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EXHIBIT 4(ii)
WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT (herein called this
"Amendment"), dated as of January 31, 2001, is entered into by and among The
Xxxxxxxx Companies, Inc., a Delaware corporation, as Borrower pursuant to the
Credit Agreement (as hereinafter defined), the Banks from time to time party to
the Credit Agreement, the Co-Syndication Agents as named therein, the
Documentation Agent as named therein and Citibank, N.A., as agent for the Banks
(in such capacity, the "Agent"). Except as otherwise defined or as the context
requires, terms defined in the Credit Agreement are used herein as therein
defined.
WITNESSETH:
WHEREAS, The Xxxxxxxx Companies, Inc. ("TWC" or the "Borrower") has
entered into a certain Credit Agreement dated as of July 25, 2000 with the
financial institutions from time to time party thereto (the "Banks"), The Chase
Manhattan Bank and Commerzbank AG, as Co-Syndication Agents, Credit Lyonnais New
York Branch, as Documentation Agent, and Citibank, N.A., as Agent (the "Credit
Agreement"), which Credit Agreement has been amended by a letter agreement dated
as of October 10, 2000 (the "Letter Agreement");
WHEREAS, the Borrower and the Banks now desire to amend the Credit
Agreement in certain respects, as hereinafter provided, and to terminate the
Letter Agreement; and
WHEREAS, the Borrower has requested waivers of certain provisions of
the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower and the Banks hereby agree as follows:
SECTION 1. Amendment of Section 1.1 of the Credit Agreement. Section
1.1 of the Credit Agreement is hereby amended as follows:
(a) The definition of "Consolidated Net Worth" in such Section
1.1 is hereby amended and restated to read in its entirety as follows:
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" "Consolidated Net Worth" of any Person means the Net Worth of
such Person and its Subsidiaries on a Consolidated basis plus, in the
case of the Borrower, the Designated Minority Interests to the extent
not otherwise included; provided that, in no event shall the value
ascribed to Designated Minority Interests for the Subsidiaries of the
Borrower described in clauses (i) through (v) and (vii) of the
definition of "Designated Minority Interests" exceed $136,892,000 in
the aggregate."
(b) The definition of "Debt" is hereby amended and restated to
read in its entirety as follows:
" "Debt" means, in the case of any Person, (i) indebtedness of
such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures or notes, (iii) obligations of such
Person to pay the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of business), (iv) monetary obligations of such
Person as lessee under leases that are, in accordance with generally
accepted accounting principles, recorded as capital leases, (v)
obligations of such Person under guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (iv) of this definition and (vi) indebtedness or
obligations of others of the kinds referred to in clauses (i) through
(v) of this definition secured by any Lien on or in respect of any
property of such Person; provided, however, that (x) Debt shall not
include any obligation under or resulting from any agreement referred
to in paragraph (y) of Schedule III; (y) in the case of the Borrower,
Debt shall not include any contingent obligation of the Borrower
relating to indebtedness incurred by any SPV, WCG or a WCG Subsidiary
pursuant to the WCG Structured Financing; and (z) it is the
understanding of the parties hereto that Debt shall not include any
monetary obligations or guaranties of monetary obligations of Persons
as lessee under leases that are, in accordance with generally accepted
accounting principles, recorded as operating leases."
(c) The definition of "Designated Minority Interests" is
hereby amended and restated to read in its entirety as follows:
" "Designated Minority Interests" of the Borrower means, as of
any date of determination, the total of the minority interests in the
following Subsidiaries: (i) El Furrial, (ii) PIGAP II, (iii) Nebraska
Energy, (iv) Seminole, (v) American Soda, (vi) the Midstream Asset MLP,
and (vii) other Subsidiaries, as presented in the Consolidating balance
sheet of the Borrower, in an amount not to exceed in the aggregate
$9,000,000 for such other Subsidiaries not referred to in items (i)
through (vi); provided that minority interests which provide for a
stated preferred cumulative return shall not be included in "Designated
Minority Interests."
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(d) The following definitions are added to Section 1.1 of the
Credit Agreement in appropriate alphabetical order:
" "Midstream Asset MLP" means one or more master limited
partnerships included in the Consolidated financial statements of the
Borrower to which the Borrower has transferred or shall transfer
certain assets relating to the distribution, storage and transportation
of petroleum products and ammonia, including without limitation marine
and inland terminals and related pipeline systems, including, without
limitation, Xxxxxxxx Energy Partners L.P."
" "SPV" is used as defined in the definition of "WCG Structured
Financing."
