EXECUTION COPY
Exhibit 10.2
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 31, 2002
Among
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
NORTHWEST PIPELINE CORPORATION
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
TEXAS GAS TRANSMISSION CORPORATION
as Borrowers
THE BANKS NAMED HEREIN
as Banks
JPMORGAN CHASE BANK
and
COMMERZBANK AG
as Co-Syndication Agents
and
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent
and
CITICORP USA, INC.
as Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Arranger
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND ACCOUNTING TERMS........................................................................1
Section 1.01. Certain Defined Terms......................................................................1
Section 1.02. Computation of Time Periods...............................................................30
Section 1.03. Accounting Terms..........................................................................30
Section 1.04. Miscellaneous.............................................................................30
Section 1.05. Ratings...................................................................................31
Article II AMOUNTS AND TERMS OF THE ADVANCES.....................................................................31
Section 2.01. The A Advances............................................................................31
Section 2.02. Making the A Advances.....................................................................31
Section 2.03. Fees......................................................................................34
Section 2.04. Reduction of the Commitments..............................................................34
Section 2.05. Repayment of A Advances...................................................................37
Section 2.06. Interest on A Advances....................................................................37
Section 2.07. Additional Interest on Eurodollar Rate Advances...........................................38
Section 2.08. Interest Rate Determination...............................................................38
Section 2.09. Evidence of Debt..........................................................................38
Section 2.10. Prepayments...............................................................................39
Section 2.11. Increased Costs...........................................................................39
Section 2.12. Illegality................................................................................41
Section 2.13. Payments and Computations.................................................................41
Section 2.14. Taxes.....................................................................................43
Section 2.15. Sharing of Payments, Etc..................................................................45
Section 2.16. The B Advances............................................................................45
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Page
Section 2.17. Optional Termination......................................................................49
Section 2.18. Extension of Termination Date.............................................................50
Section 2.19. Voluntary Conversion of Advances..........................................................50
Section 2.20. Automatic Provisions......................................................................50
Article III CONDITIONS...........................................................................................51
Section 3.01. Conditions Precedent to Effectiveness.....................................................51
Section 3.02. Additional Conditions Precedent to Each A Borrowing.......................................53
Section 3.03. Conditions Precedent to Each B Borrowing..................................................53
Section 3.04. Special Condition to Effectiveness of Certain Provisions..................................54
Article IV REPRESENTATIONS AND WARRANTIES........................................................................54
Section 4.01. Representations and Warranties of the Borrowers...........................................54
Article V COVENANTS OF THE BORROWERS.............................................................................60
Section 5.01. Affirmative Covenants.....................................................................60
Section 5.02. Negative Covenants........................................................................66
Article VI EVENTS OF DEFAULT.....................................................................................76
Section 6.01. Events of Default.........................................................................76
Article VII THE AGENT............................................................................................79
Section 7.01. Authorization and Action..................................................................79
Section 7.02. Agent's Reliance, Etc.....................................................................80
Section 7.03. CUSA, Chase, Commerzbank, Credit Lyonnais and Affiliates..................................80
Section 7.04. Bank Credit Decision......................................................................81
Section 7.05. Indemnification...........................................................................81
Section 7.06. Successor Agent...........................................................................82
Section 7.07. Co-Syndication Agents; Documentation Agent................................................82
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Page
Article VIII MISCELLANEOUS.......................................................................................82
Section 8.01. Amendments, Etc...........................................................................82
Section 8.02. Notices, Etc..............................................................................83
Section 8.03. No Waiver; Remedies.......................................................................83
Section 8.04. Costs and Expenses........................................................................84
Section 8.05. Right of Set-off..........................................................................85
Section 8.06. Binding Effect; Transfers.................................................................85
Section 8.07. Governing Law.............................................................................89
Section 8.08. Interest..................................................................................89
Section 8.09. Execution in Counterparts.................................................................89
Section 8.10. Survival of Agreements, Representations and Warranties, Etc...............................89
Section 8.11. Borrowers' Right to Apply Deposits........................................................90
Section 8.12. [Intentionally Omitted]...................................................................90
Section 8.13. Confidentiality...........................................................................90
Section 8.14. WAIVER OF JURY TRIAL......................................................................91
Section 8.15. Severability..............................................................................91
Section 8.16. Forum Selection and Consent to Jurisdiction...............................................91
Section 8.17. Existing Defaults of No Effect............................................................91
Schedule I - Bank Information
Schedule II - Borrower Information
Schedule III - Outstanding Letters of Credit
Schedule IV - Existing Projects
Schedule V - Storage Lease
Schedule VI - Permitted Liens
Schedule VII - Permitted Dispositions
Schedule VIII - Additional Public Filings
Schedule IX - Liens Securing Existing Debt/Obligations
Schedule X - Commitments
Schedule XI - Rating Categories
Schedule XII - Progeny Facilities
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Schedule XIII - Post-Closing Items
Schedule XIV - Midstream Subsidiaries
Exhibit A - 1 - Form of A Note
Exhibit A - 2 - Form of B Note
Exhibit B - 1 - Notice of A Borrowing
Exhibit B - 2 - Notice of B Borrowing
Exhibit C - Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
Exhibit D - 1 - Opinion of New York Counsel (Enforceability)
Exhibit D - 2 - Opinion of New York Counsel (Perfection)
Exhibit E - Existing Loans and Investments in WCG Subsidiaries
Exhibit F - Form of Transfer Agreement
Exhibit G - Form of Security Agreement
Exhibit H - Form of LLC Guaranty
Exhibit I - Form of Midstream Guaranty
Exhibit J - Form of Pledge Agreement
Exhibit K - Form of Holdings Guaranty
Exhibit L - Form of LC Security Agreement
Exhibit M - Existing Loans and Investments in WCG Subsidiaries
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This First Amended and Restated Credit Agreement, dated as of October 31,
2002 is by and among the Borrowers, the Co-Syndication Agents, the Documentation
Agent, the Agent and the Banks (amending and restating the Credit Agreement
dated as of July 25, 2000 (the "Existing Credit Agreement"), as amended by a
letter agreement dated as of October 10, 2000, by a Waiver and First Amendment
to Credit Agreement dated as of January 31, 2001, by a Second Amendment to
Credit Agreement dated as of February 7, 2002, by a Third Amendment to Credit
Agreement dated as of March 11, 2002, by a Consent and Fourth Amendment to
Credit Agreement dated as of July 31, 2002 and by a Consent and Waiver to the
Credit Agreement dated as of September 20, 2002). In consideration of the mutual
covenants and agreements contained herein, the Borrowers, the Agent and the
Banks hereby agree as set forth herein.
PRELIMINARY STATEMENTS
WHEREAS, the Borrowers have requested that the Existing Credit Agreement be
amended as provided herein and to continue to obtain Commitments from the Banks
pursuant to which A Advances, on the terms and conditions and in the amounts set
forth herein, will be made to the Borrowers from time to time prior to the
Termination Date; and
WHEREAS, the Banks have agreed to amend and restate the Existing Credit
Agreement on the terms and conditions as provided herein and are willing, on the
terms and subject to the conditions hereinafter set forth (including Article
III), to continue to extend such Commitments and make such A Advances to the
Borrowers; and
WHEREAS, the Borrowers may from time to time request B Advances pursuant to
the terms and conditions and in the amounts set forth herein, and one or more
Banks may (but are not obligated to) make such B Advances;
NOW, THEREFORE, the parties hereto have agreed to amend and restate the
Existing Credit Agreement and the Existing Credit Agreement is hereby amended
and restated as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. 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):
"A Advance" means an advance by a Bank to a Borrower as part of an A
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A Advances
of the same Type to the same Borrower made by each of the Banks pursuant to
Section 2.01.
