce 550 tons per day of anhydrous ammonia, 875 tons per day of ammonium nitrate, 700 tons per day of nitric acid, 400 tons per day of liquid carbon dioxide, 225 tons per day of

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document methanol, and 320 tons per day of urea, Coastal Chem also owns a plant at Table Rock, Wyoming, which has a production capacity of 150 tons of liquid fertilizer per day. In addition, Coastal Chem operates a low density ammonium nitrate (LoDAN(R)) facility in Battle Mountain, Nevada, which has the capacity to produce 440 tons per day of LoDAN(R) and 350 tons of nitric acid per day. The LoDAN(R) product is used primarily as a blasting agent in surface mining.

Coastal Chem also operates an integrated methyl tertiary butyl ether (MTBE) plant in Cheyenne, Wyoming, with a production capacity of 4,300 barrels per day. MTBE is a gasoline additive which adds oxygen and boosts octane of the blended mixture.

Our St. Helens chemical plant, located in St. Helens, Oregon, has the capacity to produce 300 tons per day of anhydrous ammonia, 400 tons per day of urea and 85 tons per day of ammonium nitrate solutions.

~~Sales volumes for Coastal Chem and St. Helens for the three years ended December 31, 2000, are set forth below (thousands of tons):~~

Coastal Chem and the St. Helens plant compete with many nitrogen and MTBE producers across the U.S. and Canada. Their strengths are product quality, service, and dependability. Coastal Chem and the St. Helens plant produce commodity products with strong price competition from producers worldwide.

In November 1998, we suspended operations at our petrochemical facility in Montreal East, Quebec, Canada. Operations will be resumed when supply/demand conditions provide the necessary economic support. The petrochemical facility has the capacity to produce 330,000 tons per year of paraxylene, a component used in the manufacturing of polyester fibers and containers. In September 2000, we reduced our 100 percent ownership interest in the petrochemical facility to 51 percent.

Our 660-tons-per-day anhydrous ammonia facility located at Oyster Creek in Freeport, Texas began operation in the first quarter of 1998. Production (in tons) sold from the facility for the year ended December 31, 2000, was 131,200 as compared to 137,800 in 1999 and 45,000 in 1998. This plant is located adjacent to and supplies a number of major chemical facilities.

~~COMPETITION~~

The petroleum industry is highly competitive in the United States and throughout most of the world. Our refining and marketing of petroleum products and chemicals businesses compete with other industries in supplying the energy needs of various types of consumers. Principal factors affecting sales are price, location and service. Overall performance is impacted by industry margins and supply and demand for both feedstocks and finished products.

~~EXPLORATION AND PRODUCTION~~

~~GAS AND OIL PROPERTIES~~

We are engaged in gas and oil exploration, development and production operations in Colorado, Kansas, Louisiana, New Mexico, Oklahoma, Texas, Utah, Wyoming and offshore in the Gulf of Mexico. In addition, we have exploration and production rights in Australia, Brazil, Canada, Hungary and Indonesia.

In 2000, our domestic exploration and production operations sold approximately 24 percent of all the gas produced to our wholly owned natural gas system subsidiaries and approximately 67 percent to Engage prior to the dissolution of the Engage joint venture in the fourth quarter 2000. Our domestic operations also make short-term gas sales directly to industrial users and distribution companies. Oil is sold primarily under short-term contracts at field prices posted by the principal purchasers of oil in the areas in which the

~~The following table details our gross and net acreage held under gas and oil mineral leases at December 31, 2000.~~

~~------(1) These are reserves owned by CIG.~~

The domestic net developed acreage is concentrated principally in Texas (32 percent), Utah (30 percent), offshore Gulf of Mexico (26 percent), Colorado (9 percent) and Oklahoma (2 percent). Approximately 15 percent, 9 percent and 26 percent of our total domestic net undeveloped acreage is under leases that have minimum remaining primary terms expiring in 2001, 2002 and 2003, respectively.

~~The following table details our domestic productive wells at December 31, 2000. Gross wells include 58 multiple completions.~~

~~EXPLORATION AND DRILLING~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document During 2000, we participated in drilling 332 domestic gross wells, 256.5 net wells, to our interest. The following table details our participation in wells drilled during the years 1998 through 2000.

~~The following table details domestic wells in progress as of December 31, 2000.~~

~~There were no exploratory or development wells in progress for the natural gas systems segment as of December 31, 2000.~~

~~Our domestic exploration and development operations are focused on three core areas: the Texas Coastal Plain, the Gulf of Mexico and the Rocky Mountains.~~

In 2000, the Texas Coastal Plain continued its significant contribution with net average natural gas production of approximately 460 MMcf/d compared with 329 MMcf/d in 1999. Proved reserve inventory for the area at the end of 2000 amounted to 1,765 Bcfe compared to the year end 1999 level of 1,255 Bcfe. Activities on the Texas Coastal Plain focused on two major production trends, the Wilcox trend and the Frio/Vicksburg trend.

At the end of 2000, we held interests in 188 blocks and 89 platforms in the Gulf of Mexico. Net annual average natural gas production increased to 315 MMcf/d in 2000 compared to 193 MMcf/d in 1999. We operate 73 of the platforms as compared with 63 at the end of 1999. Proved reserve inventory for the Gulf of Mexico at the end of 2000 was 813 Bcfe compared to 804 Bcfe at the end of 1999.

~~In 2000, the Rocky Mountain region increased its contribution with net average natural gas production of approximately 106 MMcf/d compared with 93~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document MMcf/d in 1999. Proved reserve equivalent inventory for the area at the end of 2000 was 1,731 Bcf compared to 1,455 Bcf in 1999. Activities in the region focus on three major production basins, Uinta, Piceance, and Douglas Arch.

In Canada, we are continuing to develop and acquire production to support our shipping commitment on the Alliance Pipeline. At year end 2000, we held interests in 257,554 gross acres (191,188 net acres), had completed 21.2 successful net gas wells and have about 190 Bcf equivalent of proved reserve inventory. Capital expenditures for Canadian development in 2000 were approximately $120 million.

Also, at the end of 2000, we held interests in 4,245,495 gross acres (3,320,744 net acres) and had about 120 Bcfe of proved undeveloped reserves in Brazil. Capital expenditures in Brazil for 2000 were $11 million.

~~GAS AND OIL PRODUCTION~~

Natural gas production from domestic properties during 2000 averaged 988 MMcf/d, compared to 729 MMcf/d in 1999. Production from non-pipeline owned wells averaged 896 MMcf/d in 2000, compared to 632 MMcf/d in 1999. Crude oil, condensate and natural gas liquids production from domestic properties averaged 17,764 Bbls/d in 2000, compared to 12,326 Bbls/d in 1999.

~~The following table presents gas, oil, condensate and natural gas liquids production volumes of our domestic interest in gas and oil properties for the three years ended December 31, 2000:~~

~~Many of our domestic gas wells are situated in areas near, and are connected to, our gas systems. In other areas, gas production is sold to pipeline companies and other purchasers.~~

Generally, our domestic production of crude oil, condensate and natural gas liquids is purchased at the wellhead by our marketing and refining affiliates. Some quantities are delivered via our gathering and transportation lines to our refineries, but most quantities are redelivered to us through various exchange agreements.

~~The following table summarizes sales price and production cost information for domestic exploration and production operations during the years ended December 31:~~

~~COMPANY-OWNED RESERVES~~

~~Our estimated domestic proved reserves of crude oil, condensate and natural~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document gas liquids at December 31, 2000, as estimated by us and reviewed by Huddleston, were 65.0 million barrels, compared to 57.1 million barrels at the end of 1999. Proved gas reserves as of December 31, 2000, net to our interest, were estimated by us and reviewed by Huddleston to be 4,196 Bcf compared to 3,467 Bcf as of December 31, 1999. For the sixth consecutive year, we added proved reserves in 2000 that were more than triple our production volumes.

~~For information on owned reserves of oil and gas, see Item 8, Financial Statements and Supplementary Data, Note 17.~~

~~COMPETITION~~

In the United States, we compete with major integrated oil companies and independent oil and gas companies for suitable prospects for oil and gas drilling operations. The availability of a ready market for gas discovered and produced depends on numerous factors frequently beyond our control. These factors include the extent of gas discovery and production by other producers, crude oil imports, the marketing of competitive fuels, and the proximity, availability and capacity of gas pipelines and other facilities for the transportation and marketing of gas. The production and sale of oil and gas is subject to a variety of federal and state regulations, including regulation of production levels.

~~REGULATION~~

In all states in the United States in which we engage in oil and gas exploration and production, our activities are subject to regulation. Regulations may extend to requiring drilling permits, the spacing of wells, the prevention of waste and pollution, the conservation of natural gas and oil, and various other matters. Regulations may impose restrictions on the production of natural gas and crude oil by reducing the rate of flow from individual wells below their actual capacity to produce. Likewise, oil and gas operations on all federal lands are subject to regulation by the U.S. Department of the Interior and other federal agencies.

~~COAL~~

Through the operations of Coastal Coal Company, LLC and its affiliates in the eastern United States, we produce and market high quality bituminous coal from reserves in Kentucky, Virginia and West Virginia. In addition, Coastal Coal leases interests in its reserves to unaffiliated producers and markets third-party coal through brokerage sales operations.

~~At December 31, 2000, coal properties consisted of the following:~~

~~------~~

~~(1) Based on a 65 percent recovery rate.~~

We control approximately 536 million recoverable tons of bituminous coal reserves and resources. Production in 2000 from Coastal Coal's reserves totaled 11.5 million tons, of which 8.1 million tons were produced from captive operations and 3.4 million tons were produced by lessees under royalty agreements. In its captive operations, Coastal Coal has 15 mines in Kentucky, Virginia and West Virginia, which provide for the majority of its production. Captive production and clean coal processed from these mines totaled 5.6 million tons in 2000. The remaining production is derived from contracts with independent mine operators to deliver coal to our processing and loading

Captive sales by Coastal Coal were 9.8 million tons in 2000, as compared to 9.0 million tons in 1999. Brokerage sales in which we receive a commission totaled 0.3 million tons for 2000 and 0.5 million tons for 1999.

In 2000, approximately 83 percent of the captive sales were to domestic utilities, 10 percent of the sales were to domestic industrial customers and 7 percent of the sales were to export markets in Europe and Canada. Of the total 2000 tonnage sold, 8.8 million tons (90 percent) were sold under long-term contracts. At December 31, 2000, the weighted average remaining life of these contracts was 35 months.

We had approximately 14.1 million tons of annual production capacity at December 31, 2000 from four coal preparation plants and six loading facilities we own and operate in the central Appalachian coal fields.

In addition to our bituminous coal operations, we control overriding royalty interests in approximately 411 million tons of lignite reserves in North Dakota. Production from these reserves in 2000 totaled 4.6 million tons.

Through our captive operations, leasing programs and brokerage activities, we participate in all aspects of the bituminous coal industry. A significant portion of our reserves are low-sulfur, compliance coal which will

~~16 allow us to remain a major supplier of steam coal to domestic utilities under the Clean Air Act Amendments of 1990.~~

~~COMPETITION~~

We compete with a large number of coal producers and land holding companies in the eastern United States. The factors affecting our coal sales are price, quality (BTU, sulfur and ash content), royalty rates, employee productivity and rail freight rates.

~~POWER~~

~~DOMESTIC~~

Coastal Power Company and its affiliates develop, operate and own various equity interests in cogeneration and independent power projects. The projects produce and sell electrical energy, and in the case of cogeneration projects, they sell thermal energy as well. Affiliates of Coastal Power have interests in six operating domestic cogeneration projects and 12 foreign operating independent power projects, as well as interests in other projects in various stages of construction and development.

Capitol District Cogeneration -- We own a 50 percent equity interest in Capitol District Energy Center Cogeneration Associates, the owner of a combined cycle cogeneration facility in Hartford, Connecticut with a capacity of approximately 56 megawatts, and we also operate and manage the plant. Electricity from the facility is sold to a local utility under a long-term contract. Gas supply is provided to the cogeneration plant by some of our other affiliates. Thermal energy from the plant is sold to a local heating and cooling supplier in the city of Hartford.

Midland Cogen -- We hold an approximate 44 percent equity interest in the Midland Cogeneration Venture Limited Partnership, a 1,500-megawatt, gas-fired cogeneration project in Michigan, which is the largest cogeneration facility in the United States. Power from the project is sold to a local utility and the project's thermal host under long-term contracts. Steam from the project is also sold to the thermal host and its affiliate under long-term contracts. Our affiliates provide gas supply and transportation services for a portion of the project's fuel requirements.

Eagle Point -- We operate and have a 50 percent ownership interest in a combined-cycle cogeneration plant at our Eagle Point, New Jersey refinery. The plant has a capacity of approximately 225 megawatts. Power from the plant is sold to a local utility and our refinery under long-term contracts. Steam from the plant is also sold to the refinery under a long-term contract. Gas supply and transportation, as well as liquid fuel, is provided to the cogeneration plant by some of our other affiliates. Effective as of January 1, 2001, we acquired an additional 34 percent interest in the facility.

~~Fulton -- We own 100 percent of Fulton Cogeneration Associates, L.P., a New York limited partnership. Fulton owns one Colorado and two New York operating~~

The Fulton, New York plant is a leased cogeneration facility with a capacity of approximately 47 megawatts. Electricity from this project is sold to a New York utility/system operator under a long-term contract and to an affiliate of Fulton that resells into the wholesale market. Thermal energy is sold to a confection manufacturer adjacent to the project, also under a long-term contract.

Rensselaer -- The 79.6-megawatt, combined-cycle Rensselaer cogeneration facility near Albany, New York was acquired by Fulton in March 1999. The facility is natural gas-fired, but is capable of utilizing No. 2 fuel oil. Electricity from the facility is sold primarily to a New York utility/system operator under a long-term contract.

ManChief -- ManChief, Fulton's Colorado power project, commenced construction in 1999, and the plant went into full commercial operation in July 2000. Located near Denver, Colorado, ManChief is a 265-megawatt facility that sells a substantial portion of its capacity to a Colorado utility under a long-term contract.

~~INTERNATIONAL~~

~~Latin America~~

Compania de Electricidad -- We own a 48.3 percent equity interest in Compania de Electricidad de Puerto Plata, S.A., which owns an independent power project in Puerto Plata, Dominican Republic. The project has a total capacity of 66.5 megawatts, of which 50 megawatts are barge mounted and 16.5 megawatts are land based. An affiliate of Coastal Power is involved in arranging the fuel for the project, and another affiliate operates the project. The electrical energy is sold to the national electric utility of the Dominican Republic under a long-term contract.

Nejapa -- Coastal Nejapa Ltd. and other affiliates lease an independent power project near Apopa, El Salvador. The heavy fuel oil-fired plant has a capacity of approximately 144 megawatts. Coastal Power, through its affiliates, currently receives approximately 86.6 percent of the distributable cash flow and a third party receives the remainder. Our affiliates provide fuel for this project, and another of our affiliates operates the project pursuant to a long-term contract. The electrical energy is sold to the national electric utility of El Salvador under a long-term contract.

Tipitapa -- Our subsidiary owns a 60 percent equity interest in the 51-megawatt (net) heavy fuel oil-fired project in Tipitapa, Nicaragua, with Nicaraguan partners owning the remaining 40 percent interest. Operations commenced in the first quarter of 1999, and the power from the project is sold to the national utility company under a long-term contract. An affiliate of Coastal Power operates the project pursuant to a long-term contract.

Fortuna -- In January 1999, a consortium comprised of a subsidiary of Coastal Power and Hydro-Quebec International Inc. purchased a 49 percent interest in Empresa de Generation Electrica Fortuna, S.A., with the Coastal Power subsidiary holding approximately 49.9 percent of the acquired interest in Fortuna. Fortuna owns and operates a 300-megawatt hydroelectric plant located on the Chiriqui River in the highlands region of Panama's Chiriqui province. The plant began operating in 1983.

Itabo -- In September 1999, a subsidiary of Coastal Power acquired a 49.99 percent interest in Class B shares of the Itabo Generation Company, with the Class B shares representing a 50 percent interest in Itabo. Itabo owns and operates several electric generating facilities in southern Dominican Republic, aggregating over 580 megawatts of nominal generating capacity.

~~Asia~~

Wuxi -- Coastal Wuxi Power Ltd., an affiliate of Coastal Power, together with two Chinese partners, formed a Sino-foreign joint venture company to own, construct, and operate a simple-cycle, diesel-fired peaking plant. The project has a capacity of approximately 40 megawatts and is located in Wuxi City, Province of Jiangsu, The People's Republic of China. Coastal Wuxi owns a 60 percent equity interest in the joint venture. Power generated by the plant is sold to the local utility under a long-term contract.

~~Suzhou -- Coastal Suzhou Power Ltd., a subsidiary of Coastal Power, together with a Chinese partner, formed a Sino-foreign joint venture to develop,~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document construct, own and operate an independent power project. The project has a capacity of approximately 76 megawatts and is located in Suzhou City, Province of Jiangsu, The People's Republic of China. Coastal Suzhou owns a 60 percent equity interest in the joint venture. Power generated by the plant is sold to the local utility under a long-term contract.

Gusu -- Coastal Gusu Heat & Power Ltd., an affiliate of Coastal Power, together with a Chinese partner, formed a Sino-foreign joint venture to develop, construct, own and operate a 24-megawatt cogeneration plant adjacent to our existing Suzhou City plant. Coastal Gusu owns a 60 percent equity interest in the joint venture. Power generated by the plant is sold to the local utility under a long-term contract.

Nanjing -- Also operating in Jiangsu Province, The People's Republic of China, Coastal Nanjing Power Ltd., a subsidiary of Coastal Power, together with two Chinese partners, formed a Sino-foreign joint venture to develop, construct, own and operate an independent power project. The project has a capacity of

18 approximately 72 megawatts and is located in Nanjing City. Coastal Nanjing owns an 80 percent equity interest in the joint venture. The power is sold to the local utility under a long-term contract.

Khulna -- In southwestern Bangladesh, Coastal Power Khulna Ltd., a subsidiary of Coastal Power, acquired an interest in a 110-megawatt, fuel oil-fired, barge-mounted power plant located in Khulna. Our subsidiary's interest is 66.7 percent, net of an outstanding commitment to sell approximately 7 percent at par to an unrelated party. The power generated by the project is being sold to the national utility under a long-term contract. An affiliate of Coastal Power is a consortium member of the project fuel supplier.

Quetta -- A subsidiary of Coastal Power is currently entitled to approximately 90 percent of the profits and cash flows of a 140-megawatt, natural gas-fired power plant in Quetta, Pakistan, with an unrelated entity entitled to the remaining 10 percent. Commercial operations began in September 1999. The power from the project is sold to a national utility under a long-term contract.

Saba -- A subsidiary of Coastal Power has a financial stake of approximately 93 percent in a 125-megawatt, heavy fuel oil project in Farouqabad, Pakistan. Commercial operations began in December 1999, and the power from the project is sold to a national utility under a long-term contract. An affiliate of Coastal Power operates the facility.

~~COMPETITION~~

Coastal Power and its affiliates are subject to competition with other energy organizations and utilities seeking to develop and acquire independent power operations. We and many other power producers are concentrating our efforts in the United States and abroad. Competition continues to increase as the world market for independent power production develops and power purchasers employ competitive bidding for project awards. In the U.S. and international locations, the sale of power and the operation of power cogeneration facilities are regulated by the applicable laws, rules and regulations of the respective governments and agencies having jurisdiction. Many states in the U.S. are restructuring their applicable laws, rules and regulations. This restructuring is likely to result in new development opportunities in the United States and increased competition in response to such opportunities.

~~COMPETITION~~

We are subject to competition. In all our business segments, competition is based primarily on price with factors such as reliability of supply, service and quality being considered. Our natural gas systems; refining, marketing and chemicals; exploration and production; coal and power subsidiaries are engaged in highly competitive businesses against competitors, some of which have larger facilities and market share. See also the discussion of competition under "Natural Gas Systems," "Refining, Marketing and Chemicals," "Exploration and Production," "Coal" and "Power".

~~ENVIRONMENTAL~~

~~A description of our environmental activities is included in Item 8, Financial Statements and Supplementary Data, Note 15, and is incorporated by reference herein.~~

~~EMPLOYEES~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document At January 31, 2001, we had approximately 10,220 employees, of which approximately 600 are subject to collective bargaining agreements.

~~ITEM 2. PROPERTIES~~

~~A description of our properties is included in Item 1, Business and is incorporated herein by reference.~~

We are of the opinion that we have satisfactory title to the properties owned and used in our businesses, subject to liens for current taxes, liens incident to minor encumbrances, and easements and restrictions that do not materially detract from the value of such property or the interests therein or the use of such properties in our businesses. We believe that our physical properties are adequate and suitable for the conduct of our business in the future.

~~ITEM 3. LEGAL PROCEEDINGS~~

~~See Item 8, Financial Statements and Supplementary Data, Note 15, which is incorporated herein by reference.~~

~~ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS~~

~~Item 4, Submission of Matters to a Vote of Security Holders, has been omitted from this report pursuant to the reduced disclosure format permitted by General Instruction I to Form 10-K.~~

~~PART II~~

~~ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS~~

On January 29, 2001, a wholly owned subsidiary of El Paso was merged with us. As a result of the merger and the conversion of all of our outstanding common stock and Class A common stock into El Paso common stock, all of our common stock is owned by El Paso.

~~ITEM 6. SELECTED FINANCIAL DATA~~

~~Item 6, Selected Financial Data, has been omitted from this report pursuant to the reduced disclosure format permitted by General Instruction I to Form 10-K.~~

~~ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS~~

The information required by this Item is presented in a reduced disclosure format permitted by General Instruction I to Form 10-K. The Notes to Consolidated Financial Statements contain information that is pertinent to the following analysis.

In January 2001, we became a wholly owned subsidiary of El Paso through our merger with a wholly owned El Paso subsidiary. In the merger, each share of our common stock and Class A common stock was converted on a tax-free basis into 1.23 shares of El Paso common stock. Our outstanding convertible preferred stock was exchanged on a tax-free basis for El Paso common stock on the same basis as if the preferred stock had been converted into our common stock immediately prior to the merger. El Paso issued a total of approximately 271 million shares of its common stock, including approximately 4 million shares issued in exchange for our outstanding stock options. The shares issued in exchange for our stock options were issued based on the fair value of these options on the merger date. These exchanges will result in a charge of approximately $278 million that we will record in the first quarter of 2001.

In September 2000, we announced that our pipeline operations would be combined with El Paso's following the merger. In the consolidation, ANR's headquarter operations will be relocated from Detroit, Michigan to Houston, Texas, and El Paso's operations in El Paso, Texas will be relocated to Colorado Springs, Colorado. We expect to incur charges associated with relocations of employees and assets, and charges for asset and contract terminations that will occur as operations are consolidated. We anticipate a majority of these charges

On January 30, 2001, we completed an employee restructuring, that resulted in the reduction of approximately 3,200 full time positions through a combination of early retirements and terminations. These reductions occurred across all of our locations and business segments. These actions will result in severance and termination charges, retention payments to employees retained on a transition basis following the merger, and the acceleration of employee benefit payments under existing benefit plans and employment contracts. We expect a majority of these charges to occur in the first quarter of 2001.

Pursuant to the El Paso merger, we have been ordered by the Federal Trade Commission to sell several assets. Assets we have been, or will be, required to sell include our Gulfstream system, our interests in the Stingray and U-T Offshore systems, and our interests in the Empire pipeline and Iroquois pipeline systems. The sales of Gulfstream and our interests in the Stingray and U-T Offshore systems were completed in February 2001. Proceeds from these sales were approximately $70 million, resulting in a first quarter 2001 loss from those sales of approximately $29 million. The sales of our interests in the Empire and Iroquois systems are also expected to be completed in the first half 2001.

The final cost of our merger-related activities, and the charges we will incur as we continue to integrate our activities with El Paso are not fully known at this time. However, we expect that most of these charges will be recorded in 2001.

~~RESULTS OF OPERATIONS~~

Our business activities are segregated into five segments: natural gas; refining, marketing and chemicals; exploration and production; power and coal. These segments are strategic business units that offer a variety of different energy products. Since earnings on equity investments can be a significant source of earnings in several of our segments, we evaluate segment performance based on earnings before interest expense, (including minority interest) and income taxes, or EBIT, instead of operating income.

~~The following table presents EBIT by segment and in total for the years ended December 31, 2000 and 1999:~~

~~NATURAL GAS~~

Our Natural Gas operations involve the production, purchase, gathering, processing, transportation, storage, marketing and sale of natural gas, principally to utilities, industrial customers and other pipelines, and include the operations of natural gas liquids extraction plants. The operations involve both regulated and unregulated companies. The interstate natural gas pipeline and several of our storage subsidiaries are subject to the regulations and accounting procedures of FERC.

In October 2000, we terminated the Engage joint venture formed in 1997 with Westcoast Energy, Inc. The operations were divided into separate entities that are owned and operated independently by each company. After the joint venture termination, our operations were conducted through Coastal Merchant Energy. Natural gas operating revenues for the last three months of 2000 include revenues of $1,871 million from Coastal Merchant Energy's operations. Subsequent

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document to the El Paso merger in January 2001, Coastal Merchant Energy was merged into and is being operated as part of El Paso Merchant Energy, L.P. Prior to the termination of the joint venture, Engage's revenues are not included in our operating revenues; however, our share of Engage's net earnings is included in Other income, net.

~~Natural gas operating results and an analysis of those results for the years ended December 31, 2000 and 1999 are as follows:~~

YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999. The increase in operating revenues of $2,396 million in 2000 can be primarily attributed to the operations from Coastal Merchant Energy following its consolidation as a subsidiary in October 2000; increased volumes of natural gas

~~22 liquids, primarily as a result of gas processing plants we acquired at the end of 1999; higher prices for natural gas and natural gas liquids and the favorable resolution of litigation in 2000.~~

Purchases increased by $2,292 million, primarily due to the operations of Coastal Merchant Energy, higher natural gas prices and increased costs for the gas processing plants. The Coastal Merchant Energy operations added $1,858 million to the higher purchases. Operating expenses increased in 2000 primarily as a result of higher expenses for the gas processing plants. The increased equity income results from investments by our unregulated gas operations and increased earnings from Engage prior to the termination of the joint venture. Gross profit increased by $104 million over 1999 as a result of the increased volumes of and margins for natural gas liquids, gross margin from the consolidation of Coastal Merchant Energy and the favorable resolution of litigation in 2000.

~~Throughput for our regulated pipeline subsidiaries increased by 3 percent over 1999, and the net processing throughput for our unregulated natural gas operations was up about 230 percent from 1999.~~

~~REFINING, MARKETING AND CHEMICALS~~

Refining, marketing and chemicals operations involve the purchase, transportation and sale of refined products, crude oil, condensate and natural gas liquids; the operation of refineries and chemical plants; the sale at retail of gasoline, petroleum products and convenience items; petroleum product terminaling and marketing of crude oil and refined products worldwide.

In 2000, we applied Financial Accounting Standards Board (FASB) Emerging Issues Task Force Issue No. 99-19, Reporting Revenue Gross as a Principal versus Net as an Agent, which resulted in the reclassification of revenues and purchases for various trading and marketing activities that had been previously reported on a net basis. As a result of the adoption, operating revenues and purchases increased by $4.0 billion, $2.1 billion and $2.0 billion in 2000, 1999 and 1998. This change had no impact on gross margins or net income. Prior years amounts have been reclassified to conform with the new presentation.

~~Operating results for refining, marketing and chemicals and an analysis of those results for the years ended December 31, 2000 and 1999 are as follows:~~

YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999. The increase in operating revenues of $5,055 million results from increased prices and volumes. Sales volumes of refined products, including products purchased from others, was up 10 percent over 1999.

Purchases increased by $4,869 million, also due to increased prices and volumes, resulting in a gross profit increase of $186 million. The increased operating expenses result primarily from increased repairs and maintenance expenses, higher fuel costs and other increases at the refineries due to the increased volumes processed. The gross profit increase primarily results from improved margins on product sales; increased sales volumes; a gain from the sale of 49 percent of a petrochemical facility and an increase in margins from the sales, trading and exchanging of third-party products.

~~Crude throughput at our refineries averaged 483 MBbls/d in 2000 compared to 451 MBbls/d in 1999. The increase was due to the expansion at our Aruba refinery.~~

~~EXPLORATION AND PRODUCTION~~

~~Exploration and production operations involve the exploration, development and production of natural gas, crude oil, condensate and natural gas liquids.~~

~~Below are the exploration and production operating results and an analysis of these results for the years ended December 31, 2000 and 1999:~~

YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999. The increase in operating revenues of $499 million is a result of increased prices and volumes for natural gas, crude oil, condensate and natural gas liquids. Revenue increases included $409 million for natural gas and $96 million for crude oil, condensate and natural gas liquids, partially offset by other revenue decreases. The increase in operating expenses is the result of increased production volumes and a higher rate for depreciation, depletion and amortization. Average daily net production of natural gas increased by 42 percent over 1999, and net production of crude oil, condensate and natural gas liquids increased by 45 percent over the prior year. The volume increases result from our ongoing successful programs in the Texas Coastal Plain, the Gulf of Mexico and the Rocky Mountains.

~~For the sixth year in a row, we added reserves that were more than triple production.~~

~~POWER~~

Power operations include the ownership of, participation in and operation of power projects in the United States and internationally. Power's operating results and an analysis of those results for the years ended December 31, 2000 and 1999 are as follows:

YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999. The increase in operating revenues of $39 million results primarily from a $17 million gain due to the disposition of our interest in a Guatemala power facility, an increase from the El Salvador operations due primarily to higher prices, and revenues from the ManChief facility in Colorado which began operations in July 2000. The EBIT increase of $53 million is the result of the higher operating revenues and increased income from equity investments partially offset by increased operating expenses of $21 million. The increase for operating expenses of $17 million results primarily from the El Salvador operations which incurred higher fuel and rent costs. Depreciation, depletion and amortization increased by $4 million due to the ManChief facility which began operations in 2000, and the Rensselaer operations which were purchased in 1999. Equity income from investments increased as a result of our purchase of an additional 23 percent ownership in the Midland Cogeneration project in January 2000 and increased earnings from foreign investments.

~~Our net generating capacity in operation on December 31, 2000, was 2,049 megawatts, up 43 percent from December 31, 1999.~~

~~COAL~~

~~Coal operations include mining, processing and marketing of coal from our reserves and from other sources, and the brokering of coal for others.~~

~~Coal's operating results and an analysis of those results for the year ended December 31, 2000 and 1999 are as follows:~~

YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999. Operating revenues increased by $19 million as a result of increased volumes partially offset by lower prices. The increase in operating expenses, which include coal costs, was primarily due to the increased volumes sold and an $8 million charge for impaired assets. The segment experienced a 9 percent increase in captive volumes sold and a 3 percent decrease in the average sale price per ton as compared to 1999.

~~CORPORATE AND OTHER~~

~~Corporate and other operations involve real estate and corporate income and expense not allocated to the operating segments.~~

YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999. The increased loss before interest, income taxes and other charges of $50 million is the result of merger-related charges and increased expenses from financing activities.

~~INTEREST AND DEBT EXPENSE~~

YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999. The interest and debt expense increase of $87 million results from higher average debt outstanding and increased average interest rates partially offset by increased capitalized interest.

~~MINORITY INTEREST~~

~~YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999. The~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document $28 million increase for minority interest is primarily due to the return to limited partners related to a partnership created in late 1999.

~~INCOME TAX EXPENSE~~

Income taxes fluctuated as a result of changing levels of income before taxes and changes in the effective federal income tax rate. The effective tax rate was 28 percent and 26 percent in 2000 and 1999. The effective federal income tax rates were primarily affected by the exclusions for foreign investments and several of our domestic joint ventures.

~~COMMITMENTS AND CONTINGENCIES~~

~~See Item 8, Financial Statements and Supplementary Data, Notes 8 and 15, for a discussion of our commitments and contingencies.~~

At December 31, 2000, we had capital and investment commitments of approximately $400 million that are expected to be funded through internally generated funds and/or incremental borrowings. Our other planned capital and investment projects are discretionary in nature, with no substantial capital commitments made in advance of the actual expenditures.

~~NEW ACCOUNTING PRONOUNCEMENTS NOT YET ADOPTED~~

~~See Item 8, Financial Statements and Supplementary Data, Note 1, for a discussion of new accounting pronouncements we have not yet adopted.~~

~~CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR" PROVISIONS OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995~~

This report contains or incorporates by reference forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Where any forward-looking statement includes a statement of the assumptions or bases underlying the forward-looking statement, we caution that, while we believe these assumptions or bases to be reasonable and to be made in good faith, assumed facts or bases almost always vary from the actual results, and the differences between assumed facts or bases and actual results can be material, depending upon the circumstances. Where, in any forward-looking statement, we or our management express an expectation or belief as to future results, that expectation or belief is expressed in good faith and is believed to have a reasonable basis. We cannot, assure you, however, that the statement of expectation or belief will result or be achieved or accomplished. The words "believe," "expect," "estimate," "anticipate" and similar expressions will generally identify forward-looking statements.

~~ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK~~

We utilize derivative financial instruments to manage market risks associated with energy commodities and interest rates. Our primary market risk exposure is to changing energy commodity prices. We continuously manage these risk exposures, operating under resolutions adopted by our Board of Directors.

~~TRADING COMMODITY PRICE RISK~~

The marketing and trading activities we conduct through Coastal Merchant Energy offer price risk management services to the energy sector through the sale of natural gas and electric power. These services are provided through a variety of contracts entered into for trading purposes, including storage, transportation, forward, future, swap and option contracts that extend for periods up to ten years. These contracts expose us to market risk as the value of the portfolio will change in response to changing market conditions. We monitor and manage these risks through a variety of techniques, subject to parameters and policies established by our management.

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document We measure the risk in our commodity and energy related contracts utilizing a Value-at-Risk Model to determine the potential unfavorable impact on earnings due to normal market movements, and monitor our risk in comparison to established thresholds. The Value-at-Risk computations are based on historical simulation of price movements, which capture a significant portion of the exposure related to open positions, and utilize historical price movements over a specified period to project future price movements in the energy markets. We also utilize other measures to provide additional assurance that the risks of our commodity and energy related contracts are being properly monitored, including sensitivity analysis, position limit control and credit, and liquidity.

Based on a confidence level of 95 percent and a one-day holding period, our estimated potential one-day unfavorable impact on income before interest, income taxes and other charges, as measured by Value-at-Risk, related to contracts held for trading purposes was approximately $1 million at December 31, 2000. In addition, $1 million was our highest, lowest and average estimated potential one day unfavorable impact, as measured by Value-at-Risk, on income before interest, income taxes and other charges for 2000. The average value represents the average month end values. The high and low valuations represent the highest and lowest month end values during 2000. Actual losses could exceed those measured by Value-at-Risk.

~~NON-TRADING COMMODITY PRICE RISK~~

We enter into swaps, futures and other contracts to hedge exposure to price risks associated with crude oil, refined product and natural gas inventories, commitments and various anticipated transactions. We have also entered into hedging transactions to manage price risk relating to a portion of our future natural gas production. At December 31, 2000, we had contracts on 161 Bcf of our anticipated year 2001 natural gas production. Average monthly prices on these contracts range from $2.57 to $2.69 per Mcf based on the Henry Hub price. The table below presents the hypothetical changes in fair values arising from immediate selected potential changes in the quoted market prices of derivative commodity instruments outstanding at

December 31, 2000 and 1999. Gain or loss on these derivative commodity instruments would be offset by a corresponding gain or loss on the hedged commodity positions, which are not included in the table.

~~INTEREST RATE RISK~~

We use fixed and variable rate debt to partially finance budgeted expenditures and mandatory debt retirements. These agreements expose us to market risk related to changes in interest rates. Derivative financial instruments, specifically interest rate swaps, are used to reduce and manage this risk. We have entered into a number of interest rate swap agreements designated as a partial hedge of our portfolio of variable rate debt.

The following table presents hypothetical changes in fair values in our debt obligations and other market sensitive financial instruments at December 31, 2000 and 1999. The modeling technique used measures the change in fair values arising from selected changes in interest rates. Market changes reflect immediate hypothetical changes in interest rates at December 31. Fair values are calculated as the net present value of the expected cash flows of the financial instrument.

We are not subject to fair value risk resulting from changes in market rates of interest on our portfolio of variable rate obligations, including notes payable, long-term debt, other commitments and variable to fixed swaps with an aggregate fair value of approximately $2,440 million at December 31, 2000. However, variable rate obligations do expose us to possible increases in interest expense and decreases in earnings if interest rates were to rise. If interest rates were to immediately increase by 10% from the December 31, 2000 levels and continue through 2001 assuming no changes in debt levels, interest expense, including the effects of interest rate swaps, would increase by approximately $17 million with a corresponding decrease in income before taxes, as compared to a $12 million increase at December 31, 1999.

We also hold various equity securities that expose us to price risk associated with equity security markets. These securities are carried at their fair value of $20 million at December 31, 2000. An immediate decrease in the market prices of these securities of 10% would result in a fair value of approximately $18 million, or a decrease in income before taxes of approximately $2 million. The potential loss at December 31, 1999 was also approximately $2 million.

~~ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA~~

~~EL PASO CGP COMPANY AND SUBSIDIARIES~~

~~CONSOLIDATED STATEMENTS OF INCOME (IN MILLIONS, EXCEPT PER SHARE AMOUNTS)~~

~~See accompanying notes.~~

~~EL PASO CGP COMPANY AND SUBSIDIARIES~~

~~CONSOLIDATED BALANCE SHEETS (IN MILLIONS, EXCEPT SHARE AMOUNTS)~~

~~See accompanying notes.~~

~~EL PASO CGP COMPANY AND SUBSIDIARIES~~

~~CONSOLIDATED STATEMENTS OF CASH FLOWS (IN MILLIONS)~~

~~See accompanying notes.~~

~~EL PASO CGP COMPANY AND SUBSIDIARIES~~

~~CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (IN THOUSANDS OF SHARES AND MILLIONS OF DOLLARS)~~

~~See accompanying notes.~~

~~EL PASO CGP COMPANY AND SUBSIDIARIES~~

~~NOTES TO CONSOLIDATED FINANCIAL STATEMENTS~~

~~1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES~~

Principles of Consolidation. Our consolidated financial statements include accounts of all wholly owned subsidiaries, after eliminating all significant intercompany transactions. The equity method of accounting is used for investments in which we are able to exert significant influence, but not control over operating and financial policies. Other investments where we are unable to exert significant influence are accounted for by the cost method.

Cash and Cash Equivalents. Cash equivalents include time deposits, certificates of deposit and all highly liquid instruments with original maturities of three months or less. Cash flows of a hedging instrument that is accounted for as a hedge of an identifiable transaction are classified in the same category as the cash flows from the item being hedged. We made cash payments for interest and financing fees (net of amounts capitalized) of $427 million, $307 million and $292 million in 2000, 1999 and 1998. Cash payments for income taxes amounted to $32 million, $10 million and $42 million for 2000, 1999 and 1998.

~~Use of Estimates. The preparation of financial statements in conformity with generally accepted accounting principles requires us to make estimates and~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document assumptions that affect the reported amounts of assets, liabilities, revenues and expenses. Our actual results are likely to differ from those estimates.

Inventories. Inventories of refined products and crude oil are accounted for by the first-in, first-out cost method or market, if lower. Inventories of natural gas are valued at market. Inventories of coal are accounted for at average cost, or market, if lower. Inventories of materials and supplies are accounted for at average cost.

Natural Gas Imbalances. Natural gas imbalances result from differences in gas volumes received from and delivered to our transportation and storage customers and arise when a customer delivers more or less gas into our pipeline than they take out. We value these gas imbalances due to or from shippers and operators at an appropriate index price. Natural gas imbalances are settled in cash or made up in-kind, subject to the pipelines' various terms.

Price Risk Management Activities. We utilize derivative financial instruments to manage market risks associated with energy commodities, interest rates, commitments and other anticipated transactions. We engage in both trading and non-trading commodity price risk management activities.

Our activities for trading purposes consist of the sale of natural gas and electric power to the energy sector, which are accounted for using the mark-to-market method of accounting. As part of these activities, we execute storage, transportation, forward, future, swap and over-the-counter and exchange-traded option contracts.

Under the mark-to-market method of accounting, commodity and energy related contracts are reflected at quoted or estimated market value with resulting gains and losses included in our income statement. Net gains or losses recognized in a period result primarily from transactions originating within that period and the impact of price movements on transactions originating in that or previous periods. Assets and liabilities resulting from mark-to-market accounting are included in our balance sheets, according to their term or maturity. Terms regarding cash settlement of the contracts vary with respect to the actual timing of cash receipts and payments. Receivables and payables resulting from these timing differences are presented as price risk management activities in our balance sheets. Cash inflows and outflows associated with these price risk management activities are recognized in operating cash flows as the settlement of transactions occurs.

The market value of commodity and energy related contracts reflect management's best estimate considering various factors, including closing exchange and over-the-counter quotations, time value and volatility factors underlying the commitments. The values are adjusted to reflect the potential impact of liquidating our position in an orderly manner over a reasonable period of time under present market conditions and to reflect other types of risks, including model risk, credit risk and operational risks. In the absence of quoted market prices, we utilize other valuation techniques to estimate fair value. The use of these techniques

33 requires us to make estimations of future prices and other variables, including market volatility, price correlation, and market liquidity. Changes in these estimates could have a significant impact on the underlying market valuation and could materially impact these estimates.

We frequently enter into swaps, futures and other contracts to hedge the price risks associated with inventories, commitments and other anticipated transactions in connection with our non-trading activities. We defer the impact of changes in the market value of these contracts until such time as the hedged transaction is completed. At that time, the impact of the changes in the fair value of these contracts is recognized in income. We also enter into interest rate and foreign currency swaps to manage interest rates and foreign currency exchange risk. Income and expense related to interest rate swaps is accrued as interest rates change and is recognized in income over the life of the agreement. Such gains and losses are essentially offset by gains or losses on the related debt.

To qualify as a hedge, the item to be hedged must expose us to price, interest rate or foreign currency exchange rate risk and the hedging instrument must reduce that exposure. Any contracts held or issued that do not meet the requirements of a hedge are recorded at fair value in the balance sheet and any changes in that fair value are recognized in income. If a contract designated as a hedge of price risk or foreign currency exchange risk is terminated, the associated gain or loss is deferred and recognized in income in the same manner as the hedged item. Also, a contract designated as a hedge of an anticipated

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document transaction that is no longer likely to occur is recorded at fair value and the associated changes in fair value recognized in income. The gain or loss associated with a terminated interest rate swap that has been designated as a hedge of interest rate risk will continue to be recognized in interest and debt expense over the life of the agreement.

Property, Plant and Equipment. Property additions include acquisition costs, administrative costs and, where appropriate, capitalized interest allocable to construction. Capitalized interest amounted to $55 million, $41 million and $27 million in 2000, 1999 and 1998. All costs incurred in the acquisition, exploration and development of gas and oil properties, including unproductive wells, are capitalized under the full-cost method of accounting. Such costs include the costs of all unproved properties and internal costs directly related to acquisition and exploration activities. All other general and administrative costs, as well as production costs, are expensed as incurred.

Depreciation, depletion and amortization (DD&A) of gas and oil properties are provided on the unit-of-production basis whereby the unit rate for DD&A is determined by dividing the total unrecovered carrying value of gas and oil properties plus estimated future development costs by the estimated proved reserves included therein, as estimated by our engineers and reviewed by independent engineers. The average amortization rate per equivalent unit of a thousand cubic feet of gas production for oil and gas operations was $1.015 for 2000, $.87 for 1999 and $.89 for 1998. Unamortized costs of proved properties are subject to a ceiling that limits such costs to the estimated future net cash flows from proved gas and oil properties, net of related income tax effects, discounted at 10 percent. If the unamortized costs are greater than this ceiling, any excess will be charged to DD&A expense. No such charge was required in the periods presented. Provisions for depletion of coal properties, including exploration and development costs, are based upon estimates of recoverable reserves using the unit-of-production method. Provision for depreciation of other property is primarily on a straight-line basis over the estimated useful life of the properties. The annual rates of depreciation are as follows:

Refining, crude oil and chemical facilities...... 3.0%-20.0% Gas systems...... 1.2%-10.0% Coal facilities...... 5.0%-33.3% Power facilities...... 2.9%-33.3% Transportation equipment...... 4.5%-33.3% Office and miscellaneous equipment...... 3.0%-33.3% Buildings and improvements...... 1.3%-20.0%

Costs of minor property units, or components thereof, retired or abandoned are charged or credited, net of salvage, to accumulated depreciation, depletion and amortization. Gain or loss on sales of major property units is credited or charged to income.

Goodwill. Goodwill, which primarily relates to the acquisitions of American Natural Resources Company and CIG, amounted to $433 million at December 31, 2000, and is being amortized on a straight-line basis over a 40-year period. Amortization expense charged to operations was approximately $19 million for 2000, 1999 and 1998.

We evaluate impairment of goodwill in accordance with Statement of Financial Accounting Standards (SFAS) No. 121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of. Under this methodology, when an event occurs to suggest that impairment may have occurred, we evaluate the undiscounted net cash flows of the underlying asset or entity. If these cash flows are not sufficient to recover the value of the underlying asset or entity plus the goodwill amount, these cash flows are discounted at a risk-adjusted rate with any difference recorded as an impairment in our consolidated statements of income.

Repair and Maintenance Costs. Repair and maintenance costs incurred in connection with planned major maintenance activities at various refineries or plants are accrued as a liability in a systematic and rational manner over the period of time until the planned major maintenance activities occur. At other refineries or plants, the cost of each major maintenance activity is capitalized and amortized to expense in a systematic and rational manner over the estimated period extending to the next planned major maintenance activity.

~~Income Taxes. We follow the liability method of accounting for deferred income taxes as required by the provisions of SFAS No. 109, Accounting for~~

Revenue Recognition. Our subsidiaries recognize revenues for the sale of their respective products in the period of delivery. Revenues for services are recognized in the period the services are provided.

Currency Translation. The U.S. dollar is the functional currency for substantially all of our foreign operations. For those operations, all gains and losses from currency translations are included in income currently.

Earnings Per Share. Basic earnings per common share amounts are calculated using the average number of common and Class A common shares outstanding during each period. Diluted earnings per share assumes conversion of dilutive convertible preferred stocks, issuance of shares for the FELINE PRIDES(SM) and the exercise of all stock options having exercise prices less than the average market price of the common stock using the treasury stock method.

~~Basic and diluted earnings per share amounts and average shares entering into the computation for 1998 reflect the two-for-one stock split of our common stock declared on May 7, 1998.~~

Accounting for Derivative Instruments and Hedging Activities. In June of 1998, the Financial Accounting Standards Board (FASB) issued SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities. In June of 1999, the FASB extended the adoption date of SFAS No. 133 through the issuance of SFAS No. 137, Deferral of the Effective Date of SFAS 133. In June 2000, the FASB issued SFAS No. 138, Accounting for Certain Derivative Instruments and Certain Hedging Activities, which also amended SFAS No. 133. SFAS No. 133, and its amendments and interpretations, establishes accounting and reporting standards for derivative instruments, including derivative instruments embedded in other contracts, and derivative instruments used for hedging activities. It requires that we measure all derivative instruments at their fair value, and classify them as either assets or liabilities on our balance sheet, with a corresponding offset to income or other comprehensive income depending on their designation, their intended use, or their ability to qualify as hedges under the standard.

~~We adopted SFAS No. 133 beginning January 1, 2001, and applied the standard to all derivative instruments that existed on that date, except for derivative instruments embedded in other contracts. As~~

~~35 provided for in SFAS No. 133, we applied the provisions of the standard to derivative instruments embedded in other contracts issued, acquired, or substantially modified after December 31, 1998.~~

We use a variety of derivative instruments to conduct both energy trading activities and to hedge risks associated with commodity prices, foreign currencies and interest rates. The derivative instruments we use in commodity trading activities are currently recorded at their fair value in our financial statements under the provisions of Emerging Issues Task Force Issue No. 98-10, Accounting for Contracts Involved in Energy Trading and Risk Management Activities. As a result, SFAS No. 133 did not impact our accounting for the instruments used in commodity trading activities.

Based on commodity prices and interest rates existing at December 31, 2000, the impact of our adoption of SFAS 133 was a charge to other comprehensive income, net of tax, of $459 million and an increase in net income of $3 million, with an increase in assets of $338 million and an increase in liabilities of $794 million. This represents the fair value of our derivative instruments designated as cash flow hedges. The majority of the initial charge related to contracts to sell natural gas we expect to produce through the end of 2001.

~~Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities~~

In September 2000, the FASB issued SFAS No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, which replaces SFAS No. 125. This statement revises the standards for accounting for securitizations and other transfers of financial assets and collateral and requires certain disclosures, but carries over most of SFAS No. 125's provisions without reconsideration. This standard has various effective dates, the earliest of which is for fiscal years ending after December 15, 2000. We do not believe this pronouncement will have a material effect on our financial statements.

Reclassification of Prior Period Statements. In 2000, we applied FASB Emerging Issues Task Force Issue No. 99-19, Reporting Revenue Gross as a Principal versus Net as an Agent, which resulted in the reclassification of

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document revenues and purchases for various trading and marketing activities that had been previously reported on a net basis. As a result of the adoption, operating revenues and purchases increased by $4.0 billion, $2.1 billion and $2.0 billion in 2000, 1999 and 1998. This change had no impact on gross margins or net income. Prior years amounts have been reclassified to conform with the new presentation. In addition, other minor reclassifications have been made to conform with current reporting practices. The effect of the other minor reclassifications was not material to our financial position, operating results or cash flows.

~~2. MERGER~~

On January 29, 2001, we became a wholly owned subsidiary of El Paso through our merger with a wholly owned El Paso subsidiary. In the merger, holders of our common stock and Class A common stock received tax free 1.23 shares of El Paso common stock for each outstanding common share; holders of our Series A and Series B convertible preferred stock received tax free 9.133 shares of El Paso common stock for each outstanding convertible share; and holders of our Series C convertible preferred stock received tax free 17.98 shares of El Paso common stock for each outstanding convertible preferred share. In addition, holders of our outstanding stock options received shares of El Paso common stock based on the fair value of these options on the date of the merger. These exchanges will result in a charge of approximately $278 million that will be recorded in the first quarter of 2001. As a result of the merger, El Paso owns 100 percent of our common equity.

~~3. INCOME TAXES~~

~~Pretax income from continuing operations are composed of the following:~~

~~The following table reflects the components of income tax expense from continuing operations for the years ended December 31:~~

We have concluded with the Internal Revenue Service Appeals Office a tentative settlement of the adjustments proposed to our federal income tax returns filed for the years 1988 through 1994. Examination of our federal income tax returns filed for the years 1995, 1996 and 1997 began in 1999 and is ongoing. We believe that adequate provisions for federal income taxes have been reflected in our consolidated financial statements.

Our tax expense differs from the amount computed by applying the statutory federal income tax rate (35 percent) to income before taxes. The following table outlines the reasons for the differences for the periods ended December 31:

~~The following are the components of our net deferred tax liability at December 31:~~

U.S. income taxes have been provided for earnings of foreign subsidiaries that are expected to be distributed to the U.S. parent company. Foreign subsidiaries' cumulative undistributed earnings of $533 million are considered to be indefinitely reinvested outside the U.S. and, accordingly, no U.S. income taxes have been provided on those earnings. The determination of the hypothetical amount of unrecognized deferred U.S. taxes on undistributed earnings of foreign subsidiaries is not practicable.

~~4. EARNINGS PER SHARE~~

~~Basic and diluted earnings per share amounts calculated in accordance with~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document SFAS No. 128 Earnings Per Share, are presented below for the years ended December 31:

~~5. PREFERRED STOCK~~

On April 15, 1998, we redeemed all 8,000,000 outstanding shares of our $2.125 Cumulative Preferred Stock, Series H. Redemption price for the Series H stock was $25 per share plus accrued dividends of $.182986 to April 15, 1998.

~~6. STOCK-BASED COMPENSATION~~

Executives, directors and other key employees have been granted options to purchase common shares under stock option plans adopted in 1990, 1994, 1997 and 1998. Under each plan, the option price equals the fair market value of the common shares on the date of grant. Options vest cumulatively at rates ranging from 15% to 33 1/3% of the option shares on each anniversary date of the date of grant beginning with the first or second anniversary. The options, which expire either five years or ten years from the grant date, do not carry any stock appreciation rights.

~~A summary of the status of our stock options as of December 31, 2000, 1999, and 1998 is presented below:~~

~~------~~

~~The fair value of each stock option granted is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted-average assumptions:~~

~~The Black-Scholes weighted average fair value of options granted during 2000, 1999 and 1998 was $17.79, $15.22, and $12.77.~~

~~Options outstanding as of December 31, 2000 are summarized below:~~

~~Pro Forma Net Income and Net Income Per Common Share~~

Had the compensation expense for our stock-based compensation plans been determined applying the provisions of SFAS No. 123, our income from continuing operations, net income and income per common share amounts for 2000, 1999, and 1998 would approximate the pro forma amounts below:

~~The effects of applying SFAS No. 123 in this pro forma disclosure are not indicative of future amounts. SFAS No. 123 does not apply to awards granted prior to the 1995 fiscal year.~~

Stock options available for future grants amounted to 5,510,041; 5,478,587; and 6,856,789 at December 31, 2000, 1999 and 1998. Exercisable stock options amounted to 1,501,462; 1,983,595; and 1,706,453 at December 31, 2000, 1999 and

At the time of our merger with El Paso, holders of our outstanding stock options received shares of El Paso common stock based on the fair value of these options on the date of the merger, as determined in accordance with the merger agreement. A total of approximately 4 million shares were issued in exchange for these options.

~~7. FINANCIAL INSTRUMENTS AND PRICE RISK MANAGEMENT ACTIVITIES~~

Our operations involve managing market risks related to changes in interest rates, foreign exchange rates and commodity prices. Derivative financial instruments, specifically swaps and other contracts, are used to reduce and manage those risks.

~~FAIR VALUE OF FINANCIAL INSTRUMENTS~~

We have estimated the fair value amounts of our financial instruments using appropriate market information and valuation methodologies. Considerable judgment is required to develop the estimates of fair value; thus, the estimates provided herein are not necessarily indicative of the amounts that we could realize in a current market exchange. The carrying amounts and estimated fair values of our financial instruments at December 31 are as follows:

The estimated values of our notes receivable, long-term debt, our company-obligated preferred securities of a consolidated trust, preferred stock issued by our subsidiaries and limited partnership interests in consolidated joint venture are based on interest rates at December 31, 2000 and 1999 for new issues with similar remaining maturities. The fair value of investments are based on market prices at December 31, 2000 and 1999, time value and volatility. The fair value of the derivatives related to commodity swaps and commodity options are derived from various factors, including quoted market prices at December 31, 2000 and 1999. The fair market value of our interest rate swaps is based on the estimated termination values at December 31, 2000 and 1999.

~~TRADING COMMODITY ACTIVITIES~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Our trading business offers price risk management services to the energy sector through the sale of natural gas and electric power. These services are provided through a variety of contracts entered into for trading purposes, including storage, transportation, forward, future, swap and option contracts that extend for periods up to ten years. These contracts expose us to market risk as the value of the portfolio will change in response to changing market conditions.

The fair value of commodity and energy related contracts entered into for trading purposes as of December 31, 2000 and the average fair value of those instruments held during the year then ended are as follows:

The absolute notional volume of our swap and over-the-counter option contracts was 1,385 and 59 Bcf at December 31, 2000. Of this total, we are a fixed price payor on 767 Bcf and a fixed price receiver on 677 Bcf. These notional volumes, which have a maximum term of nine years, do not represent volumes exchanged by the parties, and therefore, are not a measurement of our exposure to market or credit risks.

We are exposed to credit risk, as well as market risk, on these contracts. Credit risk is the risk of loss from nonperformance by suppliers, customers or financial counterparties to a contract. Terms regarding cash settlements of these transactions vary based upon the contractual terms. We monitor and manage these risks

~~41 through a variety of techniques, including daily reporting of credit exposure and portfolio value to our management.~~

~~The counterparties associated with our assets from price risk management activities are summarized as follows:~~

Investment grade is primarily determined using publicly available credit ratings along with a consideration of collateral, which encompass standby letters of credit, parent company guarantees and property interests.

The concentration of our counterparties in the energy industry may impact our overall exposure to credit risk, in that the counterparties may be similarly affected by changes in economic, regulatory or other conditions. Based on our

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document policies and risk exposure, we believe our risk is minimal as a result of counterparty nonperformance.

~~NON-TRADING PRICE RISK MANAGEMENT ACTIVITIES~~

Interest Rate Swaps. We have entered into a number of interest rate swap agreements designated as a partial hedge of our portfolio of variable rate debt. The purpose of these swaps is to fix interest rates on variable rate debt and reduce exposures to interest rate fluctuations. At December 31, 2000, we had interest rate swaps with a notional amount of $12 million, and a portfolio of variable rate debt outstanding in the amount of $1,854 million. Under the remaining agreement, we will pay the counterparty interest at a fixed rate of 6.83%, and the counterparty will pay us interest at a variable rate equal to the London Interbank Offered Rate (LIBOR) or other market rates. The rate applicable to this agreement was 6.485% at December 31, 2000. The notional amounts do not represent amounts exchanged by the party, and thus are not a measure of our exposure. The amounts exchanged are normally based on the notional amounts and other terms of the swaps. The variable rates are subject to change over time as market rates fluctuate. Terms expire at various dates through the year 2011.

Neither us nor the counterparties, which are prominent bank institutions, are required to collateralize their respective obligations under these swaps. We are exposed to loss if one or more of the counterparties default. At December 31, 2000, we had no exposure to credit loss on interest rate swaps. We do not believe that any reasonably likely change in interest rates would have a material adverse effect on our financial position, operating results or cash flows.

Other Derivatives. We frequently enter into swaps and other contracts to hedge the price risks associated with inventories, commitments and various transactions. The swaps and other contracts are with established energy companies and major financial institutions. We believe our credit risk is minimal on these transactions, as the counterparties are required to meet stringent credit standards.

The absolute notional volumes and terms of our non-trading swaps at December 31, 2000 are set forth below (natural gas volumes are in millions of British thermal units and crude oil and refined products volumes are in millions of barrels):

~~8. DEBT~~

~~Long-Term Debt. Our long-term debt outstanding consisted of the following at December 31:~~

At December 31, 2000, amounts available under our long-term credit agreements with banks totaled $1,890 million, including $135 million available to El Paso CGP. Loans under these agreements bear interest at money market-related rates (weighted average 7.27% at December 31, 2000). Annual commitment fees range up to .30% payable on the unused portion of the applicable facility. At December 31, 2000, $303 million was outstanding, and $518 million of the unused amount was dedicated to specific uses.

Our availability to borrow under our credit agreements is subject to specified conditions, which we believe we currently meet. These conditions include compliance with the financial covenants and ratios required by such agreements, absence of default under such agreements, and continued accuracy of the representations and warranties contained in such agreements (including the absence of any material adverse changes).

Several of our agreements, totaling $1,500 million, have been terminated subsequent to our merger with El Paso, and we became a borrower under El Paso's $2 billion 364-day renewable credit and competitive advance facility and $1 billion 3-year revolving credit and competitive advance facility. The interest rate for these facilities varies and would have been LIBOR plus 50 basis points as of December 31, 2000.

~~Our subsidiary project financing notes bear interest at money market-related rates.~~

In September 2000, we issued $215 million of 7.625% Notes due in 2008. The net proceeds from the sale of the Notes were used for general corporate purposes, including the repayment of short-term borrowings.

In August 2000, we issued $300 million of 7.5% Notes due in 2006. The net proceeds from the sale of the Notes were used for general corporate purposes, including the repayment of floating rate indebtedness.

In July 2000, we issued $200 million of Floating Rate Notes due in 2003. The Notes bear interest at a rate equal to the three-month LIBOR plus 0.60%. The net proceeds from the sale were used for general corporate purposes, including the repayment of floating rate indebtedness.

~~In June 2000, we issued $400 million of 7.75% Notes due in 2010. The net~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document proceeds from the sale of the Notes were used to repay floating rate indebtedness, including indebtedness of a subsidiary under a revolving credit facility, and for general corporate purposes.

In March 2000, we issued $400 million of Floating Rate Notes due in 2002. The Notes bear interest at a rate equal to the three-month LIBOR plus 0.45%. The net proceeds from the sale of the Notes were used for general corporate purposes, including the repayment of indebtedness.

In August 1999, we issued a total of 18,400,000 FELINE PRIDES(SM) consisting of 17,000,000 Income PRIDES with a stated value of $25 and 1,400,000 Growth PRIDES with a stated value of $25. The Income PRIDES consist of a unit comprised of a Senior Debenture and a purchase contract under which the holder is obligated to purchase from us by no later than August 16, 2002 for $25 (the stated price) a number of shares of our common stock. The Growth PRIDES consist of a unit comprised of a purchase contract under which the holder is obligated to purchase from us by no later than August 16, 2002 for $25 (the stated price) a number of shares of our common stock and a 2.5% undivided beneficial interest in a three-year Treasury security having a principal amount at maturity equal to $1,000. Under the terms of the purchase contract in effect prior to the merger with El Paso, the number of shares of common stock the holder of a PRIDE received varied between .5384 and .6568 shares, depending on the price of our common stock.