" "WCG Structured Financing" means a certain series of related
transactions in anticipation of the spin-off of WCG pursuant to which
WCG or a WCG Subsidiary shall obtain loans or equity contributions,
either directly from investors in the marketplace or through one or
more special purpose vehicles (each, an "SPV"), which SPV or SPVs may
be Subsidiaries of the Borrower. Principal of such loans and such
equity contributions shall be in a cumulative amount after January 31,
2001 which does not exceed in the aggregate $1.5 billion. The Borrower
shall have a contingent obligation with respect to repayment of
indebtedness or return on and of equity of the SPV (or SPVs), WCG or a
WCG Subsidiary in regard to such transaction, which contingent
obligation shall terminate in each case no later than four years after
the effective date of such transaction and shall be satisfied only
through the issuance of equity securities unless further sales of
equity securities of the Borrower are not possible or will not result
in additional net proceeds."
(e) Section 1.3 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
" Section 1.3 Accounting Terms. All accounting terms not
specifically defined shall be construed in accordance with general
accounting principles, and each reference herein to "generally accepted
accounting principles" shall mean generally accepted accounting
principles in effect, consistently applied."
SECTION 2. Waivers. The Borrower has requested the waiver of, and each
Bank hereby agrees to waive, certain provisions of the Credit Agreement for and
in connection with the transactions described below:
(a) TWC or certain of its Subsidiaries are currently the
owners of certain assets described on Schedule A-1 hereto which TWC or such
certain Subsidiaries wish to transfer to WCG and/or certain WCG Subsidiaries. In
exchange for the transfer to WCG and/or certain WCG Subsidiaries of the assets
listed on Schedule A-1 and the assumption by TWC and/or its Subsidiaries of
those certain liabilities of WCG or WCG Subsidiaries listed on Schedule A-2, WCG
and/or certain WCG Subsidiaries will transfer to TWC and/or its Subsidiaries the
assets listed on Schedule B-1 and will assume those certain liabilities of TWC
and/or its Subsidiaries listed on Schedule B-2.
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TWC hereby represents and warrants that such transaction is being entered into
on terms and conditions reasonably fair in all material respects to TWC and its
Subsidiaries.
TWC anticipates that it or one of its Subsidiaries may purchase certain
assets of WCG or a WCG Subsidiary listed on Schedule A-1 and enter into a Sale
Lease-Back Transaction in which TWC or one of its Subsidiaries will lease such
assets to WCG or a WCG Subsidiary. TWC hereby covenants that such transaction
shall be entered into on terms and conditions reasonably fair in all material
respects to TWC and its Subsidiaries. To the extent that such Sale Lease-Back
Transaction may be, or may be deemed to be, an investment in WCG or a WCG
Subsidiary, such transaction is prohibited by Section 5.2(e) of the Credit
Agreement.
In connection with such asset exchange and the Sale Lease-Back
Transaction, and only for purposes of such transactions, TWC requests that the
Banks waive the provisions of Section 5.2(e) to allow TWC and/or its
Subsidiaries to effect the Sale Lease-Back Transaction, described in the
preceding paragraph, and to acquire the equity interests and stock in WCG and
certain WCG Subsidiaries, as described on Schedule B-1, and to transfer assets
to WCG and/or WCG Subsidiaries on the terms set forth above. Nothing herein
shall be construed or deemed to permit TWC or its Subsidiaries to invest in or
acquire stock or equity interests in WCG or any of its Subsidiaries except to
the extent described above. Nothing herein shall, or shall be deemed to, waive
the provisions of Section 5.2(j) or any other provisions of the Credit Agreement
applicable to the Sale Lease-Back Transaction, except as expressly set forth
above with respect to Section 5.2(e).
(b) In connection with the WCG Structured Financing, and only
with respect to such WCG Structured Financing, TWC requests that the Banks
waive:
(i) the provisions of Section 5.2(d) to allow consensual
encumbrances and restrictions on the ability of any SPV (as defined
above) to make or pay any distributions, dividends, loans or advances
to TWC or its Subsidiaries; provided, that, such consensual
encumbrances or restrictions (x) are pursuant to the documents
governing the WCG Structured Financing and (y) restrict making or
paying distributions, dividends, loans or advances of or on only those
assets held by an SPV directly relating to the WCG Structured
Financing; and
(ii) the provisions of Section 5.2(i) to allow TWC or a
Subsidiary of TWC to be contingently liable for the obligations of any
SPV, WCG or WCG Subsidiaries for payments relating to indebtedness or
return on and of equity incurred by such entity pursuant to the WCG
Structured Financing.