"A Note" means a promissory note of a Borrower payable to the order of
any Bank, in substantially the form of Exhibit A-1 hereto (as such note may
be amended, endorsed or otherwise modified from time to time), delivered at
the request of such Bank pursuant to Section 2.09 or 8.06, together with
any other note accepted from time to time in substitution or replacement
therefor.
"Acceptable Security Interest" in any property shall mean a Lien
granted pursuant to a Credit Document (a) which exists in favor of the
Collateral Trustee for the benefit of itself and other parties, as more
fully described in the Collateral Trust Agreement, (b) which is superior to
all other Liens, except Permitted Liens, (c) which secures the "Secured
Obligations" (as defined in the Security Agreement), and (d) which is
perfected and is enforceable by the Collateral Trustee for the benefit of
itself and other parties, as more fully described in the Collateral Trust
Agreement, against all other Persons in preference to any rights of any
such other Person therein (other than Permitted Liens); provided that such
Lien may be subject to the Agreed Exceptions.
"Advance" means an A Advance or a B Advance.
"Agent" means CUSA in its capacity as agent pursuant to Article VII
hereof and any successor Agent pursuant to Section 7.06.
"Agreed Exceptions" means exceptions to title to be set forth in the
"Mortgage" (as defined in the L/C Agreement) that are customary in similar
mortgages, do not materially detract from the value of the assets covered
thereby, do not secure Debt and arise in the ordinary course of business.
"Agreement" means this Credit Agreement, dated as of October 31, 2002,
among the Borrowers, the Agent and the Banks, as amended, amended and
restated, extended, supplemented, restated or modified from time to time.
"American Soda" means American Soda, L.L.P., a Colorado limited
liability partnership.
"Applicable Commitment Fee Rate" means the rate per annum set forth on
Schedule XI under the heading "Applicable Commitment Fee Rate" for the
relevant Rating Category applicable to TWC from time to time. The
Applicable Commitment Fee Rate shall change when and as the relevant Rating
Category applicable to TWC changes.
"Applicable Lending Office" means, with respect to each Bank, such
Bank's Domestic Lending Office in the case of a Base Rate Advance and such
Bank's Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a B Advance, the office of such Bank notified by such
Bank to the Agent as its Applicable Lending Office with respect to such B
Advance.
"Applicable Margin" means as to any Eurodollar Rate Advance or Base
Rate Advance to any Borrower, the rate per annum set forth in the
applicable table on Schedule XI under the heading "Applicable Margin" for
the relevant Rating Category
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applicable to TWC. The Applicable Margin determined pursuant to this
definition for any Eurodollar Rate Advance or Base Rate Advance, as
applicable, shall change when and as the relevant Rating Category
applicable to TWC changes.
"Arctic Fox" has the meaning specified in the definition of "Arctic
Fox Capital Contribution".
"Arctic Fox Capital Contribution" means the transfer of the Equity
Interests of ▇▇▇▇▇▇▇▇ Energy (Canada), Inc. from ▇▇▇▇▇▇▇▇ GmbH, in the form
of a dividend, up through certain other Subsidiaries, to TWC, and by TWC in
the form of a capital contribution to Arctic Fox Assets, L.L.C. ("Arctic
Fox") as required by, and in accordance with, Amendment No. 3 to Certain
Operative Documents and Consents dated as of October 31, 2002, among, inter
alia, TWC and Arctic Fox.
"Arranger" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
"Asset" or "property" (in each case, whether or not capitalized) means
any right, title or interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Attributable Obligation" of any Person means, with respect to any
Sale and Lease-Back Transaction of such Person as of any particular time,
the present value at such time discounted at the rate of interest implicit
in the terms of the lease of the obligations of the lessee under such lease
for net rental payments during the remaining term of the lease (including
any period for which such lease has been extended or may, at the option of
such Person, be extended).
"B Advance" means an advance by a Bank to a Borrower as part of a B
Borrowing resulting from the auction bidding procedure described in Section
2.16.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
to the same Borrower from each of the Banks whose offer to make one or more
B Advances as part of such borrowing has been accepted by such Borrower
under the auction bidding procedure described in Section 2.16.
"B Note" means a promissory note of a Borrower payable to the order of
any Bank, in substantially the form of Exhibit A-2 hereto, delivered at the
request of such Bank pursuant to Section 2.09, 2.16 or 8.06.
"B Reduction" has the meaning specified in Section 2.01.
"Banks" means the lenders listed on the signature pages hereof and
each other Person that becomes a Bank pursuant to the last sentence of
Section 8.06(a).
"▇▇▇▇▇▇▇" means, collectively, RMT and its Subsidiaries.
"▇▇▇▇▇▇▇ Loan" means the loans made pursuant to the ▇▇▇▇▇▇▇ Loan
Agreement.
3
"▇▇▇▇▇▇▇ Loan Agreement" means the Credit Agreement, dated as of July
31, 2002, among TWC, RMT LLC, RMT, the Lenders party thereto from time to
time, ▇▇▇▇▇▇ Brothers Inc., as Arranger, and ▇▇▇▇▇▇ Commercial Paper Inc.,
as Syndication Agent and as Administrative Agent and the Loan Documents (as
defined therein).
"Base Rate" means a fluctuating interest rate per annum as shall be in
effect from time to time which rate per annum shall at all times be equal
to the higher of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate; or
(b) 1/2 of one percent per annum above the Federal Funds Rate in
effect from time to time.
"Base Rate Advance" means an A Advance which bears interest as
provided Section 2.06(a).
"Bio-Energy" means ▇▇▇▇▇▇▇▇ Bio-Energy, L.L.C, ▇▇▇▇▇▇▇▇ Ethanol
Services, Inc., and Nebraska Energy, L.L.C.
"Borrowers" means TWC, NWP, TGPL and TGT.
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances or relates to any B Advance as to
which the related Notice of B Borrowing is delivered pursuant to clause (B)
of Section 2.16(a)(i), 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.
"California Proceedings" means the proceedings with or in the State of
California, as described in more detail on the Form 10-Q for the quarterly
period ended June 30, 2002, filed by the Borrower with the Securities and
Exchange Commission on August 14, 2002.
"Capital Lease" means a lease that in accordance with generally
acceptable accounting principles must be reflected on a company's balance
sheet as an asset and corresponding liability.
"Cardinal Pipeline System" means that intrastate natural gas pipeline
system doing business under that name located in the State of North
Carolina, in which TWC indirectly owned a 45% interest on July 31, 2002.
4
"Cash Collateralize" has the meaning specified in Section 1.1 of the
L/C Agreement.
"Cash Equivalents" means any of the following, to the extent owned by
a Borrower or any of its Subsidiaries free and clear of all Liens other
than Permitted Liens and having a maturity of not greater than 270 days
from the date of acquisition thereof: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that
is a Bank or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause (c) below,
is organized under the laws of the United States or any State thereof and
has combined capital and surplus of at least $1 billion or (c) commercial
paper in an aggregate amount of no more than $500,000,000, per issuer
outstanding at any time, issued by any corporation organized under the laws
of any State of the United States and rated at least "Prime-1" (or the then
equivalent grade) by ▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Cash Flow" means, for any period, the Consolidated cash flow from
operations of a Borrower and its Consolidated Subsidiaries for such period
determined in accordance with generally accepted accounting principles;
provided that in determining such Consolidated cash flow from operations,
there shall be excluded therefrom (to the extent otherwise included
therein) (a) any positive cash flow from operations of any Person
(including Project Financing Subsidiaries) subject to any restriction
prohibiting the distribution of cash to such Borrower or any of its
Consolidated Subsidiaries, except and then only to the extent of the amount
thereof that such Borrower or any of its Consolidated Subsidiaries actually
receives or has the right to receive (within the limits of such
restrictions) during such period, (b) proceeds resulting from the sale,
transfer or other disposition of any property by such Borrower or its
Consolidated Subsidiaries (other than sales, transfers and other
dispositions in the ordinary course of business), (c) all other
extraordinary items, (d) any item constituting the cumulative effect of a
change in accounting principles, prior to applicable income taxes, (e)
repayment of the WCG Synthetic Lease and (f) for the third Fiscal Quarter
of 2002 only, margin and capital or adequate assurances relating to its
refining and marketing and EMT.