Under the terms of the purchase contract, as a result of the merger with El Paso, the holder of a PRIDE is entitled and required to receive upon settlement .6622 shares of El Paso common stock. This will result in the issuance of approximately 12.2 million shares of El Paso common stock. The obligation of a holder of PRIDES to purchase common stock is secured by a pledge of the Senior Debenture or Treasury security.

Various agreements contain restrictive covenants which, among other things, limit dividends by several of our subsidiaries and additional indebtedness of several subsidiaries. At December 31, 2000, net assets of our consolidated subsidiaries amounted to approximately $12 billion, of which $623 million was restricted by these provisions. There will be no restricted amount subsequent to the merger with El Paso due to the termination of the long-term credit agreements under which these restrictions arose.

~~Maturities. Aggregate maturities of the principal amounts of long-term debt for the next five years and in total thereafter are as follows:~~

Notes Payable. At December 31, 2000, we had $798 million of outstanding indebtedness under our commercial paper program and indebtedness to banks under short-term lines of credit, compared to $581 million at December 31, 1999. For December 31, 1999, our financial statements reflected $475 million of short-term borrowings that had been reclassified as long-term, based on the availability of committed credit lines with maturities in excess of one year and our intent to maintain such amounts as long-term borrowings. The weighted average interest rates were 7.15% and 6.63% at December 31, 2000 and 1999, respectively. As of December 31, 2000, $622 million was available to be drawn under short-term credit lines.

Restrictions on Payment of Dividends. Under the terms of the most restrictive of our financing agreements, approximately $900 million of retained earnings was available at December 31, 2000, for payment of dividends on our common and preferred stocks.

~~Guarantees. We have guaranteed specific obligations of several of our~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document unconsolidated affiliates. Affiliates are generally not required to collateralize their contingent liabilities to us. At December 31, 2000, the outstanding principal balance under these guarantees was $165 million. Additionally, we and a former partner have issued a number of trade guarantees related to the operations of the Engage Energy US, L.P. and Engage Energy Canada, L.P. joint venture. The joint venture terminated in the fourth quarter 2000, with each of the former partners retaining a portion of the operations. As a condition to the termination, each of the former partners agreed to a continuation of the guarantees that were issued in connection with the operations retained by the other partner. These guarantees are to be replaced as soon as practical, and in any event, by July 2001. Each party has agreed to reimburse the other for any payments that are made under these guarantees. As of December 31, 2000, we had outstanding guarantees in the principal amount of $61 in connection with the operations of the Engage joint venture that were transferred to the other party. We believe that the actual potential liability is significantly less than the principal amount of these guarantees. We are of the opinion that these parties will be able to perform under the guaranteed transactions, that no payments will be required and that no losses will be incurred under such guarantees.

~~9. RETIREMENT BENEFITS~~

~~Pension Benefits~~

We have non-contributory pension plans covering substantially all of our U.S. employees. These plans provide benefits based on final average monthly compensation and years of service, subject to maximum limitations as defined in the plans.

~~Postretirement Benefits~~

We provide certain health care and life insurance benefits for substantially all of our U.S. employees. The estimated costs of retiree benefit payments are accrued during the years the employee provides services.

The following table sets forth the change in benefit obligation, change in plan assets, reconciliation of funded status, and components of net periodic benefit cost for pension benefits and other postretirement benefits.

Actuarial estimates for our postretirement benefits plans assumed a weighted average annual rate of increase in the per capita costs for covered health care benefits of 7.8 percent in 2000, gradually decreasing to 6 percent by the year 2004. The rate of increase in per capita costs for covered health care benefits was 8.4 percent and 9.0 percent in 1999 and 1998. A one-percentage point change from assumed health care cost trend rates would have the following effects:

~~Plan assets of the pension plan included our common stock and Class A common stock, amounting to a total of 7.2 million of our shares at December 31, 2000 and 1999.~~

~~We also participate in several multi-employer pension plans for the benefit of our employees who are union members. Our contributions to these plans were not material for 2000, 1999 or 1998.~~

We also make contributions to a thrift plan, which is a trusteed, voluntary and contributory plan for our eligible employees. We match 100 percent of participant basic contributions up to 8 percent, with the matching contribution being made in our stock. Our contributions, which are based on matching employee contributions, amounted to $21 million, $20 million and $19 million in 2000,

~~In conjunction with the El Paso merger, some of our benefit plans will be merged into comparable El Paso benefit plans, while other benefit plans will be terminated.~~

~~10. SECURITIES OF SUBSIDIARIES~~

Company-obligated Preferred Securities of a Consolidated Trust. On May 13, 1998, we completed a public offering of 12,000,000 mandatory redemption preferred securities through an affiliate, Coastal Finance I, a business trust, for $300 million in cash. Coastal Finance I holds debt securities of ours purchased with the proceeds of the preferred securities offering. Cumulative quarterly distributions are being paid on the preferred securities at an annual rate of 8.375% of the liquidation amount of $25 per preferred security. The preferred securities are mandatorily redeemable on the maturity date, May 13, 2038, and may be redeemed at our option on or after May 13, 2003, or earlier if various events occur. The redemption price to be paid is $25 per preferred security, plus accrued and unpaid distributions to the date of redemption.

Preferred Stock of Subsidiaries. Coastal Securities Company Limited, our wholly owned subsidiary, issued 4,000,000 shares of preferred stock in 1996 for $100 million in cash. Quarterly cash dividends are being paid on the preferred stock at a rate based on LIBOR. The preferred shareholders are also entitled to participating dividends based on refining margins. Coastal Securities may redeem the preferred stock on or after December 31, 1999 for cash.

In 1999, Coastal Oil & Gas Resources, Inc., our wholly owned subsidiary, issued 50,000 shares of preferred stock for $50 million in cash. The preferred shareholders are entitled to quarterly cash dividends at a

47 rate based on LIBOR. The dividend rate is subject to renegotiation in 2004 and on each fifth anniversary thereafter. In the event Coastal Oil & Gas and the preferred shareholders are unable to agree to a new rate, Coastal Oil & Gas must redeem the shares at $1,000 per share plus any accrued and unpaid dividends, or cause the preferred stock to be registered with the Securities and Exchange Commission and remarketed. Coastal Oil & Gas also has the option to redeem all shares on any dividend rate reset date for $1,000 per share plus any accrued and unpaid preferred dividends.

In 1999, Coastal Limited Ventures, Inc., our wholly owned subsidiary, issued 150,000 shares of preferred stock for $15 million in cash. The preferred shareholders are entitled to quarterly cash dividends at an annual rate of 6%. The dividend rate is subject to renegotiation in 2004 and on each fifth anniversary thereafter. In the event Coastal Limited and the preferred shareholders are unable to agree to a new rate, the preferred shareholders may call for redemption of all of the preferred shares. The redemption price is $100 per share plus any accrued and unpaid preferred dividends thereon. Coastal Limited also has the option to redeem all shares on any rate reset date for $100 per share plus any accrued and unpaid preferred dividends.

Consolidated Joint Venture. In December 1999, Coastal Limited contributed assets to a limited partnership in exchange for a controlling general partnership interest. Limited interests in the partnership were issued to unaffiliated investors for $286 million in cash. The limited partners are entitled to a cumulative priority return based on LIBOR. The return is subject to renegotiation in 2004 and on each fifth anniversary thereafter. The partnership has a maximum life of 20 years, but may be terminated sooner subject to certain conditions, including failure to agree to a new rate. Coastal Limited may terminate the partnership at any time by repayment of the limited partners' outstanding capital plus any unpaid priority returns.

~~11. SEGMENT AND GEOGRAPHIC REPORTING~~

We operate principally in the following lines of business: natural gas; refining, marketing and chemicals; exploration and production; power and coal. Separate management of each segment is required because each line of business is subject to different production, marketing and technology strategies.

Natural gas operations involve the production, purchase, gathering, processing, transportation, storage, marketing and sale of natural gas, principally to utilities, industrial customers and other pipelines, and include the operation of natural gas liquids extraction plants. Sales are primarily made to pipeline and distribution companies in most major areas of the United States.

~~Refining, marketing and chemicals operations involve the purchase,~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document transportation and sale of refined products, crude oil, condensate and natural gas liquids; the operation of refineries and chemical plants; the sale at retail of gasoline, petroleum products and convenience items; petroleum product terminaling and marketing of crude oil and refined products. Products from this segment are sold to customers worldwide.

Exploration and production operations involve the exploration, development and production of natural gas, crude oil, condensate and natural gas liquids. Sales are made to affiliated companies, industrial users, interstate pipelines and distribution companies in the Rocky Mountain, central and southwest areas of the United States and offshore Gulf of Mexico.

Power operations involve the ownership of, participation in and operation of power projects in the United States and internationally. Power is sold to customers in the Northeast and Midwest United States, Colorado and internationally, in Asia and Latin America.

Coal operations include the mining, processing and marketing of coal from our reserves and from other sources, and the brokering of coal for others. Sales are made to utilities and industrial customers in the United States and to export markets in Canada and Europe.

~~Corporate and other operations include real estate activities and corporate income and expense not allocated to the operating segments.~~

The accounting policies of the individual segments are the same as those described in Note 1. Since earnings on equity investments can be a significant source of earnings in several of our segments, we evaluate segment performance based on EBIT instead of operating income.

~~Information related to our segments for the years ended December 31, 2000, 1999 and 1998 are as follows:~~

~~Our assets and amount of investment in equity method investees by segment as of December 31, 2000, 1999 and 1998 are as follows:~~

~~Intersegment sales are accounted for on the basis of contract, current market or internally established transfer prices.~~

In October 2000, we and Westcoast Energy Inc. terminated the Engage joint venture that had been formed in 1997. The operations were divided into separate entities that are owned and operated independently by each company. Natural gas operating revenues for the last three months of 2000 include revenues of $1,871 million from the Engage operations we now own and operate. Prior to the termination, Engage's revenues are not included in our operating revenues;

~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document however, our share of Engage's net earnings is included in Other income, net.~~

In June 1998, the power purchase agreement associated with our Fulton Power Plant was restructured. In connection with the restructuring, a net gain of $17 million was recorded in the Power segment. The net gain reflects a $23 million reduction in the Plant's carrying value (to estimated fair value following the restructuring) and deferral of some of the proceeds to cover estimated future costs.

In October 1998, we sold several non-core natural gas processing and gathering assets. Revenues and earnings before interest and income taxes for the Natural Gas segment include a gain of $59 million from the sale.

~~Our operating revenues for the years ended December 31, 2000, 1999 and 1998 and property, plant and equipment as of December 31, 2000, 1999 and 1998, by geographic area, are shown as follows:~~

Revenues from sales to any single customer during 2000, 1999 or 1998 did not amount to 10 percent or more of our consolidated revenues. Revenues by geographic area are attributed to countries based on the location of our subsidiaries making the sales.

~~12. INVESTMENT IN AFFILIATED COMPANIES (UNAUDITED)~~

~~We have interests in corporations and partnerships which are accounted for on an equity basis. Several of the investments, included in Other Assets, are as follows:~~

~~------~~

~~(1) In connection with our merger with El Paso, we are required to divest our interests in Empire and Iroquois.~~

~~(2) Our interest in the Eagle Point Cogeneration Partnership increased from 50 percent to 84 percent effective as of January 1, 2001.~~

Our investment in these entities, including advances, totaled $1,596 million and $1,435 million at December 31, 2000 and 1999. Our equity in income of the investments, included in Other income, net, was $265 million, $190

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document million and $124 million in 2000, 1999 and 1998, while dividends and partnership distributions received amounted to $262 million, $151 million and $83 million in 2000, 1999 and 1998.

~~Summarized financial information of these entities is as follows:~~

~~13. DISCONTINUED OPERATIONS~~

We are pursuing the disposition of our 50% ownership of ANR Advance Transportation Company, Inc., a trucking operation. ANR Advance is being liquidated in cooperation with other owners. Accordingly, the trucking operations are being reported as a discontinued operation.

The net assets being disposed of have been classified in the accompanying consolidated balance sheets in Other Assets at December 31, 2000 and 1999. The net assets of the discontinued operations amounted to $3 million at December 31, 2000 and 1999.

Operating results of the discontinued operations are shown separately in the accompanying consolidated statements of income. The loss from operations shown on the consolidated statements of income is net of income tax benefits of $2 million in 1998. The estimated loss on disposal of the discontinued operations of $35 million is net of income tax benefits of $19 million.

~~14. INVENTORIES~~

~~Inventories at December 31 were:~~

~~Material, labor and manufacturing expenses are included in inventory cost.~~

~~15. COMMITMENTS AND CONTINGENCIES~~

In October 1992, several property owners in McAllen, Texas filed suit in the 93rd Judicial District Court, Hidalgo County, Texas, against, among others, one of our subsidiaries (Timely Adventures, Inc. et al, v. Phillips Properties, Inc., et al and Garza v. Coastal Mart, Inc.). The suit sought damages for the alleged diminution of property value and damages related to the exposure to hazardous chemicals arising from the operation of service stations and storage facilities. In July 2000, the trial court entered a judgment for approximately $1.2 million in actual damages for property diminution and approximately $100 million in punitive damages. The judgment is being appealed.

In October 1996, we, along with several subsidiaries, were named as defendants in a suit filed by several former and current African American employees in the U.S. District Court, Southern District of Texas. The suit alleged racially discriminatory employment policies and practices. We vigorously denied these allegations and filed responsive pleadings. Plaintiffs' counsel sought to have the suit certified as a class action of all former and current African American employees and initially claimed compensatory and punitive damages of $400 million. In September 2000, we reached an agreement on terms that would settle all individual and class claims. The court has given preliminary approval to the settlement and has set the fairness hearing for May 11, 2001.

In May 1999, we were named as defendants in a suit filed by an individual employed by one of our contractors in the 319th Judicial District Court, Nueces County, Texas (Rolando Lopez and Rosanna Barton v. Coastal Refining & Marketing, Inc. and The Coastal Corporation). The suit sought damages for injuries sustained at the time of an explosion at one of our refining plants, and was settled in August 2000 for a total payment of $7 million, of which $5 million was covered by insurance. Three of our refinery employees intervened in the suit and sought damages for injuries sustained in the explosion. Those claims were tried in August 2000, resulting in a $122 million verdict, which is also covered by insurance and which is being appealed by the insurance carrier.

In 1999, a number of our subsidiaries were named defendants in actions brought by Jack Grynberg on behalf of the U.S. Government under the False Claims Act. Generally, these complaints allege an industry-wide conspiracy to under report the heating value as well as the volumes of the natural gas produced from federal and Native American lands, which deprived the U.S. Government of royalties. These matters have been consolidated for pretrial purposes. (In re: Natural Gas Royalties Qui Tam Litigation, U.S. District Court for the District of Wyoming.)

A number of our subsidiaries are named defendants in an action styled Quinque Operating Company, et al v. Gas Pipelines and Their Predecessors, et al, filed in 1999 in the District Court of Stevens County, Kansas. This class action complaint alleges that the defendants mismeasured natural gas volumes and heating content of natural gas on non-federal and non-Native American lands. The Quinque complaint, once transferred to the same court handling the Grynberg complaint, has been sent back to the Kansas State Court for further proceedings.

~~We are also a named defendant in numerous lawsuits and a named party in numerous governmental proceedings arising in the ordinary course of our business.~~

While the outcome of the matters discussed above cannot be predicted with certainty, we do not expect the ultimate resolution of these matters will have a material adverse effect on our financial position, operating results, or cash flows.

~~Environmental~~

Our operations are subject to extensive and evolving federal, state and local environmental laws and regulations. Compliance with such laws and regulations can be costly. Additionally, governmental authorities may enforce the laws and regulations with a variety of civil and criminal enforcement measures, including monetary penalties and remediation requirements.

We spent approximately $16 million in 2000 on environmental capital projects and anticipate capital expenditures of approximately $50 million in 2001 in order to comply with such laws and regulations. The majority of the 2000 expenditures is attributable to projects at our refining, chemical and terminalling facilities. We currently anticipate capital expenditures for environmental compliance of $30 million to $75 million per year over the next

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) imposes liability for the release of a hazardous substance into the environment. CERCLA liability is imposed without regard to fault and even if the waste disposal was in compliance with the then current laws and regulations. With the joint and several liability imposed under CERCLA, a potentially responsible party (PRP) may be required to pay more than its proportional share of such costs. Several of our subsidiaries and a company in which we own a 50% interest have been named as a PRP in various CERCLA waste disposal sites. At the eight sites for which there is sufficient information, total cleanup costs are estimated to be approximately $605 million. We estimate our pro-rata exposure, to be paid over a period of years, is approximately $4 million, and we have made appropriate provisions. At thirteen other sites, the EPA is currently unable to provide us with an estimate of total cleanup costs, and accordingly, we are unable to calculate our share of those costs.

Additionally, several of our subsidiaries have been named as PRPs in four state sites. In Florida, the Florida Department of Environmental Protection has demanded reimbursement of its costs, which total approximately $300,000, and suitable remediation, with approximately $100,000 potentially attributable to our subsidiary's activities. In North Carolina, the North Carolina Department of Health, Environmental and Natural Resources has estimated the total cleanup costs to be approximately $50 million. In Texas, the Texas Natural Resource Conservation Commission has estimated the total cleanup costs to be approximately $2 million. In Utah, a remediation plan has been submitted to the Utah Department of Environmental Quality for approval, with current estimated cleanup costs of approximately $1.2 million attributable to our subsidiary's activities. At all of the four state sites, we believe our subsidiaries' activities were de minimis. With respect to the Texas site, we have entered into a joint defense agreement with the other PRPs for the payment of $20,000 as a de minimis settlement.

From March to October 2000, our Eagle Point Oil Company received several Administrative Order Notices of Civil Administrative Penalty Assessment from the New Jersey Department of Environmental Protection. All of the assessments are related to similar alleged noncompliances of the New Jersey Air Pollution Control Act pertaining to occurrences of air pollution from the second quarter 1998 through the third quarter 2000 by Eagle Point's refinery in Westville, New Jersey. The New Jersey Department of Environmental Protection has assessed penalties totaling $1,188,000 for these alleged noncompliances. Eagle Point has requested an administrative hearing on all issues raised by the assessments and concurrently, is in negotiations to settle these assessments.

It is possible that new information or future developments could require us to reassess our potential exposure related to environmental matters. We may incur significant costs and liabilities in order to comply with existing environmental laws and regulations. It is also possible that other developments, such as increasingly strict environmental laws and regulations, and claims for damages to property, employees, other persons and the environment resulting from our current or past operations, could result in substantial costs and liabilities in the future. As this information becomes available, or other relevant developments occur, we will adjust our accrual amounts accordingly. While there are still uncertainties relating to the ultimate costs we may incur, based upon our evaluation and experience to date, we believe that compliance with all applicable laws and regulations will not have a material adverse impact on our financial position, operating results or cash flows.

Regulatory Matters. Several regulatory issues remain unresolved among CIG, ANR, ANR Storage and Wyoming Interstate, their customers, their suppliers and FERC. We have made provisions which represent management's assessment of the ultimate resolution of these issues. While we cannot predict with certainty the final outcome or the timing of the resolution of all of our regulatory matters, we believe the ultimate resolution of these issues will not have a material adverse effect on our financial position, operating results, or cash flows.

~~Leases and Commitments~~

We lease property, plant and equipment under various operating leases, some of which contain renewal and purchase options and residual value guarantees. Such residual value guarantees amount to approximately $533 million. Rental expense amounted to approximately $140 million, $120 million and $86 million in 2000, 1999 and 1998, excluding leases covering natural resources. Aggregate minimum lease payments under existing noncapitalized long-term leases are estimated to be $150 million, $139 million, $131 million, $130 million, and $125 million for the years 2001-2005 and $613 million thereafter.

~~16. SUPPLEMENTAL SELECTED QUARTERLY FINANCIAL INFORMATION (UNAUDITED)~~

~~Financial information by quarter is summarized below. In the opinion of management, all adjustments necessary for a fair presentation have been made.~~

In 2000, we applied FASB Emerging Issues Task Force Issue No. 99-19, Reporting Revenue Gross as a Principal versus Net as an Agent, which resulted in the reclassification of revenues and purchases for various trading and marketing activities that had been previously reported on a net basis. This change had no impact on gross margins or net income. All quarterly amounts have been reclassified to conform with the new presentation.

~~17. SUPPLEMENTAL NATURAL GAS AND OIL OPERATIONS (UNAUDITED)~~

Reserves; capitalized costs; costs incurred in oil and gas acquisition, exploration and development activities; results of operations; and the standardized measure of discounted future net cash flows are presented for the exploration and production segment. Natural gas systems reserves and the related standardized measure of discounted future net cash flows are separately presented for natural gas systems operations. All of our proved properties, with the exception of the proved reserves in Brazil noted below, are located in North America (U.S. and Canada). The following reserve tables report on U.S. operations and do not include approximately 190,000 MMcfe of Canadian proved reserves with 1,139 MMcfe of Canadian production during 2000 and 120,000 MMcfe of Brazilian proved reserves.

~~Estimated Quantities of Proved Reserves (Domestic)~~

~~Changes in proved reserves since the end of 1997 are shown in the following table.~~

Total proved reserves for natural gas systems exclude storage gas and liquids volumes. The natural gas systems storage gas volumes are 199,937 MMcf, 221,509 MMcf, and 225,853 MMcf and storage liquids volumes are approximately 237 MBbls, 301 MBbls, and 232 MBbls at December 31, 2000, 1999 and 1998. Total proved reserves for natural gas equivalents include approximately 130,000 MMcf, 152,000 MMcf, and 162,000 MMcf associated with volumetric production payments we sold to unaffiliated entities for the years 2000, 1999 and 1998.

All of our proved reserves, with the exception of the Brazilian reserves noted earlier, are located in North America (U.S. and Canada). Other international activities are connected with the evaluation of various concessions, which are periodically reviewed for impairment.

~~Capitalized Costs Relating to Exploration and Production Activities~~

~~COSTS EXCLUDED FROM AMORTIZATION~~

The following table summarizes the costs related to unevaluated properties and major development projects that are excluded from amounts subject to amortization at December 31, 2000. We regularly evaluate these costs to determine whether impairment has occurred. The majority of these costs are expected to be evaluated and included in the amortization base within three years.

~~Costs Incurred in Oil and Gas Acquisition, Exploration and Development Activities~~

~~Results of Operations for Exploration and Production Activities~~

~~The average domestic amortization rate per Mcfe was $1.015 in 2000, $0.87 in 1999 and $0.89 in 1998.~~

~~Standardized Measure of Discounted Future Net Cash Flows Relating to Proved Oil and Gas Reserve Quantities~~

Future cash inflows for the years ended December 31, 2000, 1999 and 1998 from the sale of proved reserves and estimated production and development costs as calculated by our engineers and reviewed by Huddleston & Co., Inc., our independent engineers, are discounted by 10% after they are reduced by our estimate for future income taxes. The calculations are based on year-end prices and costs, statutory tax rates and nonconventional fuel source tax credits that relate to existing proved oil and gas reserves in which we have mineral interests.

The standardized measure is not intended to represent the market value of reserves and, in view of the uncertainties involved in the reserve estimation process, including the instability of energy markets as evidenced by changes in both natural gas and crude oil prices, may be subject to material future revisions:

Future net cash flows include approximately $486 million for 2000, $190 million for 1999 and $156 million for 1998 related to volumes dedicated to volumetric production payments that we sold to unaffiliated entities.

~~Principal sources of change in the standardized measure of discounted future net cash flows during each year are:~~

None of the amounts include any value for natural gas systems storage gas and liquids volumes, which was approximately 39 Bcf for CIG, 107 Bcf for ANR, 54 Bcf for Mid Michigan Gas Storage Company and 237 MBbls of liquids for CIG at the end of 2000.

~~INDEPENDENT AUDITORS' REPORT~~

~~Board of Directors and Stockholders El Paso CGP Company Houston, Texas~~

We have audited the accompanying consolidated balance sheets of El Paso CGP Company (formerly The Coastal Corporation) and subsidiaries as of December 31, 2000 and 1999, and the related consolidated statements of income, stockholders' equity and cash flows for each of the three years in the period ended December 31, 2000. Our audits also included the financial statement schedule listed in the Index at Item 14(a)2. These financial statements and financial statement schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and financial statement schedule based on our audits.

We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, such consolidated financial statements present fairly, in all material respects, the consolidated financial position of El Paso CGP Company and subsidiaries as of December 31, 2000 and 1999, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2000, in conformity with accounting principles generally accepted in the United States of America. Also, in our opinion, such financial statement schedule, when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly in all material respects the information set forth therein.

~~DELOITTE & TOUCHE LLP~~

~~Houston, Texas March 19, 2001~~

~~ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.~~

~~None.~~

~~PART III~~

Item 10, "Directors and Executive Officers of the Registrant;" Item 11, "Executive Compensation;" Item 12, "Security Ownership of Management;" and Item 13, "Certain Relationships and Related Transactions," have been omitted from this report pursuant to the reduced disclosure format permitted by General Instruction I to Form 10-K.

~~PART IV~~

~~ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.~~

~~(a) The following documents are filed as part of this Annual Report or incorporated herein by reference:~~

~~1. Financial statements.~~

~~The following consolidated financial statements of El Paso CGP are included in Part II, Item 8 on this report:~~

~~2. Financial statement schedules and supplementary information required to be submitted.~~

~~Schedules other than those listed above are omitted because they are not applicable.~~

~~3. Exhibits.~~

Each exhibit identified below is filed as a part of this report. Exhibits not incorporated by reference to a prior filing are designated by an asterisk; all exhibits not so designated are incorporated herein by reference to a prior filing as indicated. Exhibits designated with a "+" constitute a management contract or compensatory plan or arrangement required to be filed as an exhibit to this report pursuant to Item 14(c) of Form 10-K.

~~(b) Reports on Form 8-K:~~

We filed a Current Report on Form 8-K dated February 2, 2001, announcing that we became a direct subsidiary of El Paso Corporation as a result of our merger with a wholly owned subsidiary of El Paso Corporation on January 29, 2001.

~~SIGNATURES~~

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, El Paso CGP Company has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on the 23rd day of March 2001.

~~EL PASO CGP COMPANY (Registrant)~~

~~By: /s/ WILLIAM A. WISE ------William A. Wise Chairman of the Board, President and Chief Executive Officer~~

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report has been signed below by the following persons on behalf of El Paso CGP Company and in the capacities and on the dates indicated:

~~SCHEDULE II~~

~~EL PASO CGP COMPANY AND SUBSIDIARIES~~

~~VALUATION AND QUALIFYING ACCOUNTS YEARS ENDED DECEMBER 31, 2000, 1999 AND 1998 (IN MILLIONS)~~

~~------~~

~~(1) Primarily accounts written off.~~

~~(2) Includes beginning balance of $16 million at October 1, 2000 for Coastal Merchant Energy.~~

~~INDEX TO EXHIBITS~~

~~EXHIBIT 3.A~~

~~AMENDED AND RESTATED~~

~~CERTIFICATE OF INCORPORATION~~

~~EL PASO CGP COMPANY~~

~~Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware~~

~~El Paso CGP Company (the "Corporation"), a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:~~

1. The name of the Corporation is El Paso CGP Company. The Corporation was originally incorporated on September 7, 1972, under the name Coastal States Gas Corporation. The name of the Corporation was changed to The Coastal Corporation on January 1, 1980, and was changed to El Paso CGP Company on January 30, 2001.

2. This Amended and Restated Certificate of Incorporation restates and further amends the Certificate of Incorporation of the Corporation and has been adopted and approved in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware. Stockholder approval of this Restated Certificate of Incorporation was given by unanimous written consent of the stockholders of the Corporation in accordance with Section 228 of the General Corporation Law of the State of Delaware.

~~3. The text of the Certificate of Incorporation, as heretofore amended, is hereby amended and restated to read in its entirety as follows:~~

~~FIRST: The name of the corporation is El Paso CGP Company.~~

SECOND: The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, New Castle County, Delaware 19801, and the name of its registered agent at the above address is The Corporation Trust Company.

~~THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.~~

~~FOURTH: The total number of shares of stock the corporation~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document shall have authority to issue is one thousand (1,000) shares of common stock with a par value of one dollar ($1.00) per share.

Shares of stock of this corporation whether with or without par value, of any class or classes hereby or hereafter authorized, may be issued by this corporation from time to time for such consideration permitted by law as may be fixed from time to time by the Board of Directors.

~~FIFTH: Unless required by the By-laws, the election of the Board of Directors need not be by written ballot.~~

SIXTH: The Board of Directors of this corporation is expressly authorized to make, alter, or repeal the By-laws of the corporation, but the stockholders may make additional By-laws and may alter or repeal any By-law whether or not adopted by them.

SEVENTH: No director of the Corporation shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, for any act or omission, except that a director may be liable (i) for breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the directors shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended. The elimination and limitation of liability provided herein shall continue after a director has ceased to occupy such position as to acts or omissions occurring during such director's term or terms of office. Any amendment, repeal or modification of this Article Seventh shall not adversely affect any right of protection of a director of the Corporation existing at the time of such repeal or modification.

~~IN WITNESS WHEREOF, El Paso CGP Company has caused this Amended and Restated Certificate of Incorporation to be signed by a duly authorized officer this 31st day of January 2001.~~

~~EL PASO CGP COMPANY~~

~~-2-~~

~~EXHIBIT 3.B~~

~~EL PASO CGP COMPANY~~

~~(A DELAWARE CORPORATION)~~

~~BY-LAWS~~

~~Adopted January 29, 2001 Name Change effective January 30, 2001~~

~~BY-LAWS~~

~~EL PASO CGP COMPANY~~

~~ARTICLE I~~

~~STOCKHOLDERS~~

SECTION 1. ANNUAL MEETINGS. The annual meeting of the stockholders shall be held for the election of directors on the second Tuesday in June of each year, if such day be not a legal holiday, in the state where such meeting is to be held, or, if a legal holiday, then at the same time on such next succeeding business day at the principal office of the Corporation in the State of Delaware or at such other date, time or place either within or without the State of Delaware as may be designated by the Board of Directors from time to

SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders, to be held at the principal office of the Corporation in the State of Delaware or at such other place within or without the State of Delaware and at such date and time as may be stated in the notice of the meeting, and for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Board of Directors, the Chairman of the Board, or the President, and shall be called by the Chairman of the Board, the President or the Secretary at the request in writing of stockholders owning a majority of the issued and outstanding shares of capital stock of the Corporation of the class or classes which would be entitled to vote on the matter or matters proposed to be acted upon at such special meeting of stockholders. Any such request shall state the purpose or purposes of the proposed meeting.

SECTION 3. NOTICE OF MEETINGS. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the written notice of any meeting shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation.

SECTION 4. ADJOURNMENTS. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may

3 transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

SECTION 5. QUORUM. At any meeting of stockholders, except where otherwise provided by law or the certificate of incorporation or these by-laws, the holders of a majority of the outstanding shares of each class of stock entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum. For purposes of the foregoing, two or more classes or series of stock shall be considered a single class if the holders thereof are entitled to vote together as a single class at the meeting. In the absence of a

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document quorum the stockholders so present may, by majority vote, adjourn the meeting from time to time in the manner provided by Section 1.4 of these by-laws until a quorum shall attend. Shares of its own capital stock belonging on the record date for the meeting to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

SECTION 6. ORGANIZATION. Meetings of stockholders shall be presided over by the Chairman of the Board, or in his absence, by the President, any Executive Vice President, Senior Vice President or Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the presiding chairman of the meeting may appoint any person to act as secretary of the meeting.

SECTION 7. VOTING; PROXIES. Unless otherwise provided in the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by him which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. The vote for directors and, upon the demand of any stockholder, the vote upon any question before the meeting shall be by written ballot. All elections shall be had and all questions decided, unless otherwise provided by law, the certificate of incorporation or these by-laws, by a plurality vote.

~~-2-~~

SECTION 8. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board is necessary, shall be on the day on which the first written consent is expressed; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

SECTION 9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present.

~~ARTICLE II~~

~~BOARD OF DIRECTORS~~

SECTION 1. POWERS; NUMBERS; QUALIFICATIONS. The business, affairs, operations and property of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by law or in the certificate of incorporation. The number of directors constituting the entire Board shall be not less than one. The number of directors shall be as determined from time to time by resolution of the Board of Directors or by the stockholders at the Annual Meeting. Directors need not be stockholders.

~~-3-~~

~~SECTION 2. ELECTION; TERM OF OFFICE; RESIGNATION; VACANCIES. Each~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document director shall hold office until the annual meeting of stockholders next succeeding his election and until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the Board of Directors, to the Chairman of the Board, to the President or to the Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. Unless otherwise provided in the certificate of incorporation or these by-laws, vacancies and newly created directorships resulting from any increase in the authorized number of directors or from any other cause may be filled by a majority of the directors then in office, although less than a quorum.

SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board may from time to time determine, and if so determined notice thereof need not be given.

SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chairman of the Board, the President or by any two directors. Reasonable notice thereof shall be given by the person or persons calling the meeting.

SECTION 5. TELEPHONIC MEETINGS PERMITTED. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of the Board or of such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this by-law shall constitute presence in person at such meeting.

SECTION 6. QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of the Board of Directors, directors constituting a majority of the entire Board shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board unless the certificate of incorporation or these by-laws shall require a vote of a greater number; provided, however, that whenever any meeting of the Board shall be held outside of the United States of America, no action taken at such meeting shall be effective unless concurred in by a majority of the entire Board. In case at any meeting of the Board a quorum shall not be present, the members of the Board present may adjourn the meeting from time to time until a quorum shall attend.

SECTION 7. ORGANIZATION. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, or in his absence, by a chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his absence the presiding chairman of the meeting may appoint any person to act as secretary of the meeting.

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document SECTION 8. INFORMAL ACTION BY DIRECTORS. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken

~~-4-~~

6 without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

SECTION 9. ADVISORY DIRECTORS. The Board of Directors may, from time to time, elect one or more Advisory Directors, each of whom shall serve until the first meeting of the Board next following the Annual Meeting of Stockholders or until his earlier resignation or removal by the Board. Advisory Directors shall serve as advisors and consultants to the Board of Directors, shall be invited to attend all meetings of the Board and may participate in all discussions occurring during such meetings. Advisory Directors shall not be privileged to vote on matters brought before the Board and shall not be counted for the purpose of determining whether a quorum of the Board is present.

~~ARTICLE III~~

~~COMMITTEES~~

SECTION 1. COMMITTEES OF THE BOARD. The Board of Directors may, by resolution passed by a majority of the entire Board, designate one or more committees, each committee to consist of one or more of the directors. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Vacancies in any such committee shall be filled by the Board, but in the absence or disqualification of a member of such committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have power or authority in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors, fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation), adopting an agreement of

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document merger or consolidation under Sections 251 or 252 of the Delaware General Corporation Law, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of dissolution, or amending these by-laws, and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the Delaware General Corporation Law.

~~-5-~~

SECTION 2. COMMITTEE RULES. Unless the Board of Directors otherwise provides, each committee designated by the Board may make, alter and repeal rules for the conduct of its business. In the absence of a provision by the Board or a provision in the rules of such committee to the contrary, a majority of the entire authorized number of members of such committee shall constitute a quorum for the transaction of business, the vote of a majority of the members present at a meeting at the time of such vote if a quorum is then present shall be the act of such committee, and in other respects such committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article II of these by-laws.

~~ARTICLE IV~~

~~OFFICERS~~

SECTION 1. OFFICERS; GENERAL PROVISIONS. The officers of the Corporation shall consist of such of the following as the Board of Directors may from time to time elect: a Chairman of the Board, a President, one or more Executive Vice Presidents, one or more Senior Vice Presidents, one or more Vice Presidents, a Secretary, a Treasurer and a Controller. The Chairman of the Board shall be chosen from among the directors. The Board may also elect one or more Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Controllers, and such other officers with such titles and powers and/or duties as the Board shall from time to time determine. Officers may be designated for particular areas of responsibility and simultaneously serve as officers of subsidiaries or divisions. The foregoing officers shall be elected as soon as practicable after the annual meeting of stockholders in each year to hold office until the first meeting of the Board after the annual meeting of stockholders next succeeding his election, and until his successor is elected and qualified or until his earlier resignation or removal. Any officer so elected may resign at any time upon written notice to the Board, the Chairman of the Board, the President or the Secretary. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. Any officer may be

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document removed, with or without cause, by vote of a majority of the entire Board of Directors at a meeting called for that purpose. Any such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the election or appointment of any officer shall not of itself create contractual rights. Any number of offices may be held by the same person. Any vacancy occurring in any office by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board at any regular or special meeting.

SECTION 2. CHAIRMAN OF THE BOARD. The Chairman of the Board shall, when present, preside at all meetings of the stockholders and the Board; have authority to call special meetings of the stockholders and of the Board; have authority to sign and acknowledge in the name and on behalf of the corporation all stock certificates, contracts or other documents and instruments except where the signing thereof shall be expressly delegated to some other officer or agent by the Board or required by law to be otherwise signed or executed and, unless otherwise provided by law or by the Board may authorize any officer, employee or agent of the corporation to sign, execute and acknowledge in his place

~~-6-~~

8 and stead all such documents and instruments; he shall fix the compensation of officers of the corporation, other than his own compensation, and the compensation of officers of its principal operating subsidiaries reporting directly to him unless such authority is otherwise reserved to the Board or a committee thereof; and he shall approve proposed employee compensation and benefit plans of subsidiary companies not involving the issuance or purchase of capital stock of the corporation. He shall have the power to appoint and remove any Vice President, Controller, General Counsel, Secretary or Treasurer of the corporation. He shall also have the power to appoint and remove such associate or assistant officers of the corporation with such titles and duties as he may from time to time deem necessary or appropriate. He shall have such other powers and perform such other duties as from time to time may be assigned to him by the Board or the Executive Committee.

SECTION 3. PRESIDENT. The President shall have general control of the business, affairs, operations and property of the Corporation, subject to the Chairman of the Board and the Board of Directors. He may sign or execute, in the name of the Corporation, all deeds, mortgages, bonds, contracts or other undertakings or instruments, except in cases where the signing or execution thereof shall have been expressly delegated by the Chairman of the Board or the Board to some other officer or agent of the Corporation. He shall have and may exercise such powers and perform such duties as may be provided by law or as are incident to the office of President of a corporation and such other duties as are assigned by these by-laws and as may from time to time be assigned by the

SECTION 4. VICE PRESIDENTS. Each Executive Vice President, Senior Vice President, Vice President and Assistant Vice President shall have such powers and perform such duties as may be provided by law or as may from time to time be assigned to him, either generally or in specific instances, by the Board of Directors, the Chairman of the Board or the President.

Any Executive Vice President or Senior Vice President may perform any of the duties or exercise any of the powers of the Chairman of the Board or the President at the request of, or in the absence or disability of, the Chairman of the Board or the President or otherwise as occasion may require in the administration of the business and affairs of the Corporation.

Each Executive Vice President, Senior Vice President, Vice President and Assistant Vice President shall have authority to sign or execute all deeds, mortgages, bonds, contracts or other instruments on behalf of the Corporation, except in cases where the signing or execution thereof shall have been expressly delegated by the Board of Directors or these by-laws to some other officer or agent of the Corporation.

SECTION 5. SECRETARY. The Secretary shall keep the minutes of meetings of the stockholders and of the Board of Directors in books provided for the purpose; he shall see that all notices are duly given in accordance with the provisions of these by-laws, or as required by law; he shall be custodian of the records and of the corporate seal or seals of the Corporation; he shall see that the corporate seal is affixed to all documents requiring same, the execution of which, on behalf of the Corporation, under its seal, is duly authorized, and

~~-7-~~

9 when said seal is so affixed he may attest same; and, in general, he shall perform all duties incident to the office of the secretary of a corporation, and such other duties as from time to time may be assigned to him by the Board, the Chairman of the Board or the President or as may be provided by law. Any Assistant Secretary may perform any of the duties or exercise any of the powers of the Secretary at the request of, or in the absence or disability of, the Secretary or otherwise as occasion may require in the administration of the business and affairs of the Corporation.

SECTION 6. TREASURER. The Treasurer shall have charge of and be responsible for all funds, securities, receipts and disbursements of the Corporation, and shall deposit, or cause to be deposited, in the name of the Corporation, all moneys or other valuable effects in such banks, trust companies or other depositories as shall, from time to time, be selected by or under authority of the Board of Directors; if required by the Board, he shall give a

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document bond for the faithful discharge of his duties, with such surety or sureties as the Board may determine; he shall keep or cause to be kept full and accurate records of all receipts and disbursements in books of the Corporation and shall render to the Chairman of the Board, the President and the Board, whenever requested, an account of the financial condition of the Corporation; and, in general, he shall perform all the duties incident to the office of treasurer of a corporation, and such other duties as may be assigned to him by the Board, the Chairman of the Board or the President or as may be provided by law.

SECTION 7. CONTROLLER. The Controller shall be the chief accounting officer of the Corporation. He shall keep full and accurate accounts of the assets, liabilities, commitments, receipts, disbursements and other financial transactions of the Corporation; shall cause regular audits of the books and records of account of the Corporation and supervise the preparation of the Corporation's financial statements; and, in general, he shall perform the duties incident to the office of controller of a corporation and such other duties as may be assigned to him by the Board, the Chairman of the Board or the President or as may be provided by law. If no Controller is elected by the Board of Directors, the Treasurer shall perform the duties of the office of controller.

~~ARTICLE V~~

~~STOCK~~

SECTION 1. CERTIFICATES. Every holder of stock in the Corporation shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman of the Board, the President or by any Executive Vice President, Senior Vice President or Vice President, and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation. Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar

~~-8-~~

~~10 before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.~~

SECTION 2. LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF NEW CERTIFICATES. The Corporation may issue a new certificate of stock or uncertificated shares in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

~~ARTICLE VI~~

~~MISCELLANEOUS~~

~~SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall end on the thirty-first day of December in each year, or on such other day as may be fixed from time to time by the Board of Directors.~~

SECTION 2. SEAL. The Corporation may have a corporate seal which shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware." The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

SECTION 3. WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS AND COMMITTEES. Whenever notice is required to be given by law or under any provision of the certificate of incorporation or these by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or these by-laws.

SECTION 4. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES. The Corporation shall indemnify to the full extent authorized by law any person made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate, is or was a director, officer or employee of the Corporation or any predecessor of the Corporation or serves or served any other enterprise as a director, officer or employee at the request of the Corporation or any predecessor of the Corporation. In the event that the Board of Directors or stockholders refuse or fail to provide indemnity, a person may seek indemnity from the Corporation in court and have the court substitute its judgment as to the propriety of

~~-9-~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 11 indemnity, or determine such propriety in the absence of any determination thereof by the Board or by stockholders.

SECTION 5. INTERESTED DIRECTORS; QUORUM. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (1) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee which authorizes the contract or transaction.

SECTION 6. FORM OF RECORDS. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on or be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other information storage device, provided that the records so kept can be converted into clearly legible form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.

SECTION 7. AMENDMENT OF BY-LAWS. These by-laws may be altered or repealed, and new by-laws made, by the affirmative vote of a majority of the entire Board of Directors, but the stockholders may make additional by-laws and may alter or repeal any by-laws whether or not adopted by them.

SECTION 8. GENDER REFERENCES. All references and uses herein of the masculine pronouns "he" or "his" shall have equal applicability to and shall also mean their feminine counterpart pronouns, such as "she" or "her."

~~-10-~~

~~FIFTEENTH AMENDMENT TO THE PENSION PLAN FOR EMPLOYEES OF THE COASTAL CORPORATION~~

~~THIS AMENDMENT is made the 29th day of September, 2000, by The Coastal Corporation, a Delaware corporation (hereinafter referred to as the "Company").~~

~~WITNESSETH:~~

WHEREAS, the Pension Plan for Employees of The Coastal Corporation was restated as of January 1, 1989, and has since been amended (such plan, as restated and amended, is hereinafter referred to as the "Plan");

WHEREAS, the Company wishes to amend the definition of "leased employee" to clarify that the employee will receive credit for purposes of vesting for the twelve-month period of service prior to achieving the status of "leased employee;" and

~~WHEREAS, the Company wishes to amend the Plan to provide for an offset against benefits in the event of a criminal conviction under ERISA as permitted by statute; and~~

~~WHEREAS, the Company wishes to amend the Plan to clarify the provisions with respect to the payment of benefits under qualified domestic relations orders; and~~

~~WHEREAS, the Company wishes to amend the Plan to increase the benefit to be paid for years of service after 1998 in the Seventh Supplement - Coal Supplement; and~~

WHEREAS, the Company wishes to amend the Plan to add an Eleventh Supplement, "Great Lakes Early Retirement Supplement," to provide for an early retirement incentive program for individuals who were employees of Great Lakes Gas Transmission Company on March 31, 2000;

~~NOW, THEREFORE, the Plan is amended as follows:~~

~~1. The first paragraph of Subsection 1.10(g) is amended to read in its entirety as follows:~~

~~"(g) A person who is not an employee of the Company, a Subsidiary or a Related Employer and who performs services for the Company, Subsidiary or Related Employer pursuant to an agreement~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document between the Company, a Subsidiary or a Related Employer and a leasing organization shall be considered a "leased employee" after such person performs such services for a twelve-month period and the services are performed under the primary direction or control of the Company, Subsidiary or a Related Employer. A person who is considered a leased employee of the Company, a Subsidiary or a Related Employer shall not be considered an Employee for purposes of the Plan. If a leased employee subsequently becomes an Employee and thereafter participates in the Plan, he shall receive credit for vesting under Section 5.4 for the twelve-month period prior to his becoming a leased employee and his period of employment as a leased employee, except to the extent that Section 414(n)(5) of the Code was satisfied with respect to such Employee while he was a leased employee."

~~2. The first sentence of Section 5.7(g) is amended to read in its entirety as follows:~~

"Any Participant whose payments of Retirement Income are suspended pursuant to paragraph (d) of this Section, shall be notified (by personal delivery or first class mail) during the first calendar month in which payments are withheld, that his Retirement Income is suspended."

~~3. Section 12.7 is amended to read in its entirety as follows:~~

~~12.7 Interest Nontransferable.~~

"(a) Except as provided in this Section, no interest of any person or entity in, or right to receive distributions from, the Trust Fund shall be subject in any manner to sale, transfer, assignment, pledge, attachment, garnishment, or other alienation or encumbrance of any kind; nor may such interest or right to receive distributions be taken, either voluntarily or involuntarily, for the satisfaction of the debts of, or other obligations or claims against, such person or entity, including claims for alimony, support, separate maintenance and claims in bankruptcy proceedings.

(b) Notwithstanding the limitations of the provisions of subsection 12.7(a), a Participant's benefit under this Plan may be offset for an amount that the Participant is ordered or required to pay this Plan if the order or requirement to pay arises (i) under a judgment of conviction of crime involving this Plan, (ii) under a civil judgment (including a consent order or decree) entered by a court in an action brought in connection with a violation (or alleged violation) of the ERISA fiduciary responsibility provisions, or (iii) pursuant to a settlement agreement between the Internal Revenue Service or the Pension Benefit Guaranty Corporation and the Participant in connection with a violation (or alleged violation) of the ERISA fiduciary

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document responsibility provisions by a fiduciary or other person. The judgment, order, decree or settlement agreement must expressly provide for the offset of all or part of the amount ordered or required to be paid to this Plan against the Participant's benefit.

(c) Notwithstanding the preceding provisions of this Section, all or any part of the Accrued Benefit of a Participant shall be subject to and payable in accordance with the applicable requirements of any Qualified Domestic Relations Order, as that term is defined in Section 414(p) of the Code, and the Administrator shall direct the Trustee to provide for payment in accordance with such Order and Section and any regulations promulgated under such Section. All such payments pursuant to Qualified Domestic Relations Orders shall be subject to reasonable rules and regulations promulgated by the Administrator; provided that such rules and regulations are consistent with Section 414(p) of the Code. If prior to the commencement of payment to a Participant of his Retirement Income, any amount of his Accrued Benefit is paid to an alternate payee or payees pursuant to a Qualified Domestic Relations Order, the amount of his Accrued Benefit shall be reduced by the Actuarial Equivalent of any such payment.

Notwithstanding any Plan provision to the contrary, an alternate payee pursuant to a Qualified Domestic Relations Order shall not receive any portion of an increase in benefits due to early retirement to which the Participant is or may be entitled. Any benefit received by such an alternate payee shall be Actuarial Equivalent of the portion of the benefit to which such alternate payee is entitled at Normal Retirement Age of the Participant reduced on an actuarial basis to reflect the payment at an earlier date should such alternate payee elect to receive benefits before the Normal Retirement Date of the Participant.

For purposes of this Section, if the Participant's benefit is to be paid in the form of a survivor annuity under the Plan, then (i) the Spouse of such Participant must provide a consent in writing, witnessed by a notary public or Plan representative), unless the Participant establishes to the satisfaction of the Administrator that such consent may not be obtained because there is no Spouse, the Spouse cannot be located, or because of such other

circumstances as the Secretary of the Treasury may by regulations prescribe, (ii) such Spouse has previously provided a consent pursuant to Section 6.2(d), (iii) such Spouse has been ordered or required in such judgment, order, decree, or settlement to pay an amount to the Plan in connection with the ERISA fiduciary responsibility violation, or (iv) such Spouse retains the right to receive the survivor annuity in such judgment, order, decree, or settlement.

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document For purposes of this Section, the survivor annuity payable pursuant to Section 6.1(a) shall be determined as if (i) the Participant terminated employment on the date of the offset, (ii) there was no offset, (iii) this Plan permitted commencement of benefits only on or after Normal Retirement Age, (iv) this Plan provided only the survivor annuity described in Section 6.1(a), and the amount of the Preretirement Survivor Annuity described in Section 5.5(g) is equal to the amount of the survivor annuity payable under Section 6.1(a).

~~The provisions of this subsection are effective for judgments, orders, and decrees issued and settlement agreements entered into, on or after December 31, 1999."~~

~~4. Effective January 1, 1999, Section 3.1(a)(iii) of the Seventh Supplement - Coal Supplement is revised and a new Section 3.1(a)(iv) is added to read as follows in their entirety:~~

~~"(iii) thirty-five dollars multiplied by the Participant's Years of Service during 1990 through 1998.~~

~~(iv) forty-five dollars multiplied by the Participant's Years of Service after 1998."~~

~~5. A new Eleventh Supplement, is added to read in its entirety as follows:~~

~~"ELEVENTH SUPPLEMENT~~

~~GREAT LAKES EARLY RETIREMENT INCENTIVE PROGRAM SUPPLEMENT~~

~~ARTICLE I~~

~~INTRODUCTION~~

This Supplement is referred to as the "Great Lakes ERIP Supplement." This Supplement includes provisions applicable only to Employees (as defined in this Supplement) of Great Lakes Gas Transmission Company.

~~The purpose of this Supplement is to provide an early retirement incentive program within the Plan for Participants to whom this Supplement applies.~~

The provisions of the Great Lakes ERIP Supplement apply in lieu of inconsistent or contrary provisions contained in the Plan (excluding this Supplement) with respect to persons to whom this Supplement applies.

~~ARTICLE II~~

~~DEFINITIONS~~

Terms used in this Supplement which are defined in the Plan have the same meaning in this Supplement unless such terms are defined differently for purposes of this Supplement. The definition of terms defined in this Supplement apply only to this Supplement and not to other parts of the Plan.

~~2.1 "Early Retirement Incentive Program" is the modified retirement benefits set forth in this Supplement for Employees eligible for such program and who elect to participate.~~

~~2.2 "Employee," for purposes of this Supplement only, has the meaning ascribed to such term in the Plan, except that the individual must be employed by Great Lakes on March 31, 2000.~~

~~2.3 "Great Lakes" means Great Lakes Gas Transmission Company, a Delaware corporation.~~

~~2.4 "Participant," for purposes of this Supplement only, means an Employee, as defined in this Supplement, who meets the eligibility requirements of Section 3.1 of this Supplement.~~

~~ARTICLE III~~

~~EARLY RETIREMENT INCENTIVE PROGRAM~~

3.1 Eligibility. To be eligible to participate in the Early Retirement Incentive Program, an Employee must have been an Employee through March 31, 2000; must have reached at least fifty-five (55) years of age on or before March 31, 2000; and must have five (5) or more Years of Service on or before March 31, 2000, for purposes of determining vesting in the Plan. To participate in the Early Retirement Incentive Program, an Employee must make an irrevocable, written election to retire as of March 31, 2000 and to commence receipt of Retirement Income as of April 1, 2000. The election must be made by December 31, 1999. An Employee who has retired previous to December 31, 1999 and commenced receiving Retirement Income under the Plan, but who has been re-employed as an Employee on or before December 31, 1999, is eligible for the Early Retirement Incentive Program.

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 3.2 Retirement Benefits. The Retirement Income of each Employee eligible for the Early Retirement Incentive Program shall be determined pursuant to provisions of the Plan applicable to such Employee, as such provisions are modified by the provisions of this Supplement to provide the benefit determined pursuant to subsection (a) or subsection (b), whichever is greater, plus the benefit determined pursuant to subsection (c) of this Section:

(a) The Retirement Income determined by (i) increasing the Years of Service of the Employee by five years and (ii) increasing the age of the Employee by the lesser of (A) five years or (B) the number of years required for the Employee to attain age sixty-five (65). Note that the Basic Compensation, Final Average Earnings and other Compensation used to calculate the Retirement Income shall not be altered or projected due to the age and Years of Service additions of this subsection (a). In addition, the optional forms of benefit which may be selected by the Employee shall be determined by the actual age of the Employee at April 1, 2000, without the addition of up to five years, as described in this subsection.

(b) The Retirement Income determined without regard to the reduction for commencement of payments prior to the Normal Retirement date of the Employee. This includes reductions specified in the Plan and the Supplements, including, without limitation, Section 5.3 of the Plan and the Third Supplement, ANR Supplement.

(c) (i) For Employees under age 62 on April 1, 2000. A monthly amount equal to the monthly Social Security benefit the Employee would be entitled to receive at age sixty-two (62), assuming the Employee continued to receive Compensation at the same rate as in effect at April 1, 2000, reflecting the law in effect at January 1, 2000 without adjustment for cost of living or other increases or decreases in the benefit amount which adjustments would have been first applicable after January 1, 2000.

(ii) For Employees age 62 or older on April 1, 2000. A monthly amount equal to the monthly Social Security benefit the Employee would have been entitled to on January 1, 2000, assuming the Employee had elected to commence receipt of Social Security benefits at age sixty-two (62), without adjustment for cost of living or other increases or decreases in the benefit amount which adjustments would have been first applicable after January 1, 2000.

(iii) The monthly amount will be paid commencing on April 1, 2000 for the greater of (i) twenty-four months or (ii) the number of months up to and including the month the Participant reaches, or would have reached, age sixty-two (62).

(iv) Each Employee who has attained the age of sixty-three (63) years on or before March 31, 2000 shall have the option of receiving such amount in the form of a 50% Joint and Survivor Annuity in lieu of the twenty-four (24) monthly payments.

(d) The reduction in Retirement Income due to coverage under the Preretirement Survivor Annuity provisions of the Plan (including reductions pursuant to Section 5.5) and other Supplements, excluding this Supplement, shall apply only to the Retirement Income determined pursuant to provisions of the Plan, excluding this Supplement, and shall not apply to any additions to Retirement Income provided by this Supplement, including provisions of subsections 3.2 (a), (b) and (c) of this Supplement.

(e) The Retirement Income of the Participant will be the total of the amounts determined pursuant to subsections (a) or (b), whichever is greater, and (c) of this Section. There shall be no duplication of benefits from the Plan with respect to Years of Service taken into account in the Retirement Income calculations described in this Section.

(f) The limitations contained in the Plan with respect to qualifications of the Plan pursuant to the applicable laws and provisions of the Plan derived therefrom (including provisions of Section 5.8) shall apply to the Retirement Income determined pursuant to this Supplement and such Retirement Income shall be reduced as necessary to comply with such provisions.

The provisions of this Supplement shall be modified to the extent necessary to comply with federal laws and regulations and are conditioned upon the issuance of a favorable determination of qualification letter by the Internal Revenue Service. To the extent necessary to comply with requirements for qualification, provisions of this Supplement shall be modified to comply with such requirements, and such modifications shall be on a retroactive basis, if necessary.

~~3.3 Effective Date. The effective date for Retirement Income to commence for Employees electing to participate in the Early Retirement Incentive Program is April 1, 2000."~~

~~6. Except for the preceding, all of the terms of the Plan shall remain in full force and effect.~~

7. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which, when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument.

IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officers and its seal to be affixed hereto as of the date indicated above and the provisions of this Amendment shall be effective as of the date indicated above, unless otherwise stated or required by law.

~~ATTEST: THE COASTAL CORPORATION (Seal)~~

~~______By: ______Austin M. O'Toole David A. Arledge Senior Vice President and Secretary President and Chief Executive Officer~~

~~ATTEST: GREAT LAKES GAS TRANSMISSION (Seal) COMPANY~~

~~______By:______John J. Wallbillich Michael Durnin Vice President - Legal and President and Chief Executive Officer Environmental Affairs and Assistant Secretary~~

~~CONFORMED COPY~~

~~======~~

~~EL PASO ENERGY CORPORATION~~

~~------~~

~~$2,000,000,000 364-DAY REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY AGREEMENT~~

~~Dated as of August 4, 2000~~

~~------~~

~~THE CHASE MANHATTAN BANK, as Administrative Agent and CAF Advance Agent~~

~~CITIBANK, N.A. and ABN AMRO BANK, N.V., as Co-Documentation Agents~~

~~BANK OF AMERICA, N.A., as Syndication Agent~~

~~======~~

~~TABLE OF CONTENTS~~

~~SCHEDULE~~

~~Schedule I Commitments, Addresses, Etc.~~

~~EXHIBITS~~

~~Exhibit A Form of Note Exhibit B Form of Notice of Borrowing~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Exhibit C Form of CAF Advance Request Exhibit D Form of CAF Advance Offer Exhibit E Form of CAF Advance Confirmation Exhibit F Form of Assignment and Acceptance Exhibit G Form of Opinion of [Associate General][Senior] Counsel of the Company Exhibit H Form of Opinion of New York Counsel to the Company Exhibit I Form of Process Agent Letter Exhibit J Form of Joinder Agreement Exhibit K Form of Opinion of [Associate General][Senior] Counsel of the Company Exhibit L Form of Opinion of New York Counsel to the Company Exhibit M Form of Extension Request

$2,000,000,000 364-DAY REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY AGREEMENT, dated as of August 4, 2000, among EL PASO ENERGY CORPORATION, a Delaware corporation (the "Company"), EL PASO NATURAL GAS COMPANY, a Delaware corporation ("EPNGC"), TENNESSEE GAS PIPELINE COMPANY, a Delaware corporation ("Tennessee"), the several banks and other financial institutions from time to time parties to this Agreement (the "Lenders"), THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative agent (in such capacity, the "Administrative Agent") and as CAF Advance Agent (in such capacity, the "CAF Advance Agent") for the Lenders hereunder, CITIBANK, N.A. and ABN AMRO BANK, N.V., as co-documentation agents (in such capacity, the "Co-Documentation Agents") for the Lenders, and BANK OF AMERICA, N.A., as syndication agent (in such capacity, the "Syndication Agent") for the Lenders.

~~The parties hereto hereby agree as follows:~~

~~ARTICLE I~~

~~DEFINITIONS AND ACCOUNTING TERMS~~

SECTION I.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

~~"Administrative Agent" has the meaning assigned to such term in the preamble hereof.~~

~~"Advance" means an advance by a Lender to any Borrower pursuant to Article II, and refers to a Base Rate Advance, a Eurodollar Rate Advance or a CAF Advance.~~

"Affiliate" means as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. The term "control" (including the terms "controlled by" or "under common control with") means, with respect to any Person, the possession, direct or indirect, of the power to vote 20% or more of the securities having ordinary voting power for the election of directors of such Person or to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by contract or otherwise. Neither a director nor any officer of a Person, in such capacity, shall be deemed an "Affiliate" of such Person for purposes of this Agreement.

~~"Agreement" means this 364-Day Revolving Credit and Competitive Advance Facility, as amended, supplemented or otherwise modified from time to time.~~

"Alternate Program" means any program providing for the sale or other disposition of trade or other receivables entered into by the Company or a Subsidiary which is in addition to or in replacement of the program evidenced by either Receivables

Purchase and Sale Agreement (whether or not either Receivables Purchase and Sale Agreement shall then be in effect), provided that such program is on terms (a) substantially similar to either Receivables Purchase

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document and Sale Agreement (as modified to comply with FASB 125 or similar policies or guidelines from time to time in effect) or (b) customary for similar transactions as reasonably determined by the Administrative Agent.