By its signature hereto, each Bank agrees to waive and does hereby
waive (i) Section 5.2(e) to allow TWC and its Subsidiaries to acquire the equity
interests and stock in WCG and certain WCG Subsidiaries, to the extent set forth
above and to allow TWC and its Subsidiaries to act as lessor pursuant to the
Sale Lease-Back Transaction described above involving assets listed on Schedule
A-1; (ii) Section 5.2(d) to allow consensual encumbrances and restrictions on
the ability
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of any SPV to make or pay distributions, dividends, loans or advances to TWC or
its Subsidiaries if such encumbrances and restrictions are pursuant to documents
governing the WCG Structured Financing and apply only to assets of such SPV
which are directly related to the WCG Structured Financing and (iii) Section
5.2(i) to allow TWC or a Subsidiary to be contingently liable with respect to
the indebtedness or return on and of equity incurred pursuant to the WCG
Structured Financing. Nothing herein shall be deemed or construed to waive any
other breach of Sections 5.2(d), 5.2(e) or Section 5.2(i) of the Credit
Agreement or to waive a breach of any other provision of the Credit Agreement or
to require any similar or dissimilar waiver to be granted hereafter.
SECTION 3. To induce the Agent and the Banks to enter into this
Amendment, the Borrower hereby reaffirms, as of the date hereof, its
representations and warranties contained in Article IV of the Credit Agreement
(except to the extent such representations and warranties relate solely to an
earlier date) and additionally represents and warrants as follows:
(a) The Borrower is duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
corporate or limited liability company powers and all governmental
licenses, authorizations, certificates, consents and approvals required
to carry on its business as now conducted in all material respects,
except for those licenses, authorizations, certificates, consents and
approvals which the failure to have could not reasonably be expected to
have a material adverse effect on the business, assets, condition or
operation of the Borrower and its Subsidiaries taken as a whole. Each
material Subsidiary of the Borrower is duly organized or validly
formed, validly existing and (if applicable) in good standing under the
laws of its jurisdiction of incorporation or formation, except where
the failure to be so organized, existing and in good standing could not
reasonably be expected to have a material adverse effect on the
business, assets, condition or operations of the Borrower and its
Subsidiaries taken as a whole. Each material Subsidiary of the Borrower
has all corporate or limited liability company powers and all
governmental licenses, authorizations, certificates, consents and
approvals required to carry on its business as now conducted in all
material respects, except for those licenses, authorizations,
certificates, consents and approvals which the failure to have could
not reasonably be expected to have a material adverse effect on the
business, assets, condition or operation of the Borrower and its
Subsidiaries taken as a whole.
(b) The execution, delivery and performance by the Borrower of
this Amendment and the consummation of the transactions contemplated by
this Amendment are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, do not contravene
(i) the Borrower's charter or by-laws or (ii) any law or any
contractual restriction binding on or affecting the Borrower and will
not result in or require the creation or imposition of any Lien.
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(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 the
Borrower of this Amendment or the consummation of the transactions
contemplated by this Amendment.
(d) This Amendment has been duly executed and delivered by the
Borrower. This Amendment and the Credit Agreement as amended by this
Amendment are the legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with its terms, except
as such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and by general principles of equity.
(e) Except as set forth in the Public Filings, there is, as to
the Borrower, no pending or, to the knowledge of the Borrower,
threatened action or proceeding affecting the Borrower or any material
Subsidiary of the Borrower before any court, governmental agency or
arbitrator, which could reasonably be expected to materially and
adversely affect the financial condition or operations of the Borrower
and its Subsidiaries taken as a whole or which purports to affect the
legality, validity, binding effect or enforceability of this Amendment,
the Credit Agreement or any Note. For the purposes of this Section,
"Public Filings" shall mean the Borrower's annual report on Form 10-K/A
for the year ended December 31, 1999, and the Borrower's quarterly
reports on Form 10-Q for the quarter ended September 30, 2000.
