EXHIBIT 10.A.2
EXECUTION COPY
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SECOND WAIVER
TO
$3,000,000,000 REVOLVING CREDIT AGREEMENT
DATED AS OF JUNE 15, 2004
AMONG
EL PASO CORPORATION, EL PASO NATURAL GAS COMPANY,
TENNESSEE GAS PIPELINE COMPANY, ANR PIPELINE COMPANY
AND COLORADO INTERSTATE GAS COMPANY,
AS BORROWERS,
THE LENDERS PARTY HERETO,
AND
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
ABN AMRO BANK N.V. AND CITICORP NORTH AMERICA, INC.,
AS CO-DOCUMENTATION AGENTS
BANK OF AMERICA, N.A. AND CREDIT SUISSE FIRST BOSTON,
AS CO-SYNDICATION AGENTS
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EXECUTION COPY
SECOND WAIVER
TO $3,000,000,000 REVOLVING CREDIT AGREEMENT
This SECOND WAIVER TO $3,000,000,000 REVOLVING CREDIT AGREEMENT (this
"Second Waiver") dated as of June 15, 2004, is by and among EL PASO CORPORATION,
a Delaware corporation (the "Company"), EL PASO NATURAL GAS COMPANY, a Delaware
corporation ("EPNGC"), TENNESSEE GAS PIPELINE COMPANY, a Delaware corporation
("TGPC"), ANR PIPELINE COMPANY, a Delaware corporation ("ANR"), COLORADO
INTERSTATE GAS COMPANY, a Delaware corporation, the several banks and other
financial institutions signatories hereto, JPMORGAN CHASE BANK, as
Administrative Agent (the "Administrative Agent"), ABN AMRO BANK N.V. and
CITICORP NORTH AMERICA, INC., as Co-Documentation Agents, and BANK OF AMERICA,
N.A. and CREDIT SUISSE FIRST BOSTON, as Co-Syndication Agents, and is in
connection with $3,000,000,000 Revolving Credit Agreement, dated as of April 16,
2003, as amended by that certain First Amendment to $3,000,000,000 Revolving
Credit Agreement and Waiver (the "First Amendment") dated as of March 15, 2004
(as so amended, the "Credit Agreement"), by and among the Company, EPNGC, TGPC,
ANR, the several banks and other financial institutions party thereto (the
"Lenders"), the Administrative Agent, the Co-Documentation Agents and the
Co-Syndication Agents. Each term defined in the Credit Agreement (as amended
hereby) and not otherwise defined herein shall have the meaning assigned to such
term in the Credit Agreement. Unless otherwise indicated, all section and
article references in this Second Waiver refer to the Credit Agreement.
RECITALS:
WHEREAS, the Company requested, and the Majority Lenders granted, certain
modifications and waivers pursuant to the First Amendment, in connection with
the Company's Reserve Reduction (as such term is defined in such First
Amendment), its inability to timely file its annual report on Form 10-K,
including its financial statements for the year ended December 31, 2003, with
the Securities and Exchange Commission and its inability to deliver such annual
report and such financial statements to the Lenders within 120 days after such
year end as required by Section 5.08(b) of the Credit Agreement.
WHEREAS, the Company anticipates that it will be unable to file its annual
report on Form 10-K, including its financial statements for the year ended
December 31, 2003, with the Securities and Exchange Commission or deliver the
same to the Lenders, prior to the expiration of the waiver relating to Section
5.08(b) of the Credit Agreement as set forth in the First Amendment.
WHEREAS, the Company was unable to timely file its quarterly report on
Form 10-Q, including its financial statements for the quarter ended March 31,
2004, with the Securities and Exchange Commission and consequently was unable to
timely deliver such quarterly report and such financial statements to the
Lenders as required by Section 5.08(a) of the Credit Agreement.
WHEREAS, the Company has requested that the Administrative Agent and the
Lenders waive its failure to comply with Section 5.08(a) and continue to waive
the failure to comply with Section 5.08(b), together with the related Events of
Default under the Credit Agreement that may result from the Company's failure to
deliver such annual and quarterly reports to the Lenders.