"Cash Holdings" of any Person means the total investment of such
Person at the time of determination in:
(a) demand deposits and time deposits maturing within one year with a
Bank (or other commercial banking institution of the stature referred to in
clause (d)(i));
(b) any note or other evidence of indebtedness, maturing not more than
one year after such time, issued or guaranteed by the United States
Government or by a government of another country which carries a long-term
rating of Aaa by Moody's or AAA by S&P;
5
(c) commercial paper, maturing not more than nine months from the date
of issue, which is issued by
(i) a corporation (other than an affiliate of a Borrower) rated
(x) A-1 by S&P, P-1 by Moody's or F-1 by Fitch or (y) lower than set
forth in clause (x) above, provided that the value of all such
commercial paper shall not exceed 10% of the total value of all
commercial paper comprising "Cash Holdings," or
(ii) any Bank (or its holding company) with a rating on its
long-term unsecured debt of at least AA from S&P or Aa from Moody's;
(d) any certificate of deposit or bankers acceptance, maturing not
more than three years after such time, which is issued by either
(i) a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $1,000,000,000, or
(ii) any Bank with a rating on its long-term unsecured debt of at
least AA by S&P or Aa by Moody's;
(e) notes or other evidences of indebtedness, maturing not more than
three years after such time, issued by
(i) a corporation (other than an affiliate of a Borrower) rated
AA by S&P or Aa by Moody's, or
(ii) any Bank (or its holding company) with a rating on its
long-term unsecured debt of at least AA by S&P or Aa by Moody's;
(f) any repurchase agreement entered into with any Bank (or other
commercial banking institution of the stature referred to in clause (d)(i))
which
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (d),
and
(ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of
such Bank (or other commercial banking institution) thereunder; and
(g) money market preferred instruments by participation in a Dutch
auction (or the equivalent) where the investment is rated no lower than Aa
by Moody's or AA by S&P.
"Castle" means Castle Associates, L.P., a Delaware partnership.
6
"Castle Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of Castle Associates L.P., dated as of
December 23, 1998, by and among ▇▇▇▇▇▇▇▇, L.L.C., a Delaware limited
liability company, ▇▇▇▇▇▇▇▇, L.L.C., a Delaware limited liability company,
and Colchester LLC, a Delaware limited liability company, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Castle Transaction" means the purchase by TWC of the limited
partnership interest in Castle held by Colchester LLC, a Delaware limited
liability company.
"Chase" means JPMorgan Chase Bank.
"Citibank" means Citibank, N.A.
"Code" means, as appropriate, the Internal Revenue Code of 1986, as
amended, or any successor federal tax code, and any reference to any
statutory provision shall be deemed to be a reference to any successor
provision or provisions.
"Collateral" means all personal and real property comprising the
Midstream Assets of TWC, each Guarantor and each of the Midstream
Subsidiaries (but excluding agreements that make up the Trading Book to the
extent relating to contracts to which EMT is a party) whether now owned or
hereafter acquired and all other property subject to a Lien for the benefit
of the Banks in accordance with the terms of any Credit Document; provided
that no real or personal property of RMT LLC or its Subsidiaries (including
without limitation the RMT Equity Interests) or real or personal property
of WGPC shall be included as "Collateral"; provided with respect to oil of
▇▇▇▇▇▇▇▇ Alaska Petroleum, Inc. ("WAPI") that is transported through the
Trans-Alaska Pipeline System, the security interest in such oil shall
attach only at the time such oil is delivered to WAPI through the
Trans-Alaska Pipeline System at the outlet flange measuring device located
at North Pole, Alaska.
"Collateral Account" means a deposit account of TWC which meets each
of the following requirements: (i) with a commercial banking institution
that is a member of the Federal Reserve System, has its short-term deposits
rated A- or higher by Moody's or S&P and has a combined capital, surplus
and undivided profits of not less than $1,000,000,000, (ii) over which TWC
has no control, (iii) in which an Acceptable Security Interest exists, (iv)
as to which (if not held with the Collateral Agent) TWC has complied with
Sections 3.1 and 3.6 of the Security Agreement, and (v) deposits in which,
if invested, may be invested only in those investments permitted under
Sections 5.02(e) and (o).
"Collateral Agent" means CUSA in its capacity as "Collateral Agent"
pursuant to the L/C Collateral Documents and Article VIII of the L/C
Agreement, and any successor in such capacity pursuant to Section 8.14 of
the L/C Agreement.
"Collateral Trust Agreement" means that certain Collateral Trust
Agreement dated as of July 31, 2002 by and among the TWC, several of its
Subsidiaries and the Collateral Trustee, which Collateral Trust Agreement
provides for certain Collateral to be
7
held by such Collateral Trustee for the benefit of the Banks and agents
under this Agreement, the lenders, Issuing Banks and agents under the L/C
Agreement and the holders of certain public debt of TWC issued pursuant to
that certain (i) Indenture between MAPCO Inc., as Issuer, and Bankers Trust
Company, as Trustee dated March 31, 1990 and (ii) Indenture between Transco
Energy Company, as Issuer, and Bankers Trust Company, as Trustee dated May
1, 1990.
"Collateral Trustee" means Citibank in its capacity as "Collateral
Trustee" pursuant to the Collateral Trust Agreement and its successors or
assigns appointed pursuant to Article 5 of the Collateral Trust Agreement.
"Commerzbank" means Commerzbank AG.
"Commitment" of any Bank to any Borrower means at any time the amount
set opposite or deemed (pursuant to clause (vii) of the last sentence of
Section 8.06(a) and as reflected in the relevant Transfer Agreement
referred to in such sentence) to be set opposite such Bank's name for such
Borrower on Schedule X as such amount may be terminated, reduced or
increased, pursuant to Section 2.04, Section 2.17, Section 6.01 or Section
8.06(a); provided that, at no time shall the amount of the Commitment of a
Bank to any of NWP, TGPL or TGT exceed the amount of the Commitment of such
Bank to TWC at such time.
"Consolidated" refers to the consolidation of the accounts of any
Person and its consolidated subsidiaries in accordance with generally
accepted accounting principles.
"Consolidated Net Worth" of any Person means the Net Worth of such
Person and its Consolidated Subsidiaries on a Consolidated basis plus, in
the case of TWC, 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 Consolidated Subsidiaries of TWC
described in clauses (i) through (v), (vii) and (viii) of the definition of
"Designated Minority Interests" below exceed $136,892,000 in the aggregate
for the purposes of this definition. As used in this definition,
"Designated Minority Interests" means, as of any date of determination, the
total value, determined in accordance with generally accepted accounting
principles, of the minority interests of Persons other than the Borrower
and Consolidated Subsidiaries of the Borrower in the following Subsidiaries
of the Borrower: (i) El Furrial, (ii) PIGAP II, (iii) Nebraska Energy, (iv)
Seminole, (v) American Soda, (vi) the Midstream Asset MLP, (vii) Apco
Argentina, Inc. and (viii) other Subsidiaries with a value not to exceed in
the aggregate $9,000,000 for such other Subsidiaries not referred to in
items (i) through (vii); provided that minority interests which provide for
a stated preferred cumulative return shall not be included in "Designated
Minority Interests".
"Consolidated Subsidiaries" of any Person means all other Persons the
financial statements of which are consolidated with those of such Person in
accordance with generally accepted accounting principles. For the avoidance
of doubt, as of the date of
8
this Agreement, the MLP and its Subsidiaries shall be "Consolidated
Subsidiaries" of TWC.
"Consolidated Tangible Net Worth" of any Person means the Tangible Net
Worth of such Person and its Consolidated Subsidiaries on a Consolidated
basis.