(f) Upon giving effect to this Amendment, no event has
occurred and is continuing which constitutes an Event of Default or
which would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
SECTION 4. The effectiveness of this Amendment is conditioned upon
receipt by the Agent of all the following documents, each in form and substance
satisfactory to the Agent:
(a) Counterparts of this Amendment executed by the Borrower,
the Agent and the Majority Banks;
(b) A certificate of the Secretary or Assistant Secretary of
the Borrower as to (i) any changes (or the absence of changes) since
July 25, 2000 to its certificate of incorporation and its by-laws as of
the date hereof, (ii) the resolutions of the Borrower authorizing the
execution of this Amendment and (iii) the names and true signatures of
the officers authorized to execute this Amendment;
(c) A certificate in form and substance satisfactory to the
Agent dated the date hereof addressed to the Banks of a responsible
officer of WCG and/or each relevant WCG Subsidiary as to (i) its title
to those assets transferred to the Borrower pursuant to
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the transactions described in Section 2 hereof, and (ii) the equity
interests and shares of stock issued to the Borrower;
(d) An opinion of Xxxxxxx X. xxx Xxxxx, General Counsel of the
Borrower, substantially in the form of Exhibit A hereto; and
(e) Such other documents as the Agent shall have reasonably
requested.
SECTION 5. This Amendment shall be deemed to be an amendment to the
Credit Agreement, and the Credit Agreement, as amended hereby, is hereby
ratified, approved and confirmed in each and every respect. All references to
the Credit Agreement in any other document, instrument, agreement or writing
shall hereafter be deemed to refer to the Credit Agreement as amended hereby.
SECTION 6. The Letter Agreement is hereby terminated.
SECTION 7. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. Whenever possible each provision
of this Amendment shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.
SECTION 8. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing one or
more counterparts.
SECTION 9. This Amendment shall be binding upon the Borrower, the Agent
and the Banks and their respective successors and assigns, and shall inure to
the benefit of each of the Borrower, the Agent and the Banks and the successors
and assigns of the Banks.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, to be effective
as of January 31, 2001.
BORROWER:
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
364-Day Credit Agreement
S-1
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AGENT:
CITIBANK, N.A., as Agent
By: /s/ (illegible)
--------------------------
Authorized Officer
Date: February 12, 2001
CO-SYNDICATION AGENTS:
THE CHASE MANHATTAN BANK,
as Co-Syndication Agent
By: /s/ (illegible)
--------------------------
Authorized Officer
Date: February 8, 2001
COMMERZBANK AG,
as Co-Syndication Agent
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Authorized Officer
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
X-0
00
XXXXXXXXXXXXX XXXXX:
CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent and as a Bank
By: /s/ Philippe Soustra
---------------------------------
Authorized Officer
Date: , 2001
-------------------
364-Day Credit Agreement
S-3
11
BANKS:
CITIBANK, N.A.
By: /s/ (illegible)
--------------------
Authorized Officer
Date: February 12, 2001
364-Day Credit Agreement
S-4
00
XXX XXXX XX XXXX XXXXXX
By: /s/ (illegible)
-------------------------------
Authorized Officer
Date: February 9, 2001
364-Day Credit Agreement
S-5
13
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxx
-------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-6
14
BANK ONE, NA (CHICAGO)
By: /s/ Xxxxxx Xxxxxx
------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-7
15
THE CHASE MANHATTAN BANK
By: /s/ (illegible)
-------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
X-0
00
XXXXXXXXXXX AG
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Authorized Officer
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Authorized Officer
Date: February 7, 2001
364-Day Credit Agreement
S-9
17
CREDIT LYONNAIS NEW YORK BRANCH
By: [See Page S-3 for Signature]
-----------------------------
Authorized Officer
Date: , 2001
-----------------
364-Day Credit Agreement
S-10
18
THE FUJI BANK, LIMITED
By: /s/ Xxxxxxx Xxxxxxx
--------------------
Authorized Officer
Date: February 9, 2001
364-Day Credit Agreement
S-11
19
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
------------------------
Title: Managing Director
-----------------------
Date: February 9, 2001
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
------------------------
Title: Managing Director
-----------------------
Date: February 9, 2001
364-Day Credit Agreement
S-12
20
ABN AMRO BANK, N.V.
By: /s/ Xxxxx X. Xxxxx, Xx.
------------------------
Authorized Officer
By: /s/ Xxxxxx Xxxxxx
------------------------
Authorized Officer
Date: February 9, 2001
364-Day Credit Agreement
S-13
21
BANK OF MONTREAL
By: /s/ (illegible)
-------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-14
00
XXX XXXX XX XXX XXXX
By: /s/ (illegible)
-------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
X-00
00
XXXXXXXX XXXX PLC
By: /s/ Xxxxxxxx X. Xxxx
---------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-16
24
CIBC INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------
Authorized Officer
Date: February 9, 2001
364-Day Credit Agreement
S-17
25
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx Xxxxx
-----------------------
Authorized Officer
By: /s/ Xxxxxx Xxxxxx
-----------------------
Authorized Officer
Date: February 9, 2001
364-Day Credit Agreement
S-18
26
ROYAL BANK OF CANADA
By: /s/ (illegible)
-------------------
Authorized Officer
Date: February 9, 2001
364-Day Credit Agreement
S-19
27
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ X. Xxxxxxxxx
-------------------
Authorized Officer
Date: January 29, 2001
364-Day Credit Agreement
S-20
28
FLEET NATIONAL BANK
f/k/a Bank Boston, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------
Authorized Officer
Date: February 9, 2001
364-Day Credit Agreement
S-21
29
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ (illegible)
-------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-22
30
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-23
31
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
X-00
00
XXX XX, XXXXXXXX BRANCH
By: /s/ Xxxxxxx X. Saint
----------------------
Authorized Officer
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Authorized Officer
Date: , 2001
-----------------
364-Day Credit Agreement
S-25
33
XXXXX FARGO BANK TEXAS, N.A.