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AGREEMENT:
In consideration of the premises and the mutual covenants contained herein
and in the Credit Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Waivers. The Administrative Agent and the Lenders hereby waive
each of the following:
(a) compliance by the Company with the affirmative covenant
contained in Section 5.08(a) of the Credit Agreement, insofar as such covenant
requires that the unaudited financial statements for the Company and its
consolidated Subsidiaries required to be delivered thereunder for the fiscal
quarter ended March 31, 2004, must be delivered to each Lender within 60 days
after March 31, 2004, together with an accompanying certificate of the chief
financial officer, controller or treasurer of the Company; provided that such
waiver shall expire upon the earliest to occur of the following (the "Waiver
Expiration"):
(i) August 14, 2004;
(ii) the date upon which the Company or any Significant
Subsidiary shall receive notice from the holder or holders under any Material
Indebtedness, or from any Person or Persons authorized to deliver such notice on
behalf of such holder or holders, of an Unmatured Default;
(iii) the date on which the Company or any Significant
Subsidiary shall be required to provide notice to the holder or holders of any
Material Indebtedness, or to any other Person or Persons authorized to receive
such notice on behalf of such holder or holders, of an Unmatured Default which
would become a Matured Default upon the lapse of time without any further action
by any Person;
(iv) the date on which the Company or any Significant
Subsidiary has knowledge of, or should have had knowledge of, an Unmatured
Default (other than an Excepted Default) under any Material Indebtedness if the
effect of such knowledge by such Person is that such Unmatured Default would
become a Matured Default upon the lapse of time without any further action by
any Person;
(v) the date upon which a Matured Default with respect to any
Material Indebtedness (other than an Excepted Default) first exists; and
(vi) the date upon which the Company or any Excepted
Subsidiary shall have received with respect to an Excepted Default either a
"Default Notice" pursuant to Section 9.01(x) of the Excepted Subsidiary
Indenture or a notice of acceleration pursuant to Section 9.01(y) of the
Excepted Subsidiary Indenture;
and provided further, that if the Waiver Expiration occurs prior to compliance
by the Company with Section 5.08(a), then, notwithstanding the grace period
provided for in Article VII(d), the Default arising out of the Company's failure
to so comply with Section 5.08(a) shall become an Event of Default if such
Default remains unremedied for twenty-nine (29) days after the date of the
Waiver Expiration and this Second Waiver shall constitute written notice of such
Default to
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the Company for purposes of Article VII(d) and such written notice shall be
deemed to be received by the Company as of the date of the Waiver Expiration;
(b) compliance by the Company with the affirmative covenants
contained in Sections 5.08(b) and (c) of the Credit Agreement, insofar as such
covenants require that the audited financial statements for the Company and its
consolidated Subsidiaries required to be delivered thereunder for the fiscal
year ended December 31, 2003, must be delivered to each Lender within 120 days
after December 31, 2003, together with an accompanying certificate of the chief
financial officer, controller or treasurer of the Company; provided that such
waiver shall expire on the Waiver Expiration; and provided further, that if the
Waiver Expiration occurs prior to compliance by the Company with Sections
5.08(b) and (c), then, notwithstanding the grace period provided for in Article
VII(d), the Defaults arising out of the Company's failure to so comply with
Sections 5.08(b) and (c) shall each become an Event of Default if such Default
remains unremedied for twenty-nine (29) days after the date of the Waiver
Expiration and this Second Waiver shall constitute written notice of such
Defaults to the Company for purposes of Article VII(d) and such written notice
shall be deemed to be received by the Company as of the date of the Waiver
Expiration;
(c) if the Waiver Expiration occurs prior to the compliance by the
Company with the affirmative covenants contained in Sections 5.08(a), (b) or (c)
for the fiscal periods ending December 31, 2003 and March 31, 2004, and with
respect only to a renewal or extension of any Letter of Credit issued by an
Issuing Bank prior to the date of the Waiver Expiration, the condition set forth
in Section 3.03(b) insofar as, and for as long as, such condition is not
satisfied because of the existence and continuation of a Default or Event of
Default arising out of the Company's failure to comply with Sections 5.08(a),
(b) or (c) with respect to the fiscal periods ending December 31, 2003 and March
31, 2004.
(d) For purposes of this Section 1 and the other provisions of this
Second Waiver, the following terms shall have the meanings set forth below:
(i) "Excepted Default" means an event or condition that
could or has become an "Event of Default" pursuant to the provisions of Sections
9.01(c) and (d) of the Excepted Subsidiary Indenture.
(ii) "Excepted Subsidiary" means either of Gemstone Investor
Limited or Gemstone Investor, Inc.
(iii) "Excepted Subsidiary Indenture" means the Indenture
dated as of May 9, 2002 among the Excepted Subsidiaries, as issuers, The Bank of
New York, as the New Indenture Trustee, and the Company, as guarantor, pursuant
to which the Excepted Subsidiaries' 7.71% Guaranteed Senior Unsecured Notes due
2004 were issued.
(iv) "Material Indebtedness" means any Debt or Guaranty of the
Company or any Significant Subsidiary in an aggregate principal amount of
$100,000,000 or more.
(v) "Matured Default" means any event or condition which
allows the holder or holders of any Material Indebtedness to accelerate the
maturity of such Material Indebtedness.
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(vi) "Significant Subsidiary" means (i) each Subsidiary of
the Company that would be a "significant subsidiary" of the Company within the
meaning of Rule 1-02 under Regulation S-X promulgated by the Securities and
Exchange Commission and (ii) each of the Credit Related Parties, El Paso CGP
Company, Gemstone Investor Limited, Gemstone Investor, Inc. and El Paso
Production Holding Company.