"Applicable Eurodollar Rate Margin" with respect to any Eurodollar Rate Advance to any Borrower means for any day the rate per annum set forth below opposite the applicable S&P Bond Rating and Moody's Bond Rating in effect on such day for such Borrower:

provided that (i) if the Bond Ratings for any Borrower do not fall within the same Level, the Applicable Eurodollar Rate Margin applicable to such day will be the percentage opposite the Bond Rating that is at the higher level (Level I being the highest and Level VI being the lowest Level), (ii) in the event a Bond Rating for a Borrower is not available from one of the Rating Agencies, the Applicable Eurodollar Rate Margin will be based on the Bond Rating of the other Rating Agency, (iii) in the event a Bond Rating for the Company is available from none of the Rating Agencies, the Applicable Eurodollar Rate Margin for the Company will be the percentage opposite Level VI, and (iv) in the event a Bond Rating for a Borrowing Subsidiary is available from none of the Rating Agencies, the Applicable Eurodollar Rate Margin for such Borrower will be determined using the Bond Ratings of the Company (unless there is another Borrower (the "Intermediate Parent") that directly or indirectly owns 100% of the common stock of such Borrower and the Intermediate Parent has a Bond Rating in effect, in which case, the Applicable Eurodollar Rate Margin for such Borrower will be determined using the Bond Ratings of the Intermediate Parent of such Borrower); provided, that for each day on which the aggregate principal amount of the Advances outstanding hereunder is equal to or greater than 25% of the aggregate amount of the total Commitments hereunder, the Applicable Eurodollar Rate Margin for each Borrower will be increased by .125% for such day.

"Applicable LIBO Rate" means in respect of any CAF Advance requested pursuant to a LIBO Rate CAF Advance Request, an interest rate per annum equal to the rate which appears on Page 3750 of the Telerate Service (or any successor or substitute page of such Service, or any successor to or substitute for such service providing rate

quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) as at approximately 11:00 A.M., London time, two Business Days prior to the beginning of the period for which such CAF Advance is to be outstanding as the rate for Dollar deposits with a maturity comparable to such period.

~~"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit F.~~

"Base Rate" means for any day, a rate per annum (adjusted to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, rounded upwards to the next highest 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Effective Federal Funds Rate in effect on such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the Prime Rate or the Effective Federal Funds Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Effective Federal Funds Rate, respectively.

~~"Base Rate Advance" means an Advance which bears interest as provided in Section 2.11(a)(i).~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document "Bond Rating" means a rating assigned to a Borrower"s senior long-term unsecured debt by any of the Rating Agencies.

~~"Borrowers" means the collective reference to the Company and each Borrowing Subsidiary; each a "Borrower".~~

"Borrowing" means a borrowing consisting of Advances of the same Type made on the same day by the Lenders and, in the case of Eurodollar Rate Advances, having Interest Periods of the same duration, it being understood that there may be more than one Borrowing on a particular day.

"Borrowing Subsidiary" means EPNGC, Tennessee and each other domestic Subsidiary of the Company which has been designated by the Company as a "Borrowing Subsidiary" by written notice to the Administrative Agent, which designation shall not have been revoked by written notice by the Company to the Administrative Agent (provided, that no such designation shall be revoked if either (a) any Default or Event of Default shall have occurred and be continuing or (b) any Advance to such Borrowing Subsidiary, or any interest accrued thereon, shall be outstanding); collectively, the "Borrowing Subsidiaries". For avoidance of doubt, (i) Tennessee may be undesignated as a Borrowing Subsidiary by written notice to the Administrative Agent by the Company and (ii) EPNGC shall always be a Borrower hereunder.

"Business Day" means a day of the year on which banks are not required or authorized to close in New York, New York and, if the applicable Business Day relates to any Eurodollar Rate Advances or LIBO Rate CAF Advances, on which dealings are carried on in the London interbank market.

"Business Entity" means a partnership, limited partnership, limited liability partnership, corporation (including a business trust), limited liability company, unlimited liability company, joint stock company, trust, unincorporated association, joint venture or other entity.

~~"CAF Advance" means an Advance made pursuant to Sections 2.4 and 2.5.~~

~~"CAF Advance Agent" has the meaning assigned to such term in the preamble hereof.~~

"CAF Advance Availability Period" means the period from and including the Closing Date until the earlier of (a) the date which is 7 days prior to the Stated Termination Date and (b) the Termination Date.

"CAF Advance Confirmation" means each confirmation by the applicable Borrower of its acceptance of CAF Advance Offers, which CAF Advance Confirmation shall be substantially in the form of Exhibit E and shall be delivered to the CAF Advance Agent by telecopy.

~~"CAF Advance Interest Payment Date" means as to each CAF Advance, each interest payment date specified by the applicable Borrower for such CAF Advance in the related CAF Advance Request.~~

~~"CAF Advance Lenders" means Lenders from time to time designated by the Company, in consultation with the CAF Advance Agent, as CAF Advance Lenders as provided in Section 2.4.~~

~~"CAF Advance Maturity Date" means as to any CAF Advance, the date specified by the applicable Borrower pursuant to Section 2.5(d)(ii) in its acceptance of the related CAF Advance Offer.~~

"CAF Advance Offer" means each offer by a CAF Advance Lender to make CAF Advances pursuant to a CAF Advance Request, which CAF Advance Offer shall contain the information specified in Exhibit D and shall be delivered to the CAF Advance Agent by telephone, immediately confirmed by telecopy.

"CAF Advance Request" means each request by the applicable Borrower for CAF Advance Lenders to submit bids to make CAF Advances, which request shall contain the information in respect of such requested CAF Advances specified in Exhibit C and shall

~~be delivered to the CAF Advance Agent in writing, by telecopy, or by telephone, immediately confirmed by telecopy.~~

"Capitalization" of any Person means the sum (without duplication) of (a) consolidated Debt of such Person and its consolidated Subsidiaries, plus (b) the aggregate amount of Guaranties by such Person and its consolidated Subsidiaries, plus (c) the consolidated common and preferred stockholders' equity of such Person and its consolidated Subsidiaries, plus (d) the cumulative amount by which stockholders" equity of such Person shall have been reduced by reason of non-cash write downs of long-term assets from and after the Effective Date.

~~"Chase" means The Chase Manhattan Bank, a New York banking corporation.~~

~~"Closing Date" has the meaning assigned to such term in Section 3.2.~~

~~"Co-Documentation Agents" has the meaning assigned to such term in the preamble hereof.~~

"Commitment" means as to any Lender, the obligation of such Lender to make Revolving Credit Advances to the Borrowers hereunder in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule I (as such Schedule I is amended from time to time pursuant to Section 9.7(c)), as such amount may be reduced from time to time in accordance with the provisions of this Agreement.

~~"Commitment Expiration Date" has the meaning assigned to such term in Section 2.23(a).~~

"Commitment Percentage" means as to any Lender at any time, the percentage which such Lender's Commitment then constitutes of the aggregate Commitments (or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender's Advances then outstanding constitutes of the aggregate principal amount of the Advances then outstanding).

~~"Company" has the meaning assigned to such term in the preamble hereof.~~

~~"Contingent Guaranty" has the meaning assigned to such term in the definition of the term "Guaranty" contained in this Section 1.1.~~

~~"Convert", "Conversion" and "Converted" each refers to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.13, 2.14 or 2.18.~~

~~"Current Reimbursement Obligations" means, with respect to any Person, non-contingent obligations of such Person to reimburse a bank or other Person in respect of~~

~~amounts paid under a letter of credit or similar instrument that are paid on or prior to the fifth Business Day after the due date therefor.~~

"Debt" means, as to any Person, all Indebtedness of such Person other than (a) any Project Financing of such Person, (b) in the case of the Company or a Subsidiary, any liabilities of the Company or such Subsidiary, as the case may be, under any Alternate Program, or any document executed by the Company or such Subsidiary, as the case may be, in connection therewith, (c) any obligations of the Company or a Subsidiary with respect to lease payments for the headquarters building of the Company located in Houston, Texas and (d) Current Reimbursement Obligations of such Person; provided, however, that for purposes of Article V, "Debt" shall not include up to an aggregate amount (determined without duplication of amount) of $200,000,000 of (i) the amount of optional payments in lieu of asset repurchase or other payments to similar effect, including extension or renewal payments, on off balance sheet leases and (ii) the amount of the purchase price for optional acquisition of such asset (in either case, calculated at the lower amount payable in respect of such asset under clause (i) or (ii) above).

~~"Default" means any event that would constitute an Event of~~

~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Default but for the requirement that notice be given or time elapse or both.~~

~~"Dollars" and "$" means dollars in lawful currency of the United States of America.~~

~~"Effective Date" has the meaning assigned to such term in Section 3.1.~~

"Effective Federal Funds Rate" means, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

"Eligible Assignee" means, with respect to any particular assignment under Section 9.7, any bank or other financial institution approved in writing by the Company expressly with respect to such assignment and, except as to such an assignment by Chase so long as Chase is the Administrative Agent hereunder, the Administrative Agent as an Eligible Assignee for purposes of this Agreement, provided that (i) neither the Administrative Agent's nor the Company's approval shall be unreasonably withheld and (ii) neither the Administrative Agent's nor the Company's approval shall be required if the assignee is another Lender or an Affiliate of the assigning Lender.

~~"EPNGC" has the meaning assigned to such term in the preamble hereof.~~

~~"EPTPC" means El Paso Tennessee Pipeline Co., a Delaware corporation.~~

"EPTPC Facility" means the $3,000,000,000 Revolving Credit and Competitive Advance Facility Agreement, dated as of November 4, 1996, among EPTPC, the several financial institutions from time to time parties thereto, and The Chase Manhattan Bank, as administrative agent and CAF advance agent thereunder, as the same may be amended, modified or supplemented from time to time.

"Equity Interests" means any capital stock, partnership, joint venture, member or limited liability or unlimited liability company interest, beneficial interest in a trust or similar entity or other equity interest or investment of whatever nature.

~~"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued from time to time thereunder.~~

~~"ERISA Affiliate" means any Person who is a member of the Company's controlled group within the meaning of Section 4001(a)(14)(A) of ERISA.~~

~~"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.~~

"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate which appears on Page 3750 of the Telerate Service (or on any successor or substitute page of such service, or any successor to or substitute for such service providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) as at approximately 11:00 A.M. (London, England time) two Business Days before the first day of such Interest Period as the rate for Dollar deposits with a maturity comparable to such Interest Period; provided that if such rate is not available at such time for any reason, the Eurodollar Rate for such Borrowing for such Interest Period shall be the interest rate per annum equal to the average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rate per annum at which deposits in Dollars are offered by the principal office of each of the Reference Lenders in

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document London, England, to prime banks in the London interbank market as at approximately 11:00 A.M. (London, England time) two Business Days before the first day of such Interest Period, in an approximate amount of each such Reference Lender's share of the relevant Borrowing for the applicable Interest Period. The Eurodollar Rate for the Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing, when being determined pursuant to the foregoing proviso clause, shall be determined by the Administrative Agent on the basis of applicable rates furnished to and received by the Administrative Agent from the Reference Lenders two Business

~~Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.13.~~

~~"Eurodollar Rate Advance" means an Advance which bears interest determined by reference to the Eurodollar Rate, as provided in Section 2.11(a)(ii).~~

"Eurodollar Reserve Percentage" for any Lender for any Interest Period for any Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) for determining the maximum reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.

~~"Events of Default" has the meaning assigned to such term in Section 7.1.~~

"Excluded Acquisition Debt" means (a) Debt, Guaranties or reimbursement obligations of any Business Entity acquired by the Company or any of its Subsidiaries and which Debt, Guaranties or reimbursement obligations exist immediately prior to such acquisition (provided that (i) such Debt, Guaranties or reimbursement obligations are not incurred solely in anticipation of such acquisition and (ii) immediately prior to such acquisition such Business Entity is not a Subsidiary of the Company), (b) Debt, Guaranties or reimbursement obligations of EPTPC and its Subsidiaries in existence on the date of the merger of El Paso Tennessee Pipeline Company with El Paso Merger Company or (c) Debt, Guaranties or reimbursement obligations in respect of any asset acquired by the Company or any of its Subsidiaries and which Debt, Guaranties or reimbursement obligations exists immediately prior to such acquisition (provided that (i) such Debt, Guaranties or reimbursement obligations are not incurred solely in anticipation of such acquisition and (ii) immediately prior to such acquisition such asset is not an asset of the Company or any of its Subsidiaries).

"Existing 364-Day Facility" means the $1,250,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement dated as of August 16, 1999, as the same has been or may be amended, supplemented or otherwise modified prior to the Closing Date, among the Company, EPNGC, Tennessee the several financial institutions from time to time parties thereto, Chase, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agents and Bank of America, N.A., as Syndication Agent, as the same has been and may be amended, supplemented and modified from time to time.

"Existing 5-Year Facility" means the $750,000,000 5-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of October 29, 1997, among the Company, EPNGC, Tennessee, the banks and other lenders parties thereto, Chase as

Administrative Agent and CAF Advance Agent, Citibank, N.A., as Documentation Agent and Morgan Guaranty Trust Company of New York, as Syndication Agent, as the same has been and may be amended, supplemented and modified from time to time.

~~"Exposure" means (a) with respect to an Objecting Lender at~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document any time, the aggregate outstanding principal amount of its Revolving Credit Advances and (b) with respect to any other Lender at any time, the maximum amount of the Commitment of such Lender.

"Extension Request" means each request by the Borrowers made pursuant to Section 2.23 for the Lenders to extend the Stated Termination Date, which shall contain the information in respect of such extension specified in Exhibit M and shall be delivered to the Administrative Agent in writing.

~~"Facility Fee Commencement Date" means the date hereof.~~

~~"FERC" means the Federal Energy Regulatory Commission, or any agency or authority of the United States from time to time succeeding to its function.~~

~~"Fixed Rate CAF Advance" means any CAF Advance made pursuant to a Fixed Rate CAF Advance Request.~~

"Fixed Rate CAF Advance Request" means any CAF Advance Request requesting the CAF Advance Lenders to offer to make CAF Advances at a fixed rate (as opposed to a rate composed of the Applicable LIBO Rate plus (or minus) a margin).

~~"GAAP" means generally accepted accounting principles in the United States of America, as in effect from time to time.~~

"Guaranty", "Guaranteed" and "Guaranteeing" each means any act by which any Person assumes, guarantees, endorses or otherwise incurs direct or contingent liability in connection with, or agrees to purchase or otherwise acquire or otherwise assures a creditor against loss in respect of, any Debt or Project Financing of any Person other than the Company or any of its consolidated Subsidiaries (excluding (a) any liability by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (b) any liability in connection with obligations of the Company, any of its consolidated Subsidiaries, including obligations under any conditional sales agreement, equipment trust financing or equipment lease, and (c) any such act in connection with a Project Financing that either (i) guarantees to the provider of such Project Financing or any other Person performance of the acquisition, improvement, installation, design, engineering, construction, development, completion, maintenance or operation of, or otherwise affects any such act in respect of, all or any portion of the project that is financed by such Project Financing or performance by a Project Financing Subsidiary of certain obligations to Persons other than the provider of such Project Financing, except during any period, and then only to the extent, that such

guaranty is a guaranty of payment of such Project Financing (other than a guaranty of payment of the type referred to in subclause (ii) below) or (ii) is contingent upon, or the obligation to pay or perform under which is contingent upon, the occurrence of any event other than or in addition to the passage of time or any Project Financing becoming due (any such act referred to in this clause (c) being a "Contingent Guaranty"); provided, however, that for purposes of this definition the liability of the Company or any of its Subsidiaries with respect to any obligation as to which a third party or parties are jointly, or jointly and severally, liable as a guarantor or otherwise as contemplated hereby and have not defaulted on its or their portions thereof, shall be only its pro rata portion of such obligation.

"Indebtedness" of any Person means, without duplication (a) indebtedness of such Person for borrowed money, (b) obligations of such Person (other than any portion of any trade payable obligation of such Person which shall not have remained unpaid for 91 days or more from the original due date of such portion) to pay the deferred purchase price of property or services, and (c) obligations of such Person as lessee under leases which shall have been or should be, in accordance with GAAP recorded as capital leases, except that where such indebtedness or obligation of such Person is made jointly, or jointly and severally, with any third party or parties other than any consolidated Subsidiary of such Person, the amount thereof for the purposes of this definition only shall be the pro rata portion thereof payable by such Person, so long as such third party or parties have not defaulted on its or their joint and several portions thereof.

~~"Indemnified Party" means any or all of the Lenders, the~~

"Interest Period" means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period beginning on the date of such Advance or the date of the Conversion of any Advance into such an Advance and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, or, subject to availability to each Lender, nine or twelve months, in each case as the applicable Borrower may, upon notice received by the Administrative Agent not later than 12:00 noon (New York City time) on the third Business Day prior to the first day of such Interest Period with respect to Eurodollar Rate Advances, select; provided, however, that:

(a) the duration of any Interest Period which commences before the second anniversary of the Termination Date and would otherwise end after the second anniversary of the Termination Date shall end on the second anniversary of the Termination Date;

(b) if the last day of such Interest Period would otherwise occur on a day which is not a Business Day, such last day shall be extended to the next succeeding Business Day, except if such extension would cause such last day to occur in a new calendar month, then such last day shall occur on the next preceding Business Day;

~~(c) Interest Periods commencing on the same date for Advances comprising the same Borrowing shall be of the same duration;~~

(d) with respect to Advances made by an Objecting Lender, no Interest Period with respect to such Advances shall end after the second anniversary of such Objecting Lender's Commitment Expiration Date; and

(e) any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (a) above, end on the last Business Day of a calendar month.

~~"Joinder Agreement" means a Joinder Agreement, substantially in the form of Exhibit J hereto, duly executed and delivered by the Company and the Borrowing Subsidiary party thereto.~~

~~"Lenders" has the meaning assigned to such term in the preamble hereof.~~

~~"LIBO Rate CAF Advance" means any CAF Advance made pursuant to a LIBO Rate CAF Advance Request.~~

"LIBO Rate CAF Advance Request" means any CAF Advance Request requesting the CAF Advance Lenders to offer to make CAF Advances at an interest rate equal to the Applicable LIBO Rate plus (or minus) a margin.

"Lien" means any lien, security interest or other charge or encumbrance, or any assignment of the right to receive income, or any other type of preferential arrangement, in each case to secure any Indebtedness or any Guaranty of any Person.

"Majority Lenders" means Lenders the Commitment Percentages of which aggregate at least 51%, provided, that at any time after the Commitment Expiration Date with respect to any Objecting Lender (but prior to the termination of all the Commitments), "Majority Lenders" shall mean Lenders whose Exposure aggregates at least 51% of the aggregate Exposure of all the Lenders.

~~"Margin Stock" means "margin stock" as defined in Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.~~

~~"Material Adverse Effect" means a material adverse effect on the financial condition or operations of the Company and its consolidated Subsidiaries on a consolidated basis.~~

"Material Subsidiary" means any Subsidiary of the Company (other than a Project Financing Subsidiary) that itself (on an unconsolidated, stand-alone basis) owns in excess of 10% of the book value of the consolidated assets of the Company and its consolidated Subsidiaries.

~~"Mojave" means Mojave Pipeline Company.~~

"Moody's Bond Rating", with respect to any Borrower, means for any day the Bond Rating of such Borrower, if any, established by Moody's Investors Service, Inc. as in effect at 11:00 A.M., New York City time, on such day.

"Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions and in respect of which the Company or an ERISA Affiliate has any liability (contingent or otherwise), such plan being maintained pursuant to one or more collective bargaining agreements.

"Multiple Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, which (a) is maintained for employees of the Company or an ERISA Affiliate and at least one Person other than the Company and its ERISA Affiliates or (b) was so maintained and in respect of which the Company or an ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

"Net Worth" means, as of any date of determination, the sum of the preferred stock and stockholders' equity of the Company as shown on the most recent consolidated balance sheet of the Company delivered pursuant to Section 5.3 plus the cumulative amount by which stockholders" equity of the Company shall have been reduced by reason of non-cash write-downs of long term assets from and after the Effective Date.

~~"Note" has the meaning assigned to such term in Section 2.3(d).~~

~~"Notice of Borrowing" has the meaning specified in Section 2.2(a).~~

"Obligations" means the collective reference to the unpaid principal of and interest on the Advances and the Notes and all other financial liabilities of the Borrowers to the Administrative Agent, the CAF Advance Agent and the Lenders (including interest accruing at the then applicable rate provided in this Agreement after the maturity of the Advances and interest accruing at the then applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency,

reorganization or like proceeding, relating to any Borrower whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement or the Notes, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to the Administrative Agent, the CAF Advance Agent or to the Lenders that are required to be paid by any Borrower pursuant to this Agreement).

~~"Objecting Lenders" has the meaning assigned to such term in Section 2.23(a).~~

~~"Other Taxes" has the meaning assigned to such term in Section~~

~~"Party" has the meaning assigned to such term in Section 9.8.~~

~~"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).~~

~~"Permitted Claims" has the meaning assigned to such term in Section 9.9(a).~~

~~"Permitted Liens" means:~~

(i) inchoate Liens and charges imposed by law and incidental to construction, maintenance, development or operation of properties, or the operation of business, in the ordinary course of business if payment of the obligation secured thereby is not yet overdue or if the validity or amount of which is being contested in good faith by the Company or any of its Subsidiaries;

~~(ii) Liens for taxes, assessments, obligations under workers" compensation or other social security legislation or other governmental requirements, charges or levies, in each case not yet overdue;~~

(iii) Liens reserved in any oil, gas or other mineral lease entered into in the ordinary course of business for rent, royalty or delay rental under such lease and for compliance with the terms of such lease;

(iv) easements, servitudes, rights-of-way and other rights, exceptions, reservations, conditions, limitations, covenants and other restrictions that do not materially interfere with the operation, value or use of the properties affected thereby;

(v) conventional provisions contained in any contracts or agreements affecting properties under which the Company or any of its Subsidiaries is required immediately before the expiration, termination or abandonment of a particular property to reassign to such Person"s predecessor in title all or a portion of such Person"s rights, titles and interests in and to all or portion of the such property;

(vi) any Lien reserved in a grant or conveyance in the nature of a farm-out or conditional assignment to the Company or any of its Subsidiaries entered into in the ordinary course of business on reasonable terms to secure undertakings of the Company or any such Subsidiary in such grant or conveyance;

(vii) any Lien consisting of (A) statutory landlord"s liens under leases to which the Company or any of its Subsidiaries is a party or other Liens on leased property reserved in leases thereof for rent or for compliance with the terms of such leases, (B) rights reserved to or vested in any municipality or governmental, statutory or public authority to control or regulate any property of the Company or any of its Subsidiaries, or to use such property in any manner which does not materially impair the use of such property for the purposes for which it is held by the Company or any such Subsidiary, (C) obligations or duties to any municipality or public authority with respect to any franchise, grant, license, lease or permit and the rights reserved or vested in any governmental authority or public utility to terminate any such franchise, grant, license, lease or permit or to condemn or expropriate any property, and (D) zoning laws and ordinances and municipal regulations;

(viii) any Lien on any assets (including Equity Interests and other obligations) securing Indebtedness or other obligations incurred or assumed for the purpose of financing all or any part of the cost of acquiring, improving, installing, designing, engineering, developing (including drilling), or constructing such assets, provided that such Lien attaches to such assets concurrently with or within 365 days after the acquisition or completion of development, construction or installation thereof or improvement thereto; and

(ix) the creation of interests in property of the character commonly referred to as a "royalty interest" or "overriding royalty interest", production payments, farmouts, leases, subleases, rights of way and other easements, participations, joint venture, joint operating, unitization, pooling and communitization agreements, or other similar transactions in the ordinary course of business.

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document "Person" means an individual, a Business Entity, or a country or any political subdivision thereof or any agency or instrumentality of such country or subdivision.

~~"Plan" means a Single Employer Plan or a Multiple Employer Plan.~~

"Prime Rate" means the rate of interest per annum publicly announced from time to time by Chase as its prime rate in effect at its principal office in New York City. The Prime Rate is not intended to be the lowest rate of interest charged by Chase in connection with extensions of credit to debtors.

"Principal Subsidiary" means, at any time, any Subsidiary of the Company (other than a Project Financing Subsidiary) either (a) having assets that are, or owning Subsidiaries with assets that together with its assets are, at such time greater than or equal

~~to 5% of the consolidated assets of the Company and its consolidated Subsidiaries at such time or (b) constituting a Borrowing Subsidiary.~~

~~"Process Agent" has the meaning specified in Section 9.9(a).~~

"Project Financing" means any Indebtedness incurred to finance or refinance the acquisition, improvement, installation, design, engineering, construction, development, completion, maintenance or operation of, or otherwise in respect of, all or any portion of any project, or any asset related thereto, and any Guaranty with respect thereto, other than any portion of such Indebtedness or Guaranty permitting or providing for recourse against the Company or any of its Subsidiaries other than (a) recourse to the Equity Interests in, Indebtedness or other obligations of, or assets of, one or more Project Financing Subsidiaries, and (b) such recourse as exists under any Contingent Guaranty.

"Project Financing Subsidiary" means any Subsidiary of the Company whose principal purpose is to incur Project Financing, or to become a direct or indirect partner, member or other equity participant or owner in a Business Entity so created, and substantially all the assets of which Subsidiary or Business Entity are limited to those assets being financed (or to be financed), or the operation of which is being financed (or to be financed), in whole or in part by a Project Financing or to Equity Interests in, or Indebtedness or other obligations of, one or more other such Subsidiaries or Business Entities or to Indebtedness or other obligations of the Company or its Subsidiaries or other Persons.

~~"Rating Agency" means any of Moody"s Investors Service, Inc. and Standard & Poor"s Ratings Group; collectively the "Rating Agencies".~~

"Receivables Purchase and Sale Agreement" means the collective reference to (a) the Receivables Purchase and Sale Agreement dated as of January 14, 1992 among EPNGC, CIESCO L.P., a New York limited partnership, Corporate Asset Funding Company, a Delaware corporation and Citicorp North America, Inc., as agent, as amended as of the date hereof, and (b) the Amended and Restated Receivables Sale Agreement dated as of December 31, 1996 among El Paso Energy Credit Corporation, Asset Securitization Cooperative Corporation and Canadian Imperial Bank of Commerce, as administrative agent, as such Agreement may be amended, supplemented, restated or otherwise modified from time to time, provided that no such amendment, supplement, restatement or modification shall change the scope of such Agreement from that of a receivables securitization transaction.

~~"Reference Lenders" means Chase, Bank of America, N.A., Citibank, N.A. and ABN Amro Bank, N.V..~~

~~"Register" has the meaning specified in Section 9.7(c).~~

~~"Required Lenders" means Lenders (a) that are not Objecting Lenders with respect to any previous Extension Request and (b) that have Commitment Percentages aggregating at least 66-2/3% of the~~

~~"Revolving Credit Advances" has the meaning assigned to such term in Section 2.1.~~

"S&P Bond Rating", with respect to any Borrower, means for any day the Bond Rating of such Borrower, if any, established by Standard & Poor's Ratings Group as in effect at 11:00 A.M., New York City time, on such day.

"Single Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Company or an ERISA Affiliate and no Person other than the Company and its ERISA Affiliates or (b) was so maintained and in respect of which the Company or an ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

"Sonat Agreement" means the Credit Agreement dated as of April 15, 1999 among Sonat Inc., the banks party thereto, Chase, as Administrative Agent thereunder, Bank of America National Trust and Savings Association, as Syndication Agent thereunder and Suntrust Bank, Atlanta, as Documentation Agent thereunder, as amended, supplemented or otherwise modified from time to time.

~~"Stated Termination Date" means August 3, 2001 or such later date as shall be determined pursuant to the provisions of Section 2.23 with respect to non-Objecting Lenders.~~

"Subsidiary" means, as to any Person, any Business Entity of which shares of stock or other Equity Interests having ordinary voting power (other than stock or such other Equity Interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such Business Entity are at the time owned, directly or indirectly through one or more Subsidiaries, or both, by such Person. Unless otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.

~~"Syndication Agent" has the meaning assigned to such term in the preamble hereof.~~

~~"Taxes" has the meaning assigned to such term in Section 2.20(a).~~

~~"Tennessee" has the meaning assigned to such term in the preamble hereof, and its successors.~~

~~"Termination Date" means the earlier of (a) the Stated Termination Date and (b) the date of termination in whole of the Commitments pursuant to Section 2.9 or 7.1.~~

"Termination Event" means (a) a "reportable event," as such term is described in Section 4043 of ERISA (other than a "reportable event" not subject to the provision for 30-day notice to the PBGC under subsection .11, .12, .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section 2615), or an event described in Section 4062(e) of ERISA, or (b) the withdrawal of the Company or any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was a "substantial employer," as such term is defined in Section 4001(a)(2) of ERISA or the incurrence of liability by the Company or any ERISA Affiliate under Section 4064 of ERISA upon the termination of a Multiple Employer Plan, or (c) the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under Section 4041 of ERISA, or (d) the institution of proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, or (e) the conditions set forth in Section 302(f)(1)(A) and (B) of ERISA to the creation of a lien upon property or rights to property of the Company or any ERISA Affiliate for failure to make a required payment to a Plan are satisfied, or (f) the adoption of an amendment to a Plan requiring the provision of security to such Plan, pursuant to Section 307 of ERISA, or (g) the occurrence of any other event or the existence of any other condition which would reasonably be expected to result in the termination of, or the appointment of a trustee to administer, any Plan under Section 4042 of ERISA.

~~"3-Year Facility" means the 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000,~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document among the Company, EPNGC, Tennessee, the banks and other lenders parties thereto, Chase, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agent and Bank of America, N.A., as Syndication Agent, as the same has been and may be amended, supplemented and modified from time to time.

"Type" means (a) as to any Revolving Credit Advance, its nature as a Base Rate Advance or a Eurodollar Rate Advance and (b) as to any CAF Advance, its nature as a Fixed Rate CAF Advance or a LIBO Rate CAF Advance.

~~"Withdrawal Liability" has the meaning given such term under Part 1 of Subtitle E of Title IV of ERISA.~~

SECTION I.2 Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each means "to but excluding."

SECTION I.3 Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP either (a) consistent with those principles applied in the preparation of the financial statements referred to in Section 4.1(e) or (b) not so

22 materially inconsistent with such principles that a covenant contained in Section 5.1 or 5.2 would be calculated or construed in a materially different manner or with materially different results than if such covenant were calculated or construed in accordance with clause (a) of this Section 1.3. "Include", "includes" and "including" shall be deemed to be followed by "without limitation" whether or not they are in fact followed by such words or words of like import. References to any agreement or contract are to such agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

SECTION I.4 References. The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

~~ARTICLE II~~

~~AMOUNTS AND TERMS OF THE ADVANCES~~

SECTION II.1 The Revolving Credit Advances. Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make revolving credit advances ("Revolving Credit Advances") to the Borrowers or any one or more of them from time to time on any Business Day during the period from the date hereof to and including the Termination Date in an aggregate amount not to exceed at any time outstanding the amount of such Lender's Commitment; provided that the aggregate amount of the Advances (other than Advances of Objecting Lenders) outstanding shall not at any time exceed the aggregate amount of the Commitments. Each Borrowing shall be in an aggregate amount of $5,000,000 in the case of a Borrowing comprised of Base Rate Advances and $20,000,000 in the case of a Borrowing comprised of Eurodollar Rate Advances, or, in each case, an integral multiple of $1,000,000 in excess thereof (or, in the case of a Borrowing of Base Rate Advances, the aggregate unused Commitments, if less) and shall consist of Revolving Credit Advances of the same Type made on the same day by the Lenders ratably according to their respective Commitments. Within the limits of each Lender's Commitment, any Borrower may make more than one Borrowing on any Business Day and may borrow, repay pursuant to Section 2.10 or prepay pursuant to Section 2.15, and reborrow under this Section 2.1.

SECTION II.2 Making the Revolving Credit Advances. (a) Each Borrowing of Revolving Credit Advances shall be made on notice by the Company on its own behalf or the Company on behalf of another Borrower, to the Administrative Agent (a "Notice of Borrowing") received by the Administrative Agent, (i) in the case of a proposed Borrowing comprised of Base Rate Advances, not later than 10:00 A.M. (New York City time) on the Business Day of such proposed Borrowing and (ii) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, not later than 12:00 noon (New York City time) on the third Business Day prior to the date of such proposed Borrowing. Each Notice of Borrowing shall be by telecopy or telephone (and if by telephone, confirmed promptly by telecopier), in substantially the form of Exhibit B, specifying therein the requested (A) Borrower, (B) date of such Borrowing, (C) Type of Revolving Credit Advances comprising such Borrowing, (D) aggregate amount of such

Borrowing, and (E) in the case of a Borrowing comprised of Eurodollar Rate Advances, the initial Interest Period for each such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on the date of such Borrowing, make available to the Administrative Agent at its address at 270 Park Avenue, New York, New York, 10017, Reference: El Paso Energy Corporation, or at such other address designated by notice from the Administrative Agent to the Lenders pursuant to Section 9.2, in same day funds, such Lender's ratable portion of such Borrowing. Immediately after the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the applicable Borrower at Chase, 270 Park Avenue, New York, New York, 10017, Account No. 323291503, Reference: El Paso Energy Corporation, or at such other account of the applicable Borrower maintained by the Administrative Agent (or any successor Administrative Agent) designated by the applicable Borrower and agreed to by the Administrative Agent (or such successor Administrative Agent), in same day funds.

(b) Each Notice of Borrowing shall be irrevocable and binding on the applicable Borrower. In the case of any Borrowing which the related Notice of Borrowing specified is to be comprised of Eurodollar Rate Advances, if such Advances are not made as a result of any failure to fulfill on or before the date specified for such Borrowing the applicable conditions set forth in Article III, the applicable Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of such failure, including, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing.

(c) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.2 and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If and to the extent such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the applicable Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the applicable Borrower until the date such amount is repaid to the Administrative Agent, at the Effective Federal Funds Rate for such day. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's Advance to the applicable Borrower as part of such Borrowing for purposes of this Agreement.

(d) The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.

SECTION II.3 Evidence of Debt. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of each Borrower to such Lender resulting from each Revolving Credit Advance of such Lender to such Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time in respect of such Revolving Credit Advance.

(b) The Administrative Agent shall maintain the Register pursuant to Section 9.7(c), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Revolving Credit Advance made hereunder, the Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower on account of such Revolving Credit Advance to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from each Borrower and each Lender's share thereof.

(c) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.3(a) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document obligations of each Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of each Borrower to repay (with applicable interest) the Revolving Credit Advances made to each such Borrower by such Lender in accordance with the terms of this Agreement.

(d) Each Borrower agrees that, upon the request to the Administrative Agent by any Lender, such Borrower will execute and deliver to such Lender a promissory note of such Borrower evidencing the Revolving Credit Advances of such Lender to such Borrower, substantially in the form of Exhibit A with appropriate insertions as to date and principal amount (a "Note").

SECTION II.4 CAF Advances. Subject to the terms and conditions of this Agreement, the Borrowers or any one or more of them may borrow CAF Advances from time to time during the CAF Advance Availability Period on any Business Day. The Company shall, in consultation with the CAF Advance Agent, designate Lenders from time to time as CAF Advance Lenders by written notice to the CAF Advance Agent. The CAF Advance Agent shall transmit each such notice of designation promptly to each designated CAF Advance Lender. CAF Advances shall be borrowed in amounts such that the aggregate amount of Advances outstanding at any time shall not exceed the aggregate amount of the Commitments at such time. Any CAF Advance Lender may make CAF Advances in amounts which, individually and together with the aggregate amount of other Advances of such CAF Advance Lender, exceed such CAF Advance Lender's Commitment, and such CAF Advance Lender's CAF Advances shall not be deemed to utilize such CAF Advance Lender's Commitment. Within the limits and on the conditions hereinafter set forth with respect to CAF Advances, the Borrowers from time to time may borrow, repay and reborrow CAF Advances.

~~SECTION II.5 Procedure for CAF Advance Borrowings. (a) A Borrower, or the Company on behalf of a Borrower, shall request CAF Advances by delivering a CAF Advance~~

Request to the CAF Advance Agent, not later than 12:00 Noon (New York City time) four Business Days prior to the date of the proposed Borrowing (in the case of a LIBO Rate CAF Advance Request), and not later than 10:00 A.M. (New York City time) one Business Day prior to the date of the proposed Borrowing (in the case of a Fixed Rate CAF Advance Request). Each CAF Advance Request may solicit bids for CAF Advances in an aggregate principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and having not more than five alternative maturity dates. The maturity date for each CAF Advance shall be not less than 7 days nor more than 360 days after the date of the Borrowing therefor (and in any event shall be not later than the Stated Termination Date); provided that each LIBO Rate CAF Advance shall mature one, two, three or six months or, if available, nine or twelve months after the date of the Borrowing therefor. The CAF Advance Agent shall notify each CAF Advance Lender promptly by telecopy of the contents of each CAF Advance Request received by the CAF Advance Agent.

(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of notice from the CAF Advance Agent of the contents of such CAF Advance Request, each CAF Advance Lender may elect, in its sole discretion, to offer irrevocably to make one or more CAF Advances at the Applicable LIBO Rate plus (or minus) a margin determined by such CAF Advance Lender in its sole discretion for each such CAF Advance. Any such irrevocable offer shall be made by delivering a CAF Advance Offer to the CAF Advance Agent, before 10:30 A.M. (New York City time) on the day that is three Business Days before the date of the proposed Borrowing, setting forth:

(i) the maximum amount of CAF Advances for each maturity date and the aggregate maximum amount of CAF Advances for all maturity dates which such CAF Advance Lender would be willing to make (which amounts may, subject to Section 2.4, exceed such CAF Advance Lender's Commitment); and

~~(ii) the margin above or below the Applicable LIBO Rate at which such CAF Advance Lender is willing to make each such CAF Advance.~~

The CAF Advance Agent shall advise the Company and the applicable Borrower before 11:00 A.M. (New York City time) on the date which is three Business Days before the proposed date of the Borrowing of the contents of each such CAF Advance Offer received by it. If the CAF Advance Agent, in its capacity as a CAF Advance Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer, it shall advise the Company and the applicable Borrower of the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on the date which is three Business Days before the proposed date of the Borrowing.

~~(c) In the case of a Fixed Rate CAF Advance Request, upon~~

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document receipt of notice from the CAF Advance Agent of the contents of such CAF Advance Request, each CAF Advance Lender may elect, in its sole discretion, to offer irrevocably to make one or more CAF Advances at a rate of interest determined by such CAF Advance Lender in its sole discretion for each such CAF Advance. Any such irrevocable offer shall be made by delivering a CAF Advance Offer to the CAF Advance Agent before 9:30 A.M. (New York City time) on the proposed date of the Borrowing, setting forth:

(i) the maximum amount of CAF Advances for each maturity date, and the aggregate maximum amount for all maturity dates, which such CAF Advance Lender would be willing to make (which amounts may, subject to Section 2.4, exceed such CAF Advance Lender's Commitment); and

~~(ii) the rate of interest at which such CAF Advance Lender is willing to make each such CAF Advance.~~

The CAF Advance Agent shall advise the Company and the applicable Borrower before 10:00 A.M. (New York City time) on the proposed date of the Borrowing of the contents of each such CAF Advance Offer received by it. If the CAF Advance Agent, in its capacity as a CAF Advance Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer, it shall advise the Company and the applicable Borrower of the contents of its CAF Advance Offer before 9:15 A.M. (New York City time) on the proposed date of the Borrowing.

(d) Before 11:30 A.M. (New York City time) three Business Days before the proposed date of the Borrowing (in the case of CAF Advances requested by a LIBO Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the proposed date of the Borrowing (in the case of CAF Advances requested by a Fixed Rate CAF Advance Request), the Company, in its absolute discretion, shall:

~~(i) cancel such CAF Advance Request by giving the CAF Advance Agent telephone notice to that effect, or~~

(ii) by giving telephone notice to the CAF Advance Agent (immediately confirmed by delivery to the CAF Advance Agent of a CAF Advance Confirmation in writing or by telecopy) (A) subject to the provisions of Section 2.5(e), accept one or more of the offers made by any CAF Advance Lender or CAF Advance Lenders pursuant to Section 2.5(b) or Section 2.5(c), as the case may be, of the amount of CAF Advances for each relevant maturity date and (B) reject any remaining offers made by CAF Advance Lenders pursuant to Section 2.5(b) or Section 2.5(c), as the case may be.

~~(e) The Company's acceptance of CAF Advances in response to any CAF Advance Request shall be subject to the following limitations:~~

(i) the amount of CAF Advances accepted for each maturity date specified by any CAF Advance Lender in its CAF Advance Offer shall not exceed the maximum amount for such maturity date specified in such CAF Advance Offer;

(ii) the aggregate amount of CAF Advances accepted for all maturity dates specified by any CAF Advance Lender in its CAF Advance Offer shall not exceed the aggregate maximum amount specified in such CAF Advance Offer for all such maturity dates;

(iii) the Company may not accept offers for CAF Advances for any maturity date in an aggregate principal amount in excess of the maximum principal amount requested in the related CAF Advance Request; and

(iv) if the Company accepts any of such offers, it must accept offers based solely upon pricing for such relevant maturity date and upon no other criteria whatsoever and if two or more CAF Advance Lenders submit offers for any maturity date at identical pricing and the Company accepts any of such offers but does not wish to (or by reason of the limitations set forth in Section 2.4 or in Section 2.5(e)(iii), cannot) borrow the total amount offered by such CAF Advance Lenders with such identical pricing, the Company shall accept offers from all of such CAF Advance Lenders in amounts allocated among them pro rata according to the amounts offered by such CAF Advance Lenders (or as nearly pro rata as shall be practicable after giving

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document effect to the requirement that CAF Advances made by a CAF Advance Lender on a date of the Borrowing for each relevant maturity date shall be in a principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof; provided that if the number of CAF Advance Lenders that submit offers for any maturity date at identical pricing is such that, after the Company accepts such offers pro rata in accordance with the foregoing, the CAF Advance to be made by such CAF Advance Lenders would be less than $5,000,000 principal amount, the number of such CAF Advance Lenders shall be reduced by the CAF Advance Agent by lot until the CAF Advances to be made by such remaining CAF Advance Lenders would be in a principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof).

(f) If the Company notifies the CAF Advance Agent that a CAF Advance Request is cancelled pursuant to Section 2.5(d)(i), the CAF Advance Agent shall give prompt telephone notice thereof to the CAF Advance Lenders.

(g) If the Company accepts pursuant to Section 2.5(d)(ii) one or more of the offers made by any CAF Advance Lender or CAF Advance Lenders, the CAF Advance Agent promptly shall notify each CAF Advance Lender which has made such a CAF Advance Offer of (i) the aggregate amount of such CAF Advances to be made on such Borrowing Date for each maturity date and (ii) the acceptance or rejection of any offers to make such CAF Advances made by such CAF Advance Lender. Before 1:00 P.M. (New York City time) on the date of the Borrowing specified in the applicable CAF Advance Request, each CAF Advance Lender whose CAF Advance Offer has been accepted shall make available to the Administrative Agent at its office set forth in Section 9.2 the amount of CAF Advances to be made by such CAF Advance Lender, in same day funds. The Administrative Agent will make such funds available to the applicable Borrower as soon as practicable on such date at the Administrative Agent's aforesaid address. As soon as practicable after each Borrowing Date, the CAF Advance Agent shall notify each Lender of the aggregate amount of CAF Advances advanced on such Borrowing Date and the respective maturity dates thereof.

~~(h) The failure of any CAF Advance Lender to make the CAF Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any,~~

28 hereunder to make its CAF Advance on the date of such Borrowing, but no CAF Lender shall be responsible for the failure of any other CAF Advance Lender to make the CAF Advance to be made by such CAF Advance Lender on the date of any Borrowing.

(i) A CAF Advance Request may request offers for CAF Advances to be made on not more than one Borrowing Date and to mature on not more than five CAF Advance Maturity Dates. No CAF Advance Request may be submitted earlier than five Business Days after submission of any other CAF Advance Request.

SECTION II.6 CAF Advance Payments. (a) The applicable Borrower shall repay to the Administrative Agent, for the account of each CAF Advance Lender which has made a CAF Advance to it, on the applicable CAF Advance Maturity Date the then unpaid principal amount of such CAF Advance. The Borrowers shall not have the right to prepay any principal amount of any CAF Advance.

(b) The applicable Borrower shall pay interest on the unpaid principal amount of each CAF Advance to it from the date of the Borrowing to the applicable CAF Advance Maturity Date at the rate of interest specified in the CAF Advance Offer accepted by the applicable Borrower in connection with such CAF Advance (calculated on the basis of a 360-day year for actual days elapsed), payable on each applicable CAF Advance Interest Payment Date.

(c) If all or a portion of the principal amount of any CAF Advance shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue principal amount shall, without limiting any rights of any Lender under this Agreement, bear interest from the date on which such payment was due at a rate per annum which is 1% above the rate which would otherwise be applicable pursuant to such CAF Advance until the stated maturity date of such CAF Advance, and for each day thereafter at a rate per annum which is 2% above the Base Rate, in each case until paid in full (as well after as before judgment). Interest accruing pursuant to this paragraph (c) shall be payable from time to time on demand.

SECTION II.7 Evidence of Debt. Each Lender shall maintain in accordance with its usual practice appropriate records evidencing indebtedness of each Borrower to such Lender resulting from each CAF Advance of such Lender to such Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time in respect of such

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document CAF Advance. The Administrative Agent shall maintain the Register pursuant to Section 9.7(c) and a record therein for each Lender, in which shall be recorded (i) the amount of each CAF Advance made by such Lender to each Borrower, the CAF Advance Maturity Date thereof, the interest rate applicable thereto and each CAF Advance Interest Payment Date applicable thereto, and (ii) the amount of any sum received by the Administrative Agent hereunder from a Borrower on account of such CAF Advance. The entries made in the Register and the records of each Lender maintained pursuant to this Section 2.7 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of each Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such record, or any error therein,

~~29 shall not in any manner affect the obligation of each Borrower to repay (with applicable interest) the CAF Advances made by such Lender in accordance with the terms of this Agreement.~~

SECTION II.8 Fees. (a) The Company agrees to pay to the Administrative Agent for the account of each Lender a facility fee for the period from and including the Facility Fee Commencement Date until all Advances have been paid in full and all Commitments have been terminated, computed at a variable rate per annum on the average daily amount of the greater of (i) the Commitment of such Lender and (ii) the outstanding principal amount of Revolving Credit Advances of such Lender during the period for which payment is made, which rate will vary according to the S&P Bond Rating for the Company and the Moody's Bond Rating for the Company as follows:

provided that (i) if the Bond Ratings of the Company do not fall within the same Level, the rate applicable to such day will be the percentage opposite the Bond Rating that is at the higher Level (Level I being the highest and Level VI being the lowest), (ii) in the event a Bond Rating for the Company is not available from one of the Rating Agencies, the rate shall be based on the Bond Rating of the other Rating Agency, and (iii) in the event a Bond Rating for the Company is available from none of the Rating Agencies, the rate will be the percentage opposite Level VI. Such facility fees shall be payable quarterly in arrears on the last day of each March, June, September and December and on the Termination Date or such earlier date on which the Commitments shall terminate as provided herein, and, if the Lender is an Objecting Lender, on the Commitment Expiration Date applicable to such Lender and on the second anniversary of the Termination Date (or if the Lender is an Objecting Lender, the second anniversary of the Commitment Expiration Date applicable to such Lender) or such earlier date on which the Advances are repaid in full, commencing on the first of such dates to occur after the date hereof.
(b) The Company agrees to pay to Chase Securities Inc., the Administrative Agent and the CAF Advance Agent the fees set forth in the letter, dated as of July 5, 2000 from Chase Securities Inc. and Chase to the Company.
SECTION II.9 Reduction of the Commitments. The Company shall have the right, upon at least three Business Days' notice to the Administrative Agent, to terminate in whole or reduce ratably in part the unused portions of the respective Commitments of the Lenders, provided that each partial reduction shall be in the aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof.
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SECTION II.10 Repayment of Advances. The Borrowers shall repay to each Lender on the second anniversary of the Termination Date the aggregate principal amount of the Advances then owing to such Lender; provided that the Revolving Credit Advances made by Objecting Lenders shall be repaid as provided
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document in Section 2.23.
SECTION II.11 Interest on Revolving Credit Advances. (a) Ordinary Interest. Each Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Advance of such Borrower owing to each Lender from the date of such Advance until such principal amount is due (whether at stated maturity, by acceleration or otherwise), at the following rates:
(i) Base Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the Base Rate in effect from time to time, payable quarterly in arrears on the last day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or due (whether at stated maturity, by acceleration or otherwise).
(ii) Eurodollar Rate Advances. During such periods as such Advance is a Eurodollar Rate Advance, at a rate per annum equal at all times during each Interest Period for such Advance to the sum of the Eurodollar Rate for such Interest Period plus the Applicable Eurodollar Rate Margin for such Borrower in effect from time to time, payable on the last day of each such Interest Period and, if any such Interest Period has a duration of more than three months, on each day which occurs during such Interest Period every three months from the first day of such Interest Period, and on the date such Advance shall be Converted or due (whether at stated maturity, by acceleration or otherwise).
(b) Default Interest. The applicable Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Advance to it that is not paid when due (whether at stated maturity, by acceleration or otherwise) from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times (i) from such due date to the last day of the then existing Interest Period in the case of each Eurodollar Rate Advance, to 1% per annum above the interest rate per annum required to be paid on such Advance immediately prior to the date on which such amount became due, and (ii) from and after the last day of the then existing Interest Period, and at all times in the case of any Base Rate Advance, to 1% per annum above the Base Rate in effect from time to time.
SECTION II.12 Additional Interest on Eurodollar Rate Advances. If any Lender shall determine in good faith that reserves under regulations of the Board of Governors of the Federal Reserve System are required to be maintained by it in respect of, or a portion of its costs of maintaining reserves under such regulations is properly attributable to, one or more of its Eurodollar Rate Advances, the applicable Borrower shall pay to such Lender additional interest on the unpaid principal amount of each such Eurodollar Rate Advance to it (other than any such additional interest accruing to a particular Lender in respect of periods prior to the 30th day
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31 preceding the date notice of such interest is given by such Lender as provided in this Section 2.12), payable on the same day or days on which interest is payable on such Advance, at an interest rate per annum equal at all times during each Interest Period for such Advance to the excess of (i) the rate obtained by dividing the Eurodollar Rate for such Interest Period by a percentage equal to 100% minus the Eurodollar Reserve Percentage, if any, for such Lender for such Interest Period over (ii) the Eurodollar Rate for such Interest Period. The amount of such additional interest (if any) shall be determined by each Lender, and such Lender shall furnish written notice of the amount of such additional interest to the Company and the Administrative Agent, which notice shall be conclusive and binding for all purposes, absent manifest error.
SECTION II.13 Interest Rate Determination. (a) Each Reference Lender agrees to furnish to the Administrative Agent timely information for the purpose of determining the Eurodollar Rate. If any one or more of the Reference Lenders shall not furnish such timely information to the Administrative Agent for the purpose of determining any such interest rate, the Administrative Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Lenders.
(b) The Administrative Agent shall give prompt notice to the Company and the Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.11(a)(i) or (ii), and the applicable rate, if any, furnished by each Reference Lender for the purpose of determining the applicable interest rate under Section 2.11(a)(ii).
(c) If fewer than two Reference Lenders furnish timely information to the Administrative Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances,
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (i) the Administrative Agent shall give the Company and each Lender prompt notice thereof by telephone (confirmed in writing) that the interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligations of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority Lenders determine and give notice to the Administrative Agent that, as a result of conditions in or generally affecting the London interbank eurodollar market, the rates of interest determined on the basis of the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Company and the Lenders, whereupon,
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(i) each such Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist.
(e) If the applicable Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of "Interest Period" in Section 1.1, the Administrative Agent will forthwith so notify the applicable Borrower and the Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $10,000,000, such Eurodollar Rate Advances shall automatically Convert into Base Rate Advances, and on and after such date the right of the applicable Borrower to Convert such Advances into Eurodollar Rate Advances shall terminate; provided, however, that if and so long as each such Eurodollar Rate Advance shall have the same Interest Period as Eurodollar Rate Advances comprising another Borrowing or other Borrowings, and the aggregate unpaid principal amount of all such Eurodollar Rate Advances shall equal or exceed $20,000,000, the applicable Borrower shall have the right to continue all such Advances as, or to Convert all such Advances into Eurodollar Rate Advances having the same Interest Period.
(g) If any Reference Lender shall for any reason no longer have a Commitment or any Revolving Credit Advances, such Reference Lender shall thereupon cease to be a Reference Lender, and if, as a result, there shall only be one Reference Lender remaining, the Administrative Agent (after consultation with the Company and the Lenders) shall, by notice to the Company and the Lenders, designate another Lender as a Reference Lender so that there shall at all times be at least two Reference Lenders.
SECTION II.14 Voluntary Conversion of Advances. Any Borrower may on any Business Day, upon notice given to the Administrative Agent, not later than 10:00 A.M. (New York City time) on the Business Day of the proposed Conversion of Eurodollar Rate Advances to Base Rate Advances and not later than 12:00 noon (New York City time) on the third Business Day prior to the date of the proposed Conversion in the case of a Conversion of Base Rate Advances to Eurodollar Rate Advances, and subject to the provisions of Sections 2.13, 2.16 and 2.18, Convert all Advances of one Type comprising the same Borrowing into Advances of another Type; provided, however, that any Conversion of any Eurodollar Rate Advances into Base Rate Advances made on any day other than the last day of an Interest Period for such Eurodollar Rate Advances shall be subject to the provisions of Section 9.4(b); and provided, further, that no Revolving Credit Advance may be converted into a Eurodollar Rate Advance after the date that is one month prior to (a) in the case of a Revolving Credit Advance made by an
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 28
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Objecting Lender, the second anniversary of such Objecting Lender's Commitment Expiration Date, and (b) in the case of all Revolving Credit Advances, the second anniversary of the Termination Date and provided, still further, that no Revolving Credit Advance may be converted into a Eurodollar Rate Advance if an Event of Default has occurred and is continuing. Each such notice of a Conversion shall, within the restrictions specified above, specify (a) the date of such Conversion, (b) the Advances to be Converted, and (c) if such Conversion is into Eurodollar Rate Advances, the duration of the Interest Period for each such Advance.
SECTION II.15 Optional and Mandatory Prepayments. (a) Optional Prepayments. Any Borrower may upon (i) in the case of Eurodollar Rate Advances, at least two Business Days' notice and (ii) in the case of Base Rate Advances, telephonic notice not later than 12:00 noon (New York City time) on the date of prepayment, to the Administrative Agent which specifies the proposed date and aggregate principal amount of the prepayment and the Type of Advances to be prepaid, and if such notice is given such Borrower shall, prepay the outstanding principal amounts of the Revolving Credit Advances comprising the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the amount prepaid; provided, however, that (A) each partial prepayment shall be in an aggregate principal amount not less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (B) in the event of any such prepayment of Eurodollar Rate Advances on any day other than the last day of an Interest Period for such Eurodollar Rate Advances, such Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to, and to the extent required by, Section 9.4(b); provided, further, however, that such Borrower will use its best efforts to give notice to the Administrative Agent of the proposed prepayment of Base Rate Advances on the Business Day prior to the date of such proposed prepayment.
(b) Mandatory Prepayments. If, at any time and from time to time, the aggregate principal amount of Advances (other than Advances of Objecting Lenders) then outstanding exceeds the Commitments of all the Lenders after giving effect to any reduction of the Commitments pursuant to Section 2.9, the Borrowers shall immediately prepay the Revolving Credit Advances of Lenders (other than Objecting Lenders) (to the extent there are such outstanding Revolving Credit Advances) by an amount equal to such excess.
SECTION II.16 Increased Costs. (a) If, due to either (i) the introduction after the date of this Agreement of or any change after the date of this Agreement (including any change by way of imposition or increase of reserve requirements or assessments other than those referred to in the definition of "Eurodollar Reserve Percentage" contained in Section 1.1) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request issued or made after the date of this Agreement from or by any central bank or other governmental authority (whether or not having the force of law), in each case above other than those referred to in Section 2.17, there shall be any increase in the cost to any Lender of agreeing to make, fund or maintain, or of making, funding or maintaining, Eurodollar Rate Advances funded in the interbank Eurodollar market, then the Borrowers shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to reimburse such Lender for all such increased costs (except those costs incurred more than 60 days prior to the date of such
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34 demand; for the purposes hereof any cost or expense allocable to a period prior to the publication or effective date of such an introduction, change, guideline or request shall be deemed to be incurred on the later of such publication or effective date). Each Lender agrees to use its best efforts promptly to notify the Company of any event referred to in clause (i) or (ii) above, provided that the failure to give such notice shall not affect the rights of any Lender under this Section 2.16(a) (except as otherwise expressly provided above in this Section 2.16(a)). A certificate as to the amount of such increased cost, submitted to the Company and the Administrative Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error. After one or more Lenders have notified the Company of any increased costs pursuant to this Section 2.16, the Company may specify by notice to the Administrative Agent and the affected Lenders that, after the date of such notice whenever the election of Eurodollar Rate Advances by the applicable Borrower for an Interest Period or portion thereof would give rise to such increased costs, such election shall not apply to the Revolving Credit Advances of such Lenders during such Interest Period or portion thereof, and, in lieu thereof, such Revolving Credit Advances
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document shall during such Interest Period or portion thereof be Base Rate Advances. Each Lender agrees to use its best efforts (including a reasonable effort to change its lending office or to transfer its affected Advances to an affiliate of such Lender) to avoid, or minimize the amount of, any demand for payment from the Borrowers under this Section 2.16.
(b) In the event that any Lender shall change its lending office and such change results (at the time of such change) in increased costs to such Lender, the Borrowers shall not be liable to such Lender for such increased costs incurred by such Lender to the extent, but only to the extent, that such increased costs shall exceed the increased costs which such Lender would have incurred if the lending office of such Lender had not been so changed, but, subject to subsection (a) above and to Section 2.18, nothing herein shall require any Lender to change its lending office for any reason.
SECTION II.17 Increased Capital. If either (a) the introduction of or any change in or in the interpretation of any law or regulation or (b) compliance by any Lender with any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and such Lender determines that the amount of such capital is increased by or based upon the existence of such Lender's commitment to lend hereunder and other commitments of this type, then, within ten days after demand, and delivery to the Company of the certificate referred to in the last sentence of this Section 2.17 by such Lender (with a copy of such demand to the Administrative Agent), the applicable Borrowers shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender's commitment to lend hereunder (except any such increase in capital incurred more than, or compensation attributable to the period before, 90 days prior to the date of such demand; for the purposes hereof any increase in capital allocable to, or compensation attributable to, a period prior to the publication or effective date of such an introduction, change, guideline or request shall be deemed to be incurred on the later of such publication or effective date). Each Lender
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35 agrees to use its best efforts promptly to notify the Company of any event referred to in clause (a) or (b) above, provided that the failure to give such notice shall not affect the rights of any Lender under this Section 2.17 (except as otherwise expressly provided above in this Section 2.17). A certificate in reasonable detail as to the basis for, and the amount of, such compensation submitted to the Company by such Lender shall, in the absence of manifest error, be conclusive and binding for all purposes.
SECTION II.18 Illegality. Notwithstanding any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for any Lender or its lending office to perform its obligations hereunder to make Eurodollar Rate Advances or to continue to fund or maintain such Advances hereunder, such Lender may, by notice to the Company and the Administrative Agent, suspend the right of the Borrowers to elect Eurodollar Rate Advances from such Lender and, if necessary in the reasonable opinion of such Lender to comply with such law or regulation, Convert all such Eurodollar Rate Advances of such Lender to Base Rate Advances at the latest time permitted by the applicable law or regulation, and such suspension and, if applicable, such Conversion shall continue until such Lender notifies the Company and the Administrative Agent that the circumstances making it unlawful for such Lender to perform such obligations no longer exist (which such Lender shall promptly do when such circumstances no longer exist). So long as the obligation of any Lender to make Eurodollar Rate Advances has been suspended under this Section 2.18, all Notices of Borrowing specifying Advances of such Type shall be deemed, as to such Lender, to be requests for Base Rate Advances. Each Lender agrees to use its best efforts (including a reasonable effort to change its lending office or to transfer its affected Advances to an affiliate) to avoid any such illegality.
SECTION II.19 Pro Rata Treatment, Payments and Computations. (a) Each Borrowing by any Borrower in respect of Revolving Credit Advances (subject to the provisions of Section 2.24(e)) shall be made pro rata according to the respective Commitment Percentages of the Lenders. The Borrowers shall make each payment hereunder (including under Section 2.6, 2.8, 2.10 or 2.11) and under the Notes, whether the amount so paid is owing to any or all of the Lenders or to the Administrative Agent, not later than 12:00 noon (New York City time) without setoff, counterclaim, or any other deduction whatsoever, on the day when due in Dollars to the Administrative Agent at its address at 270 Park Avenue, New York, New York 10017, Reference: El Paso Energy Corporation, or at
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document such other location designated by notice to the Company from the Administrative Agent and agreed to by the Company, in same day funds. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or facility fees ratably (other than amounts payable pursuant to Section 2.12, 2.16, 2.17, 2.18 or 2.20) according to the respective amounts of such principal, interest or facility fees then due and owing to the Lenders, and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.7(d), from and after the effective date specified in such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the Notes in respect of
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36 the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Prime Rate and of facility fees shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Effective Federal Funds Rate shall be made by the Administrative Agent, and all computations of interest pursuant to Section 2.12 shall be made by each Lender with respect to its own Advances, on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent (or, in the case of Section 2.12, 2.16, 2.17, 2.18 or 2.20, by each Lender with respect to its own Advances) of an interest rate or an increased cost or increased capital or of illegality hereunder shall be conclusive and binding for all purposes if made reasonably and in good faith.
(c) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest; provided, however, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from the Company or any other applicable Borrower prior to the date on which any payment is due to the Lenders hereunder that the applicable Borrower will not make such payment in full, the Administrative Agent may assume that the applicable Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the applicable Borrower shall not have so made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at a rate equal to the Effective Federal Funds Rate for such day.
SECTION II.20 Taxes. (a) Any and all payments by the Borrowers hereunder or under the Notes to each Indemnified Party shall be made, in accordance with Section 2.19, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding all taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, imposed by the jurisdiction under the laws of which such Indemnified Party is organized, domiciled, resident or doing business, or any political subdivision thereof or by any jurisdiction in which such Indemnified Party holds any interest in connection with this Agreement or any Note (including in the case of each Lender, the jurisdiction of such Lender's lending office) or
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37 any political subdivision thereof, other than by any jurisdiction with which the Indemnified Party's connection arises solely from having executed, delivered or performed obligations or received a payment under, or enforced, this Agreement or any Note (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If any
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Indemnified Party, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.20) such Indemnified Party receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make or cause to be made such deductions and (iii) such Borrower shall pay or cause to be paid the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law, provided that the Borrowers shall not be required to pay any additional amount (and shall be relieved of any liability with respect thereto) pursuant to this subsection (a) to any Indemnified Party that either (A) on the date such Lender became an Indemnified Party hereunder, (I) was not entitled to submit a U.S. Internal Revenue Service form 1001 (relating to such Indemnified Party, and entitling it to a complete exemption from United States withholding taxes on all amounts to be received by such Indemnified Party pursuant to this Agreement) and a U.S. Internal Revenue Service form 4224 (relating to all amounts to be received by such Indemnified Party pursuant to this Agreement) and (II) was not a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) or (B) has failed to submit any form or certificate that it was required to file or provide pursuant to subsection (d) of this Section 2.20 and is entitled to file or give, as applicable, under applicable law, provided, further, that should an Indemnified Party become subject to Taxes because of its failure to deliver a form required hereunder, the Borrowers shall take such steps as such Indemnified Party shall reasonably request to assist such Indemnified Party to recover such Taxes, and provided, further, that each Indemnified Party, with respect to itself, agrees to indemnify and hold harmless the Borrowers from any taxes, penalties, interest and other expenses, costs and losses incurred or payable by the Borrowers as a result of the failure of any of the Borrowers to comply with its obligations under clause (ii) or (iii) above in reliance on any form or certificate provided to it by such Indemnified Party pursuant to this Section 2.20. If any Indemnified Party receives a net credit or refund in respect of such Taxes or amounts so paid by the Borrowers, it shall promptly notify the Company of such net credit or refund and shall promptly pay such net credit or refund to the applicable Borrower, provided that the applicable Borrower agrees to return such net credit or refund if the Indemnified Party to which such net credit or refund is applicable is required to repay it.
(b) In addition, each Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made by such Borrower hereunder or under the Notes or from the execution, delivery or performance of, or otherwise with respect to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Indemnified Party and the Administrative Agent for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.20) paid by such
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Indemnified Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto except as a result of the gross negligence (which shall in any event include the failure of such Indemnified Party to provide to the Borrowers any form or certificate that it was required to provide pursuant to subsection (d) below) or willful misconduct of such Indemnified Party, whether or not such Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Indemnified Party makes written demand therefor.
(d) On or prior to the date on which each Indemnified Party organized under the laws of a jurisdiction outside the United States becomes an Indemnified Party hereunder, such Indemnified Party shall provide the Company with U.S. Internal Revenue Service form 1001 or 4224, as appropriate, or any successor form prescribed by the U.S. Internal Revenue Service, certifying that such Indemnified Party is fully exempt from United States withholding taxes with respect to all payments to be made to such Indemnified Party hereunder, or other documents satisfactory to the Company indicating that all payments to be made to such Indemnified Party hereunder are fully exempt from such taxes. Thereafter and from time to time (but only so long as such Indemnified Party remains lawfully able to do so), each such Indemnified Party shall submit to the Company such additional duly completed and signed copies of one or the other of such Forms (or such successor Forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be (i) notified by any Borrower to such Indemnified Party and (ii) required under then-current United States law or regulations to avoid United States withholding taxes on payments in respect of all amounts to be received by such Indemnified Party pursuant to this Agreement or the Notes. Upon the request of any Borrower from time to time, each Indemnified Party that is a United States person (as such term is defined
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document in Section 7701(a)(30) of the Internal Revenue Code) shall submit to the Company a certificate to the effect that it is such a United States person. If any Indemnified Party determines, as a result of any change in applicable law, regulation or treaty, or in any official application or interpretation thereof, that it is unable to submit to the Company any form or certificate that such Indemnified Party is obligated to submit pursuant to this subsection (d), or that such Indemnified Party is required to withdraw or cancel any such form or certificate previously submitted, such Indemnified Party shall promptly notify the Company of such fact.
(e) Any Indemnified Party claiming any additional amounts payable pursuant to this Section 2.20 shall use its best efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its lending office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts which may thereafter accrue and would not, in the reasonable judgment of such Indemnified Party, be otherwise disadvantageous to such Indemnified Party.
(f) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers and each Indemnified Party contained in this Section 2.20 shall survive the payment in full of principal and interest hereunder and under the Notes.
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(g) Any other provision of this Agreement to the contrary notwithstanding, any amounts which are payable by any Borrower under this Section 2.20 shall not be payable under Section 2.16.
SECTION II.21 Sharing of Payments, Etc. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances made by it (other than pursuant to Section 2.12, 2.16, 2.17, 2.18 or 2.20) in excess of its ratable share of payments on account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Advances made by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them, provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender's ratable share (according to the proportion of (a) the amount of such Lender's required repayment to (b) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation.
SECTION II.22 Use of Proceeds. Proceeds of the Advances may be used for general business purposes of the Borrowers and their respective Subsidiaries, including for acquisitions and for payment of commercial paper issued by the Borrowers, and to refinance any Indebtedness of the Borrowers and their respective Subsidiaries (whether in connection with any acquisition or otherwise).
SECTION II.23 Extension of Stated Termination Date. (a) Not less than 45 days and not more than 60 days prior to the Stated Termination Date then in effect, provided that no Event of Default shall have occurred and be continuing, the Company may request an extension of such Stated Termination Date by submitting to the Administrative Agent an Extension Request containing the information in respect of such extension specified in Exhibit M, which the Administrative Agent shall promptly furnish to each Lender. Each Lender shall, not less than 30 days and not more than 60 days prior to the Stated Termination Date then in effect, notify the Company and the Administrative Agent of its election to extend or not extend the Stated Termination Date as requested in such Extension Request. Notwithstanding any provision of this Agreement to the contrary, any notice by any Lender of its willingness to extend the Stated Termination Date shall be revocable by such Lender in its sole and absolute discretion at any time prior to the date which is 30 days prior to the Stated Termination Date then in effect. If the Required Lenders shall approve in writing the extension of the Stated Termination Date requested in such Extension Request, the Stated Termination Date shall automatically and without any further action by any Person be extended for the period specified in such Extension Request; provided that (i) each extension pursuant to this Section 2.23 shall be for a maximum of 364 days and (ii) the Commitment of any Lender that does not consent in writing, or which
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40 revokes, in accordance with the provisions of this Section 2.23, its consent to such extension not less than 30 days and not more than 60 days prior to the Stated Termination Date then in effect and has not thereafter reinstated its consent (an "Objecting Lender") shall, unless earlier terminated in accordance with this Agreement, expire on the Stated Termination Date in effect on the date of such Extension Request (such Stated Termination Date, if any, being referred to as the "Commitment Expiration Date" with respect to such Objecting Lender). If, not less than 30 days and not more than 60 days prior to the Stated Termination Date then in effect, the Required Lenders shall not approve in writing the extension of the Stated Termination Date requested in an Extension Request, the Stated Termination Date shall not be extended pursuant to such Extension Request. The Administrative Agent shall promptly notify (y) the Lenders and the Company of any extension of the Stated Termination Date pursuant to this Section 2.23 and (z) the Company and the Lenders of any Lender which becomes an Objecting Lender.
(b) Revolving Credit Advances owing to any Objecting Lender on the Commitment Expiration Date with respect to such Lender shall be repaid in full on or before the date that is two years after such Commitment Expiration Date.
(c) The Borrowers shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and the Objecting Lenders in accordance with Section 2.15, to prepay in full the Revolving Credit Advances of the Objecting Lenders, together with accrued interest thereon, any amounts payable pursuant to Sections 2.11, 2.12, 2.16, 2.17, 2.18, 2.20 and 9.4(b) and any accrued and unpaid facility fee or other amounts payable to the Objecting Lenders hereunder and/or, upon giving not less than three Business Days' notice to the Objecting Lenders and the Administrative Agent, to cancel the whole or part of the Commitments of the Objecting Lenders.
(d) Notwithstanding the foregoing, if any Lender becomes an Objecting Lender, the Borrower may, at its own expense and in its sole discretion and prior to the then Stated Termination Date, require such Lender to transfer or assign, in whole or in part, without recourse (in accordance with Section 9.7), all or part of its interests, rights and obligations under this Agreement to an Eligible Assignee (provided that the Borrower, with the full cooperation of such Lender, can identify an Eligible Assignee that is ready, willing and able to be an assignee with respect thereto) which shall assume such assigned obligations (which assignee may be another Lender, if such assignee Lender accepts such assignment); provided that (A) the assignee or the Borrower, as the case may be, shall have paid to such Lender in immediately available funds the principal of and interest accrued to the date of such payment on the Advances made by it hereunder and all other amounts owed to it hereunder, including any amounts owing pursuant to Section 9.4(b) and any amounts that would be owing under said Section if such Advances were prepaid on the date of such assignment, and (B) such assignment does not conflict with any law, rule or regulation or order of any governmental authority. Any assignee which becomes a Lender as a result of such an assignment made pursuant to this paragraph (d) shall be deemed to have consented to the applicable Extension Request and, therefore, shall not be an Objecting Lender.
SECTION II.24 [Intentionally Left Blank]
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SECTION II.25 Replacement of Lenders. If any Lender requests compensation under Sections 2.12, 2.16 or 2.17 or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20, or if any Lender suspends the right of any Borrower to elect Eurodollar Rate Advances from such Lender pursuant to Section 2.18, or if any Lender defaults in its obligation to fund Advances hereunder, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.7), all its interests, rights and obligations under this Agreement (other than any outstanding CAF Advances held by it) to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances (other than CAF Advances), accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Sections 2.12 , 2.16 or 2.17 or payments required to be made pursuant to Section 2.20, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
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ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION III.1 Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective (the "Effective Date") when (i) it shall have been executed by the Company, EPNGC Tennessee, the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents and the Syndication Agent and (ii) the Administrative Agent and the Company either shall have been notified by each Lender that such Lender has executed it or shall have received a counterpart of this Agreement executed by such Lender (or compliance with the forgoing shall have been waived by the Lenders). Anything in this Agreement to the contrary notwithstanding, if all of the conditions to effectiveness of this Agreement specified in this Section 3.1 shall not have been fulfilled on or before August 31, 2000, (i) the Company shall on such date pay all accrued and unpaid facility fees pursuant to Section 2.8 and (ii) this Agreement, and all of the obligations of the Company, the Lenders, the Administrative Agent and the CAF Advance Agent hereunder, shall be terminated on and as of 5:00 P.M. (New York City time) on August 31, 2000; provided, however, that as soon as the Administrative Agent determines that all of the conditions to effectiveness of this Agreement specified in this Section 3.1 shall have been fulfilled on or before August 31, 2000, the Administrative Agent shall furnish written notice to the Company and the Lenders to the effect that it has so determined, and such notice by the Administrative Agent shall constitute conclusive evidence that this Agreement shall have become effective for all purposes. Notwithstanding the foregoing, the obligations of the Company to pay fees pursuant to Section 2.8 as well as all obligations of the Borrowers pursuant to Section 9.4 shall survive the termination of this Agreement.
SECTION III.2 Conditions Precedent to Initial Advances. The agreement of each Lender to make the initial Advances to be made by it to the Borrowers hereunder is subject to (the date upon which all conditions listed in Section 3.2(a) and 3.2(b) are satisfied, the "Closing Date") (a) the occurrence of the Effective Date hereunder and (b) the receipt by the Administrative Agent of the following in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender:
(i) Certified copies of the resolutions of the Board of Directors of each of the Company, EPNGC and Tennessee approving the borrowings contemplated hereby and authorizing the execution of this Agreement and the Notes, and of all documents evidencing other necessary Business Entity action of each of the Company, EPNGC and Tennessee and governmental approvals to each of the Company, EPNGC and Tennessee, if any, with respect to this Agreement and the Notes.
(ii) A certificate of the Secretary or an Assistant Secretary of each of the Company, EPNGC and Tennessee certifying the names and true signatures of the officers of each of the Company, EPNGC and Tennessee authorized to sign this Agreement and the other documents to be delivered by it hereunder.
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(iii) A favorable opinion of the Senior Counsel of the Company, or the Associate General Counsel of the Company, in substantially the form of Exhibit G.
(iv) A favorable opinion of Jones, Day, Reavis & Pogue, New York counsel to the Company, EPNGC and Tennessee, in substantially the form of Exhibit H.
(v) A letter from the Process Agent, in substantially the form of Exhibit I, agreeing to act as Process Agent for each of the Company, EPNGC and Tennessee and to forward forthwith all process received by it to the Company, EPNGC and Tennessee, as applicable.
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (vi) Evidence satisfactory to the Administrative Agent that all advances, accrued interest and other fees and any other amounts owing to the lenders and the agents under the Existing 364-Day Facility and the Existing 5-Year Facility shall have been, or simultaneously with the initial Advances are being, paid in full, and the commitments to make advances thereunder shall have been cancelled.
SECTION III.3 Conditions Precedent to Initial Advances to Any Borrowing Subsidiary. The agreement of each Lender to make the initial Advances to be made by it to any Borrowing Subsidiary (other than EPNGC and Tennessee) is further subject to the Administrative Agent receiving the following, in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each Lender:
(a) A Joinder Agreement executed and delivered by such Borrowing Subsidiary conforming to the requirements hereof.
(b) Notes, dated the date such Borrowing Subsidiary executes and delivers its Joinder Agreement, made by such Borrowing Subsidiary to the order of each Lender requesting a Note, respectively.
(c) A certificate of the Secretary or an Assistant Secretary of such Borrowing Subsidiary certifying the names and true signature of the officers of such Borrowing Subsidiary authorized to sign the Joinder Agreement and the other documents to be delivered by it hereunder.
(d) A favorable opinion of the Senior Counsel or Associate General Counsel of the Company, given upon the express instructions of the Company, in substantially the form of Exhibit K, and as to such other matters as any Lender through the Administrative Agent may reasonably request, with such assumptions, qualifications and exceptions as the Administrative Agent may approve.
(e) A favorable opinion of Jones, Day, Reavis & Pogue or other New York counsel to the Company reasonably satisfactory to the Administrative Agent, in substantially the form of Exhibit L, and as to such other matters as any Lender through
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the Administrative Agent may reasonably request, with such assumptions, qualifications and exceptions as the Administrative Agent may approve.
(f) A letter from the Process Agent, in substantially the form of Exhibit I, agreeing to act as Process Agent for such Borrowing Subsidiary, as the case may be, and to forward forthwith all process received by it to such Borrowing Subsidiary.
SECTION III.4 Conditions Precedent to Each Borrowing. The obligation of each Lender to make an Advance (including the initial Advance, but excluding any continuation or Conversion of an Advance) on the occasion of any Borrowing shall be subject to the conditions precedent that on or before the date of such Borrowing this Agreement shall have become effective pursuant to Section 3.1 and, before and immediately after giving effect to such Borrowing and to the application of the proceeds therefrom, the following statements shall be true and correct, and the giving by the applicable Borrower or the Company on such Borrower's behalf of the applicable Notice of Borrowing and the acceptance by the applicable Borrower of the proceeds of such Borrowing shall constitute its representation and warranty that on and as of the date of such Borrowing, before and immediately after giving effect thereto and to the application of the proceeds therefrom, the following statements are true and correct:
(i) each representation and warranty contained in Section 4.1 is correct in all material respects as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from such Borrowing, which constitutes an Event of Default or a Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION IV.1 Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) The Company is a Business Entity duly formed, validly
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document existing and, if applicable, in good standing under the laws of the State of Delaware. Each Principal Subsidiary is duly organized or formed, validly existing and, if applicable, in good standing in the jurisdiction of its organization or formation. The Company and each Principal Subsidiary possess 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.
(b) The execution, delivery and performance by each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and its Notes (as applicable) are within such Borrower"s applicable Business Entity powers, have been duly authorized by all necessary applicable Business Entity action, and do not contravene
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(A) such Borrower's organizational documents or (B) any law or any material contractual restriction binding on or affecting such Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable), except those necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to which it is a party (as applicable) when delivered hereunder shall constitute the legal, valid and binding obligations of each Borrower, enforceable against such Borrower 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.
(e) The consolidated balance sheet of the Company and its consolidated Subsidiaries as at December 31, 1999, and the related consolidated statements of income and cash flows of the Company and its consolidated Subsidiaries for the fiscal year then ended, reported on by PricewaterhouseCoopers LLP, independent public accountants, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date and the consolidated results of the operations of the Company and its consolidated Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied, and since December 31, 1999, there has been no material adverse change in such condition or operations. The unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of March 31, 2000, and the related consolidated statements of income and cash flows of the Company and its consolidated Subsidiaries for the three months then ended, certified by the chief financial officer of the Company, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of the Company and its consolidated Subsidiaries for the three months then ended, all in accordance with GAAP consistently applied (except as approved by the chief financial officer of the Company and as disclosed therein) and subject to normal year-end audit adjustments.
(f) Each of the Company and its Subsidiaries is in compliance with all laws, rules, regulations and orders of any governmental authority applicable to it or its property except where the failure to comply, individually or in the aggregate, would not in the reasonable judgment of the Company be expected to result in a Material Adverse Effect.
(g) There is no action, suit or proceeding pending, or to the knowledge of any Borrower threatened, against or involving the Company or any Principal Subsidiary in any court, or before any arbitrator of any kind, or before or by any governmental body,
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Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document existing as at the Effective Date which in the reasonable judgment of the Company (taking into account the exhaustion of all appeals) would have a Material Adverse Effect, or which purports to affect the legality, validity, binding effect or enforceability of this Agreement or the Notes.
(h) The Company and each Principal Subsidiary have duly filed all tax returns required to be filed, and have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the failure to file or pay which, as applicable, would have a Material Adverse Effect, unless and to the extent only that the same are being contested in good faith and by appropriate proceedings by the Company or the appropriate Subsidiary.
(i) The Company and each Principal Subsidiary have good title to their respective properties and assets, free and clear of all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not materially interfere with the business or operations of the Company or such Subsidiary as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(j) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g).
(k) Each Plan has complied with the applicable provisions of ERISA and the Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(l) The statement of assets and liabilities of each Plan and the statements of changes in fund balance and in financial position, or the statement of changes in net assets available for plan benefits, for the most recent plan year for which an accountant's report with respect to such Plan has been prepared, copies of which report have been furnished to the Administrative Agent, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(m) Neither the Company nor any ERISA Affiliate has incurred, or is reasonably expected to incur, any Withdrawal Liability to any Multiemployer Plan which, when aggregated with all other amounts required to be paid to Multiemployer Plans in connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company.
(n) Neither the Company nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is
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reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i).
(o) No Borrower is an "investment company" or a "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(p) No Borrower is a "holding company" or a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(q) The borrowings by the Borrowers under this Agreement and the Notes and the applications of the proceeds thereof as provided herein will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
All representations and warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making of the Advances and the execution and delivery to the Lenders of this Agreement and the Notes.
ARTICLE V
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document COVENANTS OF THE BORROWERS
SECTION V.1 Affirmative Covenants. So long as any amount payable by any Borrower hereunder or under any Note shall remain unpaid or any Lender shall have any Commitment hereunder, each Borrower will, unless the Majority Lenders shall otherwise consent in writing:
(a) Preservation of Existence, Etc. Preserve and maintain, and, in the case of the Company, cause each Principal Subsidiary to preserve and maintain, its existence, rights (organizational and statutory) and material franchises, except as otherwise permitted by Section 5.2(d) or 5.2(e) and except that nothing herein shall prevent any change in Business Entity form of the Company or any Principal Subsidiary.
(b) Compliance with Laws, Etc. Comply, and, in the case of the Company, cause each Principal Subsidiary to comply, in all material respects with all applicable laws, rules, regulations and orders (including all environmental laws and laws requiring payment of all taxes, assessments and governmental charges imposed upon it or upon its property except to the extent contested in good faith by appropriate proceedings) the failure to comply with which would have a Material Adverse Effect.
(c) Visitation Rights. At any reasonable time and from time to time, permit the Administrative Agent or any of the Lenders or any agents or representatives thereof,
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to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Company and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the Company and any of its Subsidiaries with any of their officers and with their independent certified public accountants.
(d) Books and Records. Keep, and, in the case of the Company, cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made of all its respective financial transactions and the assets and business of the Company and each of its Subsidiaries, as applicable, in accordance with GAAP either (i) consistently applied or (ii) applied in a changed manner provided such change shall have been disclosed to the Administrative Agent and shall have been consented to by the accountants which (as required by Section 5.3(b)) report on the financial statements of the Company and its consolidated Subsidiaries for the fiscal year in which such change shall have occurred.
(e) Maintenance of Properties, Etc. Maintain and preserve, and, in the case of the Company, cause each Principal Subsidiary to maintain and preserve, all of its properties which are used in the conduct of its business in good working order and condition, ordinary wear and tear excepted, to the extent that any failure to do so would have a Material Adverse Effect.
(f) Maintenance of Insurance. Maintain, and, in the case of the Company, cause each Principal Subsidiary to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Company or such Subsidiary operates.
SECTION V.2 Negative Covenants. So long as any amount payable by any Borrower hereunder or under any Note shall remain unpaid or any Lender shall have any Commitment hereunder, each Borrower will not, unless the Majority Lenders shall otherwise consent in writing:
(a) Liens, Etc. (i) Create, assume or suffer to exist, or, in the case of the Company, permit any Principal Subsidiary to create, assume or suffer to exist, any Liens upon or with respect to any of its Equity Interests in any Principal Subsidiary, whether now owned or hereafter acquired, or (ii) create or assume, or, in the case of the Company, permit any Principal Subsidiary to create or assume, any Liens upon or with respect to any other assets material to the consolidated operations of the Company and its consolidated Subsidiaries taken as a whole securing the payment of Indebtedness and Guaranties in an aggregate amount (determined without duplication of amount (so that the amount of a Guaranty will be excluded to the extent the Indebtedness Guaranteed thereby is included in computing such aggregate amount))
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document exceeding the greater of (x) $300,000,000 and (y) 10% of Net Worth as at the date of such creation or assumption; provided, however, that this subsection (a) shall not apply to:
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(A) Liens on the Equity Interests in, or Indebtedness or other obligations of, or assets of, any Project Financing Subsidiary (or any Equity Interests in, or Indebtedness or other obligations of, any Business Entity which are directly or indirectly owned by any Project Financing Subsidiary) securing the payment of a Project Financing and related obligations;
(B) Liens on (1) assets acquired by the Company or any of its Subsidiaries after February 11, 1992 to the extent that such Liens existed at the time of such acquisition and were not placed thereon by or with the consent of the Company in contemplation of such acquisition and (2) Equity Interests acquired after February 11, 1992 in a Business Entity that has become or becomes a Subsidiary of the Company, or on assets of any such Business Entity, to the extent that such Liens existed at the time of such acquisition and were not placed thereon by or with the consent of the Company in contemplation of such acquisition;
(C) Liens created by any Alternate Program or any document executed by any Borrower or any Subsidiary in connection therewith;
(D) Liens on Margin Stock;
(E) Permitted Liens;
(F) Liens arising out of the refinancing, extension, renewal or refunding of any Indebtedness or Guaranty or other obligation secured by any Lien permitted by any of the foregoing clauses of this Section, provided that the principal amount of such Indebtedness or Guaranty or other obligation is not increased (except by the amount of costs reasonably incurred in connection with the issuance thereof) beyond the highest previous amount thereof and such Indebtedness or Guaranty or other obligation is outstanding immediately prior to the refinancing, extension, renewal or refunding and is not secured by any additional assets that would not have been permitted by this Section to secure the Indebtedness or Guaranty or other obligation refinanced, extended, renewed or refunded; and
(G) Liens on products and proceeds (including dividend, interest and like payments on, and insurance and condemnation proceeds and rental, lease, licensing and similar proceeds) of, and property evidencing or embodying, or constituting rights or other general intangibles directly relating to or arising out of, and accessions and improvements to, collateral subject to Liens permitted by this Section 5.2(a).
(b) Consolidated Debt and Guarantees to Capitalization. Permit the ratio of (A) the sum of (1) the aggregate amount of consolidated Debt of the Company and its consolidated Subsidiaries (without duplication of amount under this clause (A) and determined as to all of the foregoing entities on a consolidated basis) plus (2) the aggregate amount of consolidated Guaranties of the Company and its consolidated
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Subsidiaries (without duplication of amount under this clause (A) and determined as to all of the foregoing entities on a consolidated basis) to (B) Capitalization of the Company (without duplication and determined as to all of the foregoing entities on a consolidated basis) to exceed .7 to 1.
(c) Debt, Etc. In the case of the Company, permit any of its consolidated Subsidiaries to incur or become liable for any Debt, any Guaranty or any reimbursement obligation with respect to any letter of credit (other than any Project Financing), if, immediately after giving
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document effect to such Debt, Guaranty or reimbursement obligation and the receipt and application of any proceeds thereof or value received in connection therewith, the aggregate amount (determined without duplication of amount) of Debt, Guaranties and letter of credit reimbursement obligations of the Company's consolidated Subsidiaries owing to Persons other than the Company and its consolidated Subsidiaries (other than any Project Financing) would exceed the greater of (x) $600,000,000 and (y) 10% of Net Worth determined as at the date of incurrence or assumption thereof; provided, however, that the following Debt, Guaranties or reimbursement obligations shall be excluded from the application of, and calculation set forth in, this paragraph (c): (A) Debt, Guaranties or reimbursement obligations incurred by (x) Mojave or (y) EPNGC, (B) Debt, Guaranties or reimbursement obligations arising under (x) the EPTPC Facility or (y) this Agreement or the 3-Year Facility, (C) Debt, Guaranties or reimbursement obligations incurred by El Paso Field Services Company up to an amount not to exceed at any time outstanding the tangible net worth of El Paso Field Services Company, provided that such Debt may be guaranteed by the Company, (D) Excluded Acquisition Debt, (E) successive extensions, refinancings or replacements (at the same Subsidiary or at any other consolidated Subsidiary of the Company) of Debt, Guaranties or reimbursement obligations (or commitments in respect thereof) referred to in clauses (A), (B) and (D) above and in an amount not in excess of the amounts so extended, refinanced or replaced (or the amount of commitments in respect thereof) and (F) Debt, Guarantees or reimbursement obligations incurred by Tennessee pursuant to one or more commercial paper programs allowing for the issuance by Tennessee of items of commercial paper having maturity dates not later than one year from the dates of their respective issuance provided that such Debt, Guarantees or reimbursement obligations of Tennessee shall be in an aggregate amount not to exceed at any time the excess of (x) the sum of (1) the aggregate amount of Commitments and (2) the aggregate amount of Commitments as defined in the 3-Year Facility, over (y) the sum of (1) the aggregate amount of Advances, (2) the aggregate amount of Advances, as defined in and outstanding pursuant to, the 3-Year Facility, and (3) the aggregate principal amount of commercial paper outstanding from time to time that (I) is issued by the Company and its Subsidiaries (other than Tennessee) and (II) relies upon credit availability under either this Agreement or the 3-Year Facility for commercial paper liquidity purposes.
(d) Sale, Etc. of Assets. Sell, lease or otherwise transfer, or, in the case of the Company, permit any Principal Subsidiary to sell, lease or otherwise transfer, (in either case, whether in one transaction or in a series of transactions) assets constituting all or
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substantially all of the consolidated assets of the Company and its Principal Subsidiaries taken as a whole, provided that provisions of this subsection (d) shall not apply to:
(i) any sale of receivables and related rights pursuant to any Alternate Program;
(ii) any Project Financing Subsidiary and the assets thereof;
(iii) sales, leases or other transfers of assets or capital stock of any Subsidiary of the Company other than any Principal Subsidiary;
(iv) any sale of Margin Stock;
(v) any sale of up to 20% of the equity of El Paso Field Services Company in an initial public offering of such Person"s Equity Interests ;
(vi) any sale, lease or other transfer to the Company or any Principal Subsidiary, or to any Business Entity that after giving effect to such transfer will become and be either (A) a Principal Subsidiary in which the Company's direct or indirect equity interest will be at least as great as its direct or indirect equity interest in the transferor immediately prior thereto or (B) a directly or indirectly wholly-owned Principal Subsidiary; and
(vii) any transfer permitted by Section 5.2(e); and
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (viii) any transfer to the Company or any of its Subsidiaries of any stock or assets other than FERC regulated assets (or stock or any other equity interest in an entity owning FERC regulated assets) used in the mainline gas transmission business; provided that no Event of Default or Default shall have occurred and be continuing before and immediately after giving effect to such transfer.
(e) Mergers, Etc. Merge or consolidate with any Person, or in the case of the Company permit any of its Principal Subsidiaries to merge or consolidate with any Person, except that (i) any Principal Subsidiary may merge or consolidate with (or liquidate into) any other Subsidiary (other than a Project Financing Subsidiary, unless the successor Business Entity is not treated as a Project Financing Subsidiary under this Agreement) or may merge or consolidate with (or liquidate into) the Company, provided that (A) if such Principal Subsidiary merges or consolidates with (or liquidates into) the Company, either (x) the Company shall be the continuing or surviving Business Entity or (y) the continuing or surviving Business Entity is organized under the laws of the United States or a State thereof and unconditionally assumes by agreement all of the performance obligations and payment Obligations of the Company under this Agreement and the Notes and (B) if any such Principal Subsidiary merges or consolidates with (or liquidates into) any other Subsidiary, one or more Business Entities that are Subsidiaries are the
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continuing or surviving Business Entity (ies) and, if either such Subsidiary is not directly or indirectly wholly-owned by the Company, such merger or consolidation is on an arm's length basis, and (ii) the Company or any Principal Subsidiary may merge or consolidate with any other Business Entity (that is, in addition to the Company or any Subsidiary), provided that (A) if the Company merges or consolidates with any such other Business Entity, either (x) the Company is the continuing or surviving Business Entity or (y) the continuing or surviving Business Entity is organized under the laws of the United States or a State thereof and unconditionally assumes by agreement all of the performance obligations and payment Obligations of the Company under this Agreement and the Notes, (B) if any Principal Subsidiary merges or consolidates with any such other Business Entity, the surviving Business Entity is directly or indirectly a wholly-owned Principal Subsidiary of the Company, (C) if either the Company or any Principal Subsidiary merges or consolidates with any such other Business Entity, after giving effect to such merger or consolidation no Event of Default or Default shall have occurred and be continuing and (D) if any Principal Subsidiary which is a party to any merger, consolidation or liquidation permitted by this paragraph (e) is a Borrowing Subsidiary, either (x) such Principal Subsidiary shall be the continuing or surviving Business Entity or (y) the continuing or surviving Business Entity is organized under the laws of the United States or a State thereof and unconditionally assumes by agreement all of the performance obligations and payment Obligations of such Borrowing Subsidiary under this Agreement and the Notes (the Borrowers and the Lenders agreeing that it is their intention that each Business Entity that is a Borrower be organized under the laws of the United States or a State thereof).
SECTION V.3 Reporting Requirements. So long as any amount payable by any Borrower hereunder or under any Note shall remain unpaid or any Lender shall have any Commitment hereunder, the Company will furnish to each Lender in such reasonable quantities as shall from time to time be requested by such Lender:
(a) as soon as publicly available and in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of each of the Company and EPNGC, a consolidated balance sheet of each of the Company and EPNGC and its respective consolidated subsidiaries as of the end of such quarter, and consolidated statements of income and cash flows of each of the Company and EPNGC and its respective consolidated subsidiaries each for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified (subject to normal year-end adjustments) as being fairly stated in all material respects by the chief financial officer, controller or treasurer of the Company and accompanied by a certificate of such officer stating (i) whether or not such officer has knowledge of the occurrence of any Event of Default which is continuing hereunder or of any event not theretofore remedied which with notice or lapse of time or both would constitute such an Event of Default and, if so, stating in reasonable detail the facts with respect thereto, (ii) all
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document relevant facts in reasonable detail to evidence, and the computations as to, whether or not the Company is in compliance with the requirements set forth in subsections (b) and (c) of Section 5.2,
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and (iii) a listing of all Principal Subsidiaries and consolidated Subsidiaries of the Company showing the extent of its direct and indirect holdings of their stocks;
(b) as soon as publicly available and in any event within 120 days after the end of each fiscal year of each of the Company and EPNGC, a copy of the annual report for such year for each of the Company and EPNGC and its respective consolidated Subsidiaries containing financial statements for such year reported by nationally recognized independent public accountants acceptable to the Lenders, accompanied by (i) a report signed by said accountants stating that such financial statements have been prepared in accordance with GAAP and (ii) a letter from such accountants stating that in making the investigations necessary for such report they obtained no knowledge, except as specifically stated therein, of any Event of Default which is continuing hereunder or of any event not theretofore remedied which with notice or lapse of time or both would constitute such an Event of Default;
(c) within 120 days after the close of each of the Company's fiscal years, a certificate of the chief financial officer, controller or treasurer of the Company stating (i) whether or not he has knowledge of the occurrence of any Event of Default which is continuing hereunder or of any event not theretofore remedied which with notice or lapse of time or both would constitute such an Event of Default and, if so, stating in reasonable detail the facts with respect thereto, (ii) all relevant facts in reasonable detail to evidence, and the computations as to, whether or not the Company is in compliance with the requirements set forth in subsections (b) and (c) of Section 5.2 and (iii) a listing of all Principal Subsidiaries and consolidated Subsidiaries of the Company showing the extent of its direct and indirect holdings of their stocks;
(d) promptly after the sending or filing thereof, copies of all publicly available reports which the Company or any Principal Subsidiary sends to any of its security holders and copies of all publicly available reports and registration statements which the Company or any Principal Subsidiary files with the Securities and Exchange Commission or any national securities exchange other than registration statements relating to employee benefit plans and to registrations of securities for selling security holders;
(e) within 10 days after sending or filing thereof, a copy of FERC Form No. 2: Annual Report of Major Natural Gas Companies, sent or filed by the Company to or with the FERC with respect to each fiscal year of the Company;
(f) promptly in writing, notice of all litigation and of all proceedings before any governmental or regulatory agencies against or involving the Company or any Principal Subsidiary, except any litigation or proceeding which in the reasonable judgment of the Company (taking into account the exhaustion of all appeals) is not likely to have a material adverse effect on the consolidated financial condition of the Company and its consolidated Subsidiaries taken as a whole;
(g) within three Business Days after an executive officer of the Company obtains knowledge of the occurrence of any Event of Default which is continuing or of
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any event not theretofore remedied which with notice or lapse of time, or both, would constitute an Event of Default, notice of such occurrence together with a detailed statement by a responsible officer of the Company of the steps being taken by the Company or the appropriate Subsidiary to cure the effect of such event;
(h) as soon as practicable and in any event (i) within 30 days after the Company or any ERISA Affiliate knows or has reason to know
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document that any Termination Event described in clause (a) of the definition of Termination Event with respect to any Plan has occurred and (ii) within 10 days after the Company or any ERISA Affiliate knows or has reason to know that any other Termination Event with respect to any Plan has occurred, a statement of the chief financial officer or treasurer of the Company describing such Termination Event and the action, if any, which the Company or such ERISA Affiliate proposes to take with respect thereto;
(i) promptly and in any event within two Business Days after receipt thereof by the Company or any ERISA Affiliate, copies of each notice received by the Company or any ERISA Affiliate from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan;
(j) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan;
(k) promptly and in any event within five Business Days after receipt thereof by the Company or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice received by the Company or any ERISA Affiliate concerning (i) the imposition of Withdrawal Liability by a Multiemployer Plan, (ii) the determination that a Multiemployer Plan is, or is expected to be, in reorganization or insolvent within the meaning of Title IV of ERISA, (iii) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (iv) the amount of liability incurred, or expected to be incurred, by the Company or any ERISA Affiliate in connection with any event described in clause (i), (ii) or (iii) above; and
(l) as soon as practicable but in any event within 60 days of any notice of request therefor, such other information respecting the financial condition and results of operations of the Company or any Subsidiary of the Company as any Lender through the Administrative Agent may from time to time reasonably request.
Each balance sheet and other financial statement furnished pursuant to subsections (a) and (b) of this Section 5.3 shall contain comparative financial information which conforms to the presentation required in Form 10-Q and 10-K, as appropriate, under the Securities Exchange Act of 1934, as amended.
SECTION V.4 Restrictions on Material Subsidiaries. The Company will not, and will not permit any Material Subsidiary, to enter into any agreement or understanding pursuant to
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ARTICLE VI
GUARANTEES
SECTION VI.1 Guarantees. (a) Subject to the provisions of Section 6.1(b), each Borrower hereby unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment by each other Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations owing by such other Borrower.
(b) Anything in this Article VI to the contrary notwithstanding, the maximum liability of each Borrower (other than a Borrower which is guaranteeing the Obligations of its Subsidiaries) under this Article VI shall in no event exceed the amount which can be guaranteed by such Borrowing
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Subsidiary under applicable federal and state laws relating to the insolvency of debtors.
(c) Each Borrower agrees that the Obligations owing by any other Borrower may at any time and from time to time exceed the amount of the liability of such other Borrower under this Article VI without impairing the guarantee of such Borrower under this Article VI or affecting the rights and remedies of the Administrative Agent or any Lender under this Article VI.
(d) No payment or payments made by any Borrower or any other Person or received or collected by the Administrative Agent or any Lender from any Borrower or any other Person by virtue of any action or proceeding or any set-off or appropriation or application, at any time or from time to time, in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrowers under this Article VI which shall, notwithstanding any such payment or payments, continue until the Obligations are paid in full and the Commitments are terminated.
(e) Each Borrower agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability
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SECTION VI.2 No Subrogation. Notwithstanding any payment or payments made by any Borrower under this Article VI or any set-off or application of funds of such Borrower by the Administrative Agent or any Lender, such Borrower shall not be entitled to be subrogated to any of the rights of the Administrative Agent or any Lender against any other Borrower or against any collateral security or guarantee or right of offset held by the Administrative Agent or any Lender for the payment of the Obligations, nor shall such Borrower seek or be entitled to seek any contribution or reimbursement from any other Borrower in respect of payments made by such Borrower hereunder, until all amounts owing to the Administrative Agent and the Lenders by the other Borrowers on account of the Obligations are paid in full and the Commitments are terminated. If any amount shall be paid to any Borrower on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Borrower in trust for the Administrative Agent and the Lenders, segregated from other funds of such Borrower, and shall, forthwith upon receipt by such Borrower, be turned over to the Administrative Agent in the exact form received by such Borrower (duly indorsed by such Borrower to the Administrative Agent, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
SECTION VI.3 Amendments, etc. with respect to the Obligations; Waiver of Rights. Each Borrower shall remain obligated under this Article VI notwithstanding that, without any reservation of rights against such Borrower, and without notice to or further assent by such Borrower, any demand for payment of any of the Obligations made by the Administrative Agent or any Lender may be rescinded by the Administrative Agent or such Lender, and any of the Obligations continued, and the Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Administrative Agent or any Lender, and this Agreement, any Notes and any other documents executed and delivered in connection herewith may be amended, modified, supplemented or terminated, in whole or in part, as the Administrative Agent (or the Majority Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Administrative Agent or any Lender for the payment of the Obligations may be sold, exchanged, waived, surrendered or released. Neither the Administrative Agent nor any Lender shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Obligations or for this Agreement or any property subject thereto. When making any demand hereunder against any Borrower, the Administrative Agent or any Lender may, but shall be under no obligation to, make a similar demand on the applicable Borrowing Subsidiaries or any other guarantor, and any failure by the Administrative Agent or any Lender to make any such demand or to collect any payments from the other Borrowers or any such other guarantor or any release of the other Borrowers or such other guarantor shall not relieve such Borrower of its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of the
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Administrative Agent or any Lender against such Borrower for the purposes hereof "demand" shall include the commencement and continuance of any legal proceedings.
SECTION VI.4 Guarantee Absolute and Unconditional. Each Borrower waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Lender upon this Agreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between any Borrower, on the one hand, and the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. Each Borrower waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the other Borrowers with respect to the Obligations. The guarantee contained in this Article VI shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability of this Agreement, any Note, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Borrower against the Administrative Agent or any Lender, or (c) any other circumstance whatsoever (with or without notice to or knowledge of any Borrower) which constitutes, or might be construed to constitute, an equitable or legal discharge of any Borrower for the Obligations, or of the Borrowers under this Agreement, in bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against any Borrower, the Administrative Agent and any Lender may, but shall be under no obligation to, pursue such rights and remedies as it may have against any other Borrower or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Lender to pursue such other rights or remedies or to collect any payments from other Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any other Borrower or any such other Person or of any such collateral security, guarantee or right of offset, shall not relieve any Borrower of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Lender against such Borrower. The guarantees contained in this Article VI shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Borrower and its successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Borrowers under this Agreement shall have been satisfied by payment in full and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Obligations.
SECTION VI.5 Reinstatement. The provisions of this Article VI shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
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58 reorganization of any Borrower or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Borrower or any substantial part of its property, or otherwise, all as though such payments had not been made.
ARTICLE VII
EVENTS OF DEFAULT
SECTION VII.1 Event of Default. If any of the following events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any installment of principal of any of its Advances or Notes when due, or any interest on any of its Advances or Notes or any other amount payable by it hereunder within five Business Days after the same shall be due; or
(b) Any representation or warranty made or deemed made by any Borrower herein or by any Borrower (or any of its officers) in
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document connection with this Agreement shall prove to have been incorrect in any material respect when made or deemed made; or
(c) Any Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for 30 days after written notice thereof shall have been given to such Borrower by the Administrative Agent or by any Lender with a copy to the Administrative Agent; or
(d) The Company or any Principal Subsidiary shall fail to pay any Debt or Guaranty (excluding Debt incurred pursuant hereto) of the Company or such Principal Subsidiary in an aggregate principal amount of $200,000,000 or more, at such time, or any installment of principal thereof or interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt or Guaranty; or any other default under any agreement or instrument relating to any such Debt, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate the maturity of such Debt; or any such Debt shall be required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof, as a result of either (i) any default under any agreement or instrument relating to any such Debt or (ii) the occurrence of any other event (other than an issuance, sale or other disposition of stock or other assets, or an incurrence or issuance of Indebtedness or other obligations, giving rise to a repayment or prepayment obligation in respect of such Debt) the effect of which would otherwise be to accelerate the maturity of such Debt; provided that, notwithstanding any provision contained in this subsection (d) to the contrary, to the extent that pursuant to the terms of any agreement or instrument relating to any Debt or Guaranty referred to in this
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subsection (d) (or in the case of any such Guaranty, relating to any obligations Guaranteed thereby), any sale, pledge or disposal of Margin Stock, or utilization of the proceeds of such sale, pledge or disposal, would result in a breach of any covenant contained therein or otherwise give rise to a default or event of default thereunder and/or acceleration of the maturity of the Debt or obligations extended pursuant thereto, or payment pursuant to any Guaranty, and as a result of such terms or of such sale, pledge, disposal, utilization, breach, default, event of default or acceleration or nonpayment under such Guaranty, or the provisions thereof relating thereto, this Agreement or any Advance hereunder would otherwise be subject to the margin requirements or any other restriction under Regulation U issued by the Board of Governors of the Federal Reserve System, then such breach, default, event of default or acceleration, or nonpayment under any Guaranty, shall not constitute a default or Event of Default under this subsection (d); or
(e)(i) The Company or any Principal Subsidiary shall (A) generally not pay its debts as such debts become due; or (B) admit in writing its inability to pay its debts generally; or (C) make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted or consented to by the Company or any Principal Subsidiary 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 (iii) any such proceeding shall have been instituted against the Company or any Principal Subsidiary 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 (iv) the Company or any Principal Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order of any court for the payment of money in excess of $100,000,000 shall be rendered against the Company or any Principal Subsidiary and either (i) enforcement proceedings
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document shall have been commenced and are continuing or have been completed by any creditor upon such judgment or order (other than any enforcement proceedings consisting of the mere obtaining and filing of a judgment lien or obtaining of a garnishment or similar order so long as no foreclosure, levy or similar process in respect of such lien, or payment over in respect of such garnishment or similar order, has commenced and is continuing or has been completed) or (ii) there shall be any period of 30 consecutive days during which a stay of execution or of enforcement proceedings (other than those referred to in the parenthesis in clause (i) above) in respect of such judgment or order, by reason of a pending appeal, bonding or otherwise, shall not be in effect; or
(g) (i) Any Termination Event with respect to a Plan shall have occurred and, 30 days after notice thereof shall have been given to the Company by the Administrative
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Agent, such Termination Event shall still exist; or (ii) the Company or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan; or (iii) the Company or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization, or is insolvent or is being terminated, within the meaning of Title IV of ERISA; or (iv) any Person shall engage in a "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan; and in each case in clauses (i) through (iv) above, such event or condition, together with all other such events or conditions, if any, would result in an aggregate liability of the Company or any ERISA Affiliate that would exceed 10% of Net Worth; or
(h) Upon completion of, and pursuant to, a transaction, or a series of transactions (which may include prior acquisitions of capital stock of the Company in the open market or otherwise), involving a tender offer (i) a "person" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) other than the Company or a Subsidiary of the Company or any employee benefit plan maintained for employees of the Company and/or any of its Subsidiaries or the trustee therefor, shall have acquired direct or indirect ownership of and paid for in excess of 50% of the outstanding capital stock of the Company entitled to vote in elections for directors of the Company and (ii) at any time before the later of (A) six months after the completion of such tender offer and (B) the next annual meeting of the shareholders of the Company following the completion of such tender offer more than half of the directors of the Company consists of individuals who (1) were not directors before the completion of such tender offer and (2) were not appointed, elected or nominated by the Board of Directors in office prior to the completion of such tender offer (other than any such appointment, election or nomination required or agreed to in connection with, or as a result of, the completion of such tender offer); or
(i) Any event of default shall occur under any agreement or instrument relating to or evidencing any Debt now or hereafter existing of the Company or any Principal Subsidiary as the result of any change of control of the Company; or
(j) Any of the Guarantees contained in Article VI shall cease, for any reason, to be in full force and effect or any Borrower shall so assert; provided that if, within one Business Day after any Borrower receives notice from the Administrative Agent or otherwise becomes aware that such Guarantee is not in full force and effect, the Company delivers written notice to the Administrative Agent that the applicable Borrower intends to deliver a valid and effective Guarantee, or to reinstate such Guarantee, as soon as possible, then an Event of Default shall not exist pursuant this Section 7.1(j) unless the Company shall fail to deliver or reinstate or cause to be delivered or reinstated a Guarantee of the applicable Borrower having the same economic effect as the Guarantee set forth in Article VI within four Business Days after the delivery of such written notice of intent; then, and in any such event, the Administrative Agent shall at the request, or may with the consent, of the Majority Lenders, by notice to the Company, (i) declare the obligation of each
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Lender to make Advances to be terminated, whereupon the same shall forthwith terminate, and (ii) declare the Advances and the Notes, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances and the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrowers; provided, however, that if an Event of Default under subsection (e) of this Section 7.1 (except under clause (i)(A) thereof) shall occur, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Advances and the Notes, all interest thereon and all other amounts payable under this Agreement shall automatically become and be forthwith due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrowers.
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE CAF ADVANCE AGENT
SECTION VIII.1 Authorization and Action. Each Lender hereby appoints and authorizes the Administrative Agent and the CAF Advance Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the CAF Advance Agent by the terms hereof, together with such powers as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including enforcement of this Agreement or collection of the Notes), the Administrative Agent and the CAF Advance Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Administrative Agent and the CAF Advance Agent shall not be required to take any action which exposes the Administrative Agent or the CAF Advance Agent to personal liability or which is contrary to this Agreement or applicable law. The Administrative Agent and the CAF Advance Agent agree to give to each Lender prompt notice of each notice given to it by any Borrower pursuant to the terms of this Agreement.
SECTION VIII.2 Administrative Agent's and CAF Advance Agent's Reliance, Etc. None of the Administrative Agent, the CAF Advance Agent or any of its respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent and the CAF Advance Agent: (i) may treat the payee of any Note as the holder thereof until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by the Lender which is the payee of such Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.7; (ii) may consult with legal counsel (including counsel for the Company), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or
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62 representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of the Borrowers or to inspect the property (including the books and records) of the Borrowers; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopier, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION VIII.3 Chase and Affiliates. With respect to its Commitment, the Advances made by it and the Note issued to it, Chase shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Administrative Agent or the CAF Advance Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include Chase in its individual capacity. Chase and its affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with, the Company,
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document any of its Subsidiaries and any Person who may do business with or own securities of the Company or any of its Subsidiaries, all as if Chase were not the Administrative Agent or the CAF Advance Agent and without any duty to account therefor to the other Lenders.
SECTION VIII.4 Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the CAF Advance Agent or any other Lender and based on the financial statements referred to in Section 4.1 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the CAF Advance Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION VIII.5 Indemnification. The Lenders agree to indemnify the Administrative Agent and the CAF Advance Agent (to the extent not reimbursed by the Borrowers), ratably according to the respective principal amounts of the Advances then outstanding by each of them (or if no Advances are at the time outstanding or if any Notes are held by Persons which are not Lenders, ratably according to the respective amounts of their aggregate Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent or the CAF Advance Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent or the CAF Advance Agent under this Agreement, provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent's or the CAF Advance Agent's gross negligence or willful misconduct.
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Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent and the CAF Advance Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent or the CAF Advance Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings, in bankruptcy or insolvency proceedings, or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent or the CAF Advance Agent is not reimbursed for such expenses by the Borrowers.
SECTION VIII.6 Successor Administrative Agent and CAF Advance Agent. The Administrative Agent and the CAF Advance Agent may resign at any time by giving written notice thereof to the Lenders and the Company and may be removed at any time with or without cause by the Majority Lenders. Upon any such resignation or removal, the Majority Lenders shall have the right to appoint a successor Administrative Agent or the CAF Advance Agent. If no successor Administrative Agent or CAF Advance Agent shall have been so appointed by the Majority Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent's or the CAF Advance Agent"s giving of notice of resignation or the Majority Lenders' removal of the retiring Administrative Agent or CAF Advance Agent, then such retiring Administrative Agent or CAF Advance Agent may, on behalf of the Lenders, appoint a successor Administrative Agent or CAF Advance Agent, which shall be a Lender and a commercial bank organized, or authorized to conduct a banking business, under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent or CAF Advance Agent hereunder by a successor Administrative Agent or CAF Advance Agent, such successor Administrative Agent or CAF Advance Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or CAF Advance Agent, and the retiring Administrative Agent or CAF Advance Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent's or CAF Advance Agent's resignation or removal hereunder as Administrative Agent or CAF Advance Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent or CAF Advance Agent under this Agreement.
SECTION 8.7. Syndication Agent; Co-Documentation Agents. None of the Lenders identified on the cover page or signature pages or in the preamble of this Agreement as a "syndication agent" or "co-documentation agent" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders so identified as a "syndication
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document agent" or "co-documentation agent" shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
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ARTICLE IX
MISCELLANEOUS
SECTION IX.1 Amendments, Etc. An amendment or waiver of any provision of this Agreement or the Notes, or a consent to any departure by any Borrower therefrom, shall be effective against the Lenders and all holders of the Notes if, but only if, it shall be in writing and signed or consented to in writing by the Majority Lenders, and then such a waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall, unless in writing and signed by all the Lenders, be effective to: (a) waive any of the conditions specified in Article III, (b) except as contemplated by Sections 2.4, 2.5, 2.23 and 2.25, increase or extend the Commitments of the Lenders or subject the Lenders to any additional obligations, (c) reduce the principal of, or interest on, any Advance or the Notes or any facility fees hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, any Advance or the Notes or any facility fees hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of any Advance or the Notes, or the number of Lenders, which shall be required for the Lenders or any of them to take any action under this Agreement, (f) amend this Section 9.1, (g) amend, waive or consent to any departure of any provision in Article VI or (h) except as provided below, release any Borrower from its guarantee in Article VI; provided, further, that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent and the CAF Advance Agent in addition to the Lenders required hereinabove to take such action, affect the rights or duties of the Administrative Agent or the CAF Advance Agent under this Agreement or any Note; provided, still further, that the guarantee of a Borrower under Article VI shall be released automatically upon (i) the sale by the Company of such Borrower, provided that such sale is permitted under this Agreement, or (ii) such Borrower ceasing to be a Borrower (it being understood that the Company and EPNGC shall never cease to be a Borrower hereunder).
SECTION IX.2 Notices, Etc. Except as otherwise provided in Section 2.2(a), 2.5(d) or 2.15(b), all notices and other communications provided for hereunder shall be in writing (including telecopier and other readable communication) and mailed by certified mail, return receipt requested, telecopied or otherwise transmitted or delivered, if to any Borrower, c/o the Company at El Paso Energy Building, 1001 Louisiana Street, Houston, Texas 77002, Attention: Executive Vice President and Chief Financial Officer, Telecopier: (713) 420-4975; if to any Lender, at its address set forth under its name on Schedule I; if to the Administrative Agent, at 270 Park Avenue, 21st floor, New York, New York 10017, Attention: Steve Wood, Telecopier: (212) 270-2519, Telephone: (212) 270-7056; and if to the CAF Advance Agent, at One Chase Manhattan Plaza, 8th Floor, New York, New York 10081, Attention: Jackie Reid, Telecopier: (212) 552-5777, Telephone: (212) 552-7683; or, as to each party and each Borrowing Subsidiary, at such other address as shall be designated by such party in a written notice to the other parties. All such notices and communications shall, if so mailed, telecopied or otherwise transmitted, be effective when received, if mailed, or when the appropriate answerback or other evidence of receipt is given, if telecopied or otherwise transmitted, respectively. A notice received by the Administrative Agent, the CAF Advance Agent or a Lender by telephone pursuant to Section 2.2(a), 2.5(d) or 2.15(a) shall be effective if the Administrative Agent or Lender believes in good faith that it was given by an authorized representative of the applicable
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Borrower and acts pursuant thereto, notwithstanding the absence of written confirmation or any contradictory provision thereof.
SECTION IX.3 No Waiver; Remedies. No failure on the part of any Lender, the Administrative Agent or the CAF Advance Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder or under any Note preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document SECTION IX.4 Costs and Expenses; Indemnity. (a) Each Borrower agrees to pay on demand (to the extent not reimbursed by any other Borrower) (i) all reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent in connection with the preparation, execution and delivery of this Agreement, the Notes and the other documents to be delivered hereunder and the fulfillment or attempted fulfillment of conditions precedent hereunder, (ii) all reasonable costs and expenses incurred by the Administrative Agent and its Affiliates in initially syndicating all or any portion of the Commitments hereunder, including the related reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent or its Affiliates, travel expenses, duplication and printing costs and courier and postage fees, and excluding any syndication fees paid to other parties joining the syndicate and (iii) all out-of-pocket costs and expenses, if any, incurred by the Administrative Agent, the CAF Advance Agent and the Lenders in connection with the enforcement (whether through negotiations, legal proceedings in bankruptcy or insolvency proceedings, or otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder and thereunder, including the reasonable fees and out-of-pocket expenses of counsel.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance or CAF Advance is made by any Borrower to or for the account of a Lender on any day other than the last day of the Interest Period for such Advance, as a result of a prepayment pursuant to Section 2.15 or a Conversion pursuant to Section 2.13(f) or Section 2.14 or due to acceleration of the maturity of the Advances and the Notes pursuant to Section 7.1 or due to any other reason attributable to such Borrower, or if any Borrower shall fail to make a borrowing of Eurodollar Rate Advances or CAF Advances after such Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, such Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment, Conversion or failure to borrow, including any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) Each Borrower agrees to indemnify and hold harmless the Administrative Agent, the CAF Advance Agent and each Lender (to the extent not reimbursed by any other Borrower) from and against any and all claims, damages, liabilities and expenses (including fees and disbursements of counsel) which may be incurred by or asserted against the Administrative
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Agent, the CAF Advance Agent or such Lender in connection with or arising out of any investigation, litigation, or proceeding (whether or not the Administrative Agent, the CAF Advance Agent or such Lender is party thereto) related to any acquisition or proposed acquisition by the Company, or by any Subsidiary of the Company, of all or any portion of the stock or substantially all the assets of any Person or any use or proposed use of the Advances by any Borrower (excluding any claims, damages, liabilities or expenses incurred by reason of the gross negligence or willful misconduct of the party to be indemnified or its employees or agents, or by reason of any use or disclosure of information relating to any such acquisition or use or proposed use of the proceeds by the party to be indemnified or its employees or agents).
SECTION IX.5 Right of Set-Off. Upon the declaration of the Advances and the Notes as due and payable pursuant to the provisions of Section 7.1, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of the applicable Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement and the Notes of such Borrower held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such Notes and although such obligations may be unmatured. Each Lender agrees promptly to notify the Company after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section 9.5 are in addition to other rights and remedies (including other rights of set-off) which such Lender may have.
SECTION IX.6 Binding Effect. This Agreement shall become effective in accordance with the provisions of Section 3.1, and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative Agent, the CAF Advance Agent and each Lender and their respective successors and assigns, except that no Borrower shall have the right to assign its rights or obligations hereunder or any interest herein in a transaction not permitted by
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Section 5.2(e) without the prior written consent of all of the Lenders.
SECTION IX.7 Assignments and Participations. (a) Each Lender may assign to one or more banks or other financial institutions all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Notes held by it); provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all such Lender"s rights and obligations under this Agreement, (ii) the amount of the Commitment of the assigning Lender being assigned to an assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $15,000,000 (or, if less, the entire Commitment of the assigning Lender) and shall be an integral multiple of $1,000,000, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Notes subject to such assignment and a processing and recordation fee of $2,500, and shall send to the Company an executed counterpart of such Assignment and Acceptance. Upon such execution, delivery, acceptance and
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67 recording, from and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of each Borrower or the performance or observance by each Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, the CAF Advance Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is (subject to approval in writing by the Company and, if applicable, the Administrative Agent to the extent required by the definition of "Eligible Assignee") an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent and the CAF Advance Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the CAF Advance Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to and accepted by it and a register (which register may be in electronic form) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative Agent, the CAF Advance Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be
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Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 68 available for inspection by any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the acceptance of any Assignment and Acceptance for recordation in the Register, Schedule I hereto shall be deemed to be amended to reflect the revised Commitments of the Lenders parties to such Assignment and Acceptance as well as administrative information with respect to any new Lender as such information is recorded in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and as assignee representing that it is an Eligible Assignee, together with any Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit G hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. Within five Business Days after its receipt of such notice and its receipt of an executed counterpart of such Assignment and Acceptance, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Notes, if any, new Notes to the order of such Eligible Assignee, if requested, in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, new Notes, if requested, to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, if any, shall be dated (A) in the case of Notes made by the Company, EPNGC and Tennessee the Closing Date and (B) in the case of Notes made by any other Borrower, the date such other Borrower executes and delivers its Joinder Agreement, and shall otherwise be in substantially the form of Exhibit A.
(e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, and the Advances owing to it and the Notes held by it); provided, however, that (i) such Lender's obligations under this Agreement (including its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Notes for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the CAF Advance Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement, (v) such Lender shall continue to be able to agree to any modification or amendment of this Agreement or any waiver hereunder without the consent, approval or vote of any such participant or group of participants, other than modifications, amendments and waivers which (A) postpone any date fixed for any payment of, or reduce any payment of, principal of or interest on such Lender's Advances or Notes or any facility fees payable under this Agreement, or (B) increase the amount of such Lender's Commitment in a manner which would have the effect of increasing the amount of a participant's participation, or (C) reduce the interest rate payable under this Agreement and such Lender's Notes, or (D) consent to the assignment or the transfer by any Borrower of any of its rights and obligations under the Agreement, and (vi) except as contemplated by the immediately preceding clause (v), no participant shall be deemed to be or to have any of the rights or obligations of a "Lender" hereunder.
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(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.7, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing for the benefit of the Borrowers to preserve the confidentiality of any confidential information relating to the Borrowers received by it from such Lender in a manner consistent with Section 9.8.
(g) Anything in this Agreement to the contrary notwithstanding, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Advances owing to it) and the Notes issued to it hereunder in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System (or any successor regulation) and the applicable operating circular of such Federal Reserve Bank.
SECTION IX.8 Confidentiality. Each Lender, the Administrative Agent and the CAF Advance Agent (each, a "Party") agrees that it will use its best efforts not to disclose, without the prior consent of the Company (other
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document than to its, or its Affiliate's, employees, auditors, accountants, counsel or other representatives, whether existing at the date of this Agreement or any subsequent time), any information with respect to the Borrowers which is furnished pursuant to this Agreement, provided that any Party may disclose any such information (i) as has become generally available to the public, (ii) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such party or to the Board of Governors of the Federal Reserve System or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors, (iii) as may be required or appropriate in response to any summons or subpoena or in connection with any litigation or regulatory proceeding, (iv) in order to comply with any law, order, regulation or ruling applicable to such party, or (v) to any prospective assignee or participant in connection with any contemplated assignment of any rights or obligations hereunder, or any sale of any participation therein, by such Party pursuant to Section 9.7, if such prospective assignee or participant, as the case may be, executes an agreement with the Company containing provisions substantially similar to those contained in this Section 9.8; provided, however, that the Company acknowledges that the Administrative Agent has disclosed and may continue to disclose such information as the Administrative Agent in its sole discretion determines is appropriate to the Lenders from time to time.
SECTION IX.9 Consent to Jurisdiction. (a) Each Borrower hereby irrevocably submits to the jurisdiction of any New York State or Federal court sitting in New York City and any appellate court from any thereof in any action or proceeding by the Administrative Agent, the CAF Advance Agent, any Lender or the holder of any Note in respect of, but only in respect of, any claims or causes of action arising out of or relating to this Agreement or the Notes (such claims and causes of action, collectively, being "Permitted Claims"), and each Borrower hereby irrevocably agrees that all Permitted Claims may be heard and determined in such New York
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State court or in such Federal court. Each Borrower hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding in any aforementioned court in respect of Permitted Claims. Each Borrower hereby irrevocably appoints CT Corporation System (the "Process Agent"), with an office on the date hereof at 1633 Broadway, New York, New York 10019, as its agent to receive on behalf of such Borrower and its property service of copies of the summons and complaint and any other process which may be served by the Administrative Agent, any Lender or the holder of any Note in any such action or proceeding in any aforementioned court in respect of Permitted Claims. Such service may be made by delivering a copy of such process to the Company by courier and by certified mail (return receipt requested), fees and postage prepaid, both (i) in care of the Process Agent at the Process Agent's above address and (ii) at the Company's address specified pursuant to Section 9.2, and each Borrower hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. Each Borrower 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.
(b) Nothing in this Section 9.9 (i) shall affect the right of any Lender, the holder of any Note or the Administrative Agent or the CAF Advance Agent to serve legal process in any other manner permitted by law or affect any right otherwise existing of any Lender, the holder of any Note or the Administrative Agent or the CAF Advance Agent to bring any action or proceeding against any Borrower or its property in the courts of other jurisdictions or (ii) shall be deemed to be a general consent to jurisdiction in any particular court or a general waiver of any defense or a consent to jurisdiction of the courts expressly referred to in subsection (a) above in any action or proceeding in respect of any claim or cause of action other than Permitted Claims.
SECTION IX.10 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION IX.11 Rate of Interest. It is the intention of the parties hereto that each Lender shall each conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby would be usurious as to any Lender under laws applicable to it, then, in that event, notwithstanding anything to the contrary in this Agreement or in the Notes to the order of such Lender, it is agreed as follows: (a) the aggregate of all consideration which constitutes interest under law applicable to such Lender that is contracted for, taken, reserved, charged or received by such Lender hereunder, or under such Notes or otherwise, shall under no circumstances exceed the maximum amount allowed by such applicable law, and any excess shall be credited by such Lender on the principal amount of the sums owed to such Lender
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (or, if all amounts owing to such Lender shall have been paid in full, refunded by such Lender to the applicable Borrower); or (b) in the event that a prepayment of any Advances owed to any Lender is required, then such consideration that constitutes interest under law applicable to such Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for shall be cancelled automatically by such Lender as of the date of such prepayment and, if theretofore paid, shall be credited by such Lender on the principal amount of such prepayment obligation (or, if the principal amount of such prepayment obligation
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71 shall have been paid in full, refunded by such Lender to the applicable Borrower). To the extent that Article 5069-1.0001 of the Texas Revised Civil Statutes is relevant to any Lender for the purpose of determining the maximum amount of interest allowed by applicable law, such Lender hereby elects to determine the applicable rate ceiling under such Article by the indicated (weekly) rate ceiling from time to time in effect, subject to such Lender's right subsequently to change such method in accordance with applicable law. In no event, however, shall Chapter 346 of the Texas Finance Code apply to this Agreement or the Notes or the transactions contemplated hereby.
SECTION IX.12 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate 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 to the Administrative Agent of a counterpart executed by a Lender shall constitute delivery of such counterpart to all of the Lenders. This Agreement may be delivered by facsimile transmission of the relevant signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first above written.
EL PASO ENERGY CORPORATION
By: /s/ C. Dana Rice ------Title: Senior Vice President and Treasurer
EL PASO NATURAL GAS COMPANY
By: /s/ C. Dana Rice ------Title: Senior Vice President and Treasurer
TENNESSEE GAS PIPELINE COMPANY
By: /s/ C. Dana Rice ------Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, as Administrative Agent, CAF Advance Agent and a Lender
By: /s/ Steven Wood ------Title: Vice President
CITIBANK, N.A., as Co-Documentation Agent and a Lender
By: /s/ J. Christopher Lyons
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document ------Title: Attorney-in-Fact
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ABN AMRO BANK, N.V., as Co-Documentation Agent and a Lender
By: /s/ Michael Nepveux ------Title: Group Vice President
By: /s/ Dana L. Montgomery ------Title: Assistant Vice President
BANK OF AMERICA, N.A., as Syndication Agent and a Lender
By: /s/ Patrick M. Delaney ------Title: Managing Director
BANCA DI ROMA- CHICAGO BRANCH, as a Lender
By: /s/ Aurora Pensa ------Title: Vice President
By: /s/ Enrico Verdoscia ------Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD HOUSTON AGENCY, as a Lender
By: /s/ Michael G. Meiss ------Title: Vice President
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BNP PARIBAS, as a Lender
By: /s/ Bart Schouest ------Title: Managing Director
By: /s/ John H. Roberts ------Title: Vice President
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH, as a Lender
By: /s/ Hereward Drummond ------Title: Senior Vice President
By: /s/ James Fox ------Title: Vice President
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Lender
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document By: /s/ Harry P. Yergey ------Title: Senior Vice President & Manager
By: /s/ W. David Suttles ------Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ David L. Sawyer ------Title: Vice President
By: /s/ Lalita Advani ------Title: Assistant Vice President
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DEUTSCHE BANK AG NEW YORK AND/OR CAYMAN ISLANDS BRANCHES, as a Lender
By: /s/ Joel Makowsky ------Title: Vice President
By: /s/ Michael E. Keating ------Title: Managing Director
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, as a Lender
By: /s/ Steven Atwell ------Title: Director
By: /s/ Shannon Batchman ------Title: Director
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY, as a Lender
By: /s/ Michael N. Oakes ------Title: Senior Vice President
The Industrial Bank of Japan, Limited, Houston Office (Authorized Representative)
KBC BANK N.V., as a Lender
By: /s/ Jean-Pierre Diels ------Title: First Vice President
By: /s/ Patrick A. Janssens ------Title: Vice President
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NATIONAL WESTMINISTER BANK PLC, NEW YORK BRANCH, as a Lender
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document By: /s/ Kevin Howard ------Title: Executive Vice President
NATIONAL WESTMINISTER BANK PLC, NASSAU BRANCH, as a Lender
By: /s/ Kevin Howard ------Title: Executive Vice President
SOCIETE GENERALE, as a Lender
By: /s/ Paul E. Cornell ------Title: Managing Director
THE FUJI BANK, LIMITED, as a Lender
By: /s/ Toru Maeda ------Title: Executive Vice President and General Manager
AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED, as a Lender
By: /s/ R. Scott McInnis ------Title: Head of Structured Finance & Relationship Management-Americas
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THE BANK OF NEW YORK, as a Lender
By: /s/ Peter Keller ------Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ F.C.H. Ashby ------Title: Senior Manager Loan Operations
BANK ONE, NA (CHICAGO), as a Lender
By: /s/ Helen Carr ------Title: First Vice President
BARCLAYS BANK, as a Lender
By: /s/ Nicholas A. Bell ------Title: Director, Loan Transaction Management
CREDIT AGRICOLE INDOSUEZ, as a Lender
By: /s/ Patrick Cocquerer ------
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Title: FVP, Managing Director
By: /s/ Michael D. Willis ------Title: VP, Credit Analysis
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CREDIT LYONNAIS, as a Lender
By: /s/ Pascal Poupelle ------Title: President and Chief Operating Officer
THE DAI-ICHI KANGYO BANK, LTD., as a Lender
By: /s/ Katsuya Noto ------Title: Vice President
DLJ CAPITAL FUNDING, INC., as a Lender
By: /s/ Richard N. Beaudoin ------Title: Senior Vice President
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Robert R. Wetteroff ------Title: Senior Vice President
FLEET NATIONAL BANK, as a Lender
By: /s/ Christopher Holmgren ------Title: Director
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as a Lender
By: /s/ Dennis R. Wilczek ------Title: Associate
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MELLON BANK, N.A., as a Lender
By: /s/ Roger E. Howard ------Title: Vice President
NATIONAL AUSTRALIA BANK LTD., as a Lender
By: /s/ Paul R. Morrison ------Title: Vice President
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document THE NORINCHUKIN BANK, NEW YORK BRANCH, as a Lender
By: /s/ Toshiyuki Futaoka ------Title: Joint General Manager
SUMITOMO BANK LTD., as a Lender
By: /s/ C. Michael Garrido ------Title: Senior Vice President
SUNTRUST BANKS, INC., as a Lender
By: /s/ Joseph M. McCreary ------Title: Assistant Vice President
TORONTO DOMINION (TEXAS), INC., as a Lender
By: /s/ Carolyn R. Faeth ------Title: Vice President
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WELLS FARGO BANK, as a Lender
By: /s/ John Lane ------Title: Vice-President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, as a Lender
By: /s/ Duncan M. Robertson ------Title: Director
By: /s/ Thomas Lee ------Title: Associate
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Lender
By: /s/ Kirk Edelman ------Title: First Vice President
By: /s/ Andrew Schroeder ------Title: Vice President
BANCO BILBAO VIZCAYA ARGENTARIA, as a Lender
By: /s/ Manuel Sanchez ------Title: Senior Vice President
By: /s/ Alberto Conde ------Title: Vice President
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 81
SCHEDULE I
COMMITMENTS, ADDRESSES, ETC.
Name and Address of Lender Amount of Commitment ------ The Chase Manhattan Bank $120,000,000.00 270 Park Avenue New York, NY 10017 Attention: Steve Wood Telephone: 212-270-7056 Telecopier: 212-270-2519
Citibank, N.A. $ 93,333,333.33 1200 Smith Street, Suite 2000 Houston, TX 77002 Attention: Carol Rooney Telephone: 713-654-3590 Telecopier: 713-654-2899
ABN AMRO Bank, N.V. $ 93,333,333.33 208 South LaSalle, Suite 1500 Chicago, IL 60604-1003 Attention: Credit Administration Telephone: 312-992-5110 Telecopier: 312-992-5111
Bank of America, N.A. $ 93,333,333.33 333 Clay Street, Suite 4550 Houston, TX 77002 Attention: Patrick Delaney Telephone: 713-651-4929 Telecopier: 713-651-4808
Banca di Roma- Chicago Branch $ 26,666,666.67 225 West Washington, Suite 1200 Chicago, IL 60606 Attention: Aurora Pensa Telephone: 312-704-2630 Telecopier: 312-726-3058
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Name and Address of Lender Amount of Commitment ------ The Bank of Tokyo-Mitsubishi, Ltd Houston Agency $40,000,000.00 1100 Louisiana Street, Suite 2800 Houston, TX 77002-5216 Attention: John M. McIntyre Telephone: 713-655-3845 Telecopier: 713-655-3855
BNP Paribas $60,000,000.00 1200 Smith Street, Suite 3100 Houston, TX 77002 Attention: John Roberts Telephone: 713-659-4811 Telecopier: 713-659-6915
Bayerische Landesbank Girozentrale, Cayman Islands Branch $26,666,666.67 560 Lexington Avenue New York, NY 10022 Attention: Stephen Christenson Telephone: 212-230-3105 Telecopier: 212-310-9868
Commerzbank AG, New York and Grand Cayman Branches $40,000,000.00
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 1230 Peachtree Street, N.E., Suite 3500 Atlanta, GA 30309 Attention: David Suttles/Lee Ward Telephone: 404-888-6524/6526 Telecopier: 404-888-6539
Credit Suisse First Boston $60,000,000.00 11 Madison Avenue New York, NY 10010 Attention: James Moran Telephone: 212-325-9176 Telecopier: 212-325-8615
Deutsche Bank AG New York and/or Cayman Islands Branches $60,000,000.00 31 West 52nd Street New York, NY 10019 Attention: Joel Makowsky Telephone: 212-469-7896 Telecopier: 212-469-5711
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Name and Address of Lender Amount of Commitment ------ Bayerische Hypo- und Vereinsbank AG, New York Branch $60,000,000.00 150 East 42nd Street New York, NY 10017 Attention: Yoram Danker/Steve Atwell Telephone: 212-672-5446/5458 Telecopier: 212-672-5530
The Industrial Bank of Japan Trust Company $40,000,000.00 Three Allen Center, Suite 4850 Houston, TX 77002 Attention: Mr. Lynn Williford Telephone: 713-651-9444 ext.104 Telecopier: 713-651-9209
KBC Bank N.V. $60,000,000.00 125 West 55th Street New York, NY 10019 Attention: Christine Park Telephone: 212-541-0731 Telecopier: 212-541-0784
National Westminister Bank Plc $60,000,000.00 600 Travis Street, Suite 6070 Houston, TX 77002 Attention: Patty Dundee/Matt Main Telephone: 713-221-2423/2441 Telecopier: 713-221-2430
Societe Generale $60,000,000.00 1111 Bagby Street, Suite 2020 Houston, TX 77002 Attention: Paul Cornell Telephone: 713-759-6301 Telecopier: 713-650-0824
The Fuji Bank, Limited $60,000,000.00 1221 McKinney Street, Suite 4100 One Houston Center Houston, TX 77010 Attention: Mark Polasek Telephone: 713-759-1800 Telecopier: 713-759-0717
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Name and Address of Lender Amount of Commitment ------ Australia & New Zealand Banking Group Limited $26,666,666.67 1177 Avenue of the Americas
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document New York, NY 10036 Attention: Anna Arxer/David Giacalone Telephone: 212-801-9795/9814 Telecopier: 212-801-9131/4814
The Bank of New York $60,000,000.00 One Wall Street, 19th Floor New York, NY 10286 Attention: Peter Keller Telephone: 212-635-7861 Telecopier: 212-635-7923
Bank of Nova Scotia $60,000,000.00 1100 Louisiana, Suite 3000 Houston, TX 77002 Attention: Todd Mogil Telephone: 713-759-3445 Telecopier: 713-752-2425
Bank One, NA(Chicago) $60,000,000.00 910 Travis, 6th Floor Houston, TX 77002 Attention: Susan Stiernberg/Karen Patterson/Helen Carr Telephone: 713-751-3751/3863/3731 Telecopier: 713-751-3760/3982/3760
Barclays Bank $40,000,000.00 222 Broadway, 12th Floor New York, NY 10038 Attention: Richard Williams/John Sullivan/ Nicholas Bell/Virginia Corpus Telephone: 212-412-7570/7605/4029/7512 Telecopier: 212-412-7585/2441/7585
Credit Agricole Indosuez $26,666,666.67 600 Travis, Suite 2340 Houston, TX 77002 Attention: Brian Knezeak/Doug Whiddon Telephone: 713-223-7001/7003 Telecopier: 713-223-7029
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Name and Address of Lender Amount of Commitment ------ Credit Lyonnais $60,000,000.00 1000 Louisiana Street, Suite 5360 Houston, TX 77002 Attention: Rob LaRocque/Richard Kaufman/Mark Isensee/Tati Sulistio Telephone: 713-753-8733/8721/8716/8710 Telecopier: 713-751-0307
The Dai-Ichi Kangyo Bank, Ltd. $26,666,666.67 One World Trade Center, Suite 4811 New York, NY 10048 Attention: Bertram Tang/Katsuya Noto Telephone: 212-432-8839/6627 Telecopier: 212-912-1879
DLJ Funding, Inc. $60,000,000.00 277 Park Avenue, 10th Floor New York, NY 10172 Attention: Diane Albanese/Greg Biddle Telephone: 212-892-2903/6142 Telecopier: 212-892-6031
First Union National Bank $60,000,000.00 1001 Fannin Street, Suite 2255 Houston, TX 77002 Attention: Philip Trinder Telephone: 713-346-2718 Telecopier: 713-650-1071
Fleet National Bank $40,000,000.00 100 Federal Street, 01-08-02
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Boston, MA 02110 Attention: Jill Calabrese Telephone: 617-434-9579 Telecopier: 617-434-3652
Morgan Guranty Trust Company of New York $40,000,000.00 1221 McKinney Street, Suite 3150 Houston, TX 77002 Attention: Russell L. Sherrill Telephone: 713-276-4625 Telecopier: 713-276-4604
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Name and Address of Lender Amount of Commitment ------ Mellon Bank, N.A. $60,000,000.00 One Mellon Bank Center, Room 4530 Pittsburgh, PA 15258 Attention: Roger Howard Telephone: 412-234-5606 Telecopier: 412-236-1840
National Australia Bank Ltd. $26,666,666.67 200 Park Avenue, 34th Floor New York, NY Attention: Matthew Woolf/Paul Morrison/Nick Woutas/Frank Campiglia Telephone: 212-916-9574/9519/9665/9595 Telecopier: 212-986-6958/212-983-1969
The Norinchukin Bank, New York Branch $40,000,000.00 245 Park Avenue, 29th Floor New York, NY 10167 Attention: Keisuke Ishii Telephone: 212-808-4195 Telecopier: 212-697-5754
Sumitomo Bank Ltd. $40,000,000.00 277 Park Avenue, 6th Floor New York, NY 10172 Attention: Bruce Meredith Telephone: 212-224-4194 Telecopier: 212-224-4384
SunTrust Banks, Inc. $40,000,000.00 303 Peachtree Street, N.E., 3rd Floor Atlanta, GA 30308 Attention: John Fields, Jr./Joe McCreary Telephone: 404-724-3667/404-532-0274 Telecopier: 404-827-6270
Toronto Dominion (Texas), Inc. $60,000,000.00 909 Fannin Street, Suite 1700 Houston, TX 77010 Attention: Carolyn Faeth Telephone: 713-427-8520 Telecopier: 713-951-9921
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Name and Address of Lender Amount of Commitment ------ Wells Fargo Bank $26,666,666.67 1000 Louisiana Street, 3rd Floor MAC 5002-031 Houston, TX 77002 Attention: John Lane Telephone: 713-319-1370
Telecopier: 713-739-1087
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Westdeutsche Landesbank Girozentrale $40,000,000.00 1990 Post Oak Blvd., Suite 1100 Houston, TX 77056 Attention: Richard Newman Telephone: 713-963-5203 Telecopier: 713-963-5308
Dresdner Bank AG New York and Grand Cayman Branches $26,666,666.67 75 Wall Street New York, NY 10005 Attention: Mike Mangan Telephone: 212-429-2112 Telecopier: 212-429-2081
Banco Bilbao Vizcayz Argentaria $26,666,666.67 1345 Avenue of the Americas New York, NY 10105 Attention: Manuel Sanchez Telephone: 212-728-1511 Telecopier: 212-333-2904
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A-1
EXHIBIT A
FORM OF NOTE
$ New York, New York ------August 4, 2000
FOR VALUE RECEIVED, the undersigned, ______, a ______corporation (the "Borrower"), hereby unconditionally promises to pay to the order of (the "Lender") at the office of The Chase Manhattan Bank, located at 270 Park Avenue, New York, New York 10017, in lawful money of the United States of America and in same day funds, on the second anniversary of the Termination Date (or if the Lender is an Objecting Lender, the second anniversary of the Commitment Expiration Date applicable to the Lender) the principal amount of (a) DOLLARS ($ ), or, if less, (b) the aggregate unpaid principal amount of all Revolving Credit Advances made by the Lender to the Borrower pursuant to subsection 2.1 of the Credit Agreement, as hereinafter defined. The Borrower further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time outstanding at the rates and on the dates specified in the Credit Agreement.
The holder of this Note is authorized to, and prior to any transfer hereof shall, endorse on the schedules attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each Revolving Credit Advance made pursuant to subsection 2.1 of the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of Eurodollar Rate Advances, the length of each Interest Period with respect thereto. Each such endorsement shall constitute prima facie evidence of the accuracy of the information endorsed. The failure to make any such endorsement shall not affect the obligations of the Borrower in respect of such Revolving Credit Advance.
This Note (a) is one of the Notes referred to in the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, the Lender, the other banks and financial institutions from time to time parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement.
89
A-2
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Upon the occurrence of any one or more of the Events of Default, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind except those expressly required under the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[BORROWER]
By: ------Title:
90
1
Schedule A to Note
ADVANCES, CONVERSIONS AND REPAYMENTS OF BASE RATE ADVANCES
Amount of Base Amount of Rate Advances Amount Principal of Base Converted to Unpaid Principal Amount of Base Converted to Rate Advances Eurodollar Rate Balance of Base Notation Date Rate Advances Base Rate Advances Repaid Advances Rate Advances Made By ------
91
1
Schedule B to Note
ADVANCES, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE ADVANCES
Amount of Eurodollar Rate Amount Interest Period Amount of Advances Unpaid Principal Amount of Converted to and Eurodollar Principal of Converted to Balance of Eurodollar Rate Eurodollar Rate Rate with Eurodollar Rate Base Rate Eurodollar Rate Notation Date Advances Advances Respect Thereto Advances Repaid Advances Advances Made By ------
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 92
B-1
EXHIBIT B
FORM OF NOTICE OF BORROWING
The Chase Manhattan Bank, as Administrative Agent for the Lenders parties to the Credit Agreement referred to below 270 Park Avenue New York, New York 10017 [Date]
Attention: El Paso Energy Corporation
Ladies and Gentlemen:
The undersigned, EL PASO ENERGY CORPORATION, refers to the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (the "Credit Agreement", the terms defined therein being used herein as therein defined), among the undersigned, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent for said Lenders, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.2 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the "Proposed Borrowing") as required by Section 2.2(a) of the Credit Agreement:
(i) The Borrower for the Proposed Borrowing is ______.
(ii) The Business Day of the Proposed Borrowing is ______, 200_.
(iii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is $______.
(v) The Interest Period for each Eurodollar Rate Advance made as part of the Proposed Borrowing is [______month[s]].
93 B-2
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing, before and immediately after giving effect thereto and to the application of the proceed therefrom:
(A) each representation and warranty contained in Section 4.1 is correct in all material respects as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such Proposed Borrowing, which constitutes an Event of Default or Default.
Very truly yours,
EL PASO ENERGY CORPORATION
By: ------Title:
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 94
1
EXHIBIT C
FORM OF CAF ADVANCE REQUEST
[Date]
The Chase Manhattan Bank, as CAF Advance Agent 270 Park Avenue New York, New York 10017
Reference is made to the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
This is a [Fixed Rate] [LIBO Rate] CAF Advance Request* pursuant to Section 2.5 of the Credit Agreement requesting quotes for the following CAF Advances:
Loan 1 Loan 2 Loan 3 ------ Aggregate Principal Amount $ $ $ ------
CAF Advance Date
Maturity Date
Interest Payment Dates
------
* Pursuant to the Credit Agreement, a CAF Advance Request may be transmitted in writing, by telecopy, or by telephone, immediately confirmed by telecopy. In any case, a CAF Advance Request shall contain the information specified in the second paragraph of this form.
95
2 Very truly yours, [Borrower]
By: ------Name: Title:
96
EXHIBIT D FORM OF CAF ADVANCE OFFER [Date]
The Chase Manhattan Bank, as CAF Advance Agent 270 Park Avenue New York, New York 10017
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Reference is made to the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
In accordance with Section 2.5 of the Credit Agreement, the undersigned Lender offers to make CAF Advances thereunder in the following amounts with the following maturity dates:
CAF Advance Date: ______, 200__ Aggregate Maximum Amount: $______
Maturity Date 1: Maximum Amount: $______, 200__ $______offered at ______* $______offered at ______*
Maturity Date 2: Maximum Amount: $______, 200__ $______offered at ______* $______offered at ______*
Maturity Date 3: Maximum Amount: $______, 200__ $______offered at ______* $______offered at ______*