By: /s/ J. Xxxx Xxxxxxxxx
-------------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
X-00
00
XXXXXXXXXXXX XXXXXXXXXX
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Authorized Officer
By: /s/ Xxxxxx Xxx
--------------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-27
35
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxxxx
-----------------------
Authorized Officer
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Authorized Officer
Date: February 14, 2001
364-Day Credit Agreement
X-00
00
XXXXXXXX XXXX
By: /s/ Xxxxx X. Edge
-------------------
Authorized Officer
Date: February 9, 2001
364-Day Credit Agreement
S-29
37
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ (illegible)
---------------------------
Authorized Officer
Date: February 7, 2001
364-Day Credit Agreement
X-00
00
XXXX XXXXXXX CORPORATION (B.S.C.)
By:
------------------------------
Authorized Officer
Date: , 2001
-------------------
364-Day Credit Agreement
S-31
00
XXXX XX XXXXX, XXX XXXX BRANCH
By:
---------------------------
Authorized Officer
Date: , 2001
-------------------
364-Day Credit Agreement
S-32
40
BANK OF OKLAHOMA, N.A.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-33
41
BNP PARIBAS, HOUSTON AGENCY
By: /s/ (illegible)
------------------------
Authorized Officer
By: /s/ Xxxxx Xxxxxx
-------------------------
Authorized Officer
Date: February 12, 2001
364-Day Credit Agreement
X-00
00
XX XXXX XXXXXXXX
GENNOSSENSCHAFTSBANK AG
By: /s/ (illegible)
--------------------
Authorized Officer
By: /s/ (illegible)
--------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-35
43
KBC BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
------------------------
Authorized Officer
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-36
44
THE SUMITOMO BANK, LIMITED
By: /s/ C. Xxxxxxx Xxxxxxx
-----------------------
Authorized Officer
Date: , 2001
----------------
364-Day Credit Agreement
S-37
45
COMMERCE BANK, N.A.
By: /s/ Xxxxxx X. Block
--------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-38
46
RZB FINANCE LLC
By: /s/ Xxxxx X. Xxxxx
-------------------
Authorized Officer
By: /s/ Xxxxx Xxxxxxx
-------------------
Authorized Officer
Date: February 8, 2001
364-Day Credit Agreement
S-39
47
FIRST UNION NATIONAL BANK
By:
----------------------
Authorized Officer
Date: , 2001
-----------------
364-Day Credit Agreement
S-40
48
SCHEDULE A-1
ASSETS TO BE TRANSFERRED FROM TWC AND/OR ITS SUBSIDIARIES
TO WCG AND/OR WCG SUBSIDIARIES
1 Those certain three aircraft owned by Xxxxxxxx Aviation, Inc., or under
contract for purchase by Xxxxxxxx Aviation, Inc, more specifically
identified as follows:
Citation V - located in Chesterfield, Missouri, Tail Number
N352WC
Citation X - located in Tulsa, Oklahoma, Tail Number N358WC
Citation Excel - scheduled for delivery by April 1, 2001, Tail
Number N359WC
The aggregate value of the three aircraft is $32,000,000.
2 That certain Xxxxxxxx Technology Center located in Tulsa, Oklahoma, and
owned by the Xxxxxxxx Headquarters Building Company. The Xxxxxxxx
Technology Center is constructing a fifteen story office building that
will house various Xxxxxxxx energy and communications employees. It
will be attached to the east-end of the existing Bank of Oklahoma Tower
at the Plaza, Ground and Service levels. The building is bounded on the
north by First Street, east by Cincinnati Avenue, south by Second
Street, and west by the podium of the Bank of Oklahoma Tower. The
building will contain 733,391 net rentable square feet and accommodate
up to 4,000 employees.