(vii) "Unmatured Default" means any event or condition which,
with notice or lapse of time or both, allows the holder or holders of any
Material Indebtedness to accelerate the maturity of such Material Indebtedness.
Section 2. Limitations. The waivers set forth herein are limited precisely
as written and shall not (a) be deemed to be a waiver or modification of any
other term or condition of the Credit Agreement (including, but not limited to,
any other Default or Event of Default under the Credit Agreement arising out of
the same factual predicate as the Defaults waived herein in Sections 1(a) and
(b)) or (b) except as expressly set forth herein, prejudice any right or rights
which the Lenders may now have or may have in the future under or in connection
with the Credit Agreement or any of the other documents or instruments referred
to therein. Except as expressly modified hereby or by express written amendments
thereof, the Credit Agreement and each of the other Loan Documents and
instruments executed in connection with any of the foregoing are and shall
remain in full force and effect. In the event of a conflict between this Second
Waiver and any of the foregoing documents, the terms of this Second Waiver shall
be controlling.
Section 3. Effectiveness. This Second Waiver shall become effective as of
June 15, 2004, if on or prior to that date the following conditions have been
satisfied or waived: (a) the Administrative Agent shall have received this
Second Waiver, executed and delivered by each Borrower, the Administrative Agent
and the Majority Lenders, (b) each Guarantor other than the Company shall have
executed and delivered an acknowledgment and consent to this Second Waiver
substantially in the form of Exhibit A hereto, (c) except for Excepted Defaults,
no Matured Default exists and is continuing and (d) the Administrative Agent
shall have received evidence satisfactory to it that any default or event of
default under the Financing Documents (including any Company Project Support
Document or any Company Reimbursement Document (as such term is defined in
Appendix A-1 to the Security and Intercreditor Agreement)) for (i) the Lakeside
Underlying Transaction (as defined on Schedule 1 attached hereto) and (ii) each
of the Additional Covered Letters of Credit (as described on Schedule 1 attached
hereto) arising from the failure of the Company to timely deliver its financial
statements has been waived, cured or otherwise remedied.
Section 4. Representations and Warranties. The Company hereby represents
and warrants to the Administrative Agent and each of the Lenders that:
(a) each of the representations and warranties made by the Company
or its Subsidiaries in or pursuant to the Credit Agreement and the other Loan
Documents (excluding Section 4.05 of the Credit Agreement) is true and correct
in all material respects as of the date hereof, as if made (after giving effect
to this Second Waiver) on and as of such date, except for any representations
and warranties made as of a specified date, which are true and correct in all
material respects as of such specified date;
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(b) after giving effect to this Second Waiver, no Default or Event
of Default has occurred and is continuing as of the date hereof;
(c) except for the obligations set forth on Schedule 2 attached
hereto, there is no credit agreement, instrument, guarantee, bond, indentures or
similar document or agreement with respect to Debt or Guarantees of the Company
or any Significant Subsidiary in aggregate principal amount of $50,000,000 or
more under which an Unmatured Default or Matured Default will occur from a
breach of the obligation of the relevant obligor thereunder or the Company to
deliver financial statements for the year ended December 31, 2003 or for the
fiscal period ended March 31, 2004, within any applicable time period required
by such documents or agreements.
(d) for the period commencing March 30, 2004 to and including June
15, 2004, neither the Company nor any Significant Subsidiary has (i) been
required to provide a notice with respect to any Unmatured Default, (ii)
received notice from any Person with respect to any Unmatured Default or (iii)
acquired knowledge of any Unmatured Default; provided, however, that the
representations made in the foregoing clauses (i) and (iii) are not made as to
any Excepted Default.
(e) no Matured Default exists and is continuing; provided, however,
that no such representation is made as to any Excepted Default.
Section 5. Covenant Regarding Coastal Petrochemical. The Company hereby
agrees to (a) use its commercially reasonable efforts to obtain a waiver with
respect to any event or condition which constitutes an event of default or which
upon notice, lapse of time or both would, unless cured or waived, become an
event of default under the Financing Documents (including any Company Project
Support Document) for the Coastal Petrochemical Underlying Transaction arising
from the failure of the Company to timely deliver its financial statements and
(b) to promptly provide a certified copy of any such waiver to the
Administrative Agent.
Section 6. Covenant to Deliver Notice of Waiver Expiration. The Company
hereby covenants to deliver written notice to the Administrative Agent of the
Waiver Expiration promptly upon the occurrence thereof and, if applicable, a
copy of each notice with respect to any Unmatured Default, whether required to
be provided by the Company or any Significant Subsidiary or received by the
same, promptly upon either the receipt thereof or the delivery thereof by the
Company or such Significant Subsidiary.