~~------~~
* Insert the interest rate offered for the specified CAF Advance. In the case of LIBO Rate CAF Advances, insert a margin bid. In the case of Fixed Rate CAF Advances, insert a fixed rate bid.
~~Very truly yours,~~
~~[NAME OF CAF ADVANCE LENDER]~~
~~By: ------Name: Title: Telephone No.: Telecopy No.:~~
97
~~EXHIBIT E~~
~~FORM OF CAF ADVANCE CONFIRMATION~~
~~[Date]~~
~~The Chase Manhattan Bank, as CAF Advance Agent 270 Park Avenue New York, New York 10017~~
Reference is made to the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
~~In accordance with Section 2.5(d) of the Credit Agreement, the~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document undersigned accepts and confirms the offers by the CAF Advance Lender(s) to make CAF Advances to the undersigned on ______,______[date of CAF Advance Borrowing] under Section 2.5(d) in the (respective) amount(s) set forth on the attached list of CAF Advances offered.
~~Very truly yours,~~
~~[Borrower]~~
~~By ------Name: Title:~~
~~[The Borrower must attach CAF Advance offer list prepared by the CAF Advance Agent with accepted amount entered by the Borrower to the right of each CAF Advance offer].~~
98
~~EXHIBIT F~~
~~FORM OF ASSIGNMENT AND ACCEPTANCE~~
~~Dated ______, ____~~
Reference is made to the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (as the same may be amended or otherwise modified from time to time, the "Credit Agreement") among EL PASO ENERGY CORPORATION, a Delaware corporation (the "Company"), EL PASO NATURAL GAS COMPANY, a Delaware corporation, TENNESSEE GAS PIPELINE COMPANY, a Delaware corporation, the Lenders (as defined in the Credit Agreement), The Chase Manhattan Bank, as administrative agent (the "Administrative Agent") and as CAF Advance Agent (the "CAF Advance Agent") for the Lenders, CITIBANK, N.A. and ABN AMRO BANK, N.V., as Co-Documentation Agents, and BANK OF AMERICA, N.A. , as Syndication Agent. Terms defined in the Credit Agreement are used herein with the same meaning.
~~______(the "Assignor") and ______(the "Assignee") agree as follows:~~
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to all of the Assignor's rights and obligations under the Credit Agreement as of the date hereof which represents the percentage interest specified on Schedule 1 of all outstanding rights and obligations under the Credit Agreement, including, without limitation, such interest in the Assignor's Commitment, the Advances owing to the Assignor, and the Notes held by the Assignor. After giving effect to such sale and assignment, the Assignee's Commitment and the amount of the Advances owing to the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of each Borrower or the performance or observance by each Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches the Notes referred to in paragraph 1 above and requests that the Administrative Agent exchange such Notes for new Notes payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto or new Notes payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount equal to the Commitment retained by the Assignor under the Credit Agreement, respectively, as specified on Schedule 1 hereto.
99
~~F-2~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and authorizes the Administrative Agent and CAF Advance Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent and CAF Advance Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender; [and] (vi) specifies as its address for notices the address set forth beneath its name on the signature pages hereof [and (vii) attaches the forms prescribed by the Internal Revenue Service of the United States certifying as to the Assignee's status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to the Assignee under the Credit Agreement and the Notes or such other documents as are necessary to indicate that all such payments are subject to such rates at a rate reduced by an applicable tax treaty]*.
4. Following the execution of this Assignment and Acceptance by the Assignor and the Assignee, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent. The effective date of this Assignment and Acceptance shall be the date of acceptance thereof by the Administrative Agent, unless otherwise specified on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement and the Notes in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the Notes for periods prior to the Effective Date directly between themselves.
~~------~~
* If the Assignee is organized under the laws of a jurisdiction outside the United States.
~~100 F-3~~
~~7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York.~~
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be executed by their respective officers thereunto duly authorized, as of the date first above written, such execution being made on Schedule 1 hereto.
~~101~~
~~Schedule 1 to Assignment and Acceptance Dated ______, ____~~

Section 1.
Percentage Interest: %
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document ------
Section 2.
Assignee's Commitment: $ ------Aggregate Outstanding Principal Amount of Advances owing to the Assignee: $ ------
Note payable to the order of the Assignee Dated: ------,-----
Principal amount: $ ------Note payable to the order of the Assignor Dated: ------,-----
Principal amount: $ ------Section 3.
Effective Date*: ------,-----