3 That certain Parking Garage being constructed on the northeast corner
of First Street and Cincinnati Avenue, directly south of the LaPetite
Academy daycare center. The parking garage will be six levels tall and
contain 1,029 parking spaces. It will be connected to the Xxxxxxxx
Technology Center by pedestrian bridges west across Cincinnati and
south across First Street.
The aggregate value of the Xxxxxxxx Technology Center and the Parking
Garage (items 2 and 3) is $85,000,000.
4 That certain Intercompany Note executed between TWC and Xxxxxxxx
Communications, Inc., on September 8, 1999. The note is for seven years
and has approximately $975 million outstanding, bears interest at rates
equal to LIBOR, or an alternate base rate, plus a margin based on the
debt rating of WCG's credit facility by Standard & Poor's and Xxxxx'x,
plus 0.25% based on WCG's ratio of total debt to EBITDA greater than or
equal to 6.0 to 1.0. Principle is paid quarterly beginning July 1,
2000.
The value of the Intercompany Note is $630,000,000.
A-1
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SCHEDULE A-2
LIABILITIES OF WCG AND/OR WCG SUBSIDIARIES
TO BE ASSUMED BY TWC AND/OR ITS SUBSIDIARIES
1 Payment obligations with respect to those certain building
improvements, fixtures and equipment including all construction,
design, flooring, food service equipment, security, audio equipment,
video equipment, telecommunication equipment, furniture and fixtures,
and related costs, including but not limited to material, labor,
installation and taxes, as set forth in the Authorization for
Expenditure(s) dated September 18, 2000.
The aggregate value of the building improvements, fixtures and
equipment is $160,000,000.
X-0
00
XXXXXXXX X-0
ASSETS TO BE TRANSFERRED FROM WCG AND/OR WCG SUBSIDIARIES
TO TWC AND/OR ITS SUBSIDIARIES
1 All losses or credit carryovers or other similar attributes of WCG not
in existence on September 30, 1999, but arising thereafter, and
utilized by Xxxxxxxx as part of its consolidated tax return for any
consolidated returns filed following September 30, 1999, as described
in the Tax Sharing Agreement dated September 30, 1999.
The aggregate value is $317,000,000.
2 That certain Telecommunications Services Agreement dated January 5,
1995, between The Xxxxxxxx Companies, Inc. and Wiltel, Inc., and
subsequently amended. WorldCom, as the successor to Wiltel, provides
WCG a specific amount of long distance, frame relay and private line
services free of costs other than its out of pocket expenses payable to
third parties. WCG resells these services to Xxxxxxxx, its subsidiaries
and affiliates at market rates. The term of the agreement is 35 years
beginning January 1995.
The value is $65,000,000.
3 Those certain two dark fibers capable of providing a minimum capacity
up to an OC-12 along the entire length of the fiber optic facilities
along Transco's main line pipelines from Houston, Texas to Manassas,
Virginia and Washington, D.C. to Station 200 outside Philadelphia,
Pennsylvania which include property in the states of Texas, Louisiana,
Mississippi, Alabama, Georgia, South Carolina, North Carolina,
Virginia, the District of Columbia, Maryland and Pennsylvania,
including the dark fiber needed to connect the non-contiguous points
along the Transco right of way (the "Transco Fiber"). The general
description of this service is provided in that certain Construction,
Operating, Maintenance Agreement dated January 1, 1997. The Transco
Fiber excludes any incidental services required to support the dark
fiber pair, such as collocation, power, and maintenance fees.
The aggregate value is $15,000,000.
4 That number of shares of WCG Class A stock to be issued to TWC having
an aggregate value equal to approximately $470 million, to be priced
based upon the average of the high and low for each of the five
business days beginning January 17, 2001 and ending January 23, 2001.
51
SCHEDULE B-2
LIABILITIES OF TWC AND/OR ITS SUBSIDIARIES
TO BE ASSUMED BY WCG AND/OR WCG SUBSIDIARIES
1 All incremental costs to be incurred by WCG in connection with the
replacement of certain shared hardware, systems and applications that
will need to be replicated upon the separation of the two companies. In
addition, WCG will need to procure it own unique software licenses on
everything from Microsoft products to the PeopleSoft applications. Also
included in this category are those miscellaneous costs incurred to
effect the spin-off of WCG from Xxxxxxxx.
The aggregate value is $40,000,000.