Section 7. Adoption, Ratification and Confirmation of Loan Documents. The
Company and each of the Pipeline Company Borrowers hereby adopts, ratifies and
confirms the Loan Documents, as amended hereby, and acknowledges and agrees that
the Loan Documents, as amended hereby, are and remain in full force and effect.
Section 8. Governing Law. THIS SECOND WAIVER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 9. Descriptive Headings, Etc. The descriptive headings of the
several sections of this Second Waiver are inserted for convenience only and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof. The statements made and the
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terms defined in the recitals to this Second Waiver are hereby incorporated into
this Second Waiver in their entirety.
Section 10. Payment of Expenses and Deferred Waiver Fees. The Company
agrees to pay or reimburse the Administrative Agent for all of its out-of-pocket
costs and reasonable expenses incurred in connection with this Second Waiver,
any other documents prepared in connection herewith and the transactions
contemplated hereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent. If the Company has not
complied in all respects with the covenants of Sections 5.08(a), (b) and (c) of
the Credit Agreement as of July 15, 2004, then the Company agrees to pay on July
16, 2004, to each Lender that is a signatory to this Second Waiver a deferred
waiver fee in an amount equal to 0.05% of the Commitment of such Lender, such
waiver fee constituting an Obligation under the Credit Agreement.
Section 11. Entire Agreement. This Second Waiver and the documents
referred to herein represent the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior and contemporaneous
oral and written agreements of the parties hereto with respect to the subject
matter hereof.
Section 12. Counterparts. This Second Waiver may be executed in any number
of counterparts (including by telecopy) and by different parties on separate
counterparts and all of such counterparts shall together constitute one and the
same instrument.
Section 13. Successors. The execution and delivery of this Second Waiver
by any Lender shall be binding upon each of its successors and assigns
(including transferees of its Commitment and Loans in whole or in part prior to
the effectiveness hereof) and binding in respect of all of its Commitment and
Loans.
[Signature Pages to this Second Waiver Begin on the Next Page]
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In Witness Whereof, the parties hereto have caused this Second Waiver to
be duly executed and delivered by their respective duly authorized officers as
of the date first written above.
THE COMPANY: EL PASO CORPORATION
By: /s/ John J. Hopper
-----------------------------------------
Name: John J. Hopper
Title: Vice President and Treasurer
PIPELINE COMPANY BORROWERS:
EL PASO NATURAL GAS COMPANY
By: /s/ Greg G. Gruber
-----------------------------------------
Name: Greg G. Gruber
Title: Senior Vice President,
Chief Financial Officer and Treasurer
TENNESSEE GAS PIPELINE COMPANY
By: /s/ Greg G. Gruber
-----------------------------------------
Name: Greg G. Gruber
Title: Senior Vice President,
Chief Financial Officer and Treasurer
ANR PIPELINE COMPANY
By: /s/ Greg G. Gruber
-----------------------------------------
Name: Greg G. Gruber
Title: Senior Vice President,
Chief Financial Officer and Treasurer
COLORADO INTERSTATE GAS COMPANY
By: /s/ Greg G. Gruber
-----------------------------------------
Name: Greg G. Gruber
Title: Senior Vice President,
Chief Financial Officer and Treasurer
Signature Page 1 to Second Waiver
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ADMINISTRATIVE AGENT: JPMORGAN CHASE BANK, individually and as
Administrative Agent
By: /s/ Peter M. Ling
-----------------------------------------
Name: Peter M. Ling
Title: Managing Director
Signature Page 2 to Second Waiver
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LENDERS: ABN AMRO BANK N.V.
By: /s/ Frank T. J. van Deur
-----------------------------------------
Name: Frank T. J. van Deur
Title: Vice President
By: /s/ Stephanie B. Casas
-----------------------------------------
Name: Stephanie B. Casas
Title: Vice President
Signature Page 3 to Second Waiver
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CITICORP NORTH AMERICA, INC.
By: /s/ Amy Pincu
-----------------------------------------
Name: Amy Pincu
Title: Director
Signature Page 4 to Second Waiver
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BANK OF AMERICA, N.A.