~~[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]~~
~~By: By: ------Title: Title:~~
~~Address for notices: [Address]~~
~~------~~
* This date should be no earlier than the date of acceptance by the Administrative Agent.
~~102 2~~
~~Consented to:~~
~~EL PASO ENERGY CORPORATION THE CHASE MANHATTAN BANK, as Administrative Agent~~
~~By: By: ------Title: Title:~~
~~103~~
3
~~Accepted this __ day of ______, ___~~
~~THE CHASE MANHATTAN BANK, as Administrative Agent~~
~~By: ------Title:~~
~~104~~
~~EXHIBIT G~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document FORM OF OPINION OF [ASSOCIATE GENERAL][SENIOR] COUNSEL OF THE COMPANY~~
~~August 4, 2000~~
~~To Each of the Lenders, the Administrative Agent and the CAF Advance Agent Referred to Below c/o The Chase Manhattan Bank 270 Park Avenue New York, New York 10017~~
~~Re: El Paso Energy Corporation~~
~~Ladies and Gentlemen:~~
This opinion is furnished to you pursuant to Section 3.2(b)(iii) of the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (the "Credit Agreement"), among El Paso Energy Corporation (the "Company"), El Paso Natural Gas Company ("EPNGC"), Tennessee Gas Pipeline Company ("Tennessee") (Tennessee, together with the Company and EPNGC, the "Borrowers"), the banks and other financial institutions from time to time party thereto (each a "Lender", and together the "Lenders"), The Chase Manhattan Bank, as Administrative Agent (in such capacity, the "Administrative Agent") and as CAF Advance Agent (in such capacity, the "CAF Advance Agent") for the Lenders, CITIBANK, N.A. and ABN AMRO BANK, N.V., as Co-Documentation Agents (in such capacity, the "Co-Documentation Agents") , and BANK OF AMERICA, N.A., as Syndication Agent (in such capacity, the "Syndication Agent"). Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
I am [Associate General] [Senior] Counsel of the Company, and I, or attorneys over whom I exercise supervision, have acted as counsel for the Borrowers in connection with the preparation, execution and delivery of the Credit Agreement. In that connection, I or such attorneys have examined:
~~(1) the Credit Agreement, executed by the parties thereto;~~
~~(2) the Notes, executed by the Borrowers; and~~
~~(3) the other documents furnished by the Borrowers pursuant to Sections 3.1 and 3.2 of the Credit Agreement.~~
~~105~~
~~G-2~~
I, or attorneys over whom I exercise supervision, have also examined the originals, or copies certified to our satisfaction, of the agreements, instruments and other documents, and all of the orders, writs, judgments, awards, injunctions and decrees, which affect or purport to affect the Borrowers' ability to perform their respective obligations under the Credit Agreement or the Notes (collectively referred to herein as the "Documents"). In addition, I, or attorneys over whom I exercise supervision, have examined the originals, or copies certified to our satisfaction, of such other corporate records of the Borrowers, certificates of public officials and of officers of the Borrowers, and agreements, instruments and other documents, as I have deemed necessary as a basis for the opinions hereinafter expressed. In all such examinations, I, or attorneys over whom I exercise supervision, have assumed the legal capacity of all natural persons executing documents, the genuineness of all signatures on original or certified, conformed or reproduction copies of documents of all parties (other than, with respect to the Documents, the Borrowers), the authenticity of original and certified documents and the conformity to original or certified copies of all copies submitted to such attorneys or me as conformed or reproduction copies. As to various questions of fact relevant to the opinions expressed herein, I have relied upon, and assume the accuracy of, representations and warranties contained in the Credit Agreement and certificates and oral or written statements and other information of or from public officials, officers and/or representatives of the Borrowers and others.
I have assumed that the parties to the Documents other than the Borrowers have the power to enter into and perform such documents and that such documents have been duly authorized, executed and delivered by, and constitute legal, valid and binding obligations of, such parties.
~~The opinions expressed below are limited to the federal laws of the United States and, to the extent relevant hereto, the General Corporation~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Law of the State of Delaware, as currently in effect. I assume no obligation to supplement this opinion if any applicable laws change after the date hereof or if I become aware of any facts that might change the opinions expressed herein after the date hereof.
~~Based on the foregoing and upon such investigation as we have deemed necessary, and subject to the limitations, qualifications and assumptions set forth herein, I am of the following opinion:~~
1. Each Borrower (i) is a corporation duly incorporated and existing in good standing under the laws of the State of Delaware, and (ii) possesses all the corporate 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.
2. The execution, delivery and performance by each Borrower of the Documents to which it is a party are within such Borrower's corporate powers and have been duly authorized by all necessary corporate action in respect of or by such Borrower, and do not contravene (i) such Borrower's charter or by-laws, each as amended to date, (ii) any federal law, rule or regulation applicable to such Borrower (excluding provisions of federal law expressly referred to in and covered by the opinion of Jones, Day, Reavis &
~~106~~
~~G-3~~
Pogue delivered to you in connection with the transactions contemplated hereby) or any provision of the General Corporation Law of the State of Delaware applicable to such Borrower, or (iii) any contractual restriction binding on or affecting such Borrower. The Documents to which it is a party have been duly executed and delivered on behalf of each Borrower.
3. No authorization or approval or other action by, and no notice to or filing with, any federal governmental authority or regulatory body (including, without limitation, the FERC) is required for the due execution, delivery and performance by any Borrower of the Documents to which it is a party, except those required in the ordinary course of business in connection with the performance by each Borrower of its obligations under certain covenants and warranties contained in the Documents to which it is a party.
4. To the best of my knowledge, there is no action, suit or proceeding pending or overtly threatened against or involving the Company or any of the Principal Subsidiaries which, in my reasonable judgment (taking into account the exhaustion of all appeals), would have a material adverse effect upon the consolidated financial condition of the Company and its consolidated Subsidiaries taken as a whole, or which purports to affect the legality, validity, binding effect or enforceability of any Document.
These opinions are given as of the date hereof and are solely for your benefit in connection with the transactions contemplated by the Credit Agreement. These opinions may not be relied upon by you for any other purpose or relied upon by any other person for any purpose without my prior written consent.
~~Very truly yours,~~
~~107~~
~~EXHIBIT H~~
~~FORM OF OPINION OF NEW YORK COUNSEL TO THE COMPANY~~
~~August 4, 2000~~
To Each of the Lenders, the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents and the Syndication Agent Referred to Below c/o The Chase Manhattan Bank 270 Park Avenue, 10th Floor New York, New York 10017
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Re: $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement dated as of August 4, 2000
~~Dear Ladies and Gentlemen:~~
We have acted as special New York counsel for El Paso Energy Corporation, a Delaware corporation (the "Company"), El Paso Natural Gas Company, a Delaware corporation ("EPNGC") and Tennessee Gas Pipeline Company, a Delaware corporation ("Tennessee") (Tennessee together with the Company and EPNGC, the "Borrowers"), in connection with the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (the "Financing Agreement"), among the Company, EPNGC, Tennessee, the banks and other financial institutions from time to time party thereto (each a "Lender", and together the "Lenders"), The Chase Manhattan Bank, as administrative agent (in such capacity, the "Administrative Agent") and as CAF Advance Agent (in such capacity, the "CAF Advance Agent") for the Lenders, CITIBANK, N.A. and ABN AMRO BANK, N.V., as Co-Documentation Agents (in such capacity, the Co-Documentation Agents"), and BANK OF AMERICA, N.A., as Syndication Agent (in such capacity, the "Syndication Agent"). This opinion is delivered to you pursuant to Section 3.2(b)(iv) of the Financing Agreement. Capitalized terms used herein and not otherwise defined have the meanings assigned such terms in the Financing Agreement. With your permission, all assumptions and statements of reliance herein have been made without any independent investigation or verification on our part except to the extent otherwise expressly stated, and we express no opinion with respect to the subject matter or accuracy of the assumptions or items upon which we have relied.
~~108~~
~~H-2~~
In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed necessary for the purposes of this opinion. We have examined, among other documents, the following:
~~(a) An executed copy of the Financing Agreement; and~~
~~(b) An executed copy of each of the Notes.~~
~~The documents referred to in items (a) and (b) above are referred to herein collectively as the "Documents."~~
In all such examinations, we have assumed the legal capacity of all natural persons executing documents, the genuineness of all signatures, the authenticity of original and certified documents and the conformity to original or certified copies of all copies submitted to us as conformed or reproduction copies. As to various questions of fact relevant to the opinions expressed herein, we have relied upon, and assume the accuracy of, representations and warranties contained in the Documents and certificates and oral or written statements and other information of or from representatives of the Borrowers and others and assume compliance on the part of all parties to the Documents with their covenants and agreements contained therein. With respect to the opinions expressed in paragraph (a) below, our opinions are limited (x) to our actual knowledge, if any, of the Borrowers' specially regulated business activities and properties based solely upon an officer's certificate in respect of such matters and without any independent investigation or verification on our part and (y) to our review of only those laws and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the Documents.
To the extent it may be relevant to the opinions expressed herein, we have assumed that the parties to the Documents have the power to enter into and perform such documents and to consummate the transactions contemplated thereby and that such documents have been duly authorized, executed and delivered by, and, except as set forth in paragraph (b) with respect to the Borrowers, constitute legal, valid and binding obligations of, such parties.
~~Based upon the foregoing, and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that:~~
(a) The execution and delivery to the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent and the Lenders by each Borrower of the Documents to which it is a party and the performance by each Borrower of its obligations thereunder (i) do not require under present law any filing or registration by such Borrower with, or approval or consent to such Borrower of, any governmental agency or authority of the State of New York that has not been made or obtained except those required in the ordinary course of business in connection with the performance by such
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Borrower of its obligations under certain covenants and warranties contained in the Documents to which it is a party and (ii) do not violate any present law, or present regulation of any governmental agency or authority, of the State of New York applicable to such Borrower or its property.
~~109~~
~~(b) The Documents to which it is a party constitute legal, valid and binding obligations of each Borrower enforceable against such Borrower in accordance with their respective terms.~~
(c) The borrowings by each Borrower under the Financing Agreement and the applications of the proceeds thereof as provided in the Financing Agreement will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
~~The opinions set forth above are subject to the following qualifications:~~
~~(A) We express no opinion as to:~~
(i) the validity, binding effect or enforceability (a) of any provision of the Documents relating to indemnification, contribution or exculpation in connection with violations of any securities laws or statutory duties or public policy, or in connection with willful, reckless or criminal acts or gross negligence of the indemnified or exculpated party or the party receiving contribution; or (b) of any provision of any of the Documents relating to exculpation of any party in connection with its own negligence that a court would determine in the circumstances under applicable law to be unfair or insufficiently explicit;
(ii) the validity, binding effect or enforceability of (a) any purported waiver, release, variation, disclaimer, consent or other agreement to similar effect (all of the foregoing, collectively, a "Waiver") by the Borrowers under the Documents to the extent limited by provisions of applicable law (including judicial decisions), or to the extent that such a Waiver applies to a right, claim, duty, defense or ground for discharge otherwise existing or occurring as a matter of law (including judicial decisions), except to the extent that such a Waiver is effective under and is not prohibited by or void or invalid under provisions of applicable law (including judicial decisions), (b) any provision of any Document relating to choice of governing law to the extent that the validity, binding effect or enforceability of any such provision is to be determined by any court other than a court of the State of New York or (c) any provision of any Document relating to forum selection to the extent the forum is a federal court;
(iii) the enforceability of any provision in the Documents specifying that provisions thereof may be waived only in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created that modifies any provision of the Documents;
(iv) the effect of any law of any jurisdiction other than the State of New York wherein the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent or any Lender may be located or wherein enforcement of any document referred to above may be sought that limits the rates of interest legally chargeable or collectible; and
~~(v) any approval, consent or authorization of the Federal Energy Regulatory Commission or any other United States federal agency or authority needed in connection~~
~~110~~
~~H-4~~
with the execution, delivery and performance by any Borrower of the Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with the terms and conditions thereof.
(B) Our opinions above are subject to (i) applicable bankruptcy, insolvency, reorganization, fraudulent transfer, voidable preference, moratorium or similar laws, and related judicial doctrines, from time to time in effect affecting creditors' rights and remedies generally, (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits on the
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document availability of equitable remedies), whether such principles are considered in a proceeding at law or in equity and (iii) the qualification that certain other provisions of the Documents may be unenforceable in whole or in part under the laws (including judicial decisions) of the State of New York or the United States of America, but the inclusion of such provisions does not affect the validity as against any Borrower of the Documents to which it is a party, taken as a whole, and the Documents contain adequate provisions for enforcing payment of the obligations governed thereby, subject to the other qualifications contained in this letter.
~~(C) Our opinions as to enforceability are subject to the effect of generally applicable rules of law that:~~
~~(i) limit the availability of a remedy under certain circumstances when another remedy has been elected; and~~
(ii) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; and
~~(iii) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys' fees and other costs.~~
(D) For the purposes of the opinion set forth in paragraph (c) above, we have assumed that (i) none of the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent or any of the Lenders has or will have the benefit of any agreement or arrangement (excluding the Documents) pursuant to which any Advances are directly or indirectly secured by Margin Stock, (ii) none of the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent, any of the Lenders or any of their respective affiliates has extended or will extend any other credit to any of the Borrowers directly or indirectly secured by Margin Stock and (iii) none of the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents and the Syndication Agents or any of the Lenders has relied or will rely upon any Margin Stock as collateral in extending or maintaining any Advances pursuant to the Financing Agreement.
(E) For purposes of our opinions above insofar as they relate to the Borrowers, we have assumed that (i) each Borrower is a corporation validly existing in good standing in its jurisdiction of incorporation, has all requisite power and authority, and has obtained all requisite corporate, shareholder, third party and governmental authorizations, consents and approvals, and made all requisite filings and registrations, necessary to execute, deliver and perform the
~~111 H-5~~
Documents to which it is a party (except to the extent noted in paragraph (a) above), and that such execution, delivery and performance will not violate or conflict with any law, rule, regulation, order, decree, judgment, instrument or agreement binding upon or applicable to such Borrower or its properties (except to the extent noted in paragraph (a) above), and (ii) the Documents to which each Borrower is a party have been duly executed and delivered by such Borrower.
The opinions expressed herein are limited to the federal laws of the United States of America (in the case of the matters covered in paragraph (c) above) and the laws of the State of New York, as currently in effect, except that we express no opinion with respect to laws, rules or regulations of the State of New York, or of any governmental agency or authority thereof, applicable to companies engaged in the gathering, processing, transmission, distribution or marketing of natural gas or other hydrocarbon derivatives or power generation or the generation, transmission, distribution or marketing of electricity, or as to filings, registrations, approvals or consents under or by such laws, rules or regulations.
We express no opinion as to the compliance or noncompliance, or the effect of the compliance or noncompliance, of each of the addressees with any state or federal laws or regulations applicable to each of them by reason of their status as or affiliation with a federally insured depository institution.
The opinions expressed herein are solely for the benefit of the Administrative Agent, CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent and the Lenders and may not be relied on in any manner or for any purpose by any other person or entity.
~~Very truly yours,~~
~~JONES, DAY, REAVIS & POGUE~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document By: ------~~
~~112~~
~~EXHIBIT I~~
~~[LETTERHEAD OF PROCESS AGENT]~~
~~[DATE]~~
To each of the Lenders parties to the Credit Agreement (as defined and referred to below) and to The Chase Manhattan Bank as Administrative Agent and CAF Advance Agent for said Lenders c/o The Chase Manhattan Bank 270 Park Avenue New York, New York 10017
~~To El Paso Energy Corporation 1001 Louisiana Street Houston, Texas 77002~~
~~El Paso Energy Corporation/El Paso Natural Gas Company/Tennessee Gas Pipeline Company~~
~~Gentlemen:~~
Reference is made to that certain $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (said Agreement, as it may hereafter be amended, supplemented or otherwise modified from time to time, being the "Credit Agreement", the terms defined therein being used herein with the same meaning) among El Paso Energy Corporation (the "Company"), El Paso Natural Gas Company ("EPNGC"), Tennessee Gas Pipeline Company ("Tennessee") (Tennessee, together with the Company and EPNGC, the "Borrowers") , certain banks and other financial institutions from time to time party thereto as Lenders thereunder (the "Lenders"), The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent (in such capacities, the "Administrative Agent" and the "CAF Advance Agent") for the Lenders, CITIBANK, N.A. and ABN AMRO BANK, N.V., as Co-Documentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent.
Pursuant to Section 9.9(a) of the Credit Agreement each of the Borrowers has appointed the undersigned (with an office on the date hereof at 1633 Broadway, New York, New York 10019) as Process Agent to receive on behalf of such Borrower and its property service of copies of the summons and complaint and any other process which may be served by the Administrative
~~113~~
~~I-2~~
Agent, the CAF Advance Agent, any Lender or the holder of any Note in any action or proceeding by the Administrative Agent, the CAF Advance Agent, any Lender or the holder of any Note in any New York State or Federal court sitting in New York City in respect of, but only in respect of, any claims or causes of action arising out of or relating to the Credit Agreement and the Notes issued pursuant thereto.
The undersigned hereby accepts such appointment as Process Agent and agrees with each of you that (i) the undersigned will not terminate the undersigned's agency as such Process Agent prior to ______, 200_ (and hereby acknowledges that the undersigned has been paid in full by the Borrower for its services as Process Agent through such date), (ii) the undersigned will maintain an office in New York City through such date and will give the Administrative Agent prompt notice of any change of address of the undersigned, (iii) the undersigned will perform its duties as Process Agent in accordance with Section 9.9(a) of the Credit Agreement and (iv) the undersigned will forward forthwith to the Borrower at its address specified below copies of any summons, complaint and other process which the undersigned receives in connection with its appointment as Process Agent.
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document This acceptance and agreement shall be binding upon the undersigned and all successors of the undersigned.
~~Very truly yours,~~
~~CT CORPORATION SYSTEM~~
~~By: ------Title:~~
~~Address of the Borrower:~~
~~[Address]~~
~~114~~
~~EXHIBIT J~~
~~FORM OF JOINDER AGREEMENT~~
Reference is made to the $2,000,000,000 364-Day Revolving Credit and CAF Advance Facility Agreement, dated as of August 4, 2000 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"; terms defined therein being used herein as therein defined), among El Paso Energy Corporation,El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain banks and other financial institutions from time to time party thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, CITIBANK, N.A. and ABN AMRO BANK, N.V., as Co-Documentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent.
~~The undersigned hereby acknowledges that it has received and reviewed a copy (in execution form) of the Credit Agreement, and agrees to:~~
~~(a) join the Credit Agreement as a Borrower party thereto;~~
~~(b) be bound by all covenants, agreements and acknowledgments attributable to a Borrower in the Credit Agreement and any Note to which it is a party; and~~
~~(c) perform all obligations required of it by the Credit Agreement and any Note to which it is a party.~~
The undersigned hereby represents and warrants that the representations and warranties with respect to it contained in, or made or deemed made by it in, Article IV of the Credit Agreement are true and correct on the date hereof.
~~THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.~~
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered in New York, New York by its proper and duly authorized officer as of this ______day ______of ____, .
~~[Borrower]~~
~~By: ------Title:~~
~~115~~
~~J-2~~
~~ACKNOWLEDGED AND AGREED TO:~~
~~[EL PASO ENERGY CORPORATION]~~
~~By:~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document ------Title:~~
~~116~~
~~EXHIBIT K~~
~~FORM OF OPINION OF [ASSOCIATE GENERAL] [SENIOR] COUNSEL OF THE COMPANY~~
(a) Each of the Company and the Borrowing Subsidiaries (i) is a corporation duly incorporated and existing in good standing under the laws of the jurisdiction of its organization, and (ii) possesses all the corporate 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.
(b) The execution and delivery by the Company and the Borrowing Subsidiary of the Joinder Agreement and by the Borrowing Subsidiary of the Notes made by it and the performance by the Borrowing Subsidiary of its obligations as a "Borrower" under the Credit Agreement and the Notes made by it are within such corporation's corporate powers and have been duly authorized by all necessary corporate action in respect of or by each of the Company and the Borrowing Subsidiary (as applicable), and do not contravene (i) the Company's or the Borrowing Subsidiary's charter or by-laws, each as amended to date, (ii) any federal law, rule or regulation applicable to the Company or the Borrowing Subsidiary (excluding provisions of federal law expressly referred to in and covered by the opinion of [New York Counsel] delivered to you in connection with the transactions contemplated hereby) or any provision of the General Corporation Law of the State of Delaware applicable to such corporation, or (iii) any contractual restriction binding on or affecting the Company or the Borrowing Subsidiary. The Joinder Agreement has been duly executed and delivered on behalf of the Company and the Borrowing Subsidiary and the Notes made by the Borrowing Subsidiary have been duly executed and delivered on behalf of the Borrowing Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any federal governmental authority or regulatory body (including, without limitation, the FERC) is required for (i) the due execution and delivery by the Company or the Borrowing Subsidiary of the Joinder Agreement, (ii) the performance by the Borrowing Subsidiary of its obligations as a "Borrower" under the Credit Agreement or (iii) the execution, delivery and performance by the Borrowing Subsidiary of the Notes made by it, except those required in the ordinary course of business in connection with the performance by the Company or the Borrowing Subsidiary of its obligations under certain covenants and warranties contained in the Joinder Agreement, the Credit Agreement and the Notes and those which have been obtained and are in full force and effect.
~~(d) To the best of my knowledge, there is no action, suit or proceeding pending or overtly threatened against or involving the Company or any of the Principal~~
~~117~~
~~K-2~~
Subsidiaries which, in my reasonable judgment (taking into account the exhaustion of all appeals), would have a material adverse effect upon the consolidated financial condition of the Company and its consolidated Subsidiaries taken as a whole, or which purports to affect the legality, validity, binding effect or enforceability of the Joinder Agreement, the Credit Agreement or the Notes.
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 118~~
~~EXHIBIT L~~
~~FORM OF OPINION OF NEW YORK COUNSEL TO THE COMPANY~~
(a) The execution and delivery to the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent and the Lenders by the Company and the Borrowing Subsidiary of the Joinder Agreement and by the Borrowing Subsidiary of the Notes made by it and the performance by the Borrowing Subsidiary of its obligations as a "Borrower" under the Credit Agreement and the Notes made by it (i) do not require under present law any filing or registration by the Company or the Borrowing Subsidiary with, or approval or consent to the Company or the Borrowing Subsidiary of, any governmental agency or authority of the State of New York that has not been made or obtained, except those, if any, required in the ordinary course of business in connection with the performance by the Company or the Borrowing Subsidiary of their respective obligations under certain covenants and warranties contained in the Joinder Agreement, the Credit Agreement and the Notes and (ii) do not violate any present law, or present regulation of any governmental agency or authority, of the State of New York applicable to the Company or the Borrowing Subsidiary or its respective property.
(b) The Joinder Agreement, the Credit Agreement and the Notes (as applicable) constitute the legal, valid and binding obligations of each of the Company and the Borrowing Subsidiary enforceable against each of the Company and the Borrowing Subsidiary in accordance with their respective terms.
(c) The borrowings by the Borrowing Subsidiary under the Credit Agreement and the applications of the proceeds thereof as provided in the Credit Agreement will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
~~119~~
~~EXHIBIT M~~
~~FORM OF EXTENSION REQUEST~~
~~[Date]~~
~~The Chase Manhattan Bank, as Administrative Agent 270 Park Avenue New York, New York 10017~~
~~Attention: Jackie Reid~~
~~Gentlemen:~~
Reference is made to the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among the undersigned, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, CITIBANK, N.A. and ABN AMRO BANK, N.V., as Co-Documentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document The undersigned hereby represents and warrants that no Event of Default has occurred or is continuing.
This is an Extension Request pursuant to Section 2.23 of the Credit Agreement requesting an extension of the Stated Termination Date to [INSERT REQUESTED TERMINATION DATE]. Please transmit a copy of this Extension Request to each of the Lenders.
~~EL PASO ENERGY CORPORATION~~
~~By: ------Title:~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 1~~
~~EXHIBIT 10.G~~
~~======~~
~~EL PASO ENERGY CORPORATION~~
~~------~~
~~$1,000,000,000 3-YEAR REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY AGREEMENT~~
~~Dated as of August 4, 2000~~
~~------~~
~~THE CHASE MANHATTAN BANK, as Administrative Agent and CAF Advance Agent~~
~~CITIBANK, N.A. and ABN AMRO, N.V., as Co-Documentation Agents~~
~~BANK OF AMERICA, N.A., as Syndication Agent~~
~~======~~
2
~~TABLE OF CONTENTS~~
Page ----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...... 1 SECTION 1.1 Certain Defined Terms...... 1 SECTION 1.2 Computation of Time Periods...... 17 SECTION 1.3 Accounting Terms...... 17 SECTION 1.4 References...... 18
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES...... 18 SECTION 2.1 The Revolving Credit Advances...... 18 SECTION 2.2 Making the Revolving Credit Advances...... 18 SECTION 2.3 Evidence of Debt...... 20 SECTION 2.4 CAF Advances...... 20 SECTION 2.5 Procedure for CAF Advance Borrowings...... 20 SECTION 2.6 CAF Advance Payments...... 24 SECTION 2.7 Evidence of Debt...... 24 SECTION 2.8 Fees...... 25 SECTION 2.9 Reduction of the Commitments...... 25 SECTION 2.10 Repayment of Advances...... 26 SECTION 2.11 Interest on Revolving Credit Advances...... 26 SECTION 2.12 Additional Interest on Eurodollar Rate Advances...... 26 SECTION 2.13 Interest Rate Determination...... 27 SECTION 2.14 Voluntary Conversion of Advances...... 28 SECTION 2.15 Optional and Mandatory Prepayments...... 29 SECTION 2.16 Increased Costs...... 29 SECTION 2.17 Increased Capital...... 30 SECTION 2.18 Illegality...... 31 SECTION 2.19 Pro Rata Treatment, Payments and Computations...... 31 SECTION 2.20 Taxes...... 32 SECTION 2.21 Sharing of Payments, Etc...... 35 SECTION 2.22 Use of Proceeds...... 35 SECTION 2.23 Extension of Stated Termination Date...... 35 SECTION 2.24 [Intentionally Left Blank]...... 36
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document SECTION 2.25 Replacement of Lenders...... 37~~
ARTICLE III CONDITIONS OF EFFECTIVENESS AND LENDING...... 38 SECTION 3.1 Conditions Precedent to Effectiveness of this Agreement...... 38 SECTION 3.2 Conditions Precedent to Initial Advances...... 38 SECTION 3.3 Conditions Precedent to Initial Advances to Any Borrowing Subsidiary...... 39 SECTION 3.4 Conditions Precedent to Each Borrowing...... 40
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Page ----
~~ARTICLE IV REPRESENTATIONS AND WARRANTIES...... 40 SECTION 4.1 Representations and Warranties of the Borrowers...... 40~~
ARTICLE V COVENANTS OF THE BORROWERS...... 43 SECTION 5.1 Affirmative Covenants...... 43 SECTION 5.2 Negative Covenants...... 44 SECTION 5.3 Reporting Requirements...... 48 SECTION 5.4 Restrictions on Material Subsidiaries...... 51
ARTICLE VI GUARANTEE...... 51 SECTION 6.1 Guarantees...... 51 SECTION 6.2 No Subrogation...... 52 SECTION 6.3 Amendments, etc. with respect to the Obligations; Waiver of Rights...... 52 SECTION 6.4 Guarantee Absolute and Unconditional...... 53 SECTION 6.5 Reinstatement...... 54
~~ARTICLE VII EVENTS OF DEFAULT...... 54 SECTION 7.1 Event of Default...... 54~~
ARTICLE VIII THE ADMINISTRATIVE AGENT AND THE CAF ADVANCE AGENT...... 57 SECTION 8.1 Authorization and Action...... 57 SECTION 8.2 Administrative Agent's and CAF Advance Agent's Reliance, Etc...... 57 SECTION 8.3 Chase and Affiliates...... 58 SECTION 8.4 Lender Credit Decision...... 58 SECTION 8.5 Indemnification...... 58 SECTION 8.6 Successor Administrative Agent and CAF Advance Agent...... 59 SECTION 8.7 Syndication Agent; Co-Documentation Agents...... 59
ARTICLE IX MISCELLANEOUS...... 60 SECTION 9.1 Amendments, Etc...... 60 SECTION 9.2 Notices, Etc...... 60 SECTION 9.3 No Waiver; Remedies...... 61 SECTION 9.4 Costs and Expenses; Indemnity...... 61 SECTION 9.5 Right of Set-Off...... 62 SECTION 9.6 Binding Effect...... 62 SECTION 9.7 Assignments and Participations...... 62 SECTION 9.8 Confidentiality...... 65 SECTION 9.9 Consent to Jurisdiction...... 65 SECTION 9.10 GOVERNING LAW...... 66 SECTION 9.11 Rate of Interest...... 66 SECTION 9.12 Execution in Counterparts...... 67
4
~~SCHEDULE~~
~~Schedule I Commitments, Addresses, Etc.~~
~~EXHIBITS~~
Exhibit A Form of Note Exhibit B Form of Notice of Borrowing Exhibit C Form of CAF Advance Request Exhibit D Form of CAF Advance Offer Exhibit E Form of CAF Advance Confirmation Exhibit F Form of Assignment and Acceptance Exhibit G Form of Opinion of [Associate General][Senior] Counsel of the Company Exhibit H Form of Opinion of New York Counsel to the Company Exhibit I Form of Process Agent Letter Exhibit J Form of Joinder Agreement
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Exhibit K Form of Opinion of [Associate General][Senior] Counsel of the Company Exhibit L Form of Opinion of New York Counsel to the Company Exhibit M Form of Extension Request
5
$1,000,000,000 3-YEAR REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY AGREEMENT, dated as of August 4, 2000, among EL PASO ENERGY CORPORATION, a Delaware corporation (the "Company"), EL PASO NATURAL GAS COMPANY, a Delaware corporation ("EPNGC"), TENNESSEE GAS PIPELINE COMPANY, a Delaware corporation ("Tennessee"), the several banks and other financial institutions from time to time parties to this Agreement (the "Lenders"), THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative agent (in such capacity, the "Administrative Agent") and as CAF Advance Agent (in such capacity, the "CAF Advance Agent") for the Lenders hereunder, CITIBANK, N.A. and ABN AMRO BANK, N.V., as co-documentation agents (in such capacity, the "Co-Documentation Agents") for the Lenders, and BANK OF AMERICA, N.A., as syndication agent (in such capacity, the "Syndication Agent") for the Lenders.
~~The parties hereto hereby agree as follows:~~
~~ARTICLE I~~
~~DEFINITIONS AND ACCOUNTING TERMS~~
SECTION I.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
~~"Administrative Agent" has the meaning assigned to such term in the preamble hereof.~~
~~"Advance" means an advance by a Lender to any Borrower pursuant to Article II, and refers to a Base Rate Advance, a Eurodollar Rate Advance or a CAF Advance.~~
"Affiliate" means as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. The term "control" (including the terms "controlled by" or "under common control with") means, with respect to any Person, the possession, direct or indirect, of the power to vote 20% or more of the securities having ordinary voting power for the election of directors of such Person or to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by contract or otherwise. Neither a director nor any officer of a Person, in such capacity, shall be deemed an "Affiliate" of such Person for purposes of this Agreement.
~~"Agreement" means this 3-Year Revolving Credit and Competitive Advance Facility, as amended, supplemented or otherwise modified from time to time.~~
"Alternate Program" means any program providing for the sale or other disposition of trade or other receivables entered into by the Company or a Subsidiary which is in addition to or in replacement of the program evidenced by either Receivables Purchase and Sale Agreement (whether or not either Receivables
1
6
Purchase and Sale Agreement shall then be in effect), provided that such program is on terms (a) substantially similar to either Receivables Purchase and Sale Agreement (as modified to comply with FASB 125 or similar policies or guidelines from time to time in effect) or (b) customary for similar transactions as reasonably determined by the Administrative Agent.
"Applicable Eurodollar Rate Margin" with respect to any Eurodollar Rate Advance to any Borrower means for any day the rate per annum set forth below opposite the applicable S&P Bond Rating and Moody's Bond Rating in effect on such day for such Borrower:
Bond Rating Applicable Eurodollar (S&P/Moody's) Level Rate Margin ------
~~A/A2 or higher I .170%~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document A-/A3 II .260% BBB+/Baa1 III .290% BBB/Baa2 IV .375% BBB-/Baa3 V .525% BB+/Ba1 or lower VI .775%;
provided that (i) if the Bond Ratings for any Borrower do not fall within the same Level, the Applicable Eurodollar Rate Margin applicable to such day will be the percentage opposite the Bond Rating that is at the higher level (Level I being the highest and Level VI being the lowest Level), (ii) in the event a Bond Rating for a Borrower is not available from one of the Rating Agencies, the Applicable Eurodollar Rate Margin will be based on the Bond Rating of the other Rating Agency, (iii) in the event a Bond Rating for the Company is available from none of the Rating Agencies, the Applicable Eurodollar Rate Margin for the Company will be the percentage opposite Level VI, and (iv) in the event a Bond Rating for a Borrowing Subsidiary is available from none of the Rating Agencies, the Applicable Eurodollar Rate Margin for such Borrower will be determined using the Bond Ratings of the Company (unless there is another Borrower (the "Intermediate Parent") that directly or indirectly owns 100% of the common stock of such Borrower and the Intermediate Parent has a Bond Rating in effect, in which case, the Applicable Eurodollar Rate Margin for such Borrower will be determined using the Bond Ratings of the Intermediate Parent of such Borrower); provided, that for each day on which the aggregate principal amount of the Advances outstanding hereunder is equal to or greater than 25% of the aggregate amount of the total Commitments hereunder, the Applicable Eurodollar Rate Margin for each Borrower will be increased by .125% for such day.
"Applicable LIBO Rate" means in respect of any CAF Advance requested pursuant to a LIBO Rate CAF Advance Request, an interest rate per annum equal to the rate which appears on Page 3750 of the Telerate Service (or any successor or substitute page of such Service, or any successor to or substitute for such service providing rate
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quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) as at approximately 11:00 A.M., London time, two Business Days prior to the beginning of the period for which such CAF Advance is to be outstanding as the rate for Dollar deposits with a maturity comparable to such period.
~~"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit F.~~
"Base Rate" means for any day, a rate per annum (adjusted to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, rounded upwards to the next highest 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Effective Federal Funds Rate in effect on such day plus " of 1%. Any change in the Base Rate due to a change in the Prime Rate or the Effective Federal Funds Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Effective Federal Funds Rate, respectively.
~~"Base Rate Advance" means an Advance which bears interest as provided in Section 2.11(a)(i).~~
~~"Bond Rating" means a rating assigned to a Borrower"s senior long-term unsecured debt by any of the Rating Agencies.~~
~~"Borrowers" means the collective reference to the Company and each Borrowing Subsidiary; each a "Borrower".~~
"Borrowing" means a borrowing consisting of Advances of the same Type made on the same day by the Lenders and, in the case of Eurodollar Rate Advances, having Interest Periods of the same duration , it being understood that there may be more than one Borrowing on a particular day.
"Borrowing Subsidiary" means EPNGC, Tennessee and each other domestic Subsidiary of the Company which has been designated by the Company as a "Borrowing Subsidiary" by written notice to the Administrative Agent, which designation shall not have been revoked by written notice by the Company to the Administrative Agent (provided, that no such designation shall be revoked if either (a) any Default or Event of Default shall have occurred and be continuing or (b) any Advance to such Borrowing Subsidiary, or any interest accrued thereon, shall be outstanding); collectively, the "Borrowing Subsidiaries". For avoidance of doubt, (i) Tennessee may be
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document undesignated as a Borrowing Subsidiary by written notice to the Administrative Agent by the Company and (ii) EPNGC shall always be a Borrower hereunder.
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"Business Day" means a day of the year on which banks are not required or authorized to close in New York, New York and, if the applicable Business Day relates to any Eurodollar Rate Advances or LIBO Rate CAF Advances, on which dealings are carried on in the London interbank market.
"Business Entity" means a partnership, limited partnership, limited liability partnership, corporation (including a business trust), limited liability company, unlimited liability company, joint stock company, trust, unincorporated association, joint venture or other entity.
~~"CAF Advance" means an Advance made pursuant to Sections 2.4 and 2.5.~~
~~"CAF Advance Agent" has the meaning assigned to such term in the preamble hereof.~~
"CAF Advance Availability Period" means the period from and including the Closing Date until the earlier of (a) the date which is 7 days prior to the Stated Termination Date and (b) the Termination Date.
"CAF Advance Confirmation" means each confirmation by the applicable Borrower of its acceptance of CAF Advance Offers, which CAF Advance Confirmation shall be substantially in the form of Exhibit E and shall be delivered to the CAF Advance Agent by telecopy.
~~"CAF Advance Interest Payment Date" means as to each CAF Advance, each interest payment date specified by the applicable Borrower for such CAF Advance in the related CAF Advance Request.~~
~~"CAF Advance Lenders" means Lenders from time to time designated by the Company, in consultation with the CAF Advance Agent, as CAF Advance Lenders as provided in Section 2.4.~~
~~"CAF Advance Maturity Date" means as to any CAF Advance, the date specified by the applicable Borrower pursuant to Section 2.5(d)(ii) in its acceptance of the related CAF Advance Offer.~~
"CAF Advance Offer" means each offer by a CAF Advance Lender to make CAF Advances pursuant to a CAF Advance Request, which CAF Advance Offer shall contain the information specified in Exhibit D and shall be delivered to the CAF Advance Agent by telephone, immediately confirmed by telecopy.
"CAF Advance Request" means each request by the applicable Borrower for CAF Advance Lenders to submit bids to make CAF Advances, which request shall contain the information in respect of such requested CAF Advances specified in Exhibit C and shall
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~~be delivered to the CAF Advance Agent in writing, by telecopy, or by telephone, immediately confirmed by telecopy.~~
"Capitalization" of any Person means the sum (without duplication) of (a) consolidated Debt of such Person and its consolidated Subsidiaries, plus (b) the aggregate amount of Guaranties by such Person and its consolidated Subsidiaries, plus (c) the consolidated common and preferred stockholders' equity of such Person and its consolidated Subsidiaries, plus (d) the cumulative amount by which stockholders" equity of such Person shall have been reduced by reason of non-cash write downs of long-term assets from and after the Effective Date.
~~"Chase" means The Chase Manhattan Bank, a New York banking corporation.~~
~~"Closing Date" has the meaning assigned to such term in Section 3.2.~~
~~"Co-Documentation Agents" has the meaning assigned to such term in the preamble hereof.~~
"Commitment" means as to any Lender, the obligation of such Lender to make Revolving Credit Advances to the Borrowers hereunder in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule I (as such Schedule I is amended from time to time pursuant to Section 9.7(c)), as such amount may
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document be reduced from time to time in accordance with the provisions of this Agreement.
~~"Commitment Expiration Date" has the meaning assigned to such term in Section 2.23(a).~~
"Commitment Percentage" means as to any Lender at any time, the percentage which such Lender's Commitment then constitutes of the aggregate Commitments (or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender's Advances then outstanding constitutes of the aggregate principal amount of the Advances then outstanding).
~~"Company" has the meaning assigned to such term in the preamble hereof.~~
~~"Contingent Guaranty" has the meaning assigned to such term in the definition of the term "Guaranty" contained in this Section 1.1.~~
~~"Convert", "Conversion" and "Converted" each refers to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.13, 2.14 or 2.18.~~
~~"Current Reimbursement Obligations" means, with respect to any Person, non-contingent obligations of such Person to reimburse a bank or other Person in respect of~~
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~~amounts paid under a letter of credit or similar instrument that are paid on or prior to the fifth Business Day after the due date therefor.~~
"Debt" means, as to any Person, all Indebtedness of such Person other than (a) any Project Financing of such Person, (b) in the case of the Company or a Subsidiary, any liabilities of the Company or such Subsidiary, as the case may be, under any Alternate Program, or any document executed by the Company or such Subsidiary, as the case may be, in connection therewith, (c) any obligations of the Company or a Subsidiary with respect to lease payments for the headquarters building of the Company located in Houston, Texas and (d) Current Reimbursement Obligations of such Person; provided, however, that for purposes of Article V, "Debt" shall not include up to an aggregate amount (determined without duplication of amount) of $200,000,000 of (i) the amount of optional payments in lieu of asset repurchase or other payments to similar effect, including extension or renewal payments, on off balance sheet leases and (ii) the amount of the purchase price for optional acquisition of such asset (in either case, calculated at the lower amount payable in respect of such asset under clause (i) or (ii) above).
~~"Default" means any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.~~
~~"Dollars" and "$" means dollars in lawful currency of the United States of America.~~
~~"Effective Date" has the meaning assigned to such term in Section 3.1.~~
"Effective Federal Funds Rate" means, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
"Eligible Assignee" means, with respect to any particular assignment under Section 9.7, any bank or other financial institution approved in writing by the Company expressly with respect to such assignment and, except as to such an assignment by Chase so long as Chase is the Administrative Agent hereunder, the Administrative Agent as an Eligible Assignee for purposes of this Agreement, provided that (i) neither the Administrative Agent's nor the Company's approval shall be unreasonably withheld and (ii) neither the Administrative Agent's nor the Company's approval shall be required if the assignee is another Lender or an Affiliate of the assigning Lender.
~~"EPNGC" has the meaning assigned to such term in the preamble hereof.~~
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~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 11~~
~~"EPTPC" means El Paso Tennessee Pipeline Co., a Delaware corporation.~~
"EPTPC Facility" means the $3,000,000,000 Revolving Credit and Competitive Advance Facility Agreement, dated as of November 4, 1996, among EPTPC, the several financial institutions from time to time parties thereto, and The Chase Manhattan Bank, as administrative agent and CAF advance agent thereunder, as the same may be amended, modified or supplemented from time to time.
"Equity Interests" means any capital stock, partnership, joint venture, member or limited liability or unlimited liability company interest, beneficial interest in a trust or similar entity or other equity interest or investment of whatever nature.
~~"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued from time to time thereunder.~~
~~"ERISA Affiliate" means any Person who is a member of the Company's controlled group within the meaning of Section 4001(a)(14)(A) of ERISA.~~
~~"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.~~
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate which appears on Page 3750 of the Telerate Service (or on any successor or substitute page of such service, or any successor to or substitute for such service providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) as at approximately 11:00 A.M. (London, England time) two Business Days before the first day of such Interest Period as the rate for Dollar deposits with a maturity comparable to such Interest Period; provided that if such rate is not available at such time for any reason, the Eurodollar Rate for such Borrowing for such Interest Period shall be the interest rate per annum equal to the average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rate per annum at which deposits in Dollars are offered by the principal office of each of the Reference Lenders in London, England, to prime banks in the London interbank market as at approximately 11:00 A.M. (London, England time) two Business Days before the first day of such Interest Period, in an approximate amount of each such Reference Lender's share of the relevant Borrowing for the applicable Interest Period. The Eurodollar Rate for the Interest Period for each Eurodollar Rate Advance comprising part of the same Borrowing, when being determined pursuant to the foregoing proviso clause, shall be determined by the Administrative Agent on the basis of applicable rates furnished to and received by the Administrative Agent from the Reference Lenders two Business
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~~Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.13.~~
~~"Eurodollar Rate Advance" means an Advance which bears interest determined by reference to the Eurodollar Rate, as provided in Section 2.11(a)(ii).~~
"Eurodollar Reserve Percentage" for any Lender for any Interest Period for any Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) for determining the maximum reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.
~~"Events of Default" has the meaning assigned to such term in Section 7.1.~~
"Excluded Acquisition Debt" means (a) Debt, Guaranties or reimbursement obligations of any Business Entity acquired by the Company or any of its Subsidiaries and which Debt, Guaranties or reimbursement
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document obligations exist immediately prior to such acquisition (provided that (i) such Debt, Guaranties or reimbursement obligations are not incurred solely in anticipation of such acquisition and (ii) immediately prior to such acquisition such Business Entity is not a Subsidiary of the Company), (b) Debt, Guaranties or reimbursement obligations of EPTPC and its Subsidiaries in existence on the date of the merger of El Paso Tennessee Pipeline Company with El Paso Merger Company or (c) Debt, Guaranties or reimbursement obligations in respect of any asset acquired by the Company or any of its Subsidiaries and which Debt, Guaranties or reimbursement obligations exists immediately prior to such acquisition (provided that (i) such Debt, Guaranties or reimbursement obligations are not incurred solely in anticipation of such acquisition and (ii) immediately prior to such acquisition such asset is not an asset of the Company or any of its Subsidiaries).
"Existing 364-Day Facility" means the 364-Day Revolving Credit and Competitive Advance Facility Agreement dated as of August 16, 1999, as the same has been or may be amended, supplemented or otherwise modified prior to the Closing Date, among the Company, EPNGC, Tennessee the several financial institutions from time to time parties thereto, Chase, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agents and Bank of America, N.A., as Syndication Agent, as the same has been and may be amended, supplemented and modified from time to time.
"Existing 5-Year Facility" means the $750,000,000 5-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of October 29, 1997, among the Company, EPNGC, Tennessee, the banks and other lenders parties thereto, Chase as
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Administrative Agent and CAF Advance Agent, Citibank, N.A., as Documentation Agent and Morgan Guaranty Trust Company of New York, as Syndication Agent, as the same has been and may be amended, supplemented and modified from time to time.
"Exposure" means (a) with respect to an Objecting Lender at any time, the aggregate outstanding principal amount of its Revolving Credit Advances and (b) with respect to any other Lender at any time, the maximum amount of the Commitment of such Lender.
"Extension Request" means each request by the Borrowers made pursuant to Section 2.23 for the Lenders to extend the Stated Termination Date, which shall contain the information in respect of such extension specified in Exhibit M and shall be delivered to the Administrative Agent in writing.
~~"Facility Fee Commencement Date" means the date hereof.~~
~~"FERC" means the Federal Energy Regulatory Commission, or any agency or authority of the United States from time to time succeeding to its function.~~
~~"Fixed Rate CAF Advance" means any CAF Advance made pursuant to a Fixed Rate CAF Advance Request.~~
"Fixed Rate CAF Advance Request" means any CAF Advance Request requesting the CAF Advance Lenders to offer to make CAF Advances at a fixed rate (as opposed to a rate composed of the Applicable LIBO Rate plus (or minus) a margin).
~~"GAAP" means generally accepted accounting principles in the United States of America, as in effect from time to time.~~
"Guaranty", "Guaranteed" and "Guaranteeing" each means any act by which any Person assumes, guarantees, endorses or otherwise incurs direct or contingent liability in connection with, or agrees to purchase or otherwise acquire or otherwise assures a creditor against loss in respect of, any Debt or Project Financing of any Person other than the Company or any of its consolidated Subsidiaries (excluding (a) any liability by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (b) any liability in connection with obligations of the Company, any of its consolidated Subsidiaries, including obligations under any conditional sales agreement, equipment trust financing or equipment lease, and (c) any such act in connection with a Project Financing that either (i) guarantees to the provider of such Project Financing or any other Person performance of the acquisition, improvement, installation, design, engineering, construction, development, completion, maintenance or operation of, or otherwise affects any such act in respect of, all or any portion of the project that is financed by such Project Financing or performance by a Project Financing Subsidiary of certain obligations to Persons other than the provider of
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document such Project Financing, except during any period, and then only to the extent, that such
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guaranty is a guaranty of payment of such Project Financing (other than a guaranty of payment of the type referred to in subclause (ii) below) or (ii) is contingent upon, or the obligation to pay or perform under which is contingent upon, the occurrence of any event other than or in addition to the passage of time or any Project Financing becoming due (any such act referred to in this clause (c) being a "Contingent Guaranty"); provided, however, that for purposes of this definition the liability of the Company or any of its Subsidiaries with respect to any obligation as to which a third party or parties are jointly, or jointly and severally, liable as a guarantor or otherwise as contemplated hereby and have not defaulted on its or their portions thereof, shall be only its pro rata portion of such obligation.
"Indebtedness" of any Person means, without duplication (a) indebtedness of such Person for borrowed money, (b) obligations of such Person (other than any portion of any trade payable obligation of such Person which shall not have remained unpaid for 91 days or more from the original due date of such portion) to pay the deferred purchase price of property or services, and (c) obligations of such Person as lessee under leases which shall have been or should be, in accordance with GAAP recorded as capital leases, except that where such indebtedness or obligation of such Person is made jointly, or jointly and severally, with any third party or parties other than any consolidated Subsidiary of such Person, the amount thereof for the purposes of this definition only shall be the pro rata portion thereof payable by such Person, so long as such third party or parties have not defaulted on its or their joint and several portions thereof.
~~"Indemnified Party" means any or all of the Lenders, the Administrative Agent and the CAF Advance Agent.~~
"Interest Period" means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period beginning on the date of such Advance or the date of the Conversion of any Advance into such an Advance and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, or, subject to availability to each Lender, nine or twelve months, in each case as the applicable Borrower may, upon notice received by the Administrative Agent not later than 12:00 noon (New York City time) on the third Business Day prior to the first day of such Interest Period with respect to Eurodollar Rate Advances, select; provided, however, that:
~~(a) the duration of any Interest Period which commences before the Termination Date and would otherwise end after the Termination Date shall end on the Termination Date;~~
~~(b) if the last day of such Interest Period would otherwise occur on a day which is not a Business Day, such last day shall be extended to the~~
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~~next succeeding Business Day, except if such extension would cause such last day to occur in a new calendar month, then such last day shall occur on the next preceding Business Day;~~
~~(c) Interest Periods commencing on the same date for Advances comprising the same Borrowing shall be of the same duration;~~
~~(d) with respect to Advances made by an Objecting Lender, no Interest Period with respect to such Advances shall end after such Objecting Lender's Commitment Expiration Date; and~~
(e) any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (a) above, end on the last Business Day of a calendar month.
~~"Joinder Agreement" means a Joinder Agreement, substantially in the~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document form of Exhibit J hereto, duly executed and delivered by the Company and the Borrowing Subsidiary party thereto.
~~"Lenders" has the meaning assigned to such term in the preamble hereof.~~
~~"LIBO Rate CAF Advance" means any CAF Advance made pursuant to a LIBO Rate CAF Advance Request.~~
"LIBO Rate CAF Advance Request" means any CAF Advance Request requesting the CAF Advance Lenders to offer to make CAF Advances at an interest rate equal to the Applicable LIBO Rate plus (or minus) a margin.
"Lien" means any lien, security interest or other charge or encumbrance, or any assignment of the right to receive income, or any other type of preferential arrangement, in each case to secure any Indebtedness or any Guaranty of any Person.
"Majority Lenders" means Lenders the Commitment Percentages of which aggregate at least 51%, provided, that at any time after the Commitment Expiration Date with respect to any Objecting Lender (but prior to the termination of all the Commitments), "Majority Lenders" shall mean Lenders whose Exposure aggregates at least 51% of the aggregate Exposure of all the Lenders.
~~"Margin Stock" means "margin stock" as defined in Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.~~
~~"Material Adverse Effect" means a material adverse effect on the financial condition or operations of the Company and its consolidated Subsidiaries on a consolidated basis.~~
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"Material Subsidiary" means any Subsidiary of the Company (other than a Project Financing Subsidiary) that itself (on an unconsolidated, stand-alone basis) owns in excess of 10% of the book value of the consolidated assets of the Company and its consolidated Subsidiaries.
~~"Mojave" means Mojave Pipeline Company.~~
"Moody's Bond Rating", with respect to any Borrower, means for any day the Bond Rating of such Borrower, if any, established by Moody's Investors Service, Inc. as in effect at 11:00 A.M., New York City time, on such day.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions and in respect of which the Company or an ERISA Affiliate has any liability (contingent or otherwise), such plan being maintained pursuant to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, which (a) is maintained for employees of the Company or an ERISA Affiliate and at least one Person other than the Company and its ERISA Affiliates or (b) was so maintained and in respect of which the Company or an ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Net Worth" means, as of any date of determination, the sum of the preferred stock and stockholders' equity of the Company as shown on the most recent consolidated balance sheet of the Company delivered pursuant to Section 5.3 plus the cumulative amount by which stockholders" equity of the Company shall have been reduced by reason of non-cash write-downs of long term assets from and after the Effective Date.
~~"Note" has the meaning assigned to such term in Section 2.3(d).~~
~~"Notice of Borrowing" has the meaning specified in Section 2.2(a).~~
"Obligations" means the collective reference to the unpaid principal of and interest on the Advances and the Notes and all other financial liabilities of the Borrowers to the Administrative Agent, the CAF Advance Agent and the Lenders (including interest accruing at the then applicable rate provided in this Agreement after the maturity of the Advances and interest accruing at the then applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Borrower
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
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incurred, which may arise under, out of, or in connection with, this Agreement or the Notes, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to the Administrative Agent, the CAF Advance Agent or to the Lenders that are required to be paid by any Borrower pursuant to this Agreement).
~~"Objecting Lenders" has the meaning assigned to such term in Section 2.23(a).~~
~~"Other Taxes" has the meaning assigned to such term in Section 2.20(b).~~
~~"Party" has the meaning assigned to such term in Section 9.8.~~
~~"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).~~
~~"Permitted Claims" has the meaning assigned to such term in Section 9.9(a).~~
~~"Permitted Liens" means:~~
(i) inchoate Liens and charges imposed by law and incidental to construction, maintenance, development or operation of properties, or the operation of business, in the ordinary course of business if payment of the obligation secured thereby is not yet overdue or if the validity or amount of which is being contested in good faith by the Company or any of its Subsidiaries;
~~(ii) Liens for taxes, assessments, obligations under workers" compensation or other social security legislation or other governmental requirements, charges or levies, in each case not yet overdue;~~
(iii) Liens reserved in any oil, gas or other mineral lease entered into in the ordinary course of business for rent, royalty or delay rental under such lease and for compliance with the terms of such lease;
(iv) easements, servitudes, rights-of-way and other rights, exceptions, reservations, conditions, limitations, covenants and other restrictions that do not materially interfere with the operation, value or use of the properties affected thereby;
(v) conventional provisions contained in any contracts or agreements affecting properties under which the Company or any of its Subsidiaries is required immediately before the expiration, termination or abandonment of a particular property to reassign to such Person"s predecessor in title all or a portion of such Person"s rights, titles and interests in and to all or portion of the such property;
~~(vi) any Lien reserved in a grant or conveyance in the nature of a farm-out or conditional assignment to the Company or any of its Subsidiaries entered into in the~~
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~~ordinary course of business on reasonable terms to secure undertakings of the Company or any such Subsidiary in such grant or conveyance;~~
(vii) any Lien consisting of (A) statutory landlord"s liens under leases to which the Company or any of its Subsidiaries is a party or other Liens on leased property reserved in leases thereof for rent or for compliance with the terms of such leases, (B) rights reserved to or vested in any municipality or governmental, statutory or public authority to control or regulate any property of the Company or any of its Subsidiaries, or to use such property in any manner which does not materially impair the use of such property for the purposes for which it is held by the Company or any such Subsidiary, (C) obligations or duties to any municipality or public authority with respect to any franchise, grant, license, lease or permit and the rights reserved or vested in any governmental authority or public utility to terminate any such franchise, grant, license, lease or
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document permit or to condemn or expropriate any property, and (D) zoning laws and ordinances and municipal regulations;
(viii) any Lien on any assets (including Equity Interests and other obligations) securing Indebtedness or other obligations incurred or assumed for the purpose of financing all or any part of the cost of acquiring, improving, installing, designing, engineering, developing (including drilling), or constructing such assets, provided that such Lien attaches to such assets concurrently with or within 365 days after the acquisition or completion of development, construction or installation thereof or improvement thereto; and
(ix) the creation of interests in property of the character commonly referred to as a "royalty interest" or "overriding royalty interest", production payments, farmouts, leases, subleases, rights of way and other easements, participations, joint venture, joint operating, unitization, pooling and communitization agreements, or other similar transactions in the ordinary course of business.
~~"Person" means an individual, a Business Entity, or a country or any political subdivision thereof or any agency or instrumentality of such country or subdivision.~~
~~"Plan" means a Single Employer Plan or a Multiple Employer Plan.~~
"Prime Rate" means the rate of interest per annum publicly announced from time to time by Chase as its prime rate in effect at its principal office in New York City. The Prime Rate is not intended to be the lowest rate of interest charged by Chase in connection with extensions of credit to debtors.
"Principal Subsidiary" means, at any time, any Subsidiary of the Company (other than a Project Financing Subsidiary) either (a) having assets that are, or owning Subsidiaries with assets that together with its assets are, at such time greater than or equal to 5% of the consolidated assets of the Company and its consolidated Subsidiaries at such time or (b) constituting a Borrowing Subsidiary.
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~~"Process Agent" has the meaning specified in Section 9.9(a).~~
"Project Financing" means any Indebtedness incurred to finance or refinance the acquisition, improvement, installation, design, engineering, construction, development, completion, maintenance or operation of, or otherwise in respect of, all or any portion of any project, or any asset related thereto, and any Guaranty with respect thereto, other than any portion of such Indebtedness or Guaranty permitting or providing for recourse against the Company or any of its Subsidiaries other than (a) recourse to the Equity Interests in, Indebtedness or other obligations of, or assets of, one or more Project Financing Subsidiaries, and (b) such recourse as exists under any Contingent Guaranty.
"Project Financing Subsidiary" means any Subsidiary of the Company whose principal purpose is to incur Project Financing, or to become a direct or indirect partner, member or other equity participant or owner in a Business Entity so created, and substantially all the assets of which Subsidiary or Business Entity are limited to those assets being financed (or to be financed), or the operation of which is being financed (or to be financed), in whole or in part by a Project Financing or to Equity Interests in, or Indebtedness or other obligations of, one or more other such Subsidiaries or Business Entities or to Indebtedness or other obligations of the Company or its Subsidiaries or other Persons.
~~"Rating Agency" means any of Moody"s Investors Service, Inc. and Standard & Poor"s Ratings Group; collectively the "Rating Agencies".~~
"Receivables Purchase and Sale Agreement" means the collective reference to (a) the Receivables Purchase and Sale Agreement dated as of January 14, 1992 among EPNGC, CIESCO L.P., a New York limited partnership, Corporate Asset Funding Company, a Delaware corporation and Citicorp North America, Inc., as agent, as amended as of the date hereof, and (b) the Amended and Restated Receivables Sale Agreement dated as of December 31, 1996 among El Paso Energy Credit Corporation, Asset Securitization Cooperative Corporation and Canadian Imperial Bank of Commerce, as administrative agent, as such Agreement may be amended, supplemented, restated or otherwise modified from time to time, provided that no such amendment, supplement, restatement or modification shall change the scope of such Agreement from that of a receivables securitization transaction.
~~"Reference Lenders" means Chase, Bank of America, N.A., Citibank, N.A.~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document and ABN Amro, N.V..~~
~~"Register" has the meaning specified in Section 9.7(c).~~
~~"Required Lenders" means Lenders (a) that are not Objecting Lenders with respect to any previous Extension Request and (b) that have Commitment Percentages~~
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~~aggregating at least 66-2/3% of the aggregate Commitment Percentages of such non-Objecting Lenders.~~
~~"Revolving Credit Advances" has the meaning assigned to such term in Section 2.1.~~
"S&P Bond Rating", with respect to any Borrower, means for any day the Bond Rating of such Borrower, if any, established by Standard & Poor's Ratings Group as in effect at 11:00 A.M., New York City time, on such day.
"Single Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Company or an ERISA Affiliate and no Person other than the Company and its ERISA Affiliates or (b) was so maintained and in respect of which the Company or an ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
"Sonat Agreement" means the Credit Agreement dated as of April 15, 1999 among Sonat Inc., the banks party thereto, Chase, as Administrative Agent thereunder, Bank of America National Trust and Savings Association, as Syndication Agent thereunder and Suntrust Bank, Atlanta, as Documentation Agent thereunder, as amended, supplemented or otherwise modified from time to time.
~~"Stated Termination Date" means August 4, 2003 or such later date as shall be determined pursuant to the provisions of Section 2.23 with respect to non-Objecting Lenders.~~
"Subsidiary" means, as to any Person, any Business Entity of which shares of stock or other Equity Interests having ordinary voting power (other than stock or such other Equity Interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such Business Entity are at the time owned, directly or indirectly through one or more Subsidiaries, or both, by such Person. Unless otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
~~"Syndication Agent" has the meaning assigned to such term in the preamble hereof.~~
~~"Taxes" has the meaning assigned to such term in Section 2.20(a).~~
~~"Tennessee" has the meaning assigned to such term in the preamble hereof, and its successors.~~
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~~"Termination Date" means the earlier of (a) the Stated Termination Date and (b) the date of termination in whole of the Commitments pursuant to Section 2.9 or 7.1.~~
"Termination Event" means (a) a "reportable event," as such term is described in Section 4043 of ERISA (other than a "reportable event" not subject to the provision for 30-day notice to the PBGC under subsection .11, .12, .13, .14, .16, .18, .19 or .20 of PBGC Reg. " 2615), or an event described in Section 4062(e) of ERISA, or (b) the withdrawal of the Company or any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was a "substantial employer," as such term is defined in Section 4001(a)(2) of ERISA or the incurrence of liability by the Company or any ERISA Affiliate under Section 4064 of ERISA upon the termination of a Multiple Employer Plan, or (c) the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under Section 4041 of ERISA, or (d) the institution of proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, or (e) the conditions set forth in Section 302(f)(1)(A) and (B) of ERISA to the creation of a lien upon property or rights to property of the Company or
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document any ERISA Affiliate for failure to make a required payment to a Plan are satisfied, or (f) the adoption of an amendment to a Plan requiring the provision of security to such Plan, pursuant to Section 307 of ERISA, or (g) the occurrence of any other event or the existence of any other condition which would reasonably be expected to result in the termination of, or the appointment of a trustee to administer, any Plan under Section 4042 of ERISA.
"364-Day Facility" means the $2,000,000,000 364-Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among the Company, EPNGC, Tennessee, the banks and other lenders parties thereto, Chase, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro Bank, N.V., as Co-Documentation Agents and Bank of America, N.A., as Syndication Agent, as the same has been and may be amended, supplemented and modified from time to time.
"Type" means (a) as to any Revolving Credit Advance, its nature as a Base Rate Advance or a Eurodollar Rate Advance and (b) as to any CAF Advance, its nature as a Fixed Rate CAF Advance or a LIBO Rate CAF Advance.
~~"Withdrawal Liability" has the meaning given such term under Part 1 of Subtitle E of Title IV of ERISA.~~
SECTION I.2 Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each means "to but excluding."
SECTION I.3 Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP either (a) consistent with those principles applied in the preparation of the financial statements referred to in Section 4.1(e) or (b) not so materially inconsistent with such principles that a covenant contained in Section 5.1 or 5.2 would
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22 be calculated or construed in a materially different manner or with materially different results than if such covenant were calculated or construed in accordance with clause (a) of this Section 1.3. "Include", "includes" and "including" shall be deemed to be followed by "without limitation" whether or not they are in fact followed by such words or words of like import. References to any agreement or contract are to such agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.
SECTION I.4 References. The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
~~ARTICLE II~~
~~AMOUNTS AND TERMS OF THE ADVANCES~~
SECTION II.1 The Revolving Credit Advances. Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make revolving credit advances ("Revolving Credit Advances") to the Borrowers or any one or more of them from time to time on any Business Day during the period from the date hereof to and including the Termination Date in an aggregate amount not to exceed at any time outstanding the amount of such Lender's Commitment; provided that the aggregate amount of the Advances (other than Advances of Objecting Lenders) outstanding shall not at any time exceed the aggregate amount of the Commitments. Each Borrowing shall be in an aggregate amount of $5,000,000 in the case of a Borrowing comprised of Base Rate Advances and $20,000,000 in the case of a Borrowing comprised of Eurodollar Rate Advances, or, in each case, an integral multiple of $1,000,000 in excess thereof (or, in the case of a Borrowing of Base Rate Advances, the aggregate unused Commitments, if less) and shall consist of Revolving Credit Advances of the same Type made on the same day by the Lenders ratably according to their respective Commitments. Within the limits of each Lender's Commitment, any Borrower may make more than one Borrowing on any Business Day and may borrow, repay pursuant to Section 2.10 or prepay pursuant to Section 2.15, and reborrow under this Section 2.1.
SECTION II.2 Making the Revolving Credit Advances. (a) Each Borrowing of Revolving Credit Advances shall be made on notice by the Company on its own behalf or the Company on behalf of another Borrower, to the Administrative Agent (a "Notice of Borrowing") received by the Administrative Agent, (i) in the case of a proposed Borrowing comprised of Base Rate Advances, not later than 10:00 A.M. (New York City time) on the Business Day of such proposed Borrowing and (ii) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances,
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document not later than 12:00 noon (New York City time) on the third Business Day prior to the date of such proposed Borrowing. Each Notice of Borrowing shall be by telecopy or telephone (and if by telephone, confirmed promptly by telecopier), in substantially the form of Exhibit B, specifying therein the requested (A) Borrower, (B) date of such Borrowing, (C) Type of Revolving Credit Advances comprising such Borrowing, (D) aggregate amount of such Borrowing, and (E) in the case of a Borrowing comprised of Eurodollar Rate Advances, the
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23 initial Interest Period for each such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on the date of such Borrowing, make available to the Administrative Agent at its address at 270 Park Avenue, New York, New York, 10017, Reference: El Paso Energy Corporation, or at such other address designated by notice from the Administrative Agent to the Lenders pursuant to Section 9.2, in same day funds, such Lender's ratable portion of such Borrowing. Immediately after the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the applicable Borrower at Chase, 270 Park Avenue, New York, New York, 10017, Account No. 323291503, Reference: El Paso Energy Corporation, or at such other account of the applicable Borrower maintained by the Administrative Agent (or any successor Administrative Agent) designated by the applicable Borrower and agreed to by the Administrative Agent (or such successor Administrative Agent), in same day funds.
(b) Each Notice of Borrowing shall be irrevocable and binding on the applicable Borrower. In the case of any Borrowing which the related Notice of Borrowing specified is to be comprised of Eurodollar Rate Advances, if such Advances are not made as a result of any failure to fulfill on or before the date specified for such Borrowing the applicable conditions set forth in Article III, the applicable Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of such failure, including, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing.
(c) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.2 and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If and to the extent such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the applicable Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the applicable Borrower until the date such amount is repaid to the Administrative Agent, at the Effective Federal Funds Rate for such day. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's Advance to the applicable Borrower as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
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SECTION II.3 Evidence of Debt. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of each Borrower to such Lender resulting from each Revolving Credit Advance of such Lender to such Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time in respect of such Revolving Credit Advance.
(b) The Administrative Agent shall maintain the Register pursuant to Section 9.7(c), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Revolving Credit Advance made hereunder, the Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower on account of such Revolving Credit Advance to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document hereunder from each Borrower and each Lender's share thereof.~~
(c) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.3(a) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of each Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of each Borrower to repay (with applicable interest) the Revolving Credit Advances made to each such Borrower by such Lender in accordance with the terms of this Agreement.
(d) Each Borrower agrees that, upon the request to the Administrative Agent by any Lender, such Borrower will execute and deliver to such Lender a promissory note of such Borrower evidencing the Revolving Credit Advances of such Lender to such Borrower, substantially in the form of Exhibit A with appropriate insertions as to date and principal amount (a "Note").
SECTION II.4 CAF Advances. Subject to the terms and conditions of this Agreement, the Borrowers or any one or more of them may borrow CAF Advances from time to time during the CAF Advance Availability Period on any Business Day. The Company shall, in consultation with the CAF Advance Agent, designate Lenders from time to time as CAF Advance Lenders by written notice to the CAF Advance Agent. The CAF Advance Agent shall transmit each such notice of designation promptly to each designated CAF Advance Lender. CAF Advances shall be borrowed in amounts such that the aggregate amount of Advances outstanding at any time shall not exceed the aggregate amount of the Commitments at such time. Any CAF Advance Lender may make CAF Advances in amounts which, individually and together with the aggregate amount of other Advances of such CAF Advance Lender, exceed such CAF Advance Lender's Commitment, and such CAF Advance Lender's CAF Advances shall not be deemed to utilize such CAF Advance Lender's Commitment. Within the limits and on the conditions hereinafter set forth with respect to CAF Advances, the Borrowers from time to time may borrow, repay and reborrow CAF Advances.
~~SECTION II.5 Procedure for CAF Advance Borrowings. (a) A Borrower, or the Company on behalf of a Borrower, shall request CAF Advances by delivering a CAF Advance~~
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Request to the CAF Advance Agent, not later than 12:00 Noon (New York City time) four Business Days prior to the date of the proposed Borrowing (in the case of a LIBO Rate CAF Advance Request), and not later than 10:00 A.M. (New York City time) one Business Day prior to the date of the proposed Borrowing (in the case of a Fixed Rate CAF Advance Request). Each CAF Advance Request may solicit bids for CAF Advances in an aggregate principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and having not more than five alternative maturity dates. The maturity date for each CAF Advance shall be not less than 7 days nor more than 360 days after the date of the Borrowing therefor (and in any event shall be not later than the Stated Termination Date); provided that each LIBO Rate CAF Advance shall mature one, two, three or six months or, if available, nine or twelve months after the date of the Borrowing therefor. The CAF Advance Agent shall notify each CAF Advance Lender promptly by telecopy of the contents of each CAF Advance Request received by the CAF Advance Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of notice from the CAF Advance Agent of the contents of such CAF Advance Request, each CAF Advance Lender may elect, in its sole discretion, to offer irrevocably to make one or more CAF Advances at the Applicable LIBO Rate plus (or minus) a margin determined by such CAF Advance Lender in its sole discretion for each such CAF Advance. Any such irrevocable offer shall be made by delivering a CAF Advance Offer to the CAF Advance Agent, before 10:30 A.M. (New York City time) on the day that is three Business Days before the date of the proposed Borrowing, setting forth:
(i) the maximum amount of CAF Advances for each maturity date and the aggregate maximum amount of CAF Advances for all maturity dates which such CAF Advance Lender would be willing to make (which amounts may, subject to Section 2.4, exceed such CAF Advance Lender's Commitment); and
~~(ii) the margin above or below the Applicable LIBO Rate at which such CAF Advance Lender is willing to make each such CAF Advance.~~
The CAF Advance Agent shall advise the Company and the applicable Borrower before 11:00 A.M. (New York City time) on the date which is three Business Days before the proposed date of the Borrowing of the contents of each such CAF Advance Offer received by it. If the CAF Advance Agent, in its capacity as a CAF Advance Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer, it shall advise the Company and the applicable Borrower of the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on the date which is three Business Days before the proposed date of the Borrowing.
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (c) In the case of a Fixed Rate CAF Advance Request, upon receipt of notice from the CAF Advance Agent of the contents of such CAF Advance Request, each CAF Advance Lender may elect, in its sole discretion, to offer irrevocably to make one or more CAF Advances at a rate of interest determined by such CAF Advance Lender in its sole discretion for each such CAF Advance. Any such irrevocable offer shall be made by delivering a CAF Advance Offer to the CAF Advance Agent before 9:30 A.M. (New York City time) on the proposed date of the Borrowing, setting forth:
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(i) the maximum amount of CAF Advances for each maturity date, and the aggregate maximum amount for all maturity dates, which such CAF Advance Lender would be willing to make (which amounts may, subject to Section 2.4, exceed such CAF Advance Lender's Commitment); and
~~(ii) the rate of interest at which such CAF Advance Lender is willing to make each such CAF Advance.~~
The CAF Advance Agent shall advise the Company and the applicable Borrower before 10:00 A.M. (New York City time) on the proposed date of the Borrowing of the contents of each such CAF Advance Offer received by it. If the CAF Advance Agent, in its capacity as a CAF Advance Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer, it shall advise the Company and the applicable Borrower of the contents of its CAF Advance Offer before 9:15 A.M. (New York City time) on the proposed date of the Borrowing.
(d) Before 11:30 A.M. (New York City time) three Business Days before the proposed date of the Borrowing (in the case of CAF Advances requested by a LIBO Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the proposed date of the Borrowing (in the case of CAF Advances requested by a Fixed Rate CAF Advance Request), the Company, in its absolute discretion, shall:
~~(i) cancel such CAF Advance Request by giving the CAF Advance Agent telephone notice to that effect, or~~
(ii) by giving telephone notice to the CAF Advance Agent (immediately confirmed by delivery to the CAF Advance Agent of a CAF Advance Confirmation in writing or by telecopy) (A) subject to the provisions of Section 2.5(e), accept one or more of the offers made by any CAF Advance Lender or CAF Advance Lenders pursuant to Section 2.5(b) or Section 2.5(c), as the case may be, of the amount of CAF Advances for each relevant maturity date and (B) reject any remaining offers made by CAF Advance Lenders pursuant to Section 2.5(b) or Section 2.5(c), as the case may be.
~~(e) The Company's acceptance of CAF Advances in response to any CAF Advance Request shall be subject to the following limitations:~~
(i) the amount of CAF Advances accepted for each maturity date specified by any CAF Advance Lender in its CAF Advance Offer shall not exceed the maximum amount for such maturity date specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all maturity dates specified by any CAF Advance Lender in its CAF Advance Offer shall not exceed the aggregate maximum amount specified in such CAF Advance Offer for all such maturity dates;
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(iii) the Company may not accept offers for CAF Advances for any maturity date in an aggregate principal amount in excess of the maximum principal amount requested in the related CAF Advance Request; and
(iv) if the Company accepts any of such offers, it must accept offers based solely upon pricing for such relevant maturity date and upon no other criteria whatsoever and if two or more CAF Advance Lenders submit offers for any maturity date at identical pricing and the Company accepts any of such offers but does not wish to (or by reason of the limitations set forth in Section 2.4 or in Section 2.5(e)(iii), cannot) borrow the total amount offered by such CAF Advance Lenders with such identical pricing, the Company shall accept offers from all of such CAF Advance Lenders in amounts allocated among them pro rata according to the amounts offered by such CAF Advance Lenders (or as nearly pro rata as shall be practicable after giving effect to the requirement that CAF Advances made by a CAF Advance Lender on a date of the Borrowing for each relevant maturity date shall be in a
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof; provided that if the number of CAF Advance Lenders that submit offers for any maturity date at identical pricing is such that, after the Company accepts such offers pro rata in accordance with the foregoing, the CAF Advance to be made by such CAF Advance Lenders would be less than $5,000,000 principal amount, the number of such CAF Advance Lenders shall be reduced by the CAF Advance Agent by lot until the CAF Advances to be made by such remaining CAF Advance Lenders would be in a principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof).
(f) If the Company notifies the CAF Advance Agent that a CAF Advance Request is cancelled pursuant to Section 2.5(d)(i), the CAF Advance Agent shall give prompt telephone notice thereof to the CAF Advance Lenders.
(g) If the Company accepts pursuant to Section 2.5(d)(ii) one or more of the offers made by any CAF Advance Lender or CAF Advance Lenders, the CAF Advance Agent promptly shall notify each CAF Advance Lender which has made such a CAF Advance Offer of (i) the aggregate amount of such CAF Advances to be made on such Borrowing Date for each maturity date and (ii) the acceptance or rejection of any offers to make such CAF Advances made by such CAF Advance Lender. Before 1:00 P.M. (New York City time) on the date of the Borrowing specified in the applicable CAF Advance Request, each CAF Advance Lender whose CAF Advance Offer has been accepted shall make available to the Administrative Agent at its office set forth in Section 9.2 the amount of CAF Advances to be made by such CAF Advance Lender, in same day funds. The Administrative Agent will make such funds available to the applicable Borrower as soon as practicable on such date at the Administrative Agent's aforesaid address. As soon as practicable after each Borrowing Date, the CAF Advance Agent shall notify each Lender of the aggregate amount of CAF Advances advanced on such Borrowing Date and the respective maturity dates thereof.
~~(h) The failure of any CAF Advance Lender to make the CAF Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any,~~
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(i) A CAF Advance Request may request offers for CAF Advances to be made on not more than one Borrowing Date and to mature on not more than five CAF Advance Maturity Dates. No CAF Advance Request may be submitted earlier than five Business Days after submission of any other CAF Advance Request.
SECTION II.6 CAF Advance Payments. (a) The applicable Borrower shall repay to the Administrative Agent, for the account of each CAF Advance Lender which has made a CAF Advance to it, on the applicable CAF Advance Maturity Date the then unpaid principal amount of such CAF Advance. The Borrowers shall not have the right to prepay any principal amount of any CAF Advance.
(b) The applicable Borrower shall pay interest on the unpaid principal amount of each CAF Advance to it from the date of the Borrowing to the applicable CAF Advance Maturity Date at the rate of interest specified in the CAF Advance Offer accepted by the applicable Borrower in connection with such CAF Advance (calculated on the basis of a 360-day year for actual days elapsed), payable on each applicable CAF Advance Interest Payment Date.
(c) If all or a portion of the principal amount of any CAF Advance shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue principal amount shall, without limiting any rights of any Lender under this Agreement, bear interest from the date on which such payment was due at a rate per annum which is 1% above the rate which would otherwise be applicable pursuant to such CAF Advance until the stated maturity date of such CAF Advance, and for each day thereafter at a rate per annum which is 2% above the Base Rate, in each case until paid in full (as well after as before judgment). Interest accruing pursuant to this paragraph (c) shall be payable from time to time on demand.
SECTION II.7 Evidence of Debt. Each Lender shall maintain in accordance with its usual practice appropriate records evidencing indebtedness of each Borrower to such Lender resulting from each CAF Advance of such Lender to such Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time in respect of such CAF Advance. The Administrative Agent shall maintain the Register pursuant to Section 9.7(c) and a record therein for each Lender, in which shall be recorded (i) the amount of each CAF Advance made by such Lender to each Borrower, the CAF Advance Maturity Date thereof, the interest rate applicable thereto and each CAF
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Advance Interest Payment Date applicable thereto, and (ii) the amount of any sum received by the Administrative Agent hereunder from a Borrower on account of such CAF Advance. The entries made in the Register and the records of each Lender maintained pursuant to this Section 2.7 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of each Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such record, or any error therein,
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~~29 shall not in any manner affect the obligation of each Borrower to repay (with applicable interest) the CAF Advances made by such Lender in accordance with the terms of this Agreement.~~
SECTION II.8 Fees. (a) The Company agrees to pay to the Administrative Agent for the account of each Lender a facility fee for the period from and including the Facility Fee Commencement Date until all Advances have been paid in full and all Commitments have been terminated, computed at a variable rate per annum on the average daily amount of the greater of (i) the Commitment of such Lender and (ii) the outstanding principal amount of Revolving Credit Advances of such Lender during the period for which payment is made, which rate will vary according to the S&P Bond Rating for the Company and the Moody's Bond Rating for the Company as follows:
Bond Rating Facility (S&P/Moody's) Level Fee Rate ------
~~A/A2 or higher I .080% A-/A3 II .090% BBB+/Baa1 III .110% BBB/Baa2 IV .125% BBB-/Baa3 V .175% BB+/Ba1 or lower VI .225%;~~
provided that (i) if the Bond Ratings of the Company do not fall within the same Level, the rate applicable to such day will be the percentage opposite the Bond Rating that is at the higher Level (Level I being the highest and Level VI being the lowest), (ii) in the event a Bond Rating for the Company is not available from one of the Rating Agencies, the rate shall be based on the Bond Rating of the other Rating Agency, and (iii) in the event a Bond Rating for the Company is available from none of the Rating Agencies, the rate will be the percentage opposite Level VI. Such facility fees shall be payable quarterly in arrears on the last day of each March, June, September and December and on the Termination Date or such earlier date on which the Commitments shall terminate as provided herein, and, if the Lender is an Objecting Lender, on the Commitment Expiration Date applicable to such Lender and on the Termination Date (or if the Lender is an Objecting Lender, the Commitment Expiration Date applicable to such Lender) or such earlier date on which the Advances are repaid in full, commencing on the first of such dates to occur after the date hereof.
(b) The Company agrees to pay to Chase Securities Inc., the Administrative Agent and the CAF Advance Agent the fees set forth in the letter, dated as of July 5, 2000 from Chase Securities Inc. and Chase to the Company.
SECTION II.9 Reduction of the Commitments. The Company shall have the right, upon at least three Business Days' notice to the Administrative Agent, to terminate in whole or reduce ratably in part the unused portions of the respective Commitments of the Lenders, provided that each partial reduction shall be in the aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof.
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SECTION II.10 Repayment of Advances. The Borrowers shall repay to each Lender on the Termination Date the aggregate principal amount of the Advances then owing to such Lender; provided that the Revolving Credit Advances made by Objecting Lenders shall be repaid as provided in Section 2.23.
SECTION II.11 Interest on Revolving Credit Advances. (a) Ordinary Interest. Each Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Advance of such Borrower owing to each Lender from the
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document date of such Advance until such principal amount is due (whether at stated maturity, by acceleration or otherwise), at the following rates:
(i) Base Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the Base Rate in effect from time to time, payable quarterly in arrears on the last day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or due (whether at stated maturity, by acceleration or otherwise).
(ii) Eurodollar Rate Advances. During such periods as such Advance is a Eurodollar Rate Advance, at a rate per annum equal at all times during each Interest Period for such Advance to the sum of the Eurodollar Rate for such Interest Period plus the Applicable Eurodollar Rate Margin for such Borrower in effect from time to time, payable on the last day of each such Interest Period and, if any such Interest Period has a duration of more than three months, on each day which occurs during such Interest Period every three months from the first day of such Interest Period, and on the date such Advance shall be Converted or due (whether at stated maturity, by acceleration or otherwise).
(b) Default Interest. The applicable Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Advance to it that is not paid when due (whether at stated maturity, by acceleration or otherwise) from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times (i) from such due date to the last day of the then existing Interest Period in the case of each Eurodollar Rate Advance, to 1% per annum above the interest rate per annum required to be paid on such Advance immediately prior to the date on which such amount became due, and (ii) from and after the last day of the then existing Interest Period, and at all times in the case of any Base Rate Advance, to 1% per annum above the Base Rate in effect from time to time.
SECTION II.12 Additional Interest on Eurodollar Rate Advances. If any Lender shall determine in good faith that reserves under regulations of the Board of Governors of the Federal Reserve System are required to be maintained by it in respect of, or a portion of its costs of maintaining reserves under such regulations is properly attributable to, one or more of its Eurodollar Rate Advances, the applicable Borrower shall pay to such Lender additional interest on the unpaid principal amount of each such Eurodollar Rate Advance to it (other than any such additional interest accruing to a particular Lender in respect of periods prior to the 30th day
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31 preceding the date notice of such interest is given by such Lender as provided in this Section 2.12), payable on the same day or days on which interest is payable on such Advance, at an interest rate per annum equal at all times during each Interest Period for such Advance to the excess of (i) the rate obtained by dividing the Eurodollar Rate for such Interest Period by a percentage equal to 100% minus the Eurodollar Reserve Percentage, if any, for such Lender for such Interest Period over (ii) the Eurodollar Rate for such Interest Period. The amount of such additional interest (if any) shall be determined by each Lender, and such Lender shall furnish written notice of the amount of such additional interest to the Company and the Administrative Agent, which notice shall be conclusive and binding for all purposes, absent manifest error.
SECTION II.13 Interest Rate Determination. (a) Each Reference Lender agrees to furnish to the Administrative Agent timely information for the purpose of determining the Eurodollar Rate. If any one or more of the Reference Lenders shall not furnish such timely information to the Administrative Agent for the purpose of determining any such interest rate, the Administrative Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Lenders.
(b) The Administrative Agent shall give prompt notice to the Company and the Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.11(a)(i) or (ii), and the applicable rate, if any, furnished by each Reference Lender for the purpose of determining the applicable interest rate under Section 2.11(a)(ii).
(c) If fewer than two Reference Lenders furnish timely information to the Administrative Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Administrative Agent shall give the Company and each Lender prompt notice thereof by telephone (confirmed in writing) that the interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (or if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligations of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority Lenders determine and give notice to the Administrative Agent that, as a result of conditions in or generally affecting the London interbank eurodollar market, the rates of interest determined on the basis of the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Majority Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Company and the Lenders, whereupon,
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(i) each such Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist.
(e) If the applicable Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of "Interest Period" in Section 1.1, the Administrative Agent will forthwith so notify the applicable Borrower and the Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $10,000,000, such Eurodollar Rate Advances shall automatically Convert into Base Rate Advances, and on and after such date the right of the applicable Borrower to Convert such Advances into Eurodollar Rate Advances shall terminate; provided, however, that if and so long as each such Eurodollar Rate Advance shall have the same Interest Period as Eurodollar Rate Advances comprising another Borrowing or other Borrowings, and the aggregate unpaid principal amount of all such Eurodollar Rate Advances shall equal or exceed $20,000,000, the applicable Borrower shall have the right to continue all such Advances as, or to Convert all such Advances into Eurodollar Rate Advances having the same Interest Period.
(g) If any Reference Lender shall for any reason no longer have a Commitment or any Revolving Credit Advances, such Reference Lender shall thereupon cease to be a Reference Lender, and if, as a result, there shall only be one Reference Lender remaining, the Administrative Agent (after consultation with the Company and the Lenders) shall, by notice to the Company and the Lenders, designate another Lender as a Reference Lender so that there shall at all times be at least two Reference Lenders.
SECTION II.14 Voluntary Conversion of Advances. Any Borrower may on any Business Day, upon notice given to the Administrative Agent, not later than 10:00 A.M. (New York City time) on the Business Day of the proposed Conversion of Eurodollar Rate Advances to Base Rate Advances and not later than 12:00 noon (New York City time) on the third Business Day prior to the date of the proposed Conversion in the case of a Conversion of Base Rate Advances to Eurodollar Rate Advances, and subject to the provisions of Sections 2.13, 2.16 and 2.18, Convert all Advances of one Type comprising the same Borrowing into Advances of another Type; provided, however, that any Conversion of any Eurodollar Rate Advances into Base Rate Advances made on any day other than the last day of an Interest Period for such Eurodollar Rate Advances shall be subject to the provisions of Section 9.4(b); and provided, further, that no Revolving Credit Advance may be converted into a Eurodollar Rate Advance after the date that is one month prior to (a) in the case of a Revolving Credit Advance made by an
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Objecting Lender, such Objecting Lender's Commitment Expiration Date, and (b) in the case of all Revolving Credit Advances, the Termination Date and provided, still further, that no Revolving Credit Advance may be converted into a Eurodollar Rate Advance if an Event of Default has occurred and is continuing.
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Each such notice of a Conversion shall, within the restrictions specified above, specify (a) the date of such Conversion, (b) the Advances to be Converted, and (c) if such Conversion is into Eurodollar Rate Advances, the duration of the Interest Period for each such Advance.
SECTION II.15 Optional and Mandatory Prepayments. (a) Optional Prepayments. Any Borrower may upon (i) in the case of Eurodollar Rate Advances, at least two Business Days' notice and (ii) in the case of Base Rate Advances, telephonic notice not later than 12:00 noon (New York City time) on the date of prepayment, to the Administrative Agent which specifies the proposed date and aggregate principal amount of the prepayment and the Type of Advances to be prepaid, and if such notice is given such Borrower shall, prepay the outstanding principal amounts of the Revolving Credit Advances comprising the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the amount prepaid; provided, however, that (A) each partial prepayment shall be in an aggregate principal amount not less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (B) in the event of any such prepayment of Eurodollar Rate Advances on any day other than the last day of an Interest Period for such Eurodollar Rate Advances, such Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to, and to the extent required by, Section 9.4(b); provided, further, however, that such Borrower will use its best efforts to give notice to the Administrative Agent of the proposed prepayment of Base Rate Advances on the Business Day prior to the date of such proposed prepayment.
(b) Mandatory Prepayments. If, at any time and from time to time, the aggregate principal amount of Advances (other than Advances of Objecting Lenders) then outstanding exceeds the Commitments of all the Lenders after giving effect to any reduction of the Commitments pursuant to Section 2.9, the Borrowers shall immediately prepay the Revolving Credit Advances of Lenders (other than Objecting Lenders) (to the extent there are such outstanding Revolving Credit Advances) by an amount equal to such excess.
SECTION II.16 Increased Costs. (a) If, due to either (i) the introduction after the date of this Agreement of or any change after the date of this Agreement (including any change by way of imposition or increase of reserve requirements or assessments other than those referred to in the definition of "Eurodollar Reserve Percentage" contained in Section 1.1) in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request issued or made after the date of this Agreement from or by any central bank or other governmental authority (whether or not having the force of law), in each case above other than those referred to in Section 2.17, there shall be any increase in the cost to any Lender of agreeing to make, fund or maintain, or of making, funding or maintaining, Eurodollar Rate Advances funded in the interbank Eurodollar market, then the Borrowers shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to reimburse such Lender for all such increased costs (except those costs incurred more than 60 days prior to the date of such
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34 demand; for the purposes hereof any cost or expense allocable to a period prior to the publication or effective date of such an introduction, change, guideline or request shall be deemed to be incurred on the later of such publication or effective date). Each Lender agrees to use its best efforts promptly to notify the Company of any event referred to in clause (i) or (ii) above, provided that the failure to give such notice shall not affect the rights of any Lender under this Section 2.16(a) (except as otherwise expressly provided above in this Section 2.16(a)). A certificate as to the amount of such increased cost, submitted to the Company and the Administrative Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error. After one or more Lenders have notified the Company of any increased costs pursuant to this Section 2.16, the Company may specify by notice to the Administrative Agent and the affected Lenders that, after the date of such notice whenever the election of Eurodollar Rate Advances by the applicable Borrower for an Interest Period or portion thereof would give rise to such increased costs, such election shall not apply to the Revolving Credit Advances of such Lenders during such Interest Period or portion thereof, and, in lieu thereof, such Revolving Credit Advances shall during such Interest Period or portion thereof be Base Rate Advances. Each Lender agrees to use its best efforts (including a reasonable effort to change its lending office or to transfer its affected Advances to an affiliate of such Lender) to avoid, or minimize the amount of, any demand for payment from the Borrowers under this Section 2.16.
(b) In the event that any Lender shall change its lending office and such change results (at the time of such change) in increased costs to such Lender, the Borrowers shall not be liable to such Lender for such increased costs incurred by such Lender to the extent, but only to the extent, that such increased costs shall exceed the increased costs which such Lender would have
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document incurred if the lending office of such Lender had not been so changed, but, subject to subsection (a) above and to Section 2.18, nothing herein shall require any Lender to change its lending office for any reason.
SECTION II.17 Increased Capital. If either (a) the introduction of or any change in or in the interpretation of any law or regulation or (b) compliance by any Lender with any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and such Lender determines that the amount of such capital is increased by or based upon the existence of such Lender's commitment to lend hereunder and other commitments of this type, then, within ten days after demand, and delivery to the Company of the certificate referred to in the last sentence of this Section 2.17 by such Lender (with a copy of such demand to the Administrative Agent), the applicable Borrowers shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender's commitment to lend hereunder (except any such increase in capital incurred more than, or compensation attributable to the period before, 90 days prior to the date of such demand; for the purposes hereof any increase in capital allocable to, or compensation attributable to, a period prior to the publication or effective date of such an introduction, change, guideline or request shall be deemed to be incurred on the later of such publication or effective date). Each Lender
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35 agrees to use its best efforts promptly to notify the Company of any event referred to in clause (a) or (b) above, provided that the failure to give such notice shall not affect the rights of any Lender under this Section 2.17 (except as otherwise expressly provided above in this Section 2.17). A certificate in reasonable detail as to the basis for, and the amount of, such compensation submitted to the Company by such Lender shall, in the absence of manifest error, be conclusive and binding for all purposes.
SECTION II.18 Illegality. Notwithstanding any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other governmental authority shall assert that it is unlawful, for any Lender or its lending office to perform its obligations hereunder to make Eurodollar Rate Advances or to continue to fund or maintain such Advances hereunder, such Lender may, by notice to the Company and the Administrative Agent, suspend the right of the Borrowers to elect Eurodollar Rate Advances from such Lender and, if necessary in the reasonable opinion of such Lender to comply with such law or regulation, Convert all such Eurodollar Rate Advances of such Lender to Base Rate Advances at the latest time permitted by the applicable law or regulation, and such suspension and, if applicable, such Conversion shall continue until such Lender notifies the Company and the Administrative Agent that the circumstances making it unlawful for such Lender to perform such obligations no longer exist (which such Lender shall promptly do when such circumstances no longer exist). So long as the obligation of any Lender to make Eurodollar Rate Advances has been suspended under this Section 2.18, all Notices of Borrowing specifying Advances of such Type shall be deemed, as to such Lender, to be requests for Base Rate Advances. Each Lender agrees to use its best efforts (including a reasonable effort to change its lending office or to transfer its affected Advances to an affiliate) to avoid any such illegality.