52
Exhibit A
Form of Opinion
_______________, 2001
To each of the Banks parties to the Credit Agreement
dated as of July 25, 2000, as amended, by and among
the Borrower, the Banks parties thereto and
Citibank, N.A., as Agent for the Banks
Ladies and Gentlemen:
I am General Counsel of The Xxxxxxxx Companies, Inc. (the "Borrower")
and have acted as counsel to the Borrower in connection with the U.S.
$1,700,000,000 Credit Agreement dated July 25, 2000, by and among the Borrower,
the Banks parties thereto, and Citibank, N.A., as Agent for the Banks, as
amended by a certain letter agreement dated October 10, 2000 (the "Original
Agreement") and a certain Waiver and First Amendment to Credit Agreement dated
as of January 31, 2001 (the "Amendment"). This opinion is furnished to you at
the request of the Borrower pursuant to Section 4(d) of the Amendment. Terms
defined in the Amendment not otherwise defined herein are used herein as therein
defined.
In connection with the opinions expressed herein, I, or attorneys
reporting to me, have examined and relied upon copies of the following
documents:
(a) the Amendment, including all exhibits, schedules, and
attachments thereto;
(b) the Original Agreement, including all exhibits, schedules and
attachments thereto;
(c) the Certificate of Incorporation and By-Laws of the Borrower,
and all amendments thereto; and
(d) a Certificate of the Secretary of State of the State of
Delaware dated February 9, 2001 certifying as to the good
standing of the Borrower in that State.
Those documents identified in items (a) and (b) above are collectively
referred to herein as the "Transaction Documents." In connection with this
opinion, I or other attorneys acting under my supervision have (i) investigated
such questions of law, (ii) examined such corporate documents and records of the
Borrower and certificates of public officials, and (iii) received such
information from officers and representatives of the Borrower and made such
investigations as I or other attorneys under my supervision have deemed
necessary or appropriate for the purposes of this opinion. I have not, nor have
other attorneys under my supervision, conducted independent investigations or
inquiries to determine the existence of matters, actions, proceedings, items,
documents, facts,
53
judgments, decrees, franchises, certificates, permits, or the like and have made
no independent search of the records of any court, arbitrator, or governmental
authority affecting any Person, and no inference as to my knowledge thereof
shall be drawn from the fact of my representation of any party or otherwise.
In rendering the opinions herein, I have assumed without independent
verification (i) the genuineness of all signatures of the Banks and the Agent,
(ii) the capacity of the signing officers of each of the Banks and the Agent,
(iii) the authenticity of all documents submitted to me as originals and the
conformity with the authentic originals of all documents submitted to me as
copies, and (iv) the due execution and delivery, pursuant to due authorization,
of the Transaction Documents by the necessary Banks and the Agent and the
enforceability of the Transaction Documents against the necessary Banks and the
Agent.
Based upon and subject to the foregoing and the other qualifications,
limitations, and assumptions set forth below and upon such other matters as I
have deemed appropriate, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware.
2. The execution, delivery, and performance by the Borrower of the Amendment and
the consummation of the transactions contemplated by the Amendment are (a)
within the Borrower's corporate powers, (b) will not contravene (i) the
Certificate of Incorporation or By-Laws of the Borrower, (ii) any law, rule, or
regulation applicable to the Borrower (including, without limitation, Regulation
X of the Board of Governors of the Federal Reserve System), or (iii) any
contractual or legal restriction, and (c) will not result in or require the
creation or imposition of any Lien prohibited by the Original Agreement, as
amended by the Amendment.
3. The Amendment has been duly authorized, executed, and delivered to the Agent
by the Borrower.
4. No authorization, 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 the Borrower of the Amendment or the
consummation of the transactions contemplated by the Amendment, except, in the
case of such performance, for such authorizations, approvals, actions, notices,
and filings which have been made or obtained.
5. The Amendment, when executed and delivered, will constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with its terms.
6. Except as set forth in the Public Filings, to my knowledge there are no
pending or overtly threatened actions or proceedings against the Borrower or any
of its Subsidiaries before any court, governmental agency, or arbitrator that
purport to affect the legality, validity, binding effect, or enforceability of
the Original Agreement, as amended by the Amendment, or that would reasonably be
expected to have a materially adverse effect upon the financial condition or
operations of the Borrower and its Subsidiaries, taken as a whole.