By: /s/ Patrick Honey
-----------------------------------------
Name: Patrick Honey
Title: Principal
Signature Page 5 to Second Waiver
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CREDIT SUISSE FIRST BOSTON, ACTING THROUGH
ITS CAYMAN ISLANDS BRANCH
By: /s/ James P. Moran
-----------------------------------------
Name: James P. Moran
Title: Director
By: /s/ Denise L. Alvarez
-----------------------------------------
Name: Denise L. Alvarez
Title: Associate
Signature Page 6 to Second Waiver
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THE BANK OF NOVA SCOTIA
By: /s/ Nadine Bell
-----------------------------------------
Name: Nadine Bell
Title: Senior Manager
Signature Page 7 to Second Waiver
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HVB AG, NEW YORK BRANCH
By: /s/ Loriann Curnyn
-----------------------------------------
Name: Loriann Curnyn
Title: Managing Director
By: /s/ Shannon Batchman
-----------------------------------------
Name: Shannon Batchman
Title: Director
Signature Page 8 to Second Waiver
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BNP PARIBAS
By: /s/ Mark A. Cox
-----------------------------------------
Name: Mark A. Cox
Title: Director
By: /s/ Greg Smothers
-----------------------------------------
Name: Greg Smothers
Title: Vice President
Signature Page 9 to Second Waiver
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DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Joel Makowsky
-----------------------------------------
Name: Joel Makowsky
Title: Director
By: /s/ Richard Henshall
-----------------------------------------
Name: Richard Henshall
Title: Director
Signature Page 10 to Second Waiver
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SOCIETE GENERALE
By: /s/ Stephen W. Warfel
-----------------------------------------
Name: Stephen W. Warfel
Title: Vice President
Signature Page 11 to Second Waiver
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MIZUHO CORPORATE BANK, LTD.
By: /s/ Noel Purcell
-----------------------------------------
Name: Noel Purcell
Title: SVP & Dept. Head
Signature Page 12 to Second Waiver
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THE BANK OF NEW YORK
By: /s/ Lizanne T. Eberle
-----------------------------------------
Name: Lizanne T. Eberle
Title: Vice President
Signature Page 13 to Second Waiver
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CALYON NEW YORK BRANCH
By: /s/ Olivier Audemand
-----------------------------------------
Name: Olivier Audemand
Title: Managing Director
Signature Page 14 to Second Waiver
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MELLON BANK, N.A.
By: /s/ Gary A. Saul
-----------------------------------------
Name: Gary A. Saul
Title: First Vice President
Signature Page 15 to Second Waiver
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THE BANK OF TOKYO-MITSUBISHI, LTD HOUSTON AGENCY
By: /s/ Kelson Glasscock
-----------------------------------------
Name: Kelson Glasscock
Title: Vice President & Manager
By: /s/ Jay Fort
-----------------------------------------
Name: Jay Fort
Title: Vice President
Signature Page 16 to Second Waiver
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BANK ONE, NA (MAIN OFFICE CHICAGO)
By: /s/ Hal E. Fudge
-----------------------------------------
Name: Hal E. Fudge
Title: First Vice President
Signature Page 17 to Second Waiver
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LEHMAN COMMERCIAL PAPER INC.
By: /s/ Janine M. Shugan
-----------------------------------------
Name: Janine M. Shugan
Title: Authorized Signatory
Signature Page 18 to Second Waiver
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ROYAL BANK OF CANADA
By: /s/ Raymond S. Chang
-----------------------------------------
Name: Raymond S. Chang
Title: Vice President
Signature Page 19 to Second Waiver
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KBC BANK N.V.
By: /s/ Robert Snauffer
-----------------------------------------
Name: Robert Snauffer
Title: First Vice President
By: /s/ Eric Raskin
-----------------------------------------
Name: Eric Raskin
Title: Vice President
Signature Page 20 to Second Waiver
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NORDDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Stephen K. Hunter
-----------------------------------------
Name: Stephen K. Hunter
Title: SVP & Deputy General Manager
By: /s/ Stephanie Finnen
---------------------------------------------
Name: Stephanie Finnen
Title: VP
Signature Page 21 to Second Waiver
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SPECIAL SITUATIONS INVESTING GROUP, INC.
By: /s/ Robert S. Fanelli
-----------------------------------------
Name: Robert S. Fanelli
Title: Authorized Signatory
Signature Page 22 to Second Waiver
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AMARILLO NATIONAL BANK
By: /s/ Craig I. Sanders
-----------------------------------------
Name: Craig I. Sanders
Title: Executive Vice President
Signature Page 23 to Second Waiver
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AKANTHOS ARBITRAGE MASTER FUND LP
BY AKANTHOS CAPITAL MGMT LLC, HS GP
By: /s/ Michael Kao
-----------------------------------------
Name: Michael Kao
Title: Managing Member
Signature Page 24 to Second Waiver
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QUADRANGLE MASTER FUNDING LTD
By: /s/ Christopher Santana
-----------------------------------------
Name: Christopher Santana
Title: Member
Signature Page 25 to Second Waiver
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BEAR STEARNS INVESTMENT PRODUCTS INC.
By: /s/ Richard Bram Smith
-----------------------------------------
Name: Richard Bram Smith
Title: Vice President
Signature Page 26 to Second Waiver
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TRS CALLISTO LLC
By: /s/ Deborah O'Keefe
-----------------------------------------
Name: Deborah O'Keefe
Title: Vice President
Signature Page 27 to Second Waiver
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LONGACRE MASTER FUND LTD.