"Consolidating" refers to, with respect to the balance sheets and
statements of income and cash flows required by Sections 4.01(e),
5.01(b)(ii) and 5.01(b)(iii), the consolidation of the accounts of TWC and
its subsidiaries in accordance with the following format: (i) the WCG
Subsidiaries, (ii) TWC and its subsidiaries (which term does not include
the WCG Subsidiaries), (iii) consolidation adjustments, and (iv)
Consolidated financial statements of TWC and each of its subsidiaries,
including the WCG Subsidiaries.
"Contractual Obligation" means as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Convert," "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.02, Section 2.19 or Section 2.20.
"Co-Syndication Agent" means either of Chase or Commerzbank, together
with the successor and assigns of each in such capacity.
"Credit Documents" means this Agreement, the L/C Agreement, the L/C
Collateral Documents, the Letter of Credit Documents, each Letter of
Credit, all documents, instruments, agreements, certificates and notices at
any time executed and/or delivered to the Agent, the Collateral Trustee,
the Surety Administrative Agent, any Issuing Bank, or any Bank in
connection therewith.
"Credit Lyonnais" means Credit Lyonnais New York Branch.
"CUSA" means Citicorp USA, Inc.
"Debt" means, in the case of any Person, the principal or equivalent
amount (without duplication) of (i) indebtedness of such Person for
borrowed money, (ii) obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (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) obligations of such Person as lessee under leases
that are, in accordance with generally accepted accounting principles,
recorded as capital leases, (v) payments necessary to exercise a purchase
option with respect to the property used by such Person and encumbered by a
Synthetic Lease with such Person as lessee, excluding any portion of such
amount representing accrued interest, transfer taxes or other ancillary
items, (vi) obligations of such Person under any Financing Transaction,
(vii) indebtedness incurred after July 31, 2002 of the Subsidiaries of such
Person, and
9
indebtedness incurred after the date of this Agreement of any other entity
that has been created or utilized, directly or indirectly, for financing
purposes of such Person or any of its Subsidiaries, (viii) 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 (vii) of this definition,
(ix) indebtedness or obligations of others of the kinds referred to in
clauses (i) through (viii) of this definition secured by any Lien on or in
respect of any property of such Person and (x) any Attributable Obligations
of such Person; provided, however, that Debt shall not include (v) any
obligations of TWC or its Subsidiaries in respect of the WCG Note Trust
Bonds; (w) any obligations of TWC in respect of the FELINE PACS; (x)
Non-Recourse Debt; (y) Performance Guaranties, (z) monetary obligations or
guaranties of monetary obligations of Persons as lessee under leases (other
than, to the extent provided herein above, Synthetic Leases) that are, in
accordance with generally accepted accounting principles, recorded as
operating leases and (aa) guarantees by such Person of obligations of
others which are not obligations described in clauses (i) through (x) of
this definition, and provided further that where any such indebtedness or
obligation of such Person is made jointly, or jointly and severally, with
any third party or parties other than any Subsidiary of such Person, the
amount thereof for the purpose 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 and can reasonably be expected to perform its or their obligations
thereunder. For the avoidance of doubt, "Debt" shall not include the
Letters of Credit.
"Deepwater Assets" shall have the meaning given such term in Item 8 of
Schedule VII hereto.
"Deepwater JV" means any Person to whom any Deepwater Assets have been
transferred in connection with the formation of such Person and in which
TWC or any of its Subsidiaries has retained an Equity Interest.
"Deepwater Transactions" means, collectively, the transactions
consummated in connection with (i) that certain Second Amended and Restated
Participation Agreement dated January 28, 2002 by and among ▇▇▇▇▇▇▇▇ Field
Services - Gulf Coast Company, L.P., as Lessee, ▇▇▇▇▇▇▇▇ Field Services
Company, as Construction Agent, TWC, as Guarantor, ▇▇▇▇▇ Fargo Bank
Northwest, National Association, (fka First Security Bank, National
Association), as Certificate Trustee, ▇▇▇▇▇ Fargo Bank Nevada, N.A.,
(successor to First Security Trust Company of Nevada), as Collateral Agent,
the Certificate Holders, Hatteras Funding Corporation, as CP Lender, the
Facility Lenders, Bank of America, National Association, as Administrative
Agent and Administrator, Banc Of America Facilities Leasing, L.L.C., as
Arranger, Bank of Nova Scotia, as Syndication Agent, and Credit Agricole
Indosuez, as Documentation Agent and/or (ii) that certain Second Amended
and Restated Participation Agreement dated January 28, 2002 by and among
▇▇▇▇▇▇▇▇ Oil Gathering, L.L.C., as Lessee, ▇▇▇▇▇▇▇▇ Field Services Company,
as Construction Agent, TWC, as Guarantor, ▇▇▇▇▇ Fargo Bank Northwest,
National Association, (fka First Security Bank, National Association), as
Certificate Trustee, ▇▇▇▇▇
10
Fargo Bank Nevada, N.A., (successor to First Security Trust Company of
Nevada), as Collateral Agent, the Certificate Holders, Hatteras Funding
Corporation, as CP Lender, the Facility Lenders, Bank of America, National
Association, as Administrative Agent and Administrator, Banc Of America
Facilities Leasing, L.L.C., as Arranger, Bank of Nova Scotia, as
Syndication Agent, and Credit Agricole Indosuez, as Documentation Agent.
"Designated Midstream Subsidiaries" means Nebraska Energy; Rio Grande
Pipeline Company; Baton Rouge Fractionators, L.L.C; ▇▇▇▇▇▇▇▇ Lynxs Alaska
CargoPort, L.L.C.; Tri-States NGL Pipeline, L.L.C.; WILPRISE Pipeline
Company, L.L.C.; ▇▇▇▇▇▇▇▇ Alaska Air Cargo Properties, L.L.C.; WilJet,
L.L.C.; Longhorn Partners GP, L.L.C.; Longhorn Partners Pipeline, L.P.;
Mapletree, LLC; E-Birchtree, LLC; E-Oaktree, LLC; and NewGP.
"Designated Minority Interests" has the meaning specified in the
definition of "Consolidated Net Worth".
"Designating Bank" has the meaning specified in Section 8.06(d).
"Documentation Agent" means Credit Lyonnais, together with its
successors and assigns in such capacity.
"Domestic Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Domestic Lending Office" opposite its name
on Schedule I hereto or pursuant to Section 8.06(a), or such other office
of such Bank as such Bank may from time to time specify to the Borrowers
and the Agent.
"▇▇▇▇▇" means "Electronic Data Gathering, Analysis and Retrieval"
system, a database maintained by the Securities and Exchange Commission
containing electronic filings of issuers of certain securities.
"El Furrial" means WilPro Energy Services (El Furrial) Limited, a
Cayman Islands corporation.
"EMT" means ▇▇▇▇▇▇▇▇ Energy Marketing & Trading Company.
"Environment" shall have the meaning set forth in 42 U.S.C. ss.
9601(8) or any successor statute and "Environmental" shall mean pertaining
or relating to the Environment.
"Environmental Permits" mean any and all material permits, licenses,
registrations, exemptions and any other authorization required under any
Environmental Protection Statutes.
"Environmental Protection Statute" shall mean any United States local,
state or federal, or any foreign, law, statute, regulation, order, consent
decree or other agreement or Governmental Requirement arising from or in
connection with or relating to the
11
protection or regulation of the Environment, including, without limitation,
those laws, statutes, regulations, orders, decrees, agreements and other
Governmental Requirements relating to the disposal, cleanup, production,
storing, refining, handling, transferring, processing or transporting of
Hazardous Waste, Hazardous Substances or any pollutant or contaminant,
wherever located.
"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 thereunder from time to time.
"ERISA Affiliate" of any Borrower means any trade or business (whether
or not incorporated) which is a member of a group of which such Borrower is
a member and which is under common control within the meaning of Section
414 of the Code and the regulations promulgated thereunder.