54
7. The Borrower is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate " of a "holding company" or of a
"subsidiary company" of a "holding company," or a "public utility" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
8. In any action or proceeding arising out of or relating to the Amendment in
any court of the State of Oklahoma or in any Federal court sitting in the State
of Oklahoma, assuming (i) proper venue, jurisdiction, and a full and proper
presentation of the issues and the law to the court, (ii) such action or
proceeding is not dismissed on the basis of an inconvenient forum, and (iii)
that the court properly applies Oklahoma law, such court would (a) recognize and
give effect to the provisions of the Amendment that set forth the governing law,
and (b) construe the Amendment in accordance with the internal laws of the State
of New York. However, if a court were to hold that the Amendment is governed by
or to be construed in accordance with the laws of the State of Oklahoma, the
Amendment when executed and delivered, would be, under the laws of the State of
Oklahoma, legal, valid, and binding obligations of the Borrower signatory
thereto and enforceable against the Borrower in accordance with its terms.
The opinions expressed in this letter are subject to the following
additional qualifications and limitations.
(a) My opinion in paragraph 1 with respect to the incorporation and
good standing of the Borrower is based solely on a Certificate, dated as of
February 9, 2001, from the Secretary of State of the State of Delaware,
certifying as to such matters.
(b) My opinions in paragraph 5 and my opinion in the last sentence of
paragraph 8 above are subject, insofar as enforceability is concerned, to the
effect of any applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar law affecting creditors' rights and remedies
generally.
(c) My opinion in paragraph 5 and my opinion in the last sentence of
paragraph 8 above are subject, insofar as enforceability is concerned, to the
effect of general principles of equity including principles of commercial
reasonableness, good faith, and fair dealing (regardless of whether considered
in a proceeding in equity or at law).
(d) I express no opinion with respect to the enforceability of any of
the following: (i) indemnification provisions to the extent the same are
violative of federal or state securities laws, rules, or regulations, or of
public policy, (ii) clauses waiving right to trial by jury, exculpation clauses,
or clauses granting offset rights to the Banks or against any deposits or in
respect of matured claims, (iii) clauses relating to recovery of attorneys' fees
in connection with the enforcement of obligations, (iv) clauses relating to
release of unmatured claims and integration clauses to the effect that no
representation was made other than as appears in a Transaction Document, (v)
clauses purporting to waive unmatured rights, representations, warranties, or
affirmative or negative
55
covenants to the extent such representations, warranties, or covenants can be
construed to be independent clauses which purport to be legal, valid, binding,
and enforceable by themselves, as distinguished from being clauses that trigger
an event of default, and severability and similar clauses, and (vi) clauses that
incorporate by reference a document or instrument or agreement not in existence
on the date hereof to the extent that any such document, instrument, or
agreement is the basis of an effort to enforce a Transaction Document, insofar
as any of the foregoing are contained in a Transaction Document.
(e) I express no opinion as to the effect on the opinions herein stated
of compliance or non-compliance by any Bank with any applicable state, federal,
or other laws or regulations applying only to banks, or the legal or regulatory
status of any Bank.
(f) My opinion in paragraph 5 and my opinion in paragraph 8 above
assumes (i) application of New York law would not be found to be contrary to a
fundamental policy of a state with a materially greater interest in determining
the question presented and the laws of which would govern in absence of an
effective choice of law, (ii) Citibank, N.A. has a place of business located in
the State of New York, and (iii) the Borrower is required to perform a part of
its obligations under the Original Agreement or Amendment, such as delivery of
payment, in the State of New York.
(g) Qualification of any statement or opinion herein by the use of the
words "to my knowledge" means that during the course of representation in
connection with the transactions contemplated by the Original A greement or the
Amendment, no information has come to the attention of me or attorneys reporting
to me that would give me or such attorneys current actual knowledge of the
existence of facts or matters so qualified. I have not undertaken any
investigation to determine the existence of facts, and no inference as to my
knowledge thereof shall be drawn from the fact of the representation by me or
attorneys reporting to me of any party or otherwise.
(h) I am admitted to practice law in the States of Oklahoma and New
York, and, accordingly, the opinions expressed herein are based upon and limited
exclusively to the laws of the States of Oklahoma and New York, the General
Corporation Law of the State of Delaware and the laws of the United States of
America insofar as any of such laws are applicable. I render no opinion with
respect to any other laws.
This opinion letter is solely for the benefit of the Banks and the
Agent, their respective successors, assigns, participants, and other transferees
and counsel for the Persons referred to in this sentence, in consummating the
transaction contemplated by the Amendment, and may not be used or relied upon
by, quoted, transmitted to, or filed with any other Person or for any other
purpose whatsoever without in each instance my prior written consent. This
opinion speaks as of its date, and I undertake no, and hereby expressly disclaim
any, duty to advise you as to any changes of fact or law coming to my attention
after the date hereof.
Very truly yours,
Xxxxxxx X. xxx Xxxxx