By: /s/ Steven Weissman
-----------------------------------------
Name: Steven Weissman
Title: Director
Signature Page 28 to Second Waiver
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LONGACRE CAPITAL PARTNERS (QP) LP
By: /s/ Steven Weissman
-----------------------------------------
Name: Steven Weissman
Title: Member
Signature Page 29 to Second Waiver
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SATELLITE SENIOR INCOME FUND, LLC
By: /s/ Brian S. Kriftcher
-----------------------------------------
Name: Brian S. Kriftcher
Title: Chief Operating Officer & Principal
Signature Page 30 to Second Waiver
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SATELLITE SENIOR INCOME FUND II, LLC
By: /s/ Brian S. Kriftcher
-----------------------------------------
Name: Brian S. Kriftcher
Title: Chief Operating Officer & Principal
Signature Page 31 to Second Waiver
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OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ Scott D. Krase
-----------------------------------------
Name: Scott D. Krase
Title: Vice President
Signature Page 32 to Second Waiver
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OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.
its General Partner
By: Oak Hill Securities MGP II, Inc.,
its General Partner
By: /s/ Scott D. Krase
-----------------------------------------
Name: Scott D. Krase
Title: Vice President
Signature Page 33 to Second Waiver
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OAK HILL CREDIT ALPHA FUND LP
By: Oak Hill Credit Alpha GenPar, L.P.
its General Partner
By: Oak Hill Credit Alpha MGP, Inc.,
its General Partner
By: /s/ Scott D. Krase
-----------------------------------------
Name: Scott D. Krase
Title: Authorized Person
Signature Page 34 to Second Waiver
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OAK HILL CREDIT ALPHA FUND (OFFSHORE) LTD
By: /s/ Scott D. Krase
-----------------------------------------
Name: Scott D. Krase
Title: Authorized Person
Signature Page 35 to Second Waiver
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SCHEDULE 1
WAIVERS REQUIRED FOR EFFECTIVENESS
1. Guarantee of the Company relating to the Lakeside Purchasers, dated
as of May 15, 2001, LLC Synthetic Lease, as amended as of April 16,
2003 and the Financing Documents related thereto, all as described
on Part 6 of Schedule II-C of the Security and Intercreditor
Agreement (the "Lakeside Underlying Transaction").
The remaining items listed in this Part A are herein identified as the
"Additional Covered Letters of Credit":
2. Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #00881-30010064 issued by Citibank, N.A.
for the benefit of Pacific Gas & Electric;
3. Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #00880-30024869 issued by Citibank, N.A.
for the benefit of Bangladesh Power Development Board;
4. Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #61610705 issued by Citibank, N.A. for
the benefit of Citibank Dhaka;
5. Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #6160704 issued by Citibank, N.A. for
the benefit of Citibank New York;
6. Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #P-292889 issued by JPMorgan Chase Bank
for the benefit of ANR Eaton Company;
7. Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #P-382682 issued by JPMorgan Chase Bank
for the benefit of the State of Florida; and
8. Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #G390391 issued by Toronto Dominion for
the benefit of ANP.
Page 1 to Schedule 1 to Second Waiver
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SCHEDULE 2
LIST OF DEBT & GUARANTY OBLIGATIONS
I. EL PASO CORPORATION (FORMERLY EL PASO ENERGY CORPORATION) DEBT INSTRUMENTS
1. $3,000,000,000 Revolving Credit Agreement dated as of April 16,
2003, among El Paso Corporation, El Paso Natural Gas Company,
Tennessee Gas Pipeline Company and ANR Pipeline Company, as
Borrowers, the lenders party thereto and JPMorgan Chase Bank, as
Administrative Agent, ABN AMRO Bank, N.V. and Citicorp North
America, as Co Document Agents, and Bank of America, N.A. and Credit
Suisse First Boston, as Co-Syndication Agents.
2. Indenture dated as of May 10, 1999, between El Paso Energy
Corporation and The Chase Manhattan Bank (by merger JPMorgan Chase
Bank and subsequently replaced by HSBC BANK USA)
3. Indenture dated as of March 1, 1998 between El Paso Natural Gas
Company (by assignment now El Paso Corporation) and The Chase
Manhattan Bank (by merger JPMorgan Chase Bank and subsequently
replaced by Law Debenture Trust Company of New York)
4. Indenture dated as of June 1, 1986, between Sonat Inc. (by merger
now El Paso Corporation) and Manufacturers Hanover Trust Company (by
merger JPMorgan Chase Bank and subsequently replaced by HSBC BANK
USA)
5. Indenture dated as of March 30, 1992, between Valero Energy
Corporation (by merger PG&E Gas Transmission, Texas Corporation,
then El Paso Gas Transmission Company and now El Paso Corporation)
and Bankers Trust Company (by merger now Deutsche Bank Trust Company
Americas)
6. Additional Covered Letters of Credit
(a) Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #00881-30010064 issued by Citibank, N.A.