SECTION II.19 Pro Rata Treatment, Payments and Computations. (a) Each Borrowing by any Borrower in respect of Revolving Credit Advances (subject to the provisions of Section 2.24(e)) shall be made pro rata according to the respective Commitment Percentages of the Lenders. The Borrowers shall make each payment hereunder (including under Section 2.6, 2.8, 2.10 or 2.11) and under the Notes, whether the amount so paid is owing to any or all of the Lenders or to the Administrative Agent, not later than 12:00 noon (New York City time) without setoff, counterclaim, or any other deduction whatsoever, on the day when due in Dollars to the Administrative Agent at its address at 270 Park Avenue, New York, New York 10017, Reference: El Paso Energy Corporation, or at such other location designated by notice to the Company from the Administrative Agent and agreed to by the Company, in same day funds. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or facility fees ratably (other than amounts payable pursuant to Section 2.12, 2.16, 2.17, 2.18 or 2.20) according to the respective amounts of such principal, interest or facility fees then due and owing to the Lenders, and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.7(d), from and after the effective date specified in such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document under the Notes in respect of
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36 the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Prime Rate and of facility fees shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Effective Federal Funds Rate shall be made by the Administrative Agent, and all computations of interest pursuant to Section 2.12 shall be made by each Lender with respect to its own Advances, on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent (or, in the case of Section 2.12, 2.16, 2.17, 2.18 or 2.20, by each Lender with respect to its own Advances) of an interest rate or an increased cost or increased capital or of illegality hereunder shall be conclusive and binding for all purposes if made reasonably and in good faith.
(c) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest; provided, however, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from the Company or any other applicable Borrower prior to the date on which any payment is due to the Lenders hereunder that the applicable Borrower will not make such payment in full, the Administrative Agent may assume that the applicable Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the applicable Borrower shall not have so made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at a rate equal to the Effective Federal Funds Rate for such day.
SECTION II.20 Taxes. (a) Any and all payments by the Borrowers hereunder or under the Notes to each Indemnified Party shall be made, in accordance with Section 2.19, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding all taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, imposed by the jurisdiction under the laws of which such Indemnified Party is organized, domiciled, resident or doing business, or any political subdivision thereof or by any jurisdiction in which such Indemnified Party holds any interest in connection with this Agreement or any Note (including in the case of each Lender, the jurisdiction of such Lender's lending office) or
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37 any political subdivision thereof, other than by any jurisdiction with which the Indemnified Party's connection arises solely from having executed, delivered or performed obligations or received a payment under, or enforced, this Agreement or any Note (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If any Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Indemnified Party, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.20) such Indemnified Party receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make or cause to be made such deductions and (iii) such Borrower shall pay or cause to be paid the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law, provided that the Borrowers shall not be required to pay any additional amount (and shall be relieved of any liability with respect thereto) pursuant to this subsection (a) to any Indemnified Party that either (A) on the date such Lender became an Indemnified
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Party hereunder, (I) was not entitled to submit a U.S. Internal Revenue Service form 1001 (relating to such Indemnified Party, and entitling it to a complete exemption from United States withholding taxes on all amounts to be received by such Indemnified Party pursuant to this Agreement) and a U.S. Internal Revenue Service form 4224 (relating to all amounts to be received by such Indemnified Party pursuant to this Agreement) and (II) was not a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) or (B) has failed to submit any form or certificate that it was required to file or provide pursuant to subsection (d) of this Section 2.20 and is entitled to file or give, as applicable, under applicable law, provided, further, that should an Indemnified Party become subject to Taxes because of its failure to deliver a form required hereunder, the Borrowers shall take such steps as such Indemnified Party shall reasonably request to assist such Indemnified Party to recover such Taxes, and provided, further, that each Indemnified Party, with respect to itself, agrees to indemnify and hold harmless the Borrowers from any taxes, penalties, interest and other expenses, costs and losses incurred or payable by the Borrowers as a result of the failure of any of the Borrowers to comply with its obligations under clause (ii) or (iii) above in reliance on any form or certificate provided to it by such Indemnified Party pursuant to this Section 2.20. If any Indemnified Party receives a net credit or refund in respect of such Taxes or amounts so paid by the Borrowers, it shall promptly notify the Company of such net credit or refund and shall promptly pay such net credit or refund to the applicable Borrower, provided that the applicable Borrower agrees to return such net credit or refund if the Indemnified Party to which such net credit or refund is applicable is required to repay it.
(b) In addition, each Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made by such Borrower hereunder or under the Notes or from the execution, delivery or performance of, or otherwise with respect to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Indemnified Party and the Administrative Agent for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.20) paid by such
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Indemnified Party and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto except as a result of the gross negligence (which shall in any event include the failure of such Indemnified Party to provide to the Borrowers any form or certificate that it was required to provide pursuant to subsection (d) below) or willful misconduct of such Indemnified Party, whether or not such Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Indemnified Party makes written demand therefor.
(d) On or prior to the date on which each Indemnified Party organized under the laws of a jurisdiction outside the United States becomes an Indemnified Party hereunder, such Indemnified Party shall provide the Company with U.S. Internal Revenue Service form 1001 or 4224, as appropriate, or any successor form prescribed by the U.S. Internal Revenue Service, certifying that such Indemnified Party is fully exempt from United States withholding taxes with respect to all payments to be made to such Indemnified Party hereunder, or other documents satisfactory to the Company indicating that all payments to be made to such Indemnified Party hereunder are fully exempt from such taxes. Thereafter and from time to time (but only so long as such Indemnified Party remains lawfully able to do so), each such Indemnified Party shall submit to the Company such additional duly completed and signed copies of one or the other of such Forms (or such successor Forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be (i) notified by any Borrower to such Indemnified Party and (ii) required under then-current United States law or regulations to avoid United States withholding taxes on payments in respect of all amounts to be received by such Indemnified Party pursuant to this Agreement or the Notes. Upon the request of any Borrower from time to time, each Indemnified Party that is a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) shall submit to the Company a certificate to the effect that it is such a United States person. If any Indemnified Party determines, as a result of any change in applicable law, regulation or treaty, or in any official application or interpretation thereof, that it is unable to submit to the Company any form or certificate that such Indemnified Party is obligated to submit pursuant to this subsection (d), or that such Indemnified Party is required to withdraw or cancel any such form or certificate previously submitted, such Indemnified Party shall promptly notify the Company of such fact.
(e) Any Indemnified Party claiming any additional amounts payable pursuant to this Section 2.20 shall use its best efforts (consistent with its internal policy and legal and regulatory restrictions) to change the
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document jurisdiction of its lending office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts which may thereafter accrue and would not, in the reasonable judgment of such Indemnified Party, be otherwise disadvantageous to such Indemnified Party.
(f) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers and each Indemnified Party contained in this Section 2.20 shall survive the payment in full of principal and interest hereunder and under the Notes.
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(g) Any other provision of this Agreement to the contrary notwithstanding, any amounts which are payable by any Borrower under this Section 2.20 shall not be payable under Section 2.16.
SECTION II.21 Sharing of Payments, Etc. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances made by it (other than pursuant to Section 2.12, 2.16, 2.17, 2.18 or 2.20) in excess of its ratable share of payments on account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Advances made by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them, provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and each Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender's ratable share (according to the proportion of (a) the amount of such Lender's required repayment to (b) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation.
SECTION II.22 Use of Proceeds. Proceeds of the Advances may be used for general business purposes of the Borrowers and their respective Subsidiaries, including for acquisitions and for payment of commercial paper issued by the Borrowers, and to refinance any Indebtedness of the Borrowers and their respective Subsidiaries (whether in connection with any acquisition or otherwise).
SECTION II.23 Extension of Stated Termination Date. (a) Not less than 45 days and not more than 60 days prior to the Stated Termination Date then in effect, provided that no Event of Default shall have occurred and be continuing, the Company may request an extension of such Stated Termination Date by submitting to the Administrative Agent an Extension Request containing the information in respect of such extension specified in Exhibit M, which the Administrative Agent shall promptly furnish to each Lender. Each Lender shall, not less than 30 days and not more than 60 days prior to the Stated Termination Date then in effect, notify the Company and the Administrative Agent of its election to extend or not extend the Stated Termination Date as requested in such Extension Request. Notwithstanding any provision of this Agreement to the contrary, any notice by any Lender of its willingness to extend the Stated Termination Date shall be revocable by such Lender in its sole and absolute discretion at any time prior to the date which is 30 days prior to the Stated Termination Date then in effect. If the Required Lenders shall approve in writing the extension of the Stated Termination Date requested in such Extension Request, the Stated Termination Date shall automatically and without any further action by any Person be extended for the period specified in such Extension Request; provided that (i) each extension pursuant to this Section 2.23 shall be for a maximum of three years and (ii) the Commitment of any Lender that does not consent in writing, or which
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40 revokes, in accordance with the provisions of this Section 2.23, its consent to such extension not less than 30 days and not more than 60 days prior to the Stated Termination Date then in effect and has not thereafter reinstated its consent (an "Objecting Lender") shall, unless earlier terminated in accordance with this Agreement, expire on the Stated Termination Date in effect on the date of such Extension Request (such Stated Termination Date, if any, being referred to as the "Commitment Expiration Date" with respect to such Objecting Lender). If, not less than 30 days and not more than 60 days prior to the Stated
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Termination Date then in effect, the Required Lenders shall not approve in writing the extension of the Stated Termination Date requested in an Extension Request, the Stated Termination Date shall not be extended pursuant to such Extension Request. The Administrative Agent shall promptly notify (y) the Lenders and the Company of any extension of the Stated Termination Date pursuant to this Section 2.23 and (z) the Company and the Lenders of any Lender which becomes an Objecting Lender.
(b) Revolving Credit Advances owing to any Objecting Lender on the Commitment Expiration Date with respect to such Lender shall be repaid in full on or before such Commitment Expiration Date.
(c) The Borrowers shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and the Objecting Lenders in accordance with Section 2.15, to prepay in full the Revolving Credit Advances of the Objecting Lenders, together with accrued interest thereon, any amounts payable pursuant to Sections 2.11, 2.12, 2.16, 2.17, 2.18, 2.20 and 9.4(b) and any accrued and unpaid facility fee or other amounts payable to the Objecting Lenders hereunder and/or, upon giving not less than three Business Days' notice to the Objecting Lenders and the Administrative Agent, to cancel the whole or part of the Commitments of the Objecting Lenders.
(d) Notwithstanding the foregoing, if any Lender becomes an Objecting Lender, the Borrower may, at its own expense and in its sole discretion and prior to the then Stated Termination Date, require such Lender to transfer or assign, in whole or in part, without recourse (in accordance with Section 9.7), all or part of its interests, rights and obligations under this Agreement to an Eligible Assignee (provided that the Borrower, with the full cooperation of such Lender, can identify an Eligible Assignee that is ready, willing and able to be an assignee with respect thereto) which shall assume such assigned obligations (which assignee may be another Lender, if such assignee Lender accepts such assignment); provided that (A) the assignee or the Borrower, as the case may be, shall have paid to such Lender in immediately available funds the principal of and interest accrued to the date of such payment on the Advances made by it hereunder and all other amounts owed to it hereunder, including any amounts owing pursuant to Section 9.4(b) and any amounts that would be owing under said Section if such Advances were prepaid on the date of such assignment, and (B) such assignment does not conflict with any law, rule or regulation or order of any governmental authority. Any assignee which becomes a Lender as a result of such an assignment made pursuant to this paragraph (d) shall be deemed to have consented to the applicable Extension Request and, therefore, shall not be an Objecting Lender.
SECTION II.24 [Intentionally Left Blank]
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SECTION II.25 Replacement of Lenders. If any Lender requests compensation under Sections 2.12, 2.16 or 2.17 or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.20, or if any Lender suspends the right of any Borrower to elect Eurodollar Rate Advances from such Lender pursuant to Section 2.18, or if any Lender defaults in its obligation to fund Advances hereunder, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.7), all its interests, rights and obligations under this Agreement (other than any outstanding CAF Advances held by it) to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances (other than CAF Advances), accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Sections 2.12 , 2.16 or 2.17 or payments required to be made pursuant to Section 2.20, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
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Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION III.1 Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective (the "Effective Date") when (i) it shall have been executed by the Company, EPNGC Tennessee, the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents and the Syndication Agent and (ii) the Administrative Agent and the Company either shall have been notified by each Lender that such Lender has executed it or shall have received a counterpart of this Agreement executed by such Lender (or compliance with the forgoing shall have been waived by the Lenders). Anything in this Agreement to the contrary notwithstanding, if all of the conditions to effectiveness of this Agreement specified in this Section 3.1 shall not have been fulfilled on or before August 31, 2000, (i) the Company shall on such date pay all accrued and unpaid facility fees pursuant to Section 2.8 and (ii) this Agreement, and all of the obligations of the Company, the Lenders, the Administrative Agent and the CAF Advance Agent hereunder, shall be terminated on and as of 5:00 P.M. (New York City time) on August 31, 2000; provided, however, that as soon as the Administrative Agent determines that all of the conditions to effectiveness of this Agreement specified in this Section 3.1 shall have been fulfilled on or before August 31, 2000, the Administrative Agent shall furnish written notice to the Company and the Lenders to the effect that it has so determined, and such notice by the Administrative Agent shall constitute conclusive evidence that this Agreement shall have become effective for all purposes. Notwithstanding the foregoing, the obligations of the Company to pay fees pursuant to Section 2.8 as well as all obligations of the Borrowers pursuant to Section 9.4 shall survive the termination of this Agreement.
SECTION III.2 Conditions Precedent to Initial Advances. The agreement of each Lender to make the initial Advances to be made by it to the Borrowers hereunder is subject to (the date upon which all conditions listed in Section 3.2(a) and 3.2(b) are satisfied, the "Closing Date") (a) the occurrence of the Effective Date hereunder and (b) the receipt by the Administrative Agent of the following in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender:
(i) Certified copies of the resolutions of the Board of Directors of each of the Company, EPNGC and Tennessee approving the borrowings contemplated hereby and authorizing the execution of this Agreement and the Notes, and of all documents evidencing other necessary Business Entity action of each of the Company, EPNGC and Tennessee and governmental approvals to each of the Company, EPNGC and Tennessee, if any, with respect to this Agreement and the Notes.
(ii) A certificate of the Secretary or an Assistant Secretary of each of the Company, EPNGC and Tennessee certifying the names and true signatures of the officers of each of the Company, EPNGC and Tennessee authorized to sign this Agreement and the other documents to be delivered by it hereunder.
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(iii) A favorable opinion of the Senior Counsel of the Company, or the Associate General Counsel of the Company, in substantially the form of Exhibit G.
(iv) A favorable opinion of Jones, Day, Reavis & Pogue, New York counsel to the Company, EPNGC and Tennessee, in substantially the form of Exhibit H.
(v) A letter from the Process Agent, in substantially the form of Exhibit I, agreeing to act as Process Agent for each of the Company, EPNGC and Tennessee and to forward forthwith all process received by it to the Company, EPNGC and Tennessee, as applicable.
(vi) Evidence satisfactory to the Administrative Agent that all advances, accrued interest and other fees and any other amounts owing to the lenders and the agents under the Existing 364-Day Facility and the Existing 5-Year Facility shall have been, or simultaneously with the initial Advances are being, paid in full, and the commitments to make advances thereunder shall have been cancelled.
SECTION III.3 Conditions Precedent to Initial Advances to Any Borrowing Subsidiary. The agreement of each Lender to make the initial Advances to be made by it to any Borrowing Subsidiary (other than EPNGC and Tennessee) is further subject to the Administrative Agent receiving the following, in form and substance satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each Lender:
(a) A Joinder Agreement executed and delivered by such Borrowing
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Subsidiary conforming to the requirements hereof.
(b) Notes, dated the date such Borrowing Subsidiary executes and delivers its Joinder Agreement, made by such Borrowing Subsidiary to the order of each Lender requesting a Note, respectively.
(c) A certificate of the Secretary or an Assistant Secretary of such Borrowing Subsidiary certifying the names and true signature of the officers of such Borrowing Subsidiary authorized to sign the Joinder Agreement and the other documents to be delivered by it hereunder.
(d) A favorable opinion of the Senior Counsel or Associate General Counsel of the Company, given upon the express instructions of the Company, in substantially the form of Exhibit K, and as to such other matters as any Lender through the Administrative Agent may reasonably request, with such assumptions, qualifications and exceptions as the Administrative Agent may approve.
(e) A favorable opinion of Jones, Day, Reavis & Pogue or other New York counsel to the Company reasonably satisfactory to the Administrative Agent, in substantially the form of Exhibit L, and as to such other matters as any Lender through
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the Administrative Agent may reasonably request, with such assumptions, qualifications and exceptions as the Administrative Agent may approve.
(f) A letter from the Process Agent, in substantially the form of Exhibit I, agreeing to act as Process Agent for such Borrowing Subsidiary, as the case may be, and to forward forthwith all process received by it to such Borrowing Subsidiary.
(g) Evidence satisfactory to the Administrative Agent that all advances, accrued interest and other fees and any other amounts owing to the lenders and the agents under the Existing 364-Day Facility and the Existing 5-Year Facility shall have been, or simultaneously with the initial Advances are being, paid in full, and the commitments to make advances thereunder shall have been canceled.
SECTION III.4 Conditions Precedent to Each Borrowing. The obligation of each Lender to make an Advance (including the initial Advance, but excluding any continuation or Conversion of an Advance) on the occasion of any Borrowing shall be subject to the conditions precedent that on or before the date of such Borrowing this Agreement shall have become effective pursuant to Section 3.1 and, before and immediately after giving effect to such Borrowing and to the application of the proceeds therefrom, the following statements shall be true and correct, and the giving by the applicable Borrower or the Company on such Borrower's behalf of the applicable Notice of Borrowing and the acceptance by the applicable Borrower of the proceeds of such Borrowing shall constitute its representation and warranty that on and as of the date of such Borrowing, before and immediately after giving effect thereto and to the application of the proceeds therefrom, the following statements are true and correct:
(i) each representation and warranty contained in Section 4.1 is correct in all material respects as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from such Borrowing, which constitutes an Event of Default or a Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION IV.1 Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) The Company is a Business Entity duly formed, validly existing and, if applicable, in good standing under the laws of the State of Delaware. Each Principal Subsidiary is duly organized or formed, validly existing and, if applicable, in good standing in the jurisdiction of its organization or formation. The Company and each Principal Subsidiary possess 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.
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(b) The execution, delivery and performance by each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and its Notes (as applicable) are within such Borrower's applicable Business Entity powers, have been duly authorized by all necessary applicable Business Entity action, and do not contravene (A) such Borrower's organizational documents or (B) any law or any material contractual restriction binding on or affecting such Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable), except those necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to which it is a party (as applicable) when delivered hereunder shall constitute the legal, valid and binding obligations of each Borrower, enforceable against such Borrower 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.
(e) The consolidated balance sheet of the Company and its consolidated Subsidiaries as at December 31, 1999, and the related consolidated statements of income and cash flows of the Company and its consolidated Subsidiaries for the fiscal year then ended, reported on by PricewaterhouseCoopers LLP, independent public accountants, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of the Company and its consolidated Subsidiaries as at such date and the consolidated results of the operations of the Company and its consolidated Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied, and since December 31, 1999, there has been no material adverse change in such condition or operations. The unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of March 31, 2000, and the related consolidated statements of income and cash flows of the Company and its consolidated Subsidiaries for the three months then ended, certified by the chief financial officer of the Company, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of the Company and its consolidated Subsidiaries for the three months then ended, all in accordance with GAAP consistently applied (except as approved by the chief financial officer of the Company and as disclosed therein) and subject to normal year-end audit adjustments.
(f) Each of the Company and its Subsidiaries is in compliance with all laws, rules, regulations and orders of any governmental authority applicable to it or its property
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except where the failure to comply, individually or in the aggregate, would not in the reasonable judgment of the Company be expected to result in a Material Adverse Effect.
(g) There is no action, suit or proceeding pending, or to the knowledge of any Borrower threatened, against or involving the Company or any Principal Subsidiary in any court, or before any arbitrator of any kind, or before or by any governmental body, existing as at the Effective Date which in the reasonable judgment of the Company (taking into account the exhaustion of all appeals) would have a Material Adverse Effect, or which purports to affect the legality, validity, binding effect or enforceability of this Agreement or the Notes.
(h) The Company and each Principal Subsidiary have duly filed all tax returns required to be filed, and have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the failure to file or pay which, as applicable, would have a Material Adverse Effect, unless and to the extent only that the same are being contested in good faith and by appropriate proceedings by the Company or the appropriate Subsidiary.
(i) The Company and each Principal Subsidiary have good title to their respective properties and assets, free and clear of all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not materially interfere with the business or operations of
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document the Company or such Subsidiary as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(j) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g).
(k) Each Plan has complied with the applicable provisions of ERISA and the Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(l) The statement of assets and liabilities of each Plan and the statements of changes in fund balance and in financial position, or the statement of changes in net assets available for plan benefits, for the most recent plan year for which an accountant's report with respect to such Plan has been prepared, copies of which report have been furnished to the Administrative Agent, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(m) Neither the Company nor any ERISA Affiliate has incurred, or is reasonably expected to incur, any Withdrawal Liability to any Multiemployer Plan which, when aggregated with all other amounts required to be paid to Multiemployer Plans in
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connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company.
(n) Neither the Company nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i).
(o) No Borrower is an "investment company" or a "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(p) No Borrower is a "holding company" or a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(q) The borrowings by the Borrowers under this Agreement and the Notes and the applications of the proceeds thereof as provided herein will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
All representations and warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making of the Advances and the execution and delivery to the Lenders of this Agreement and the Notes.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION V.1 Affirmative Covenants. So long as any amount payable by any Borrower hereunder or under any Note shall remain unpaid or any Lender shall have any Commitment hereunder, each Borrower will, unless the Majority Lenders shall otherwise consent in writing:
(a) Preservation of Existence, Etc. Preserve and maintain, and, in the case of the Company, cause each Principal Subsidiary to preserve and maintain, its existence, rights (organizational and statutory) and material franchises, except as otherwise permitted by Section 5.2(d) or 5.2(e) and except that nothing herein shall prevent any change in Business Entity form of the Company or any Principal Subsidiary.
(b) Compliance with Laws, Etc. Comply, and, in the case of the Company, cause each Principal Subsidiary to comply, in all material respects with all applicable laws, rules, regulations and orders (including all environmental laws and laws requiring
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payment of all taxes, assessments and governmental charges imposed upon it or upon its property except to the extent contested in good faith by appropriate proceedings) the failure to comply with which would have a Material Adverse Effect.
(c) Visitation Rights. At any reasonable time and from time to time, permit the Administrative Agent or any of the Lenders or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Company and any of its Subsidiaries, and to discuss the affairs, finances and accounts of the Company and any of its Subsidiaries with any of their officers and with their independent certified public accountants.
(d) Books and Records. Keep, and, in the case of the Company, cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made of all its respective financial transactions and the assets and business of the Company and each of its Subsidiaries, as applicable, in accordance with GAAP either (i) consistently applied or (ii) applied in a changed manner provided such change shall have been disclosed to the Administrative Agent and shall have been consented to by the accountants which (as required by Section 5.3(b)) report on the financial statements of the Company and its consolidated Subsidiaries for the fiscal year in which such change shall have occurred.
(e) Maintenance of Properties, Etc. Maintain and preserve, and, in the case of the Company, cause each Principal Subsidiary to maintain and preserve, all of its properties which are used in the conduct of its business in good working order and condition, ordinary wear and tear excepted, to the extent that any failure to do so would have a Material Adverse Effect.
(f) Maintenance of Insurance. Maintain, and, in the case of the Company, cause each Principal Subsidiary to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Company or such Subsidiary operates.
SECTION V.2 Negative Covenants. So long as any amount payable by any Borrower hereunder or under any Note shall remain unpaid or any Lender shall have any Commitment hereunder, each Borrower will not, unless the Majority Lenders shall otherwise consent in writing:
(a) Liens, Etc. (i) Create, assume or suffer to exist, or, in the case of the Company, permit any Principal Subsidiary to create, assume or suffer to exist, any Liens upon or with respect to any of its Equity Interests in any Principal Subsidiary, whether now owned or hereafter acquired, or (ii) create or assume, or, in the case of the Company, permit any Principal Subsidiary to create or assume, any Liens upon or with respect to any other assets material to the consolidated operations of the Company and its consolidated Subsidiaries taken as a whole securing the payment of Indebtedness and
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Guaranties in an aggregate amount (determined without duplication of amount (so that the amount of a Guaranty will be excluded to the extent the Indebtedness Guaranteed thereby is included in computing such aggregate amount)) exceeding the greater of (x) $300,000,000 and (y) 10% of Net Worth as at the date of such creation or assumption; provided, however, that this subsection (a) shall not apply to:
(A) Liens on the Equity Interests in, or Indebtedness or other obligations of, or assets of, any Project Financing Subsidiary (or any Equity Interests in, or Indebtedness or other obligations of, any Business Entity which are directly or indirectly owned by any Project Financing Subsidiary) securing the payment of a Project Financing and related obligations;
(B) Liens on (1) assets acquired by the Company or any of its Subsidiaries after February 11, 1992 to the extent that such Liens existed at the time of such acquisition and were not placed thereon by or with the consent of the Company in contemplation of such acquisition and (2) Equity Interests acquired after February 11, 1992 in a Business Entity that has become or becomes a Subsidiary of the Company, or on assets of any such Business Entity, to the extent that
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document such Liens existed at the time of such acquisition and were not placed thereon by or with the consent of the Company in contemplation of such acquisition;
(C) Liens created by any Alternate Program or any document executed by any Borrower or any Subsidiary in connection therewith;
(D) Liens on Margin Stock;
(E) Permitted Liens;
(F) Liens arising out of the refinancing, extension, renewal or refunding of any Indebtedness or Guaranty or other obligation secured by any Lien permitted by any of the foregoing clauses of this Section, provided that the principal amount of such Indebtedness or Guaranty or other obligation is not increased (except by the amount of costs reasonably incurred in connection with the issuance thereof) beyond the highest previous amount thereof and such Indebtedness or Guaranty or other obligation is outstanding immediately prior to the refinancing, extension, renewal or refunding and is not secured by any additional assets that would not have been permitted by this Section to secure the Indebtedness or Guaranty or other obligation refinanced, extended, renewed or refunded; and
(G) Liens on products and proceeds (including dividend, interest and like payments on, and insurance and condemnation proceeds and rental, lease, licensing and similar proceeds) of, and property evidencing or embodying, or constituting rights or other general intangibles directly relating to or arising out of, and accessions and improvements to, collateral subject to Liens permitted by this Section 5.2(a).
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(b) Consolidated Debt and Guarantees to Capitalization. Permit the ratio of (A) the sum of (1) the aggregate amount of consolidated Debt of the Company and its consolidated Subsidiaries (without duplication of amount under this clause (A) and determined as to all of the foregoing entities on a consolidated basis) plus (2) the aggregate amount of consolidated Guaranties of the Company and its consolidated Subsidiaries (without duplication of amount under this clause (A) and determined as to all of the foregoing entities on a consolidated basis) to (B) Capitalization of the Company (without duplication and determined as to all of the foregoing entities on a consolidated basis) to exceed .7 to 1.
(c) Debt, Etc. In the case of the Company, permit any of its consolidated Subsidiaries to incur or become liable for any Debt, any Guaranty or any reimbursement obligation with respect to any letter of credit (other than any Project Financing), if, immediately after giving effect to such Debt, Guaranty or reimbursement obligation and the receipt and application of any proceeds thereof or value received in connection therewith, the aggregate amount (determined without duplication of amount) of Debt, Guaranties and letter of credit reimbursement obligations of the Company's consolidated Subsidiaries owing to Persons other than the Company and its consolidated Subsidiaries (other than any Project Financing) would exceed the greater of (x) $600,000,000 and (y) 10% of Net Worth determined as at the date of incurrence or assumption thereof; provided, however, that the following Debt, Guaranties or reimbursement obligations shall be excluded from the application of, and calculation set forth in, this paragraph (c): (A) Debt, Guaranties or reimbursement obligations incurred by (x) Mojave or (y) EPNGC, (B) Debt, Guaranties or reimbursement obligations arising under (x) the EPTPC Facility or (y) this Agreement or the 364-Day Facility, (C) Debt, Guaranties or reimbursement obligations incurred by El Paso Field Services Company up to an amount not to exceed at any time outstanding the tangible net worth of El Paso Field Services Company, provided that such Debt may be guaranteed by the Company, (D) Excluded Acquisition Debt, (E) successive extensions, refinancings or replacements (at the same Subsidiary or at any other consolidated Subsidiary of the Company) of Debt, Guaranties or reimbursement obligations (or commitments in respect thereof) referred to in clauses (A), (B) and (D) above and in an amount not in excess of the amounts so extended, refinanced or replaced (or the amount of commitments in respect thereof) and (F) Debt, Guarantees or reimbursement obligations incurred by Tennessee pursuant to one or more commercial paper programs allowing for the issuance by Tennessee of items of commercial paper having maturity dates not later than one year from the dates of their respective issuance provided that such Debt, Guarantees or reimbursement obligations of Tennessee shall be in an aggregate amount not to exceed at any time the excess of (x) the sum of (1) the aggregate amount of Commitments and (2) the aggregate amount of Commitments as defined in the 364-Day Facility, over (y) the sum of (1) the aggregate amount of Advances, (2) the aggregate amount of Advances, as
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document defined in and outstanding pursuant to, the 364-Day Facility, and (3) the aggregate principal amount of commercial paper outstanding from time to time that (I) is issued by the Company and its
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Subsidiaries (other than Tennessee) and (II) relies upon credit availability under either this Agreement or the 364-Day Facility for commercial paper liquidity purposes.
(d) Sale, Etc. of Assets. Sell, lease or otherwise transfer, or, in the case of the Company, permit any Principal Subsidiary to sell, lease or otherwise transfer, (in either case, whether in one transaction or in a series of transactions) assets constituting all or substantially all of the consolidated assets of the Company and its Principal Subsidiaries taken as a whole, provided that provisions of this subsection (d) shall not apply to:
(i) any sale of receivables and related rights pursuant to any Alternate Program;
(ii) any Project Financing Subsidiary and the assets thereof;
(iii) sales, leases or other transfers of assets or capital stock of any Subsidiary of the Company other than any Principal Subsidiary;
(iv) any sale of Margin Stock;
(v) any sale of up to 20% of the equity of El Paso Field Services Company in an initial public offering of such Person"s Equity Interests ;
(vi) any sale, lease or other transfer to the Company or any Principal Subsidiary, or to any Business Entity that after giving effect to such transfer will become and be either (A) a Principal Subsidiary in which the Company's direct or indirect equity interest will be at least as great as its direct or indirect equity interest in the transferor immediately prior thereto or (B) a directly or indirectly wholly-owned Principal Subsidiary; and
(vii) any transfer permitted by Section 5.2(e); and
(viii) any transfer to the Company or any of its Subsidiaries of any stock or assets other than FERC regulated assets (or stock or any other equity interest in an entity owning FERC regulated assets) used in the mainline gas transmission business; provided that no Event of Default or Default shall have occurred and be continuing before and immediately after giving effect to such transfer.
(e) Mergers, Etc. Merge or consolidate with any Person, or in the case of the Company permit any of its Principal Subsidiaries to merge or consolidate with any Person, except that (i) any Principal Subsidiary may merge or consolidate with (or liquidate into) any other Subsidiary (other than a Project Financing Subsidiary, unless the successor Business Entity is not treated as a Project Financing Subsidiary under this Agreement) or may merge or consolidate with (or liquidate into) the Company, provided that (A) if such Principal Subsidiary merges or consolidates with (or liquidates into) the
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Company, either (x) the Company shall be the continuing or surviving Business Entity or (y) the continuing or surviving Business Entity is organized under the laws of the United States or a State thereof and unconditionally assumes by agreement all of the performance obligations and payment Obligations of the Company under this Agreement and the Notes and (B) if any such Principal Subsidiary merges or consolidates with (or liquidates into) any other Subsidiary, one or more Business Entities that are Subsidiaries are the continuing or surviving Business Entity (ies) and, if either such Subsidiary is not directly or indirectly wholly-owned by the Company, such merger or consolidation is on an arm's length basis, and (ii) the Company or any Principal Subsidiary may merge or consolidate with any other Business Entity (that is, in addition to the Company or any Subsidiary), provided that (A) if the Company merges or consolidates with any such other Business Entity, either (x) the Company is the continuing or surviving Business Entity or (y) the continuing or surviving Business Entity is organized under the laws of the United States or a State thereof
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document and unconditionally assumes by agreement all of the performance obligations and payment Obligations of the Company under this Agreement and the Notes, (B) if any Principal Subsidiary merges or consolidates with any such other Business Entity, the surviving Business Entity is directly or indirectly a wholly-owned Principal Subsidiary of the Company, (C) if either the Company or any Principal Subsidiary merges or consolidates with any such other Business Entity, after giving effect to such merger or consolidation no Event of Default or Default shall have occurred and be continuing and (D) if any Principal Subsidiary which is a party to any merger, consolidation or liquidation permitted by this paragraph (e) is a Borrowing Subsidiary, either (x) such Principal Subsidiary shall be the continuing or surviving Business Entity or (y) the continuing or surviving Business Entity is organized under the laws of the United States or a State thereof and unconditionally assumes by agreement all of the performance obligations and payment Obligations of such Borrowing Subsidiary under this Agreement and the Notes (the Borrowers and the Lenders agreeing that it is their intention that each Business Entity that is a Borrower be organized under the laws of the United States or a State thereof).
SECTION V.3 Reporting Requirements. So long as any amount payable by any Borrower hereunder or under any Note shall remain unpaid or any Lender shall have any Commitment hereunder, the Company will furnish to each Lender in such reasonable quantities as shall from time to time be requested by such Lender:
(a) as soon as publicly available and in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of each of the Company and EPNGC, a consolidated balance sheet of each of the Company and EPNGC and its respective consolidated subsidiaries as of the end of such quarter, and consolidated statements of income and cash flows of each of the Company and EPNGC and its respective consolidated subsidiaries each for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified (subject to normal year-end adjustments) as being fairly stated in all material respects by the chief financial officer, controller or treasurer of the Company and accompanied by a certificate of such officer stating (i) whether or not such officer has knowledge of the occurrence of any
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Event of Default which is continuing hereunder or of any event not theretofore remedied which with notice or lapse of time or both would constitute such an Event of Default and, if so, stating in reasonable detail the facts with respect thereto, (ii) all relevant facts in reasonable detail to evidence, and the computations as to, whether or not the Company is in compliance with the requirements set forth in subsections (b) and (c) of Section 5.2, and (iii) a listing of all Principal Subsidiaries and consolidated Subsidiaries of the Company showing the extent of its direct and indirect holdings of their stocks;
(b) as soon as publicly available and in any event within 120 days after the end of each fiscal year of each of the Company and EPNGC, a copy of the annual report for such year for each of the Company and EPNGC and its respective consolidated Subsidiaries containing financial statements for such year reported by nationally recognized independent public accountants acceptable to the Lenders, accompanied by (i) a report signed by said accountants stating that such financial statements have been prepared in accordance with GAAP and (ii) a letter from such accountants stating that in making the investigations necessary for such report they obtained no knowledge, except as specifically stated therein, of any Event of Default which is continuing hereunder or of any event not theretofore remedied which with notice or lapse of time or both would constitute such an Event of Default;
(c) within 120 days after the close of each of the Company's fiscal years, a certificate of the chief financial officer, controller or treasurer of the Company stating (i) whether or not he has knowledge of the occurrence of any Event of Default which is continuing hereunder or of any event not theretofore remedied which with notice or lapse of time or both would constitute such an Event of Default and, if so, stating in reasonable detail the facts with respect thereto, (ii) all relevant facts in reasonable detail to evidence, and the computations as to, whether or not the Company is in compliance with the requirements set forth in subsections (b) and (c) of Section 5.2 and (iii) a listing of all Principal Subsidiaries and consolidated Subsidiaries of the Company showing the extent of its direct and indirect holdings of their stocks;
(d) promptly after the sending or filing thereof, copies of all publicly available reports which the Company or any Principal Subsidiary sends to any of its security holders and copies of all publicly available reports and registration statements which the Company or any Principal Subsidiary files with the Securities and Exchange Commission or any
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document national securities exchange other than registration statements relating to employee benefit plans and to registrations of securities for selling security holders;
(e) within 10 days after sending or filing thereof, a copy of FERC Form No. 2: Annual Report of Major Natural Gas Companies, sent or filed by the Company to or with the FERC with respect to each fiscal year of the Company;
(f) promptly in writing, notice of all litigation and of all proceedings before any governmental or regulatory agencies against or involving the Company or any Principal Subsidiary, except any litigation or proceeding which in the reasonable judgment of the Company (taking into account the exhaustion of all appeals) is not likely
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to have a material adverse effect on the consolidated financial condition of the Company and its consolidated Subsidiaries taken as a whole;
(g) within three Business Days after an executive officer of the Company obtains knowledge of the occurrence of any Event of Default which is continuing or of any event not theretofore remedied which with notice or lapse of time, or both, would constitute an Event of Default, notice of such occurrence together with a detailed statement by a responsible officer of the Company of the steps being taken by the Company or the appropriate Subsidiary to cure the effect of such event;
(h) as soon as practicable and in any event (i) within 30 days after the Company or any ERISA Affiliate knows or has reason to know that any Termination Event described in clause (a) of the definition of Termination Event with respect to any Plan has occurred and (ii) within 10 days after the Company or any ERISA Affiliate knows or has reason to know that any other Termination Event with respect to any Plan has occurred, a statement of the chief financial officer or treasurer of the Company describing such Termination Event and the action, if any, which the Company or such ERISA Affiliate proposes to take with respect thereto;
(i) promptly and in any event within two Business Days after receipt thereof by the Company or any ERISA Affiliate, copies of each notice received by the Company or any ERISA Affiliate from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan;
(j) promptly and in any event within 30 days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Single Employer Plan;
(k) promptly and in any event within five Business Days after receipt thereof by the Company or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice received by the Company or any ERISA Affiliate concerning (i) the imposition of Withdrawal Liability by a Multiemployer Plan, (ii) the determination that a Multiemployer Plan is, or is expected to be, in reorganization or insolvent within the meaning of Title IV of ERISA, (iii) the termination of a Multiemployer Plan within the meaning of Title IV of ERISA, or (iv) the amount of liability incurred, or expected to be incurred, by the Company or any ERISA Affiliate in connection with any event described in clause (i), (ii) or (iii) above; and
(l) as soon as practicable but in any event within 60 days of any notice of request therefor, such other information respecting the financial condition and results of operations of the Company or any Subsidiary of the Company as any Lender through the Administrative Agent may from time to time reasonably request.
Each balance sheet and other financial statement furnished pursuant to subsections (a) and (b) of this Section 5.3 shall contain comparative financial information which conforms to
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55 the presentation required in Form 10-Q and 10-K, as appropriate, under the Securities Exchange Act of 1934, as amended.
SECTION V.4 Restrictions on Material Subsidiaries. The Company will
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document not, and will not permit any Material Subsidiary, to enter into any agreement or understanding pursuant to which (a) any non-equity interest claim the Company may have against any Material Subsidiary would be subordinate in any manner to the payment of any other obligation of such Material Subsidiary (other than waivers or subordination of subrogation, contribution or similar rights under Guaranties and similar agreements) or (b) by its terms limits or restricts the ability of such Material Subsidiary to make funds available to the Company (whether by dividend or other distribution, by replacement of any inter-company advance or otherwise) if, in any such case referred to in this Section 5.4, there is, at the time any such agreement is entered into, a reasonable likelihood that all such agreements and understandings, considered together, would materially and adversely affect the ability of the Company to meet its obligations as they become due.
ARTICLE VI
GUARANTEES
SECTION VI.1 Guarantees. (a) Subject to the provisions of Section 6.1(b), each Borrower hereby unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and complete payment by each other Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations owing by such other Borrower.
(b) Anything in this Article VI to the contrary notwithstanding, the maximum liability of each Borrower (other than a Borrower which is guaranteeing the Obligations of its Subsidiaries) under this Article VI shall in no event exceed the amount which can be guaranteed by such Borrowing Subsidiary under applicable federal and state laws relating to the insolvency of debtors.
(c) Each Borrower agrees that the Obligations owing by any other Borrower may at any time and from time to time exceed the amount of the liability of such other Borrower under this Article VI without impairing the guarantee of such Borrower under this Article VI or affecting the rights and remedies of the Administrative Agent or any Lender under this Article VI.
(d) No payment or payments made by any Borrower or any other Person or received or collected by the Administrative Agent or any Lender from any Borrower or any other Person by virtue of any action or proceeding or any set-off or appropriation or application, at any time or from time to time, in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of the Borrowers under this Article VI
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(e) Each Borrower agrees that whenever, at any time, or from time to time, it shall make any payment to the Administrative Agent or any Lender on account of its liability under this Article VI, it will notify the Administrative Agent in writing that such payment is made under this Article VI for such purpose.
SECTION VI.2 No Subrogation. Notwithstanding any payment or payments made by any Borrower under this Article VI or any set-off or application of funds of such Borrower by the Administrative Agent or any Lender, such Borrower shall not be entitled to be subrogated to any of the rights of the Administrative Agent or any Lender against any other Borrower or against any collateral security or guarantee or right of offset held by the Administrative Agent or any Lender for the payment of the Obligations, nor shall such Borrower seek or be entitled to seek any contribution or reimbursement from any other Borrower in respect of payments made by such Borrower hereunder, until all amounts owing to the Administrative Agent and the Lenders by the other Borrowers on account of the Obligations are paid in full and the Commitments are terminated. If any amount shall be paid to any Borrower on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by such Borrower in trust for the Administrative Agent and the Lenders, segregated from other funds of such Borrower, and shall, forthwith upon receipt by such Borrower, be turned over to the Administrative Agent in the exact form received by such Borrower (duly indorsed by such Borrower to the Administrative Agent, if required), to be applied against the Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
SECTION VI.3 Amendments, etc. with respect to the Obligations; Waiver of Rights. Each Borrower shall remain obligated under this Article VI notwithstanding that, without any reservation of rights against such Borrower,
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document and without notice to or further assent by such Borrower, any demand for payment of any of the Obligations made by the Administrative Agent or any Lender may be rescinded by the Administrative Agent or such Lender, and any of the Obligations continued, and the Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Administrative Agent or any Lender, and this Agreement, any Notes and any other documents executed and delivered in connection herewith may be amended, modified, supplemented or terminated, in whole or in part, as the Administrative Agent (or the Majority Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Administrative Agent or any Lender for the payment of the Obligations may be sold, exchanged, waived, surrendered or released. Neither the Administrative Agent nor any Lender shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Obligations or for this Agreement or any property subject thereto. When making any demand hereunder against any Borrower, the Administrative Agent or any Lender may, but shall be under no obligation to, make a similar
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57 demand on the applicable Borrowing Subsidiaries or any other guarantor, and any failure by the Administrative Agent or any Lender to make any such demand or to collect any payments from the other Borrowers or any such other guarantor or any release of the other Borrowers or such other guarantor shall not relieve such Borrower of its obligations or liabilities hereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of the Administrative Agent or any Lender against such Borrower for the purposes hereof "demand" shall include the commencement and continuance of any legal proceedings.
SECTION VI.4 Guarantee Absolute and Unconditional. Each Borrower waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Lender upon this Agreement or acceptance of this Agreement; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Agreement; and all dealings between any Borrower, on the one hand, and the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Agreement. Each Borrower waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the other Borrowers with respect to the Obligations. The guarantee contained in this Article VI shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability of this Agreement, any Note, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by any Borrower against the Administrative Agent or any Lender, or (c) any other circumstance whatsoever (with or without notice to or knowledge of any Borrower) which constitutes, or might be construed to constitute, an equitable or legal discharge of any Borrower for the Obligations, or of the Borrowers under this Agreement, in bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against any Borrower, the Administrative Agent and any Lender may, but shall be under no obligation to, pursue such rights and remedies as it may have against any other Borrower or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent or any Lender to pursue such other rights or remedies or to collect any payments from other Borrowers or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any other Borrower or any such other Person or of any such collateral security, guarantee or right of offset, shall not relieve any Borrower of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent or any Lender against such Borrower. The guarantees contained in this Article VI shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon each Borrower and its successors and assigns thereof, and shall inure to the benefit of the Administrative Agent and the Lenders, and their respective successors, indorsees, transferees and assigns, until all the Obligations and the obligations of the Borrowers under this Agreement shall have been satisfied by payment in full and the Commitments shall be terminated, notwithstanding that from time to time during the term of this Agreement the Borrowers may be free from any Obligations.
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SECTION VI.5 Reinstatement. The provisions of this Article VI shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Borrower or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Borrower or any substantial part of its property, or otherwise, all as though such payments had not been made.
ARTICLE VII
EVENTS OF DEFAULT
SECTION VII.1 Event of Default. If any of the following events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any installment of principal of any of its Advances or Notes when due, or any interest on any of its Advances or Notes or any other amount payable by it hereunder within five Business Days after the same shall be due; or
(b) Any representation or warranty made or deemed made by any Borrower herein or by any Borrower (or any of its officers) in connection with this Agreement shall prove to have been incorrect in any material respect when made or deemed made; or
(c) Any Borrower shall fail to perform or observe any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for 30 days after written notice thereof shall have been given to such Borrower by the Administrative Agent or by any Lender with a copy to the Administrative Agent; or
(d) The Company or any Principal Subsidiary shall fail to pay any Debt or Guaranty (excluding Debt incurred pursuant hereto) of the Company or such Principal Subsidiary in an aggregate principal amount of $200,000,000 or more, at such time, or any installment of principal thereof or interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt or Guaranty; or any other default under any agreement or instrument relating to any such Debt, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate the maturity of such Debt; or any such Debt shall be required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof, as a result of either (i) any default under any agreement or instrument relating to any such Debt or (ii) the occurrence of any other event (other than an issuance, sale or other disposition of stock or other assets, or an
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incurrence or issuance of Indebtedness or other obligations, giving rise to a repayment or prepayment obligation in respect of such Debt) the effect of which would otherwise be to accelerate the maturity of such Debt; provided that, notwithstanding any provision contained in this subsection (d) to the contrary, to the extent that pursuant to the terms of any agreement or instrument relating to any Debt or Guaranty referred to in this subsection (d) (or in the case of any such Guaranty, relating to any obligations Guaranteed thereby), any sale, pledge or disposal of Margin Stock, or utilization of the proceeds of such sale, pledge or disposal, would result in a breach of any covenant contained therein or otherwise give rise to a default or event of default thereunder and/or acceleration of the maturity of the Debt or obligations extended pursuant thereto, or payment pursuant to any Guaranty, and as a result of such terms or of such sale, pledge, disposal, utilization, breach, default, event of default or acceleration or nonpayment under such Guaranty, or the provisions thereof relating thereto, this Agreement or any Advance hereunder would otherwise be subject to the margin requirements or any other restriction under Regulation U issued by the Board of Governors of the Federal Reserve System, then such breach, default, event of default or acceleration, or nonpayment under any Guaranty, shall not constitute a default or Event of Default under this subsection (d); or
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (e)(i) The Company or any Principal Subsidiary shall (A) generally not pay its debts as such debts become due; or (B) admit in writing its inability to pay its debts generally; or (C) make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted or consented to by the Company or any Principal Subsidiary 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 (iii) any such proceeding shall have been instituted against the Company or any Principal Subsidiary 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 (iv) the Company or any Principal Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order of any court for the payment of money in excess of $100,000,000 shall be rendered against the Company or any Principal Subsidiary and either (i) enforcement proceedings shall have been commenced and are continuing or have been completed by any creditor upon such judgment or order (other than any enforcement proceedings consisting of the mere obtaining and filing of a judgment lien or obtaining of a garnishment or similar order so long as no foreclosure, levy or similar process in respect of such lien, or payment over in respect of such garnishment or similar order, has commenced and is continuing or has been completed) or (ii) there shall be any period of 30 consecutive days during which a stay of execution or of enforcement proceedings (other than those referred to in the parenthesis in clause (i) above) in respect
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of such judgment or order, by reason of a pending appeal, bonding or otherwise, shall not be in effect; or
(g) (i) Any Termination Event with respect to a Plan shall have occurred and, 30 days after notice thereof shall have been given to the Company by the Administrative Agent, such Termination Event shall still exist; or (ii) the Company or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan; or (iii) the Company or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization, or is insolvent or is being terminated, within the meaning of Title IV of ERISA; or (iv) any Person shall engage in a "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan; and in each case in clauses (i) through (iv) above, such event or condition, together with all other such events or conditions, if any, would result in an aggregate liability of the Company or any ERISA Affiliate that would exceed 10% of Net Worth; or
(h) Upon completion of, and pursuant to, a transaction, or a series of transactions (which may include prior acquisitions of capital stock of the Company in the open market or otherwise), involving a tender offer (i) a "person" (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) other than the Company or a Subsidiary of the Company or any employee benefit plan maintained for employees of the Company and/or any of its Subsidiaries or the trustee therefor, shall have acquired direct or indirect ownership of and paid for in excess of 50% of the outstanding capital stock of the Company entitled to vote in elections for directors of the Company and (ii) at any time before the later of (A) six months after the completion of such tender offer and (B) the next annual meeting of the shareholders of the Company following the completion of such tender offer more than half of the directors of the Company consists of individuals who (1) were not directors before the completion of such tender offer and (2) were not appointed, elected or nominated by the Board of Directors in office prior to the completion of such tender offer (other than any such appointment, election or nomination required or agreed to in connection with, or as a result of, the completion of such tender offer); or
(i) Any event of default shall occur under any agreement or instrument relating to or evidencing any Debt now or hereafter existing of the Company or any Principal Subsidiary as the result of any change of control of the Company; or
(j) Any of the Guarantees contained in Article VI shall cease, for any reason, to be in full force and effect or any Borrower shall so assert; provided that if, within one Business Day after any Borrower receives notice from the Administrative Agent or otherwise becomes aware that such
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Guarantee is not in full force and effect, the Company delivers written notice to the Administrative Agent that the applicable Borrower intends to deliver a valid and effective Guarantee, or to reinstate such Guarantee, as soon as possible, then an Event of Default shall not exist pursuant this Section 7.1(j) unless the Company shall fail to deliver or reinstate or cause to be delivered or reinstated a Guarantee of the applicable Borrower having the same economic effect as the Guarantee
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set forth in Article VI within four Business Days after the delivery of such written notice of intent; then, and in any such event, the Administrative Agent shall at the request, or may with the consent, of the Majority Lenders, by notice to the Company, (i) declare the obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate, and (ii) declare the Advances and the Notes, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances and the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrowers; provided, however, that if an Event of Default under subsection (e) of this Section 7.1 (except under clause (i)(A) thereof) shall occur, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Advances and the Notes, all interest thereon and all other amounts payable under this Agreement shall automatically become and be forthwith due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrowers.
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE CAF ADVANCE AGENT
SECTION VIII.1 Authorization and Action. Each Lender hereby appoints and authorizes the Administrative Agent and the CAF Advance Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the CAF Advance Agent by the terms hereof, together with such powers as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including enforcement of this Agreement or collection of the Notes), the Administrative Agent and the CAF Advance Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Administrative Agent and the CAF Advance Agent shall not be required to take any action which exposes the Administrative Agent or the CAF Advance Agent to personal liability or which is contrary to this Agreement or applicable law. The Administrative Agent and the CAF Advance Agent agree to give to each Lender prompt notice of each notice given to it by any Borrower pursuant to the terms of this Agreement.
SECTION VIII.2 Administrative Agent's and CAF Advance Agent's Reliance, Etc. None of the Administrative Agent, the CAF Advance Agent or any of its respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent and the CAF Advance Agent: (i) may treat the payee of any Note as the holder thereof until the Administrative Agent receives and accepts an Assignment and
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Acceptance entered into by the Lender which is the payee of such Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.7; (ii) may consult with legal counsel (including counsel for the Company), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of the Borrowers or to inspect the property (including the books and records) of the Borrowers; (v)
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (vi) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopier, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION VIII.3 Chase and Affiliates. With respect to its Commitment, the Advances made by it and the Note issued to it, Chase shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Administrative Agent or the CAF Advance Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include Chase in its individual capacity. Chase and its affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with, the Company, any of its Subsidiaries and any Person who may do business with or own securities of the Company or any of its Subsidiaries, all as if Chase were not the Administrative Agent or the CAF Advance Agent and without any duty to account therefor to the other Lenders.
SECTION VIII.4 Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the CAF Advance Agent or any other Lender and based on the financial statements referred to in Section 4.1 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the CAF Advance Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION VIII.5 Indemnification. The Lenders agree to indemnify the Administrative Agent and the CAF Advance Agent (to the extent not reimbursed by the Borrowers), ratably according to the respective principal amounts of the Advances then outstanding by each of them (or if no Advances are at the time outstanding or if any Notes are held by Persons which are not Lenders, ratably according to the respective amounts of their aggregate Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent
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63 or the CAF Advance Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent or the CAF Advance Agent under this Agreement, provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent's or the CAF Advance Agent's gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent and the CAF Advance Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent or the CAF Advance Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings, in bankruptcy or insolvency proceedings, or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent or the CAF Advance Agent is not reimbursed for such expenses by the Borrowers.
SECTION VIII.6 Successor Administrative Agent and CAF Advance Agent. The Administrative Agent and the CAF Advance Agent may resign at any time by giving written notice thereof to the Lenders and the Company and may be removed at any time with or without cause by the Majority Lenders. Upon any such resignation or removal, the Majority Lenders shall have the right to appoint a successor Administrative Agent or the CAF Advance Agent. If no successor Administrative Agent or CAF Advance Agent shall have been so appointed by the Majority Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent's or the CAF Advance Agent"s giving of notice of resignation or the Majority Lenders' removal of the retiring Administrative Agent or CAF Advance Agent, then such retiring Administrative Agent or CAF Advance Agent may, on behalf of the Lenders, appoint a successor Administrative Agent or CAF Advance Agent, which shall be a Lender and a commercial bank organized, or authorized to conduct a banking business, under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent or CAF Advance Agent hereunder by a successor Administrative Agent or CAF Advance Agent, such successor Administrative Agent or CAF Advance Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent or CAF Advance Agent, and the retiring Administrative Agent or CAF Advance Agent
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document shall be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent's or CAF Advance Agent's resignation or removal hereunder as Administrative Agent or CAF Advance Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent or CAF Advance Agent under this Agreement.
SECTION 8.7. Syndication Agent; Co-Documentation Agents. None of the Lenders identified on the cover page or signature pages or in the preamble of this Agreement as a "syndication agent" or "co-documentation agent" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders so identified as a "syndication agent" or "co-documentation agent" shall have or be deemed to have any fiduciary relationship with any
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Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION IX.1 Amendments, Etc. An amendment or waiver of any provision of this Agreement or the Notes, or a consent to any departure by any Borrower therefrom, shall be effective against the Lenders and all holders of the Notes if, but only if, it shall be in writing and signed or consented to in writing by the Majority Lenders, and then such a waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall, unless in writing and signed by all the Lenders, be effective to: (a) waive any of the conditions specified in Article III, (b) except as contemplated by Sections 2.4, 2.5, 2.23 and 2.25, increase or extend the Commitments of the Lenders or subject the Lenders to any additional obligations, (c) reduce the principal of, or interest on, any Advance or the Notes or any facility fees hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, any Advance or the Notes or any facility fees hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of any Advance or the Notes, or the number of Lenders, which shall be required for the Lenders or any of them to take any action under this Agreement, (f) amend this Section 9.1, (g) amend, waive or consent to any departure of any provision in Article VI or (h) except as provided below, release any Borrower from its guarantee in Article VI; provided, further, that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent and the CAF Advance Agent in addition to the Lenders required hereinabove to take such action, affect the rights or duties of the Administrative Agent or the CAF Advance Agent under this Agreement or any Note; provided, still further, that the guarantee of a Borrower under Article VI shall be released automatically upon (i) the sale by the Company of such Borrower, provided that such sale is permitted under this Agreement, or (ii) such Borrower ceasing to be a Borrower (it being understood that the Company and EPNGC shall never cease to be a Borrower hereunder).
SECTION IX.2 Notices, Etc. Except as otherwise provided in Section 2.2(a), 2.5(d) or 2.15(b), all notices and other communications provided for hereunder shall be in writing (including telecopier and other readable communication) and mailed by certified mail, return receipt requested, telecopied or otherwise transmitted or delivered, if to any Borrower, c/o the Company at El Paso Energy Building, 1001 Louisiana Street, Houston, Texas 77002, Attention: Executive Vice President and Chief Financial Officer, Telecopier: (713) 420-4975; if to any Lender, at its address set forth under its name on Schedule I; if to the Administrative Agent, at 270 Park Avenue, 21st floor, New York, New York 10017, Attention: Steve Wood, Telecopier: (212) 270-2519, Telephone: (212) 270-7056; and if to the CAF Advance Agent, at One Chase Manhattan Plaza, 8th Floor, New York, New York 10081, Attention: Jackie Reid, Telecopier: (212) 552-5777, Telephone: (212) 552-7683; or, as to each party and each Borrowing Subsidiary, at such other address as shall be designated by such party in a written notice to the other parties. All such notices and communications shall, if so mailed, telecopied or
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Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document otherwise transmitted, respectively. A notice received by the Administrative Agent, the CAF Advance Agent or a Lender by telephone pursuant to Section 2.2(a), 2.5(d) or 2.15(a) shall be effective if the Administrative Agent or Lender believes in good faith that it was given by an authorized representative of the applicable Borrower and acts pursuant thereto, notwithstanding the absence of written confirmation or any contradictory provision thereof.
SECTION IX.3 No Waiver; Remedies. No failure on the part of any Lender, the Administrative Agent or the CAF Advance Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder or under any Note preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION IX.4 Costs and Expenses; Indemnity. (a) Each Borrower agrees to pay on demand (to the extent not reimbursed by any other Borrower) (i) all reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent in connection with the preparation, execution and delivery of this Agreement, the Notes and the other documents to be delivered hereunder and the fulfillment or attempted fulfillment of conditions precedent hereunder, (ii) all reasonable costs and expenses incurred by the Administrative Agent and its Affiliates in initially syndicating all or any portion of the Commitments hereunder, including the related reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent or its Affiliates, travel expenses, duplication and printing costs and courier and postage fees, and excluding any syndication fees paid to other parties joining the syndicate and (iii) all out-of-pocket costs and expenses, if any, incurred by the Administrative Agent, the CAF Advance Agent and the Lenders in connection with the enforcement (whether through negotiations, legal proceedings in bankruptcy or insolvency proceedings, or otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder and thereunder, including the reasonable fees and out-of-pocket expenses of counsel.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance or CAF Advance is made by any Borrower to or for the account of a Lender on any day other than the last day of the Interest Period for such Advance, as a result of a prepayment pursuant to Section 2.15 or a Conversion pursuant to Section 2.13(f) or Section 2.14 or due to acceleration of the maturity of the Advances and the Notes pursuant to Section 7.1 or due to any other reason attributable to such Borrower, or if any Borrower shall fail to make a borrowing of Eurodollar Rate Advances or CAF Advances after such Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, such Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment, Conversion or failure to borrow, including any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
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(c) Each Borrower agrees to indemnify and hold harmless the Administrative Agent, the CAF Advance Agent and each Lender (to the extent not reimbursed by any other Borrower) from and against any and all claims, damages, liabilities and expenses (including fees and disbursements of counsel) which may be incurred by or asserted against the Administrative Agent, the CAF Advance Agent or such Lender in connection with or arising out of any investigation, litigation, or proceeding (whether or not the Administrative Agent, the CAF Advance Agent or such Lender is party thereto) related to any acquisition or proposed acquisition by the Company, or by any Subsidiary of the Company, of all or any portion of the stock or substantially all the assets of any Person or any use or proposed use of the Advances by any Borrower (excluding any claims, damages, liabilities or expenses incurred by reason of the gross negligence or willful misconduct of the party to be indemnified or its employees or agents, or by reason of any use or disclosure of information relating to any such acquisition or use or proposed use of the proceeds by the party to be indemnified or its employees or agents).
SECTION IX.5 Right of Set-Off. Upon the declaration of the Advances and the Notes as due and payable pursuant to the provisions of Section 7.1, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of the applicable Borrower against any and all of the obligations of such Borrower now or hereafter existing under this Agreement and the Notes of such Borrower held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such Notes and although such
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document obligations may be unmatured. Each Lender agrees promptly to notify the Company after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender under this Section 9.5 are in addition to other rights and remedies (including other rights of set-off) which such Lender may have.
SECTION IX.6 Binding Effect. This Agreement shall become effective in accordance with the provisions of Section 3.1, and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative Agent, the CAF Advance Agent and each Lender and their respective successors and assigns, except that no Borrower shall have the right to assign its rights or obligations hereunder or any interest herein in a transaction not permitted by Section 5.2(e) without the prior written consent of all of the Lenders.
SECTION IX.7 Assignments and Participations. (a) Each Lender may assign to one or more banks or other financial institutions all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Notes held by it); provided, however, that (i) each such assignment shall be of a constant, and not a varying, percentage of all such Lender's rights and obligations under this Agreement, (ii) the amount of the Commitment of the assigning Lender being assigned to an assignee pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $15,000,000 (or, if less, the entire Commitment of the assigning Lender) and shall be an integral multiple of $1,000,000, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the parties to each such assignment
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67 shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Notes subject to such assignment and a processing and recordation fee of $2,500, and shall send to the Company an executed counterpart of such Assignment and Acceptance. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (B) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of each Borrower or the performance or observance by each Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, the CAF Advance Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is (subject to approval in writing by the Company and, if applicable, the Administrative Agent to the extent required by the definition of "Eligible Assignee") an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent and the CAF Advance Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the CAF Advance Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to and
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document accepted by it and a register (which register may be in electronic form) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each
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Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative Agent, the CAF Advance Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. Upon the acceptance of any Assignment and Acceptance for recordation in the Register, Schedule I hereto shall be deemed to be amended to reflect the revised Commitments of the Lenders parties to such Assignment and Acceptance as well as administrative information with respect to any new Lender as such information is recorded in the Register.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and as assignee representing that it is an Eligible Assignee, together with any Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit G hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Company. Within five Business Days after its receipt of such notice and its receipt of an executed counterpart of such Assignment and Acceptance, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Notes, if any, new Notes to the order of such Eligible Assignee, if requested, in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder, new Notes, if requested, to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Notes, if any, shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, if any, shall be dated (A) in the case of Notes made by the Company, EPNGC and Tennessee the Closing Date and (B) in the case of Notes made by any other Borrower, the date such other Borrower executes and delivers its Joinder Agreement, and shall otherwise be in substantially the form of Exhibit A.
(e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, and the Advances owing to it and the Notes held by it); provided, however, that (i) such Lender's obligations under this Agreement (including its Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Notes for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the CAF Advance Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement, (v) such Lender shall continue to be able to agree to any modification or amendment of this Agreement or any waiver hereunder without the consent, approval or vote of any such participant or group of participants, other than modifications, amendments and waivers which (A) postpone any date fixed for any payment of, or reduce any payment of, principal of or interest on such Lender's Advances or Notes or any facility fees payable under this Agreement, or (B) increase the amount of such Lender's Commitment in a manner which would have the effect of increasing the amount of a participant's participation, or (C) reduce the interest rate payable
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69 under this Agreement and such Lender's Notes, or (D) consent to the assignment or the transfer by any Borrower of any of its rights and obligations under the Agreement, and (vi) except as contemplated by the immediately preceding clause (v), no participant shall be deemed to be or to have any of the rights or obligations of a "Lender" hereunder.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.7, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree in writing for the benefit of the Borrowers to preserve the confidentiality of any confidential information relating to the Borrowers received by it from such Lender in a
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document manner consistent with Section 9.8.
(g) Anything in this Agreement to the contrary notwithstanding, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Advances owing to it) and the Notes issued to it hereunder in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System (or any successor regulation) and the applicable operating circular of such Federal Reserve Bank.
SECTION IX.8 Confidentiality. Each Lender, the Administrative Agent and the CAF Advance Agent (each, a "Party") agrees that it will use its best efforts not to disclose, without the prior consent of the Company (other than to its, or its Affiliate's, employees, auditors, accountants, counsel or other representatives, whether existing at the date of this Agreement or any subsequent time), any information with respect to the Borrowers which is furnished pursuant to this Agreement, provided that any Party may disclose any such information (i) as has become generally available to the public, (ii) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such party or to the Board of Governors of the Federal Reserve System or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors, (iii) as may be required or appropriate in response to any summons or subpoena or in connection with any litigation or regulatory proceeding, (iv) in order to comply with any law, order, regulation or ruling applicable to such party, or (v) to any prospective assignee or participant in connection with any contemplated assignment of any rights or obligations hereunder, or any sale of any participation therein, by such Party pursuant to Section 9.7, if such prospective assignee or participant, as the case may be, executes an agreement with the Company containing provisions substantially similar to those contained in this Section 9.8; provided, however, that the Company acknowledges that the Administrative Agent has disclosed and may continue to disclose such information as the Administrative Agent in its sole discretion determines is appropriate to the Lenders from time to time.
SECTION IX.9 Consent to Jurisdiction. (a) Each Borrower hereby irrevocably submits to the jurisdiction of any New York State or Federal court sitting in New York City and any appellate court from any thereof in any action or proceeding by the Administrative Agent, the
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CAF Advance Agent, any Lender or the holder of any Note in respect of, but only in respect of, any claims or causes of action arising out of or relating to this Agreement or the Notes (such claims and causes of action, collectively, being "Permitted Claims"), and each Borrower hereby irrevocably agrees that all Permitted Claims may be heard and determined in such New York State court or in such Federal court. Each Borrower hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding in any aforementioned court in respect of Permitted Claims. Each Borrower hereby irrevocably appoints CT Corporation System (the "Process Agent"), with an office on the date hereof at 1633 Broadway, New York, New York 10019, as its agent to receive on behalf of such Borrower and its property service of copies of the summons and complaint and any other process which may be served by the Administrative Agent, any Lender or the holder of any Note in any such action or proceeding in any aforementioned court in respect of Permitted Claims. Such service may be made by delivering a copy of such process to the Company by courier and by certified mail (return receipt requested), fees and postage prepaid, both (i) in care of the Process Agent at the Process Agent's above address and (ii) at the Company's address specified pursuant to Section 9.2, and each Borrower hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. Each Borrower 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.
(b) Nothing in this Section 9.9 (i) shall affect the right of any Lender, the holder of any Note or the Administrative Agent or the CAF Advance Agent to serve legal process in any other manner permitted by law or affect any right otherwise existing of any Lender, the holder of any Note or the Administrative Agent or the CAF Advance Agent to bring any action or proceeding against any Borrower or its property in the courts of other jurisdictions or (ii) shall be deemed to be a general consent to jurisdiction in any particular court or a general waiver of any defense or a consent to jurisdiction of the courts expressly referred to in subsection (a) above in any action or proceeding in respect of any claim or cause of action other than Permitted Claims.
SECTION IX.10 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document SECTION IX.11 Rate of Interest. It is the intention of the parties hereto that each Lender shall each conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby would be usurious as to any Lender under laws applicable to it, then, in that event, notwithstanding anything to the contrary in this Agreement or in the Notes to the order of such Lender, it is agreed as follows: (a) the aggregate of all consideration which constitutes interest under law applicable to such Lender that is contracted for, taken, reserved, charged or received by such Lender hereunder, or under such Notes or otherwise, shall under no circumstances exceed the maximum amount allowed by such applicable law, and any excess shall be credited by such Lender on the principal amount of the sums owed to such Lender (or, if all amounts owing to such Lender shall have been paid in full, refunded by such Lender to the applicable Borrower); or (b) in the event that a prepayment of any Advances owed to any Lender is required, then such consideration that constitutes interest under law applicable to such Lender
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71 may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for shall be cancelled automatically by such Lender as of the date of such prepayment and, if theretofore paid, shall be credited by such Lender on the principal amount of such prepayment obligation (or, if the principal amount of such prepayment obligation shall have been paid in full, refunded by such Lender to the applicable Borrower). To the extent that Article 5069-1.0001 of the Texas Revised Civil Statutes is relevant to any Lender for the purpose of determining the maximum amount of interest allowed by applicable law, such Lender hereby elects to determine the applicable rate ceiling under such Article by the indicated (weekly) rate ceiling from time to time in effect, subject to such Lender's right subsequently to change such method in accordance with applicable law. In no event, however, shall Chapter 346 of the Texas Finance Code apply to this Agreement or the Notes or the transactions contemplated hereby.
SECTION IX.12 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate 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 to the Administrative Agent of a counterpart executed by a Lender shall constitute delivery of such counterpart to all of the Lenders. This Agreement may be delivered by facsimile transmission of the relevant signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first above written.
EL PASO ENERGY CORPORATION
By: /s/ C. Dana Rice ------Title: Senior Vice President and Treasurer
EL PASO NATURAL GAS COMPANY
By: /s/ C. Dana Rice ------Title: Senior Vice President and Treasurer
TENNESSEE GAS PIPELINE COMPANY
By: /s/ C. Dana Rice ------Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, as Administrative Agent, CAF Advance Agent and a Lender
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document By: /s/ Steven Wood ------Title: Vice President
CITIBANK, N.A., as Co-Documentation Agent and a Lender
By: /s/ J. Christopher Lyons ------Title: Attorney-in-Fact
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ABN AMRO BANK, N.V., as Co-Documentation Agent and a Lender
By: /s/ Michael Nepveux ------Title: Group Vice President
By: /s/ Dana L. Montgomery ------Title: Assistant Vice President
BANK OF AMERICA, N.A., as Syndication Agent and a Lender
By: /s/ Patrick M. Delaney ------Title: Managing Director
BANCA DI ROMA- CHICAGO BRANCH, as a Lender
By: /s/ Aurora Pensa ------Title: Vice President
By: /s/ Enrico Verdoscia ------Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD HOUSTON AGENCY, as a Lender
By: /s/ Michael G. Meiss ------Title: Vice President
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BNP PARIBAS, as a Lender
By: /s/ Bart Schouest ------Title: Managing Director
By: /s/ John H. Roberts ------Title: Vice President
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH, as a Lender
By: /s/ Hereward Drummond ------Title: Senior Vice President
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document By: /s/ James Fox ------Title: Vice President
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Lender
By: /s/ Harry P. Yergey ------Title: Senior Vice President & Manager
By: /s/ W. David Suttles ------Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ David L. Sawyer ------Title: Vice President
By: /s/ Lalita Advani ------Title: Assistant Vice President
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DEUTSCHE BANK AG NEW YORK AND/OR CAYMAN ISLANDS BRANCHES, as a Lender
By: /s/ Joel Makowsky ------Title: Vice President
By: /s/ Michael E. Keating ------Title: Managing Director
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, as a Lender
By: /s/ Steven Atwell ------Title: Director
By: /s/ Shannon Batchman ------Title: Director
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY, as a Lender
By: /s/ Michael N. Oakes ------Title: Senior Vice President The Industrial Bank of Japan, Limited, Houston Office (Authorized Representative)
KBC BANK N.V., as a Lender
By: /s/ Jean-Pierre Diels ------Title: First Vice President
By: /s/ Patrick A. Janssens ------Title: Vice President
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 76
NATIONAL WESTMINISTER BANK PLC, NEW YORK BRANCH, as a Lender
By: /s/ Kevin Howard ------Title: Executive Vice President
NATIONAL WESTMINISTER BANK PLC, NASSAU BRANCH, as a Lender
By: /s/ Kevin Howard ------Title: Executive Vice President
SOCIETE GENERALE, as a Lender
By: /s/ Paul E. Cornell ------Title: Managing Director
THE FUJI BANK, LIMITED, as a Lender
By: /s/ Toru Maeda ------Title: Executive Vice President and General Manager
AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED, as a Lender
By: /s/ R. Scott McInnis ------Title: Head of Structured Finance & Relationship Management-Americas
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THE BANK OF NEW YORK, as a Lender
By: /s/ Peter Keller ------Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ F.C.H. Ashby ------Title: Senior Manager Loan Operations
BANK ONE, NA (CHICAGO), as a Lender
By: /s/ Helen Carr ------Title: First Vice President
BARCLAYS BANK, as a Lender
By: /s/ Nicholas A. Bell ------Title: Director, Loan Transaction Management
CREDIT AGRICOLE INDOSUEZ, as a Lender
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document By: /s/ Patrick Cocquerer ------Title: FVP, Managing Director
By: /s/ Michael D. Willis ------Title: VP, Credit Analysis
78
CREDIT LYONNAIS, as a Lender
By: /s/ Pascal Poupelle ------Title: President and Chief Operating Officer
THE DAI-ICHI KANGYO BANK, LTD., as a Lender
By: /s/ Katsuya Noto ------Title: Vice President
DLJ CAPITAL FUNDING, INC., as a Lender
By: /s/ Richard N. Beaudoin ------Title: Senior Vice President
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Robert R. Wetteroff ------Title: Senior Vice President
FLEET NATIONAL BANK, as a Lender
By:/s/ Christopher Holmgren ------Title: Director
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as a Lender
By: /s/ Dennis R. Wilczek ------Title: Associate
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MELLON BANK, N.A., as a Lender
By: /s/ Roger E. Howard ------Title: Vice President
NATIONAL AUSTRALIA BANK LTD., as a Lender
By: /s/ Paul R. Morrison ------Title: Vice President
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document THE NORINCHUKIN BANK, NEW YORK BRANCH, as a Lender
By: /s/ Toshiyuki Futaoka ------Title: Joint General Manager
SUMITOMO BANK LTD., as a Lender
By: /s/ C. Michael Garrido ------Title: Senior Vice President
SUNTRUST BANKS, INC., as a Lender
By: /s/ Joseph M. McCreary ------Title: Assistant Vice President
TORONTO DOMINION (TEXAS), INC., as a Lender
By: /s/ Carolyn R. Faeth ------Title: Vice President
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WELLS FARGO BANK, as a Lender
By: /s/ John Lane ------Title: Vice-President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, as a Lender
By: /s/ Duncan M. Robertson ------Title: Director
By: /s/ Thomas Lee ------Title: Associate
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as a Lender
By: /s/ Kirk Edelman ------Title: First Vice President
By: /s/ Andrew Schroeder ------Title: Vice President
BANCO BILBAO VIZCAYA ARGENTARIA, as a Lender
By: /s/ Manuel Sanchez ------Title: Senior Vice President
By: /s/ Alberto Conde ------Title: Vice President
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 81
ING (U.S.) CAPITAL LLC, as a Lender
By: /s/ Charles M. O'Neil ------Title: Managing Director
By: /s/ Clara B. Alvarez ------Title: Vice President
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SCHEDULE I
COMMITMENTS, ADDRESSES, ETC.
Name and Address of Lender Amount of Commitment ------
~~The Chase Manhattan Bank $46,666,666.67 270 Park Avenue New York, NY 10017 Attention: Steve Wood Telephone: 212-270-7056 Telecopier: 212-270-2519~~
~~Citibank, N.A. $46,666,666.67 1200 Smith Street, Suite 2000 Houston, TX 77002 Attention: Carol Rooney Telephone: 713-654-3590 Telecopier: 713-654-2899~~
~~ABN AMRO Bank, N.V. $46,666,666.67 208 South LaSalle, Suite 1500 Chicago, IL 60604-1003 Attention: Credit Administration Telephone: 312-992-5110 Telecopier: 312-992-5111~~
~~Bank of America, N.A. $46,666,666.67 333 Clay Street, Suite 4550 Houston, TX 77002 Attention: Patrick Delaney Telephone: 713-651-4929 Telecopier: 713-651-4808~~
~~Banca di Roma- Chicago Branch $13,333,333.33 225 West Washington, Suite 1200 Chicago, IL 60606 Attention: Aurora Pensa Telephone: 312-704-2630 Telecopier: 312-726-3058~~
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Name and Address of Lender Amount of Commitment ------
~~The Bank of Tokyo-Mitsubishi, Ltd Houston Agency $20,000,000.00 1100 Louisiana Street, Suite 2800 Houston, TX 77002-5216~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Attention: John M. McIntyre Telephone: 713-655-3845 Telecopier: 713-655-3855~~
~~BNP Paribas $30,000,000.00 1200 Smith Street, Suite 3100 Houston, TX 77002 Attention: John Roberts Telephone: 713-659-4811 Telecopier: 713-659-6915~~
~~Bayerische Landesbank Girozentrale, Cayman Islands Branch $13,333,333.33 560 Lexington Avenue New York, NY 10022 Attention: Stephen Christenson Telephone: 212-230-3105 Telecopier: 212-310-9868~~
Commerzbank AG, New York and Grand Cayman Branches $20,000,000.00 1230 Peachtree Street, N.E., Suite 3500 Atlanta, GA 30309 Attention: David Suttles/Lee Ward Telephone: 404-888-6524/6526 Telecopier: 404-888-6539
~~Credit Suisse First Boston $30,000,000.00 11 Madison Avenue New York, NY 10010 Attention: James Moran Telephone: 212-325-9176 Telecopier: 212-325-8615~~
~~Deutsche Bank AG New York and/or Cayman Islands Branches $30,000,000.00 31 West 52nd Street New York, NY 10019 Attention: Joel Makowsky Telephone: 212-469-7896 Telecopier: 212-469-5711~~
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Name and Address of Lender Amount of Commitment ------
~~Bayerische Hypo- und Vereinsbank AG, New York Branch $30,000,000.00 150 East 42nd Street New York, NY 10017 Attention: Yoram Danker/Steve Atwell Telephone: 212-672-5446/5458 Telecopier: 212-672-5530~~
~~The Industrial Bank of Japan Trust Company $20,000,000.00 Three Allen Center, Suite 4850 Houston, TX 77002 Attention: Mr. Lynn Williford Telephone: 713-651-9444 ext.104 Telecopier: 713-651-9209~~
~~KBC Bank N.V. $30,000,000.00 125 West 55th Street New York, NY 10019 Attention: Christine Park Telephone: 212-541-0731 Telecopier: 212-541-0784~~
~~National Westminister Bank Plc $30,000,000.00 600 Travis Street, Suite 6070 Houston, TX 77002 Attention: Patty Dundee/Matt Main Telephone: 713-221-2423/2441 Telecopier: 713-221-2430~~
~~Societe Generale $30,000,000.00 1111 Bagby Street, Suite 2020 Houston, TX 77002 Attention: Paul Cornell Telephone: 713-759-6301 Telecopier: 713-650-0824~~
~~The Fuji Bank, Limited $30,000,000.00 1221 McKinney Street, Suite 4100 One Houston Center~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Houston, TX 77010 Attention: Mark Polasek Telephone: 713-759-1800 Telecopier: 713-759-0717
85
Name and Address of Lender Amount of Commitment ------
Australia & New Zealand Banking Group Limited $13,333,333.33 1177 Avenue of the Americas New York, NY 10036 Attention: Anna Arxer/David Giacalone Telephone: 212-801-9795/9814 Telecopier: 212-801-9131/4814
~~The Bank of New York $30,000,000.00 One Wall Street, 19th Floor New York, NY 10286 Attention: Peter Keller Telephone: 212-635-7861 Telecopier: 212-635-7923~~
~~Bank of Nova Scotia $30,000,000.00 1100 Louisiana, Suite 3000 Houston, TX 77002 Attention: Todd Mogil Telephone: 713-759-3445 Telecopier: 713-752-2425~~
Bank One, NA(Chicago) $30,000,000.00 910 Travis, 6th Floor Houston, TX 77002 Attention: Susan Stiernberg/Karen Patterson/ Helen Carr Telephone: 713-751-3751/3863/3731 Telecopier: 713-751-3760/3982/3760
Barclays Bank $20,000,000.00 222 Broadway, 12th Floor New York, NY 10038 Attention: Richard Williams/John Sullivan/ Nicholas Bell/Virginia Corpus Telephone: 212-412-7570/7605/4029/7512 Telecopier: 212-412-7585/2441/7585
~~Credit Agricole Indosuez $13,333,333.33 600 Travis, Suite 2340 Houston, TX 77002 Attention: Brian Knezeak/Doug Whiddon Telephone: 713-223-7001/7003 Telecopier: 713-223-7029~~
86
Name and Address of Lender Amount of Commitment ------
Credit Lyonnais $30,000,000.00 1000 Louisiana Street, Suite 5360 Houston, TX 77002 Attention: Rob LaRocque/Richard Kaufman/ Mark Isensee/Tati Sulistio Telephone: 713-753-8733/8721/8716/8710 Telecopier: 713-751-0307
~~The Dai-Ichi Kangyo Bank, Ltd. $13,333,333.33 One World Trade Center, Suite 4811 New York, NY 10048 Attention: Bertram Tang/Katsuya Noto Telephone: 212-432-8839/6627 Telecopier: 212-912-1879~~
~~DLJ Funding, Inc. $30,000,000.00~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 277 Park Avenue, 10th Floor New York, NY 10172 Attention: Diane Albanese/Greg Biddle Telephone: 212-892-2903/6142 Telecopier: 212-892-6031
~~First Union National Bank $30,000,000.00 1001 Fannin Street, Suite 2255 Houston, TX 77002 Attention: Philip Trinder Telephone: 713-346-2718 Telecopier: 713-650-1071~~
~~Fleet National Bank $20,000,000.00 100 Federal Street, 01-08-02 Boston, MA 02110 Attention: Jill Calabrese Telephone: 617-434-9579 Telecopier: 617-434-3652~~
~~ING (U.S.) Capital LLC $13,333,333.33 55 East 52nd Street New York, NY 10055 Attention: Steve Fischer/Clara Beatriz Alvarez Telephone: 212-409-0455/5849 Telecopier: 212-486-4636 or 212-409-1091~~
~~Morgan Guranty Trust Company of New York $20,000,000.00 1221 McKinney Street, Suite 3150 Houston, TX 77002 Attention: Russell L. Sherrill Telephone: 713-276-4625 Telecopier: 713-276-4604~~
87
Name and Address of Lender Amount of Commitment ------
~~Mellon Bank, N.A. $30,000,000.00 One Mellon Bank Center, Room 4530 Pittsburgh, PA 15258 Attention: Roger Howard Telephone: 412-234-5606 Telecopier: 412-236-1840~~
National Australia Bank Ltd. $13,333,333.33 200 Park Avenue, 34th Floor New York, NY Attention: Matthew Woolf/Paul Morrison/ Nick Woutas/Frank Campiglia Telephone: 212-916-9574/9519/9665/9595 Telecopier: 212-986-6958/212-983-1969
~~The Norinchukin Bank, New York Branch $20,000,000.00 245 Park Avenue, 29th Floor New York, NY 10167 Attention: Keisuke Ishii Telephone: 212-808-4195 Telecopier: 212-697-5754~~
~~Sumitomo Bank Ltd. $20,000,000.00 277 Park Avenue, 6th Floor New York, NY 10172 Attention: Bruce Meredith Telephone: 212-224-4194 Telecopier: 212-224-4384~~
~~SunTrust Banks, Inc. $20,000,000.00 303 Peachtree Street, N.E., 3rd Floor Atlanta, GA 30308 Attention: John Fields, Jr./Joe McCreary Telephone: 404-724-3667/404-532-0274 Telecopier: 404-827-6270~~
~~Toronto Dominion (Texas), Inc. $30,000,000.00 909 Fannin Street, Suite 1700 Houston, TX 77010 Attention: Carolyn Faeth Telephone: 713-427-8520~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Telecopier: 713-951-9921~~
88
Name and Address of Lender Amount of Commitment ------
~~Wells Fargo Bank $13,333,333.33 1000 Louisiana Street, 3rd Floor MAC 5002-031 Houston, TX 77002 Attention: John Lane Telephone: 713-319-1370 Telecopier: 713-739-1087~~
~~Westdeutsche Landesbank Girozentrale $20,000,000.00 1990 Post Oak Blvd., Suite 1100 Houston, TX 77056 Attention: Richard Newman Telephone: 713-963-5203 Telecopier: 713-963-5308~~
~~Dresdner Bank AG, New York and Grand Cayman Branches $13,333,333.33 75 Wall Street New York, NY 10005 Attention: Mike Mangan Telephone: 212-429-2112 Telecopier: 212-429-2081~~
~~Banco Bilbao Vizcayz Argentaria $13,333,333.33 1345 Avenue of the Americas, 45th Floor New York, NY 10105 Attention: Manuel Sanchez Telephone: 212-728-1511 Telecopier: 212-333-2904~~
89
A-1
EXHIBIT A
FORM OF NOTE
$______New York, New York August 4, 2000
FOR VALUE RECEIVED, the undersigned, ______, a ______corporation (the "Borrower"), hereby unconditionally promises to pay to the order of (the "Lender") at the office of The Chase Manhattan Bank, located at 270 Park Avenue, New York, New York 10017, in lawful money of the United States of America and in same day funds, on the Termination Date (or if the Lender is an Objecting Lender, the Commitment Expiration Date applicable to the Lender) the principal amount of (a) ____ DOLLARS ($__ ), or, if less, (b) the aggregate unpaid principal amount of all Revolving Credit Advances made by the Lender to the Borrower pursuant to subsection 2.1 of the Credit Agreement, as hereinafter defined. The Borrower further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time outstanding at the rates and on the dates specified in the Credit Agreement.
The holder of this Note is authorized to, and prior to any transfer hereof shall, endorse on the schedules attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each Revolving Credit Advance made pursuant to subsection 2.1 of the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of Eurodollar Rate Advances, the length of each Interest Period with respect thereto. Each such endorsement shall constitute prima facie evidence of the accuracy of the information endorsed. The failure to make any such endorsement shall not affect
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document the obligations of the Borrower in respect of such Revolving Credit Advance.
This Note (a) is one of the Notes referred to in the $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, the Lender, the other banks and financial institutions from time to time parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement.
90 A-2
Upon the occurrence of any one or more of the Events of Default, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind except those expressly required under the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[BORROWER]
By: ------Title:
91 1
Schedule A to Note
ADVANCES, CONVERSIONS AND REPAYMENTS OF BASE RATE ADVANCES
Amount of Base Rate Amount Amount of Principal of Advances Converted to Unpaid Principal Amount of Base Rate Converted to Base Rate Advances Eurodollar Rate Balance of Base Rate Notation Date Advances Base Rate Advances Repaid Advances Advances Made By ------
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document~~
92
1
Schedule B to Note
ADVANCES, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE ADVANCES
Amount of Eurodollar Unpaid Principal Amount of Amount Converted Interest Period and Amount of Principal Rate Advances Balance of Eurodollar Rate to Eurodollar Rate Eurodollar Rate with of Eurodollar Rate Converted to Base Eurodollar Rate Notation Date Advances Advances Respect Thereto Advances Repaid Rate Advances Advances Made By ------
93
B-1
EXHIBIT B
FORM OF NOTICE OF BORROWING
The Chase Manhattan Bank, as Administrative Agent for the Lenders parties to the Credit Agreement referred to below 270 Park Avenue New York, New York 10017 [Date]
Attention: El Paso Energy Corporation
Ladies and Gentlemen:
The undersigned, EL PASO ENERGY CORPORATION, refers to the $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document August 4, 2000 (the "Credit Agreement", the terms defined therein being used herein as therein defined), among the undersigned, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent for said Lenders, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent, and hereby gives you notice, irrevocably, pursuant to Section 2.2 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the "Proposed Borrowing") as required by Section 2.2(a) of the Credit Agreement:
(i) The Borrower for the Proposed Borrowing is ______.
(ii) The Business Day of the Proposed Borrowing is ______, 200_.
(iii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iv) The aggregate amount of the Proposed Borrowing is $______.
(v) The Interest Period for each Eurodollar Rate Advance made as part of the Proposed Borrowing is [______month[s]].
94 B-2
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing, before and immediately after giving effect thereto and to the application of the proceed therefrom:
(A) each representation and warranty contained in Section 4.1 is correct in all material respects as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such Proposed Borrowing, which constitutes an Event of Default or Default.
Very truly yours,
EL PASO ENERGY CORPORATION
By: ------Title:
95
1
EXHIBIT C
FORM OF CAF ADVANCE REQUEST
[Date]
The Chase Manhattan Bank, as CAF Advance Agent 270 Park Avenue New York, New York 10017
Reference is made to the $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
This is a [Fixed Rate] [LIBO Rate] CAF Advance Request* pursuant to Section 2.5 of the Credit Agreement requesting quotes for the following CAF Advances:

Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Loan 1 Loan 2 Loan 3 ------ ~~Aggregate Principal Amount $ $ $ ------~~
~~CAF Advance Date~~
~~Maturity Date~~
~~Interest Payment Dates~~
------
* Pursuant to the Credit Agreement, a CAF Advance Request may be transmitted in writing, by telecopy, or by telephone, immediately confirmed by telecopy. In any case, a CAF Advance Request shall contain the information specified in the second paragraph of this form.
96 2
Very truly yours,
[Borrower]
By: ------Name: Title:
97
EXHIBIT D
FORM OF CAF ADVANCE OFFER [Date]
The Chase Manhattan Bank, as CAF Advance Agent 270 Park Avenue New York, New York 10017
Reference is made to the $1,000,000,000 3-Year Day Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
In accordance with Section 2.5 of the Credit Agreement, the undersigned Lender offers to make CAF Advances thereunder in the following amounts with the following maturity dates:

CAF Advance Date: , 200 Aggregate Maximum Amount: $ ------
Maturity Date 1: Maximum Amount: $ ------, 200 $ offered at * ------$ offered at * ------
Maturity Date 2: Maximum Amount: $ ------, 200 $ offered at * ------$ offered at * ------
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Maturity Date 3: Maximum Amount: $ ------, 200 $ offered at * ------$ offered at * ------

~~------~~
* Insert the interest rate offered for the specified CAF Advance. In the case of LIBO Rate CAF Advances, insert a margin bid. In the case of Fixed Rate CAF Advances, insert a fixed rate bid.
98
~~Very truly yours,~~
~~[NAME OF CAF ADVANCE LENDER]~~
~~By: ------Name: Title: Telephone No.: Telecopy No.:~~
99
~~EXHIBIT E~~
~~FORM OF CAF ADVANCE CONFIRMATION~~
~~[Date]~~
~~The Chase Manhattan Bank, as CAF Advance Agent 270 Park Avenue New York, New York 10017~~
Reference is made to the $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
In accordance with Section 2.5(d) of the Credit Agreement, the undersigned accepts and confirms the offers by the CAF Advance Lender(s) to make CAF Advances to the undersigned on , [date of CAF Advance Borrowing] under Section 2.5(d) in the (respective) amount(s) set forth on the attached list of CAF Advances offered.
~~Very truly yours,~~
~~[Borrower]~~
~~By ------Name: Title:~~
~~[The Borrower must attach CAF Advance offer list prepared by the CAF Advance Agent with accepted amount entered by the Borrower to the right of each CAF Advance offer].~~
~~100~~
~~EXHIBIT F~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document FORM OF ASSIGNMENT AND ACCEPTANCE~~
~~Dated ______, ____~~
Reference is made to the $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (as the same may be amended or otherwise modified from time to time, the "Credit Agreement") among EL PASO ENERGY CORPORATION, a Delaware corporation (the "Company"), EL PASO NATURAL GAS COMPANY, a Delaware corporation, TENNESSEE GAS PIPELINE COMPANY, a Delaware corporation, the Lenders (as defined in the Credit Agreement), The Chase Manhattan Bank, as administrative agent (the "Administrative Agent") and as CAF Advance Agent (the "CAF Advance Agent") for the Lenders, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A. , as Syndication Agent. Terms defined in the Credit Agreement are used herein with the same meaning.
~~______(the "Assignor") and ______(the "Assignee") agree as follows:~~
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, that interest in and to all of the Assignor's rights and obligations under the Credit Agreement as of the date hereof which represents the percentage interest specified on Schedule 1 of all outstanding rights and obligations under the Credit Agreement, including, without limitation, such interest in the Assignor's Commitment, the Advances owing to the Assignor, and the Notes held by the Assignor. After giving effect to such sale and assignment, the Assignee's Commitment and the amount of the Advances owing to the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of each Borrower or the performance or observance by each Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches the Notes referred to in paragraph 1 above and requests that the Administrative Agent exchange such Notes for new Notes payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto or new Notes payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount equal to the Commitment
~~101~~
~~F-2 retained by the Assignor under the Credit Agreement, respectively, as specified on Schedule 1 hereto.~~
3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and authorizes the Administrative Agent and CAF Advance Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent and CAF Advance Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender; [and] (vi) specifies as its address for notices the address set forth beneath its name on the signature pages hereof [and (vii) attaches the forms prescribed by the Internal Revenue Service of the United States certifying as to the Assignee's status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to the Assignee under the Credit Agreement and the Notes or such other documents as are necessary to indicate that all such payments are subject to such rates at a rate reduced by an applicable tax treaty]*.
~~4. Following the execution of this Assignment and Acceptance by the~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document Assignor and the Assignee, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent. The effective date of this Assignment and Acceptance shall be the date of acceptance thereof by the Administrative Agent, unless otherwise specified on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement and the Notes in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the Notes for periods prior to the Effective Date directly between themselves.
~~------~~
* If the Assignee is organized under the laws of a jurisdiction outside the United States.
~~102~~
~~F-3~~
~~7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York.~~
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be executed by their respective officers thereunto duly authorized, as of the date first above written, such execution being made on Schedule 1 hereto.
~~103~~
~~Schedule 1 to Assignment and Acceptance Dated ______, ____~~
Section 1.
Percentage Interest: % ------Section 2.
Assignee's Commitment: $ Aggregate Outstanding Principal ------Amount of Advances owing to the Assignee: $ ------
Note payable to the order of the Assignee Dated: , ------Principal amount: $ ------
Note payable to the order of the Assignor Dated: , ------Principal amount: $ ------
Section 3.
Effective Date*: , ------

~~[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document By: By: ------Title: Title:~~
~~Address for notices: [Address]~~
~~------~~
* This date should be no earlier than the date of acceptance by the Administrative Agent.
~~104~~
2
~~Consented to:~~
~~EL PASO ENERGY CORPORATION THE CHASE MANHATTAN BANK, as Administrative Agent~~
~~By: By: ------Title: Title:~~
~~105 3~~
~~Accepted this __ day of ______, ___~~
~~THE CHASE MANHATTAN BANK, as Administrative Agent~~
~~By: ------Title:~~
~~106~~
~~EXHIBIT G~~
~~FORM OF OPINION OF [ASSOCIATE GENERAL][SENIOR] COUNSEL OF THE COMPANY~~
~~August 4, 2000~~
~~To Each of the Lenders, the Administrative Agent and the CAF Advance Agent Referred to Below c/o The Chase Manhattan Bank 270 Park Avenue New York, New York 10017~~
~~Re: El Paso Energy Corporation~~
~~Ladies and Gentlemen:~~
This opinion is furnished to you pursuant to Section 3.2(b)(iii) of the $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (the "Credit Agreement"), among El Paso Energy Corporation (the "Company"), El Paso Natural Gas Company ("EPNGC"), Tennessee Gas Pipeline Company ("Tennessee") (Tennessee, together with the Company and EPNGC, the "Borrowers"), the banks and other financial institutions from time to time party thereto (each a "Lender", and together the "Lenders"), The Chase Manhattan Bank, as Administrative Agent (in such capacity, the "Administrative Agent") and as CAF Advance Agent (in such capacity, the "CAF Advance Agent") for the Lenders, ABN Amro, N.A. and ABN Amro, N.V., as Co-Documentation Agents (in such capacity, the "Co-Documentation Agents") , and ABN Amro, N.A., as Syndication Agent (in such capacity, the "Syndication Agent"). Unless the context otherwise requires, all capitalized terms used
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document herein without definition shall have the meanings ascribed to them in the Credit Agreement.
I am [Associate General] [Senior] Counsel of the Company, and I, or attorneys over whom I exercise supervision, have acted as counsel for the Borrowers in connection with the preparation, execution and delivery of the Credit Agreement. In that connection, I or such attorneys have examined:
~~(1) the Credit Agreement, executed by the parties thereto;~~
~~(2) the Notes, executed by the Borrowers; and~~
~~(3) the other documents furnished by the Borrowers pursuant to Sections 3.1 and 3.2 of the Credit Agreement.~~
~~107~~
~~G-2~~
I, or attorneys over whom I exercise supervision, have also examined the originals, or copies certified to our satisfaction, of the agreements, instruments and other documents, and all of the orders, writs, judgments, awards, injunctions and decrees, which affect or purport to affect the Borrowers' ability to perform their respective obligations under the Credit Agreement or the Notes (collectively referred to herein as the "Documents"). In addition, I, or attorneys over whom I exercise supervision, have examined the originals, or copies certified to our satisfaction, of such other corporate records of the Borrowers, certificates of public officials and of officers of the Borrowers, and agreements, instruments and other documents, as I have deemed necessary as a basis for the opinions hereinafter expressed. In all such examinations, I, or attorneys over whom I exercise supervision, have assumed the legal capacity of all natural persons executing documents, the genuineness of all signatures on original or certified, conformed or reproduction copies of documents of all parties (other than, with respect to the Documents, the Borrowers), the authenticity of original and certified documents and the conformity to original or certified copies of all copies submitted to such attorneys or me as conformed or reproduction copies. As to various questions of fact relevant to the opinions expressed herein, I have relied upon, and assume the accuracy of, representations and warranties contained in the Credit Agreement and certificates and oral or written statements and other information of or from public officials, officers and/or representatives of the Borrowers and others.
I have assumed that the parties to the Documents other than the Borrowers have the power to enter into and perform such documents and that such documents have been duly authorized, executed and delivered by, and constitute legal, valid and binding obligations of, such parties.
The opinions expressed below are limited to the federal laws of the United States and, to the extent relevant hereto, the General Corporation Law of the State of Delaware, as currently in effect. I assume no obligation to supplement this opinion if any applicable laws change after the date hereof or if I become aware of any facts that might change the opinions expressed herein after the date hereof.
~~Based on the foregoing and upon such investigation as we have deemed necessary, and subject to the limitations, qualifications and assumptions set forth herein, I am of the following opinion:~~
1. Each Borrower (i) is a corporation duly incorporated and existing in good standing under the laws of the State of Delaware, and (ii) possesses all the corporate 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.
2. The execution, delivery and performance by each Borrower of the Documents to which it is a party are within such Borrower's corporate powers and have been duly authorized by all necessary corporate action in respect of or by such Borrower, and do not contravene (i) such Borrower's charter or by-laws, each as amended to date, (ii) any federal law, rule or regulation applicable to such Borrower (excluding provisions of federal law expressly referred to in and covered by the opinion of Jones, Day, Reavis &
~~108~~
~~G-3~~
Pogue delivered to you in connection with the transactions contemplated hereby) or any provision of the General Corporation Law of the State of Delaware applicable to such Borrower, or (iii) any contractual restriction
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document binding on or affecting such Borrower. The Documents to which it is a party have been duly executed and delivered on behalf of each Borrower.
3. No authorization or approval or other action by, and no notice to or filing with, any federal governmental authority or regulatory body (including, without limitation, the FERC) is required for the due execution, delivery and performance by any Borrower of the Documents to which it is a party, except those required in the ordinary course of business in connection with the performance by each Borrower of its obligations under certain covenants and warranties contained in the Documents to which it is a party.
4. To the best of my knowledge, there is no action, suit or proceeding pending or overtly threatened against or involving the Company or any of the Principal Subsidiaries which, in my reasonable judgment (taking into account the exhaustion of all appeals), would have a material adverse effect upon the consolidated financial condition of the Company and its consolidated Subsidiaries taken as a whole, or which purports to affect the legality, validity, binding effect or enforceability of any Document.
These opinions are given as of the date hereof and are solely for your benefit in connection with the transactions contemplated by the Credit Agreement. These opinions may not be relied upon by you for any other purpose or relied upon by any other person for any purpose without my prior written consent.
~~Very truly yours,~~
~~109~~
~~EXHIBIT H~~
~~FORM OF OPINION OF NEW YORK COUNSEL TO THE COMPANY~~
~~August 4, 2000~~
To Each of the Lenders, the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents and the Syndication Agent Referred to Below c/o The Chase Manhattan Bank 270 Park Avenue, 10th Floor New York, New York 10017
~~Re: $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement dated as of August 4, 2000~~
~~Dear Ladies and Gentlemen:~~
We have acted as special New York counsel for El Paso Energy Corporation, a Delaware corporation (the "Company"), El Paso Natural Gas Company, a Delaware corporation ("EPNGC") and Tennessee Gas Pipeline Company, a Delaware corporation ("Tennessee") (Tennessee together with the Company and EPNGC, the "Borrowers"), in connection with the $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (the "Financing Agreement"), among the Company, EPNGC, Tennessee, the banks and other financial institutions from time to time party thereto (each a "Lender", and together the "Lenders"), The Chase Manhattan Bank, as administrative agent (in such capacity, the "Administrative Agent") and as CAF Advance Agent (in such capacity, the "CAF Advance Agent") for the Lenders, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents (in such capacity, the Co-Documentation Agents"), and Bank of America, N.A., as Syndication Agent (in such capacity, the "Syndication Agent"). This opinion is delivered to you pursuant to Section 3.2(b)(iv) of the Financing Agreement. Capitalized terms used herein and not otherwise defined have the meanings assigned such terms in the Financing Agreement. With your permission, all assumptions and statements of reliance herein have been made without any independent investigation or verification on our part except to the extent otherwise expressly stated, and we express no opinion with respect to the subject matter or accuracy of the assumptions or items upon which we have relied.
~~110~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document H-2~~
In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed necessary for the purposes of this opinion. We have examined, among other documents, the following:
~~(a) An executed copy of the Financing Agreement; and~~
~~(b) An executed copy of each of the Notes.~~
~~The documents referred to in items (a) and (b) above are referred to herein collectively as the "Documents."~~
In all such examinations, we have assumed the legal capacity of all natural persons executing documents, the genuineness of all signatures, the authenticity of original and certified documents and the conformity to original or certified copies of all copies submitted to us as conformed or reproduction copies. As to various questions of fact relevant to the opinions expressed herein, we have relied upon, and assume the accuracy of, representations and warranties contained in the Documents and certificates and oral or written statements and other information of or from representatives of the Borrowers and others and assume compliance on the part of all parties to the Documents with their covenants and agreements contained therein. With respect to the opinions expressed in paragraph (a) below, our opinions are limited (x) to our actual knowledge, if any, of the Borrowers' specially regulated business activities and properties based solely upon an officer's certificate in respect of such matters and without any independent investigation or verification on our part and (y) to our review of only those laws and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the Documents.
To the extent it may be relevant to the opinions expressed herein, we have assumed that the parties to the Documents have the power to enter into and perform such documents and to consummate the transactions contemplated thereby and that such documents have been duly authorized, executed and delivered by, and, except as set forth in paragraph (b) with respect to the Borrowers, constitute legal, valid and binding obligations of, such parties.
~~Based upon the foregoing, and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that:~~
(a) The execution and delivery to the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent and the Lenders by each Borrower of the Documents to which it is a party and the performance by each Borrower of its obligations thereunder (i) do not require under present law any filing or registration by such Borrower with, or approval or consent to such Borrower of, any governmental agency or authority of the State of New York that has not been made or obtained except those required in the ordinary course of business in connection with the performance by such Borrower of its obligations under certain covenants and warranties contained in the Documents to which it is a party and (ii) do not violate any present law, or present regulation of any governmental agency or authority, of the State of New York applicable to such Borrower or its property.
~~111~~
~~H-3~~
~~(b) The Documents to which it is a party constitute legal, valid and binding obligations of each Borrower enforceable against such Borrower in accordance with their respective terms.~~
(c) The borrowings by each Borrower under the Financing Agreement and the applications of the proceeds thereof as provided in the Financing Agreement will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
~~The opinions set forth above are subject to the following qualifications:~~
~~(A) We express no opinion as to:~~
(i) the validity, binding effect or enforceability (a) of any provision of the Documents relating to indemnification, contribution or exculpation in connection with violations of any securities laws or statutory duties or public policy, or in connection with willful, reckless or criminal acts or gross negligence of the indemnified or exculpated party or the party receiving contribution; or (b) of any provision of any of the Documents relating to exculpation of any party in connection with its own negligence that a court would determine in the circumstances under applicable law to be unfair or insufficiently explicit;
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (ii) the validity, binding effect or enforceability of (a) any purported waiver, release, variation, disclaimer, consent or other agreement to similar effect (all of the foregoing, collectively, a "Waiver") by the Borrowers under the Documents to the extent limited by provisions of applicable law (including judicial decisions), or to the extent that such a Waiver applies to a right, claim, duty, defense or ground for discharge otherwise existing or occurring as a matter of law (including judicial decisions), except to the extent that such a Waiver is effective under and is not prohibited by or void or invalid under provisions of applicable law (including judicial decisions), (b) any provision of any Document relating to choice of governing law to the extent that the validity, binding effect or enforceability of any such provision is to be determined by any court other than a court of the State of New York or (c) any provision of any Document relating to forum selection to the extent the forum is a federal court;
(iii) the enforceability of any provision in the Documents specifying that provisions thereof may be waived only in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created that modifies any provision of the Documents;
(iv) the effect of any law of any jurisdiction other than the State of New York wherein the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent or any Lender may be located or wherein enforcement of any document referred to above may be sought that limits the rates of interest legally chargeable or collectible; and
~~(v) any approval, consent or authorization of the Federal Energy Regulatory Commission or any other United States federal agency or authority needed in connection~~
~~112~~
~~H-4~~
with the execution, delivery and performance by any Borrower of the Documents to which it is a party, the consummation of the transactions contemplated thereby and compliance with the terms and conditions thereof.
(B) Our opinions above are subject to (i) applicable bankruptcy, insolvency, reorganization, fraudulent transfer, voidable preference, moratorium or similar laws, and related judicial doctrines, from time to time in effect affecting creditors' rights and remedies generally, (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness, equitable defenses and limits on the availability of equitable remedies), whether such principles are considered in a proceeding at law or in equity and (iii) the qualification that certain other provisions of the Documents may be unenforceable in whole or in part under the laws (including judicial decisions) of the State of New York or the United States of America, but the inclusion of such provisions does not affect the validity as against any Borrower of the Documents to which it is a party, taken as a whole, and the Documents contain adequate provisions for enforcing payment of the obligations governed thereby, subject to the other qualifications contained in this letter.
~~(C) Our opinions as to enforceability are subject to the effect of generally applicable rules of law that:~~
~~(i) limit the availability of a remedy under certain circumstances when another remedy has been elected; and~~
(ii) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; and
~~(iii) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys' fees and other costs.~~
(D) For the purposes of the opinion set forth in paragraph (c) above, we have assumed that (i) none of the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent or any of the Lenders has or will have the benefit of any agreement or arrangement (excluding the Documents) pursuant to which any Advances are directly or indirectly secured by Margin Stock, (ii) none of the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent, any of the Lenders or any of their respective affiliates has extended or will extend any other credit to any of the Borrowers directly or indirectly secured by Margin Stock and (iii) none of the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents and the Syndication Agents or any of the Lenders has relied or will rely upon
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document any Margin Stock as collateral in extending or maintaining any Advances pursuant to the Financing Agreement.
(E) For purposes of our opinions above insofar as they relate to the Borrowers, we have assumed that (i) each Borrower is a corporation validly existing in good standing in its jurisdiction of incorporation, has all requisite power and authority, and has obtained all requisite corporate, shareholder, third party and governmental authorizations, consents and approvals, and made all requisite filings and registrations, necessary to execute, deliver and perform the
~~113~~
~~H-5~~
Documents to which it is a party (except to the extent noted in paragraph (a) above), and that such execution, delivery and performance will not violate or conflict with any law, rule, regulation, order, decree, judgment, instrument or agreement binding upon or applicable to such Borrower or its properties (except to the extent noted in paragraph (a) above), and (ii) the Documents to which each Borrower is a party have been duly executed and delivered by such Borrower.
The opinions expressed herein are limited to the federal laws of the United States of America (in the case of the matters covered in paragraph (c) above) and the laws of the State of New York, as currently in effect, except that we express no opinion with respect to laws, rules or regulations of the State of New York, or of any governmental agency or authority thereof, applicable to companies engaged in the gathering, processing, transmission, distribution or marketing of natural gas or other hydrocarbon derivatives or power generation or the generation, transmission, distribution or marketing of electricity, or as to filings, registrations, approvals or consents under or by such laws, rules or regulations.
We express no opinion as to the compliance or noncompliance, or the effect of the compliance or noncompliance, of each of the addressees with any state or federal laws or regulations applicable to each of them by reason of their status as or affiliation with a federally insured depository institution.
The opinions expressed herein are solely for the benefit of the Administrative Agent, CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent and the Lenders and may not be relied on in any manner or for any purpose by any other person or entity.
~~Very truly yours,~~
~~JONES, DAY, REAVIS & POGUE~~
~~By: ------~~
~~114~~
~~EXHIBIT I~~
~~[LETTERHEAD OF PROCESS AGENT]~~
~~[DATE]~~
To each of the Lenders parties to the Credit Agreement (as defined and referred to below) and to The Chase Manhattan Bank as Administrative Agent and CAF Advance Agent for said Lenders c/o The Chase Manhattan Bank 270 Park Avenue New York, New York 10017
~~To El Paso Energy Corporation 1001 Louisiana Street Houston, Texas 77002~~
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document El Paso Energy Corporation/El Paso Natural Gas Company/Tennessee Gas Pipeline Company
~~Gentlemen:~~
Reference is made to that certain $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000 (said Agreement, as it may hereafter be amended, supplemented or otherwise modified from time to time, being the "Credit Agreement", the terms defined therein being used herein with the same meaning) among El Paso Energy Corporation (the "Company"), El Paso Natural Gas Company ("EPNGC"), Tennessee Gas Pipeline Company ("Tennessee") (Tennessee, together with the Company and EPNGC, the "Borrowers") , certain banks and other financial institutions from time to time party thereto as Lenders thereunder (the "Lenders"), The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent (in such capacities, the "Administrative Agent" and the "CAF Advance Agent") for the Lenders, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent.
Pursuant to Section 9.9(a) of the Credit Agreement each of the Borrowers has appointed the undersigned (with an office on the date hereof at 1633 Broadway, New York, New York 10019) as Process Agent to receive on behalf of such Borrower and its property service of copies of the summons and complaint and any other process which may be served by the
~~115~~
~~I-2~~
Administrative Agent, the CAF Advance Agent, any Lender or the holder of any Note in any action or proceeding by the Administrative Agent, the CAF Advance Agent, any Lender or the holder of any Note in any New York State or Federal court sitting in New York City in respect of, but only in respect of, any claims or causes of action arising out of or relating to the Credit Agreement and the Notes issued pursuant thereto.
The undersigned hereby accepts such appointment as Process Agent and agrees with each of you that (i) the undersigned will not terminate the undersigned's agency as such Process Agent prior to ______, 200_ (and hereby acknowledges that the undersigned has been paid in full by the Borrower for its services as Process Agent through such date), (ii) the undersigned will maintain an office in New York City through such date and will give the Administrative Agent prompt notice of any change of address of the undersigned, (iii) the undersigned will perform its duties as Process Agent in accordance with Section 9.9(a) of the Credit Agreement and (iv) the undersigned will forward forthwith to the Borrower at its address specified below copies of any summons, complaint and other process which the undersigned receives in connection with its appointment as Process Agent.
~~This acceptance and agreement shall be binding upon the undersigned and all successors of the undersigned.~~
~~Very truly yours,~~
~~CT CORPORATION SYSTEM~~
~~By: ------Title:~~
~~Address of the Borrower:~~
~~[Address]~~
~~116~~
~~EXHIBIT J~~
~~FORM OF JOINDER AGREEMENT~~
Reference is made to the $1,000,000,000 3-Year Revolving Credit and CAF Advance Facility Agreement, dated as of August 4, 2000 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"; terms defined therein being used herein as therein defined), among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain banks and other financial institutions from time to time party thereto,
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent.
~~The undersigned hereby acknowledges that it has received and reviewed a copy (in execution form) of the Credit Agreement, and agrees to:~~
~~(a) join the Credit Agreement as a Borrower party thereto;~~
~~(b) be bound by all covenants, agreements and acknowledgments attributable to a Borrower in the Credit Agreement and any Note to which it is a party; and~~
~~(c) perform all obligations required of it by the Credit Agreement and any Note to which it is a party.~~
The undersigned hereby represents and warrants that the representations and warranties with respect to it contained in, or made or deemed made by it in, Article IV of the Credit Agreement are true and correct on the date hereof.
~~THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.~~
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered in New York, New York by its proper and duly authorized officer as of this ____ day of ______,___ .
~~[Borrower]~~
~~By: ------Title:~~
~~117~~
~~J-2~~
~~ACKNOWLEDGED AND AGREED TO:~~
~~[EL PASO ENERGY CORPORATION]~~
~~By: ------Title:~~
~~118~~
~~EXHIBIT K~~
~~FORM OF OPINION OF [ASSOCIATE GENERAL] [SENIOR] COUNSEL OF THE COMPANY~~
(a) Each of the Company and the Borrowing Subsidiaries (i) is a corporation duly incorporated and existing in good standing under the laws of the jurisdiction of its organization, and (ii) possesses all the corporate 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.
(b) The execution and delivery by the Company and the Borrowing Subsidiary of the Joinder Agreement and by the Borrowing Subsidiary of the Notes made by it and the performance by the Borrowing Subsidiary of its obligations as a "Borrower" under the Credit Agreement and the Notes made by it are within such corporation's corporate powers and have been duly authorized by all necessary corporate action in respect of or by each of the Company and the Borrowing Subsidiary (as applicable), and do not contravene (i) the Company's or the Borrowing Subsidiary's charter or by-laws, each as amended to date, (ii) any federal law, rule or regulation applicable to the Company or the Borrowing Subsidiary (excluding provisions of federal law expressly referred to in and covered by the opinion of [New York Counsel] delivered to you in connection with the transactions contemplated hereby) or any provision of the General Corporation Law of the State of Delaware applicable to such corporation, or
Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document (iii) any contractual restriction binding on or affecting the Company or the Borrowing Subsidiary. The Joinder Agreement has been duly executed and delivered on behalf of the Company and the Borrowing Subsidiary and the Notes made by the Borrowing Subsidiary have been duly executed and delivered on behalf of the Borrowing Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any federal governmental authority or regulatory body (including, without limitation, the FERC) is required for (i) the due execution and delivery by the Company or the Borrowing Subsidiary of the Joinder Agreement, (ii) the performance by the Borrowing Subsidiary of its obligations as a "Borrower" under the Credit Agreement or (iii) the execution, delivery and performance by the Borrowing Subsidiary of the Notes made by it, except those required in the ordinary course of business in connection with the performance by the Company or the Borrowing Subsidiary of its obligations under certain covenants and warranties contained in the Joinder Agreement, the Credit Agreement and the Notes and those which have been obtained and are in full force and effect.
~~(d) To the best of my knowledge, there is no action, suit or proceeding pending or overtly threatened against or involving the Company or any of the Principal~~
~~119~~
~~K-2~~
Subsidiaries which, in my reasonable judgment (taking into account the exhaustion of all appeals), would have a material adverse effect upon the consolidated financial condition of the Company and its consolidated Subsidiaries taken as a whole, or which purports to affect the legality, validity, binding effect or enforceability of the Joinder Agreement, the Credit Agreement or the Notes.
~~120~~
~~EXHIBIT L~~
~~FORM OF OPINION OF NEW YORK COUNSEL TO THE COMPANY~~
(a) The execution and delivery to the Administrative Agent, the CAF Advance Agent, the Co-Documentation Agents, the Syndication Agent and the Lenders by the Company and the Borrowing Subsidiary of the Joinder Agreement and by the Borrowing Subsidiary of the Notes made by it and the performance by the Borrowing Subsidiary of its obligations as a "Borrower" under the Credit Agreement and the Notes made by it (i) do not require under present law any filing or registration by the Company or the Borrowing Subsidiary with, or approval or consent to the Company or the Borrowing Subsidiary of, any governmental agency or authority of the State of New York that has not been made or obtained, except those, if any, required in the ordinary course of business in connection with the performance by the Company or the Borrowing Subsidiary of their respective obligations under certain covenants and warranties contained in the Joinder Agreement, the Credit Agreement and the Notes and (ii) do not violate any present law, or present regulation of any governmental agency or authority, of the State of New York applicable to the Company or the Borrowing Subsidiary or its respective property.
(b) The Joinder Agreement, the Credit Agreement and the Notes (as applicable) constitute the legal, valid and binding obligations of each of the Company and the Borrowing Subsidiary enforceable against each of the Company and the Borrowing Subsidiary in accordance with their respective terms.
(c) The borrowings by the Borrowing Subsidiary under the Credit Agreement and the applications of the proceeds thereof as provided in the Credit Agreement will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
~~121~~
~~EXHIBIT M~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document FORM OF EXTENSION REQUEST~~
~~[Date]~~
~~The Chase Manhattan Bank, as Administrative Agent 270 Park Avenue New York, New York 10017~~
~~Attention: Jackie Reid~~
~~Gentlemen:~~
Reference is made to the $1,000,000,000 3-Year Revolving Credit and Competitive Advance Facility Agreement, dated as of August 4, 2000, among the undersigned, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and ABN Amro, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the "Credit Agreement"). Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
~~The undersigned hereby represents and warrants that no Event of Default has occurred or is continuing.~~
This is an Extension Request pursuant to Section 2.23 of the Credit Agreement requesting an extension of the Stated Termination Date to [INSERT REQUESTED TERMINATION DATE]. Please transmit a copy of this Extension Request to each of the Lenders.
~~EL PASO ENERGY CORPORATION~~
~~By: ------Title:~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 1 EXHIBIT 10.H~~
~~JOINDER AGREEMENT~~
Reference is made to each of (i) the $2,000,000,000 364-Day Revolving Credit and CAF Advance Facility Agreement, dated of August 4, 2000 (as amended, supplemented or otherwise modified from time to time, the "364-Day Credit Agreement"; terms defined therein being used herein as therein defined) and (ii) the $1,000,000,000 3-Year Revolving Credit and CAF Advance Facility Agreement, dated as of August 4, 2000 (as amended, supplemented or otherwise modified from time to time, the "3-Year Credit Agreement" and, together with the 364 Day Credit Agreement, the "Credit Agreements"), each among El Paso Energy Corporation, El Paso Natural Gas Company, Tennessee Gas Pipeline Company, certain banks and other financial institutions from time to time party thereto, the Chase Manhattan Bank, as Administrative Agent and CAF Advance Agent, Citibank, N.A. and ABN Amro, N.V., as Co-Documentation Agents, and Bank of America, N.A., as Syndication Agent.
~~The undersigned hereby acknowledges that it has received and reviewed a copy (in execution form) of each of the Credit Agreements, and agrees to:~~
~~(a) join the 364-Day Credit Agreement as a Borrower party thereto;~~
~~(b) join the 3-Year Credit Agreement as a Borrower party thereto;~~
~~(c) be bound by all covenants, agreements and acknowledgments attributable to a Borrower in each of the Credit Agreements and any Note to which it is a party; and~~
~~(d) perform all obligations required of it by each of the Credit Agreements and any Note to which it is a party.~~
The undersigned hereby represents and warrants tha the representations and warranties with respect to it contained in, or made or deemed made by it in, Article IV of each of the Credit Agreements are true and correct on the date hereof.
~~THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.~~
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered in New York, New York by its proper and duly authorized officer as of this 5th day of February, 2001.
~~EL PASO CGP COMPANY~~
~~By: /s/ C. Dana Rice~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document ------Name: C. Dana Rice Title: Senior Vice President and Treasurer~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 1~~
~~EXHIBIT 23~~
~~INDEPENDENT AUDITORS' CONSENT~~
We consent to the incorporation by reference in the Registration Statements on Form S-3 (File Nos. 333-77603 and 333-38004) and Form S-8 (File Nos. 333-26813, 333-26823, 333-26831, 33-46519, 33-49956, 33-51851, 33-57553, 333-75781, 333-78949, 333-78951, 333-78979, 333-94717, 333-94719, and 33-52100) of El Paso Corporation of our report dated March 19, 2001, appearing in the Annual Report on Form 10-K of El Paso CGP Company (formerly The Coastal Corporation) for the year ended December 31, 2000.
~~DELOITTE & TOUCHE LLP~~
~~Houston, Texas March 22, 2001~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document 1 EXHIBIT 23.2~~
~~CONSENT OF HUDDLESTON & CO., INC.~~
We consent to the incorporation by reference in the Registration Statements on Form S-3 (File Nos. 333-77603 and 333-38004) and Form S-8 (File Nos. 333-26813, 333-26823, 333-26831, 33-46519, 33-49956, 33-51851, 33-57553, 333-75781, 333-78949, 333-78951, 333-78979, 333-94717, 333-94719, and 33-52100) of El Paso Corporation of the reference to our report under the captions "Business - Natural Gas Systems" and "Supplemental Natural Gas and Oil Operations (Unaudited)" appearing in the Annual Report on Form 10-K of El Paso CGP Company (formerly The Coastal Corporation) for the year ended December 31, 2000.
~~HUDDLESTON & CO., INC.~~
~~Houston, Texas March 23, 2001~~
~~Copyright © 2012 www.secdatabase.com. All Rights Reserved. Please Consider the Environment Before Printing This Document~~