"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 Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or pursuant to Section 8.06(a) (or, if no
such office is specified, its Domestic Lending Office) or such other office
of such Bank as such Bank may from time to time specify to the Borrowers
and the Agent.
"Eurodollar Rate" means, for any Eurodollar Rate Advance comprising
part of the same A Borrowing for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Dow ▇▇▇▇▇ Markets Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "Eurodollar Rate" shall mean, for any
Eurodollar Rate Advance comprising part of the same A Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Eurodollar Rate Advance" means an A Advance that bears interest as
provided in Section 2.06(b).
12
"Eurodollar Rate Reserve Percentage" of any Bank for any Interest
Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (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) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such
Bank 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 specified in Section 6.01. For
purposes of clause (iv) of the definition herein of "Interest Period",
Section 2.19 and Section 6.01, an Event of Default exists as to a
particular Borrower if such Event of Default exists wholly or in part as a
result of any event, condition, action, inaction, representation or other
matter of, by or otherwise directly or indirectly pertaining to such
Borrower or any Subsidiary of such Borrower. Without limiting the foregoing
and for purposes of further clarification, it is agreed that inasmuch as
each of TGPL, NWP and TGT is a Subsidiary of TWC, any Event of Default that
exists as to any of TGPL, NWP or TGT also exists as to TWC.
"Excess Amount" has the meaning specified in Section 2.04(c).
"Excluded Collateral" means (i) all property owned by RMT LLC or its
Subsidiaries (including without limitation the RMT Equity Interests), WGPC
and the Designated Midstream Subsidiaries, (ii) subject to Section 5.01(f),
all personal and real property owned by the Restricted Midstream
Subsidiaries, (iii) the Excluded Equity Interests, (iv) except to the
extent currently subject to an Acceptable Security Interest, the Refineries
(subject to the requirements set forth in Section 5.01(e)), (v) the Mapco
Office Building, (vi) the agreements that make up the Trading Book but only
to the extent relating to contracts to which EMT is a party and (vii) any
property of ▇▇▇▇▇▇▇▇ Field Services Company to the extent such property
constitutes Leased Property (as such term is defined on even date herewith
in the Deepwater Transactions).
"Excluded Equity Interests" means (i) the Equity Interests in each of
the Designated Midstream Subsidiaries (other than the Equity Interests of
NewGP held by ▇▇▇▇▇▇▇▇ Energy Services, LLC and ▇▇▇▇▇▇▇▇ Natural Gas
Liquids, Inc.); provided, however, as to each Designated Midstream
Subsidiary, at such time as TWC or any of its Subsidiaries obtain the
consents provided for in Paragraph 13 of Schedule XIII the Equity Interest
of such Designated Midstream Subsidiary shall cease to be an "Excluded
Equity Interest" and (ii) subject to Section 5.01(f), the Equity Interest
in each of the Restricted Midstream Subsidiaries.
"Existing Credit Agreement" has the meaning specified in the
preliminary statements of this Agreement.
13
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to 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
Agent from three federal funds brokers of recognized standing selected by
it.
"FELINE PACS" means those certain units, as described in TWC's
prospectus supplement dated January 7, 2002, issued by TWC in January, 2002
in an aggregate face amount of $1,100,000,000.
"Financing Transaction" means, with respect to any Person, any
individual or group of related Persons (i) prepaid forward sales of oil,
gas, minerals or other assets by such Person, (ii) interest rate, currency,
commodity or other swaps, collars, caps, options or other derivatives or
(iii) sales or transfers of assets, the primary effect of which or an
important purpose of which is to receive money or credit in advance coupled
with an obligation to repay or perform in the future to effect repayment
thereof, including any contract monetization or production payment.
Notwithstanding the foregoing, the following transactions, if entered into
in the ordinary course of business by any Borrower or any of its affiliates
and otherwise permitted hereunder, shall be deemed not to be Financing
Transactions: (a) sales or exchanges of property fully delivered within 90
days of receipt of the first payment by a counterparty therefor, (b)
interest rate, currency, commodity or other swaps, collars, caps, options
or other derivatives (including prepayment of forward sales of property to
a counterparty of any Borrower or any of its affiliates to hedge against
risks in the ordinary course of business, provided that the forward
delivery obligation with respect to the property sold must be fully
performed within 120 days), and (c) "riskless" forward sales or exchanges
of property whereby a third party guarantees the performance obligations of
any Borrower or any of its affiliates to deliver such property without
subrogation or other recourse against any Borrower or any of its affiliates
by any party to the transaction. The term "contract monetization" as used
in this definition means the acceleration of cash flows a contract party
expects to receive from such contract pursuant to which the contract party
retains a significant ongoing obligation to perform, but shall in any event
exclude transactions commonly referred to as securitizations. The term
"production payment" as used in this definition means a limited-term
non-cost bearing right to receive produced hydrocarbons or the proceeds
therefrom satisfiable in cash or in kind up to an aggregate defined amount
of cash and/or hydrocarbons.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "2002 Fiscal Year") refer to
the Fiscal Year ending on December 31 of such calendar year.
14
"Fitch" means Fitch, Inc.
"Governmental Authority" means the government of the United States,
any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other Person exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining
to government.
"Governmental Requirements" means all judgments, orders, writs,
injunctions, decrees, awards, laws, ordinances, statutes, regulations,
rules, franchises, permits, certificates, licenses, authorizations and the
like and any other requirements of any government or any commission, board,
court, agency, instrumentality or political subdivision thereof.
"Guaranties" means, collectively the LLC Guaranty, the Midstream
Guaranty and the Holdings Guaranty.
"Guarantor" and "Guarantors" means, individually and collectively, as
applicable, RMT LLC, WGPC, EMT and each of the Midstream Subsidiaries.
"Hazardous Substance" shall have the meaning set forth in 42 U.S.C.
ss. 9601(14) and shall also include each other substance considered to be a
hazardous substance under any Environmental Protection Statute.
"Hazardous Waste" shall have the meaning set forth in 42 U.S.C. ss.
6903(5) and shall also include each other substance considered to be a
hazardous waste under any Environmental Protection Statute (including,
without limitation, 40 C.F.R. ss. 261.3).
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging obligations.
"Holdings Guaranty" means that certain guaranty executed by RMT LLC in
substantially the form of Exhibit K hereto as amended, supplemented or
modified from time to time.
"Hydrocarbons" (whether or not capitalized) means oil, gas, casinghead
gas, condensate, distillate, and liquid hydrocarbons.
"Insufficiency" means, with respect to any Plan, the amount, if any,
by which the present value of the vested benefits under such Plan exceeds
the fair market value of the assets of such Plan allocable to such
benefits.
"Interest Expense" means, for any period, the gross interest expense
(determined in accordance with generally accepted accounting principles) of
a Borrower and its Consolidated Subsidiaries accrued for such period,
including that attributable to the capitalized amount of obligations owing
under Capital Leases, all debt discount
15
amortized in such period and all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, net of interest income (determined in accordance with generally
accepted accounting principles) of a Borrower and its Consolidated
Subsidiaries, but excluding such interest expense, debt discount,
commissions, discounts and other fees and charges and interest income to
the extent attributable to the Non-Recourse Debt of Project Financing
Subsidiaries; provided that, interest expense incurred in connection with
the WCG Note Trust Bonds shall be excluded from this definition.