for the benefit of Pacific Gas & Electric;
(b) Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #00880-30024869 issued by Citibank, N.A.
for the benefit of Bangladesh Power Development Board;
(c) Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #61610705 issued by Citibank, N.A. for
the benefit of Citibank Dhaka;
(d) Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #6160704 issued by Citibank, N.A. for
the benefit of Citibank New York;
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(e) Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #P-292889 issued by JPMorgan Chase Bank
for the benefit of ANR Eaton Company;
(f) Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #P-382682 issued by JPMorgan Chase Bank
for the benefit of the State of Florida; and
(g) Reimbursement obligations of the Company or its Subsidiaries with
respect to Letter of Credit #G390391 issued by Toronto Dominion for
the benefit of ANP.
7. Other Letters of Credit
(a) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #NY-93959 issued
by Banco Bilbao Vizcaya Argentaria, S.A. for the benefit of
ANP;
(b) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #NY-93960 issued
by Banco Bilbao Vizcaya Argentaria, S.A. for the benefit of
ANP;
(c) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-298274 issued
by JPMorgan Chase Bank for the benefit of West Kern;
(d) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-212605 issued
by JPMorgan Chase Bank for the benefit of Twin County;
(e) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-233719 issued
by JPMorgan Chase Bank for the benefit of Protective;
(f) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-258425 issued
by JPMorgan Chase Bank for the benefit of Chevron USA;
(g) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-233969 issued
by JPMorgan Chase Bank for the benefit of General Electric I;
(h) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-241080 issued
by JPMorgan Chase Bank for the benefit of ANP;
(i) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-770429 issued
by JPMorgan Chase Bank for the benefit of Home Insurance;
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(j) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-393501 issued
by JPMorgan Chase Bank for the benefit of the State of
Florida;
(k) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-346269 issued
by JPMorgan Chase Bank for the benefit of the State of
Florida;
(l) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-209947 issued
by JPMorgan Chase Bank for the benefit of New England Power;
(m) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-367925 issued
by JPMorgan Chase Bank for the benefit of Insurance Company of
North America;
(n) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-226058 issued
by JPMorgan Chase Bank for the benefit of the State of
Florida;
(o) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #P-215470 issued
by JPMorgan Chase Bank for the benefit of Travelers;
(p) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #A26018T issued
by Compass Bank for the benefit of the Texas Commission on
Environmental Quality;
(q) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #A26048T issued
by Compass Bank for the benefit of the New Jersey Department
of Environmental Protection;
(r) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #A26076T issued
by Compass Bank for the benefit of the City of Chicago;
(s) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #A26112T issued
by Compass Bank for the benefit of the Kansas Department of
Health & Environment;
(t) Reimbursement obligations of the Company or its
Subsidiaries with respect to Bank Guarantee #100BGC101248
issued by Deutsche Bank AG for the benefit of the Belgian VAT
Tax Authority;
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(u) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #91874275 issued
by BNP Paribas for the benefit of Citibank Dhaka;
(v) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #27699 issued by
BNP Paribas for the benefit of the California Power Exchange;
(w) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #91870940 issued
by BNP Paribas for the benefit of DB Trust Company;
(x) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #27497 issued by
BNP Paribas for the benefit of Florida Gas Transmission;
(y) Reimbursement obligations of the Company or its
Subsidiaries with respect to Letter of Credit #91871362 issued
by BNP Paribas for the benefit of Manaus Energy.
12. Guaranty dated October 22, 1999 by El Paso Corporation in favor of
Meizhou Wan Generating Company Ltd.
13. Amended and Restated Guarantee dated as of April 16, 2003, by El
Paso Corporation in favor of Lakeside Real Estate Trust 2001 for the
benefit of the Investors, the Lenders and JPMorgan Chase Bank, as
Administrative Agent for the Lenders.
14. El Paso Contingent Guaranty Agreement, dated as of November 2, 2001,
in favor of Prudential Insurance Company of America.
15. Guarantee dated as of March 27, 2002, by El Paso Corporation in
favor of RFC Caverns, L.P. and GATX Gas Storage Services, Inc.
16. Indenture dated as of May 9, 2002, among Gemstone Investor Limited,
Gemstone Investor, Inc., The Bank of New York, as trustee, and El
Paso Corporation, as guarantor.
II. EL PASO CGP COMPANY (FORMERLY THE COASTAL CORPORATION) DEBT INSTRUMENTS
1. Indenture dated as of October 1, 1989, between The Coastal
Corporation and The Bank of New York.
2. Indenture dated as of October 1, 1990, between The Coastal
Corporation and The Bank of New York.
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3. Indenture dated as of May 15, 1992, between The Coastal Corporation
and Bank of Montreal Trust Company (subsequently replaced by The
Bank of New York), as supplemented.