"Interest Period" means, for each Eurodollar Rate Advance to a
Borrower comprising part of the same A Borrowing, the period commencing on
the date of such A Advance or the date of the Conversion of any Base Rate
Advance into a Eurodollar Rate Advance and ending on the last day of the
period selected by such 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 such Borrower pursuant to the provisions below. The
duration of each Interest Period shall be one, two, three or six months, in
each case as such Borrower may, upon notice received by the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select (it being agreed that selection
of a subsequent Interest Period for an outstanding Eurodollar Rate Advance
does not require that a Notice of A Borrowing be given, inasmuch as no
Advance is being requested or made as a result of such selection);
provided, however, that:
(i) Interest Periods commencing on the same date for A Advances
comprising part of the same A Borrowing shall be of the same duration;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided that, if such extension would cause the last
day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day;
(iii) 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 end on the last Business Day of the calendar month in
which it would have ended if there were a numerically corresponding
day in such calendar month; and
(iv) no Borrower may select any Interest Period that ends after
the Termination Date, and no Borrower may select any Interest Period
if any Event of Default exists as to such Borrower.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
of the business of such Person, any
16
capital contribution to such Person or any other direct or indirect
investment in such Person, including, without limitation, any acquisition
by way of a merger or consolidation and any arrangement pursuant to which
the investor incurs Debt of the types referred to in clause (viii) or (ix)
of the definition of "Debt" in respect of such Person.
"Issuing Banks" means Citibank and Bank of America N.A. in their
capacity as issuers of Letters of Credit.
"L/C Agreement" means that certain Amended and Restated Credit
Agreement dated as of October 31, 2002 among TWC as "Borrower," the
"Agent," "Collateral Agent," "Syndication Agent," "Issuing Banks," the
"Arranger," and those certain financial institutions party thereto as
"Banks" (as the same may from time to time be further amended,
supplemented, restated or otherwise modified.
"L/C Collateral Documents" means the "Security Documents" as defined
in the L/C Agreement.
"L/C Facility" means the letter of credit facility under the L/C
Agreement.
"Legacy L/Cs" means those outstanding letters of credit as of July 31,
2002 as set forth on Schedule XII, to the extent such letters of credit
have not been fully cash collateralized.
"Letter of Credit Commitment" has the meaning specified in Section 1.1
of the L/C Agreement.
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect
to such Letter of Credit or (b) any collateral security for any of such
obligations, each as the same may be modified and supplemented and in
effect from time to time.
"Letters of Credit" has the meaning specified in Section 1.1 of the
L/C Agreement.
"Lien" means any mortgage, lien, pledge, charge, deed of trust,
security interest, encumbrance or other analogous type of preferential
arrangement to secure or provide for the payment of any Debt, trade
payable, obligation or other liability of any Person, whether arising by
contract, operation of law or otherwise (including, without limitation, the
interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement).
"LLC Guaranty" means that certain guaranty executed by WGPC in
substantially the form of Exhibit H hereto, as amended, supplemented or
modified from time to time.
17
"Major Subsidiary" means any Subsidiary of a Borrower with assets
having a book value of $1,000,000,000 or more.
"Majority Banks" means at any time Banks having more than 50% of the
then aggregate unpaid principal amount of the A Advances outstanding to
Banks, or, if no such principal amount is then outstanding, Banks having
more than 50% of the principal amount of the Commitments or, if no such
principal amount is then outstanding and all Commitments have terminated,
Banks having more than 50% of the then aggregate unpaid principal amount of
the B Advances outstanding to Banks (provided that, for purposes of this
definition and Sections 2.17, 6.01 and 7.01, neither any Borrower nor any
Subsidiary or Related Party of any Borrower, if a Bank, shall be included
in (i) the Banks to which A Advances or B Advances are owed or (ii)
determining the aggregate unpaid principal amount of the A Advances or the
B Advances or the amount of the Commitments). For purposes hereof, Advances
made by an SPC shall be considered Advances of its Designating Bank.
"Mapco Office Building" means the real property, improvements and
related office equipment located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇.
"MAPL" means Mid-America Pipeline Company, LLC, a Delaware limited
liability company.
"MAPL Asset Disposition" means the sale, transfer or other
distribution of the Equity Interests in or Assets of MAPL and Mapletree,
LLC.
"Material Subsidiary" means (i) each Major Subsidiary and each other
Subsidiary of a Borrower (other than a Project Financing Subsidiary) that
itself (on an unconsolidated, stand alone basis) owns in excess of 5% of
the book value of the Consolidated assets of a Borrower and its
Consolidated Subsidiaries, (ii) each of TGPL, TGT and NWP and (iii) each
Subsidiary that owns any direct or indirect interest in TGPL, TGT and NWP.
"Midstream Asset MLP" means one or more master limited partnerships
included in the Consolidated financial statements of TWC to which TWC has
transferred or shall transfer certain assets relating to the Midstream
Business as well as certain marine and inland terminals and related
pipeline systems, including MLP.
"Midstream Assets" means all assets now owned or hereafter acquired by
TWC or any of its Subsidiaries, which are either individually, or in
conjunction with other Midstream Assets, necessary for the conduct of the
Midstream Business by TWC and its Subsidiaries, including the Refineries in
Alaska and Tennessee, except that "Midstream Assets" shall not include (a)
the assets being part of either of the MAPL Asset Disposition or Seminole
Asset Disposition, unless the MAPL Disposition or Seminole Asset
Disposition, as applicable, shall not have occurred on or prior to the date
that is 60 days from July 31, 2002 and (b) any Assets of NewGP, or its
Subsidiaries.
18
"Midstream Business" means the gathering, marketing, dehydrating,
treating, processing, fractionating, refining, storing, selling and
transporting of Hydrocarbons and Refined Hydrocarbons in the United States,
and any business relating thereto; provided that "Midstream Business" shall
not include (i) operations that are directly related to the exploration and
production of Hydrocarbons, (ii) the interstate transportation and storage
of natural gas and associated liquid hydrocarbons under the jurisdiction of
the Natural Gas Act, and (iii) the transportation and storage of natural
gas and associated liquid hydrocarbons through the Cardinal Pipeline
System.
"Midstream Guaranty" means that certain guaranty executed by those
certain guarantors in substantially the form of Exhibit I hereto, as
amended, supplemented or modified from time to time.
"Midstream Subsidiaries" means each Subsidiary of TWC (excluding
▇▇▇▇▇▇▇▇ Mobile Bay Producer Services, L.L.C., NewGP, and each of their
Subsidiaries, if any) engaged either in whole or in part in the Midstream
Business that either (1) owns, leases or has possession of Midstream Assets
that have an aggregate fair market value of $1,000,000 or more, or (2)
owns, leases or has possession of any Midstream Asset or right that is
material to the ownership, leasing or operation of the Midstream Assets
taken as a whole.
"MLP" means ▇▇▇▇▇▇▇▇ Energy Partners L.P., a Delaware limited
partnership.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc or its successor.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Borrower or any ERISA Affiliate of
any Borrower 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.
"Multiple Employer Plan" means an employee benefit plan as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, subject to Title IV
of ERISA to which any Borrower or any ERISA Affiliate of any Borrower, and
one or more employers other than any Borrower or an ERISA Affiliate of any
Borrower, is making or accruing an obligation to make contributions or, in
the event that any such plan has been terminated, to which any Borrower or
any ERISA Affiliate of any Borrower made or accrued an obligation to make
contributions during any of the five plan years preceding the date of
termination of such plan.
"Natural Gas Act" shall mean the Natural Gas Act, 15 U.S.C.ss.717(a)
-717(w).
"Nebraska Energy" means Nebraska Energy, L.L.C., a Kansas limited
liability company.