4. Indenture dated as of September 15, 1992, between The Coastal
Corporation and NationsBank of Texas, National Association
(subsequently replaced by The Bank of New York), as supplemented.
5. Indenture dated as of February 24, 1997, between The Coastal
Corporation and Harris Trust and Savings Bank (subsequently replaced
by The Bank of New York), as supplemented.
6. Indenture dated as of May 13, 1998, between The Coastal Corporation
and The Bank of New York, as supplemented.
13. Note Purchase Agreement dated February 26, 1996, among The Coastal
Corporation, Australia and New Zealand Banking Group Limited,
Bankers Trust Company, Nationsbank of Texas, N.A., and The
Toronto-Dominion Bank.
III. EL PASO PRODUCTION HOLDING COMPANY INDENTURE
1. Indenture dated May 23, 2003, between El Paso Production Holding
Company and Wilmington Trust Company.
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EXHIBIT A
FORM OF
ACKNOWLEDGMENT AND CONSENT
In connection with that certain Second Waiver to $3,000,000,000 Revolving
Credit Agreement dated as of June 15, 2004 (the "Second Waiver"), by and among
El Paso Corporation, a Delaware corporation (the "Company"), El Paso Natural Gas
Company, a Delaware corporation ("EPNGC"), Tennessee Gas Pipeline Company, a
Delaware corporation ("TGPC"), ANR Pipeline Company, a Delaware corporation
("ANR"), Colorado Interstate Gas Company, a Delaware corporation, the several
banks and other financial institutions signatories thereto, JPMorgan Chase Bank,
as Administrative Agent (the "Administrative Agent"), ABN AMRO Bank N.V. and
Citicorp North America, Inc., as Co-Documentation Agents, and Bank Of America,
N.A. and Credit Suisse First Boston, as Co-Syndication Agents, each of the
undersigned Persons, as a Subsidiary Guarantor under that certain Subsidiary
Guarantee Agreement, dated as of April 16, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Subsidiary Guarantee Agreement") made
by each such Person in favor of JPMorgan Chase Bank, in its capacity as
Collateral Agent, (a) acknowledges the execution and delivery of the Second
Waiver by the Credit Parties that are party thereto and the effect of the
provisions of the Second Waiver and (b) confirms and agrees that as of June 15,
2004, after giving effect to the provisions of the Second Waiver, the Subsidiary
Guarantee Agreement is, and shall continue to be, in full force and effect and
is hereby ratified and confirmed in all respects and the Subsidiary Guarantee
Agreement and all of the Collateral do, and shall continue to, secure the
payment of all of the Guaranteed Obligations (as defined in the Subsidiary
Guarantee Agreement) pursuant to the terms of the Subsidiary Guarantee
Agreement. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in that certain $3,000,000,000 Revolving Credit
Agreement, dated as of April 16, 2003 (the "Credit Agreement"), by and among the
Company, EPNGC, TGPC, ANR, the several banks and other financial institutions
party thereto, the Administrative Agent, the Co-Documentation Agents and the
Co-Syndication Agents.
SUBSIDIARY GUARANTORS: AMERICAN NATURAL RESOURCES COMPANY
By: _____________________________________
Name:
Title:
EL PASO ANR INVESTMENTS, L.L.C.
By: _____________________________________
Name:
Title:
Page 1 to Exhibit A to Second Waiver
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EL PASO ANRS INVESTMENTS, L.L.C.
By: _____________________________________
Name:
Title:
EL PASO CNG COMPANY, L.L.C.
By: _____________________________________
Name:
Title:
EL PASO EPN INVESTMENTS, L.L.C.
By: _____________________________________
Name:
Title:
EL PASO EPNG INVESTMENTS, L.L.C.
By: _____________________________________
Name:
Title:
EL PASO NORIC INVESTMENTS III, L.L.C.
By: _____________________________________
Name:
Title:
Page 2 to Exhibit A to Second Waiver
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EL PASO TENNESSEE PIPELINE CO.
By: _____________________________________
Name:
Title:
EL PASO TGPC INVESTMENTS, L.L.C.
By: _____________________________________
Name:
Title:
EL PASO WIC INVESTMENTS, L.L.C.
By: _____________________________________
Name:
Title:
SABINE RIVER INVESTORS I, L.L.C.
By: _____________________________________
Name:
Title:
SABINE RIVER INVESTORS II, L.L.C.
By: _____________________________________
Name:
Title:
SABINE RIVER INVESTORS III, L.L.C.
By: _____________________________________
Name:
Title:
Page 3 to Exhibit A to Second Waiver
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SABINE RIVER INVESTORS IV, L.L.C.
By: _____________________________________
Name:
Title:
SABINE RIVER INVESTORS V, L.L.C.
By: _____________________________________
Name:
Title:
Page 4 to Exhibit A to Second Waiver