"Net Cash Proceeds" means, with respect to any sale, transfer or other
disposition of any asset or the sale or issuance of any equity interests
(including, without limitation, any capital contribution) by any Person,
the gross cash proceeds received (including any
19
cash received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when such cash is received) by or
on behalf of such Person in connection with such transaction net of only
(a) reasonable transaction costs, including customary and reasonable
brokerage commissions, underwriting fees and discounts, legal fees, fees
paid to accountants and financial advisors, finder's fees and other similar
fees and commissions, (b) the amount of taxes payable in connection with or
as a result of such transaction, (c) the amount of any Debt by the terms of
the agreement or instrument governing such Debt (including, without
limitation, the ▇▇▇▇▇▇▇ Loan Agreement and the WECI Note), that is required
to be repaid or cash collateralized in the case of letters of credit, upon
such disposition, including any premium, make-whole or breakage amount
related thereto, (d) payments of unassumed liabilities relating to the
assets sold at the time of, or within 60 days after, the date of such sale;
provided that such gross proceeds shall not include any portion of such
gross cash proceeds which a Borrower determines in good faith should be
reserved for post-closing adjustments (including indemnification payments,
tax expenses and purchase price adjustments, to the extent the Person
delivers to the Agent a certificate signed by an officer of such Person as
to such determination), it being understood and agreed that on the day that
all such post-closing adjustments have been determined (which shall not be
later than 120 days following the date of the respective disposition; and
provided further that such 120-day period shall be extended to the extent
any amount of such proceeds is subject to a good faith dispute or claim),
the amount (if any) by which the reserved amount in respect of such sale or
disposition exceeds the actual post-closing adjustments payable by such
Person shall constitute Net Cash Proceeds on such date received by such
Person from such sale, lease, transfer or other disposition.
"Net Debt" means for any Borrower, as of any date of determination,
the excess of (x) the aggregate amount of all Debt of such Borrower and its
Subsidiaries on a Consolidated basis, excluding Non-Recourse Debt, over (y)
the sum of the Cash Holdings of such Borrower and its Subsidiaries on a
Consolidated basis.
"Net Worth" of any Person means, as of any date of determination, the
excess of total assets of such Person plus all non-cash losses resulting
from the write-down or disposition of the Trading Book over total
liabilities of such Person, total assets and total liabilities each to be
determined in accordance with generally accepted accounting principles;
provided, however, that for purposes of calculating Net Worth, total
liabilities shall not include any obligations of the Borrower in respect of
the FELINE PACS.
"NewGP" means a Business Entity organized under Delaware law, which
may be formed before, on or after the date hereof, and which (i) will be at
the time of formation a Wholly-Owned Subsidiary of TWC, and (ii) will be
formed for the sole purpose of acquiring certain Equity Interests in MLP
currently held by ▇▇▇▇▇▇▇▇ ▇▇, LLC and acting as the general partner of
MLP.
"Non-Borrowing Subsidiary" of any Borrower means a Subsidiary of such
Borrower which Subsidiary is not itself a Borrower. In the case of TWC, the
term "Subsidiary" does not include any WCG Subsidiary.
20
"Non-Recourse Debt" means (i) any Debt incurred by any Project
Financing Subsidiary to finance the acquisition (other than the acquisition
from a Borrower or any Subsidiary of such Borrower that is not a Project
Financing Subsidiary), improvement, installation, design, engineering,
construction, development, completion, maintenance or operation of, or
otherwise to pay costs and expenses relating to or providing financing for,
a project listed on Schedule IV or any new project commenced or acquired
after July 31, 2002, which Debt does not provide for recourse against a
Borrower or any Subsidiary of such Borrower (other than a Project Financing
Subsidiary and such recourse as exists under a Performance Guaranty) or any
property or asset of a Borrower or any Subsidiary of such Borrower (other
than the Equity Interests in, or the property or assets of, a Project
Financing Subsidiary) and (ii) any refinancing of such Debt that does not
increase the outstanding principal amount thereof at the time of the
refinancing or increase the property subject to any Lien securing such Debt
or otherwise add additional security or support for such Debt.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
"Notice of B Borrowing" has the meaning specified in Section 2.16(a).
"NWP" means Northwest Pipeline Corporation, a Delaware corporation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Performance Guaranty" means any guaranty issued in connection with
any Non-Recourse Debt that (i) if secured, is secured only by assets of, or
Equity Interests in, a Project Financing Subsidiary, and (ii) guarantees to
the provider of such Non-Recourse Debt or any other Person of the (a)
performance of the improvement, installation, design, engineering,
construction, acquisition, 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 Non-Recourse Debt, (b)
completion of the minimum agreed equity contributions to the relevant
Project Finance Subsidiary, or (c) performance by a Project Financing
Subsidiary of obligations to Persons other than the provider of such
Non-Recourse Debt.
"Permitted Dispositions" means (a) the disposition of the assets or
Persons set forth on Schedule VII or the assets currently owned by such
Persons and (b) the TWC Asset Dispositions.
"Permitted Liens" means Liens specifically described on Schedule VI.
"Permitted Refinancing Debt" has the meaning assigned thereto on
Schedule VI.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other Business Entity, or a
government or any political subdivision or agency thereof.
21
"PIGAP II" means WilPro Energy Services (PIGAP II) Limited, a Cayman
Islands corporation.
"Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) as defined in Section 3(2) of ERISA currently
maintained by, or, in the event such plan has terminated, to which
contributions have been made, or an obligation to make contributions has
accrued, during any of the five plan years preceding the date of
termination of such plan by, any Borrower or any ERISA Affiliate of any
Borrower for employees of a Borrower or any such ERISA Affiliate and
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code.
"Pledge Agreement" means a Pledge Agreement executed by TWC and
certain Guarantors in substantially the form of Exhibit J.
"Plowshare Transaction" means the retirement of the Interests of the
Class B Preferred Member in PPH (each as defined in the PPH Sponsor
Agreement) held by Plowshare Investors LLC, a Delaware limited liability
company, by PPH.
"PPH Company Agreement" means the Amended and Restated Limited
Liability Company Agreement of Piceance Production Holdings LLC, dated as
of December 31, 2001, by and among ▇▇▇▇▇▇▇▇ Production RMT Company, a
Delaware corporation, Bison Royalty LLC, a Delaware limited liability
company, Plowshare Investors LLC, a Delaware limited liability company, and
Piceance Production Holdings LLC, a Delaware limited liability company.
"PPH Sponsor Agreement" means the PPH Sponsor Agreement, dated as of
December 31, 2001, by TWC in favor of Piceance Production Holdings LLC,
Plowshare Investors LLC and the other indemnified parties named therein (as
the same may from time to time be amended, modified or supplemented).
"Prairie Wolf Facility" means the financing provided in connection
with that certain $611,788,868 Joint Venture Sponsor Agreement dated as of
December 28, 2000 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "Sponsor Agreement"), among TWC,
as Sponsor, and ▇▇▇▇▇▇▇▇ Field Services Company, in favor of Prairie Wolf
Investors, Arctic Fox Assets, L.L.C., ▇▇▇▇▇▇▇▇ Energy (Canada), Inc. and
the other Indemnified Persons (as defined in the Sponsor Agreement) listed
therein.
"Prairie Wolf Purchase Option Agreement" means the Purchase Option
Agreement, dated as of December 28, 2000, among TWC, Prairie Wolf
Investors, L.L.C., Citicorp North America, Inc., Ambac Private Holdings,
L.L.C., Westboro Properties L.L.C., Stonehurst Capital L.L.C., BSCS XXXIX,
Inc., Snow Goose Associates, L.L.C. and Arctic Fox Assets, L.L.C.
"Prairie Wolf Transaction" means the purchase of the Investor
Membership Interest (as defined in the Prairie Wolf Purchase Option
Agreement) pursuant to the Prairie Wolf Purchase Option Agreement.
22
"Progeny Facilities" means the financing facilities specifically
described on Schedule XII attached hereto.
"Project Financing Subsidiaries" means any non-material Subsidiary of
any Borrower whose principal purpose is to incur Non-Recourse Debt and/or
construct, lease, own or operate the assets financed thereby, 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 (x) 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 Non-Recourse Debt, or (y)
Equity Interests in, or Debt or other obligations of, one or more other
such Subsidiaries or Business Entities, or (z) Debt or other obligations of
any Borrower or its Subsidiaries or other Persons. For purposes of this
definition, a "non-material Subsidiary" shall mean any Consolidated
Subsidiary of any Borrower that is not the Borrower which, as of the date
of the most recent Consolidated balance sheet of the Borrower delivered
pursuant to Section 4.01(e) or 5.01, has total assets which account for
less than five percent (5%) of the total Consolidated assets of such
Borrower and its Consolidated Subsidiaries, as shown on such Consolidated
balance sheet; provided that the aggregate assets of the non-material
Subsidiaries shall not comprise more than ten percent (10%) of the total
Consolidated assets of such Borrower and its Consolidated Subsidiaries, as
shown on such Consolidated balance sheet.
"Property" has the meaning set forth in the definition of "Assets".
"Public Filings" means the Borrowers' (i) annual report on Form 10-K
(in the case of TWC, its Form 10K/A) for the year ended December 31, 2001,
(ii) quarterly report on Form 10-Q for the quarter ended ▇▇▇▇▇ ▇▇, ▇▇▇▇,
(▇▇▇) quarterly report on Form 10-Q for the quarter ended June 30, 2002 and
(iv) each other quarterly and annual and other reports filed from time to
time.
"Purchase Card Agreement" means that certain Purchase Card Agreement
among TWC and CUSA dated January 29, 2002.
"Rating Category" means, as to any Borrower, the relevant category
applicable to such Borrower from time to time as set forth on Schedule XI,
which is based on the ratings (or lack thereof) of such Borrower's senior
unsecured long-term debt by S&P or Moody's. In the event there is a split
between the ratings of any Borrower's senior unsecured long-term debt by
S&P and ▇▇▇▇▇'▇, "Rating Category" shall be determined based on the lowest
rating of such Borrower's senior unsecured long-term debt by S&P or
Moody's.
"Refined Hydrocarbons" means all products refined, separated,
fractionated, settled, and dehydrated from Hydrocarbons and all products
derived therefrom, including, without limitation, kerosene, liquefied
petroleum gas, refined lubricating oils, diesel fuels, drip gasoline,
natural gasoline, helium, sulfur and all other minerals.
23
"Refineries" means the equity interest in, and assets owned by, the
Midstream Business of TWC which produces Refined Hydrocarbons and is owned
collectively by the following subsidiaries: ▇▇▇▇▇▇▇▇ Express, Inc., a
Delaware corporation, ▇▇▇▇▇▇▇▇ Alaska Pipeline Company, LLC, a Delaware
limited liability company, ▇▇▇▇▇▇▇▇ Alaska Petroleum, Inc., an Alaska
corporation, ▇▇▇▇▇▇▇▇ Alaska Air Cargo Properties, LLC, an Alaska limited
liability company, ▇▇▇▇▇▇▇▇ Lynxs Alaska CargoPort, LLC, an Alaska limited
liability company, ▇▇▇▇▇▇▇▇ Express, Inc., an Alaska corporation, ▇▇▇▇▇▇▇▇
Petroleum Pipeline Systems, Inc., a Delaware corporation, ▇▇▇▇▇▇▇▇ Refining
& Marketing, LLC, a Delaware limited liability company, ▇▇▇▇▇▇▇▇ Olefins,
LLC, a Delaware limited liability company, ▇▇▇▇▇▇▇▇ Olefins Feedstock
Pipelines, LLC, a Delaware limited liability company, ▇▇▇▇▇▇▇▇ Memphis
Terminal, Inc., a Delaware corporation, ▇▇▇▇▇▇▇▇ Generating Memphis, LLC, a
Delaware limited liability company, EMT (only with respect to its interest
in a gas turbine, electric generating facility in Memphis, Tennessee), and
Memphis Generation, L.L.C., a Delaware limited liability company.
"Related Party" of any Person means any corporation, partnership,
joint venture or other entity of which more than 10% of the outstanding
capital stock or other equity interests having ordinary voting power to
elect a majority of the board of directors of such corporation,
partnership, joint venture or other entity or others performing similar
functions (irrespective of whether or not at the time capital stock or
other equity interests of any other class or classes of such corporation,
partnership, joint venture or other entity shall or might have voting power
upon the occurrence of any contingency) is at the time directly or
indirectly owned by such Person or which owns at the time directly or
indirectly more than 10% of the outstanding capital stock or other equity
interests having ordinary voting power to elect a majority of the board of
directors of such Person or others performing similar functions
(irrespective of whether or not at the time capital stock or other equity
interests of any other class or classes of such corporation, partnership,
joint venture or other entity shall or might have voting power upon the
occurrence of any contingency); provided, however, that (i) neither TWC nor
any Subsidiary of TWC shall be considered to be a Related Party of TWC or
any Subsidiary of TWC and (ii) neither NewGP nor any Subsidiary of NewGP
shall be considered to be a "Related Party" of NewGP or any Subsidiary of
NewGP.
"Restricted Midstream Subsidiaries" means ▇▇▇▇▇▇▇▇ Mobile Bay Producer
Services, L.L.C.; and ▇▇▇▇▇▇▇▇ Field Services-Gulf Coast Company, L.P.,
▇▇▇▇▇▇▇▇ Oil Gathering L.L.C., Gulf Liquids Holdings, L.L.C. and Gulf
Liquids New River Project, LLC.
"RMT" means ▇▇▇▇▇▇▇▇ Production RMT Company.
"RMT Asset Disposition" means the sale, transfer, lease, distribution
or other disposition of the RMT Equity Interests or the assets of RMT LLC,
RMT or its Subsidiaries in accordance with the provisions of the ▇▇▇▇▇▇▇
Loan Agreement.
24
"RMT Equity Interests" means the Equity Interests in RMT and/or each
of its Subsidiaries.
"RMT LLC" means ▇▇▇▇▇▇▇▇ Production Holdings LLC.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Sale Agreement" has the meaning specified in Section 5.01(e).
"Sale and Lease-Back Transaction" of any Person means any arrangement
entered into by such Person or any Subsidiary of such Person, directly or
indirectly, whereby such Person or any Subsidiary of such Person shall sell
or transfer any property, whether now owned or hereafter acquired to any
other person (a "Transferee"), and whereby such Person or any Subsidiary of
such Person shall then or thereafter rent or lease as lessee such property
or any part thereof or rent or lease as lessee from such Transferee or any
other Person other property which such Person or any Subsidiary of such
Person intends to use for substantially the same purpose or purposes as the
property sold or transferred.
"Security Agreement" means a Security Agreement executed by the TWC
and those certain guarantors party thereto in substantially the form of
Exhibit G hereto.
"Seminole" means Seminole Pipeline Company, a Delaware corporation.
"Seminole Asset Disposition" means the sale, transfer or other
distribution of all or substantially all of the Equity Interests in or
assets of Seminole and E-Oaktree, LLC.
"Soda Ash" means ▇▇▇▇▇▇▇▇ Soda Products Company and American Soda,
L.L.P.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"SPC" has the meaning specified in Section 8.06(d).
"Specified Escrow Arrangements" means (a) encumbrances arising under
the Pledge and Assignment Agreement for the Purchase Card Agreement, dated
as of January
25
29, 2002, as amended, supplemented, amended and restated or otherwise
modified from time to time, whereby TWC has requested the continued
issuance of credit under the Purchase Card Agreement; and (b) cash deposits
at one or more financial institutions for the purpose of funding any
potential shortfall in the daily net cash position of TWC or any of its
Subsidiaries.
"SPV" is used as defined in the definition of "WCG Structured
Financing."
"Stated Termination Date" means July 25, 2005, or such later date, if
any, as may be agreed to by the Borrowers and the Banks pursuant to Section
2.18.
"Subject Subsidiaries" means all Subsidiaries of the Borrowers other
than NewGP and its Subsidiaries.
"Subordinated Debt" means any Debt of any Borrower which is
effectively subordinated to the obligations of such Borrower hereunder and
under the Notes, if any.
"Subsidiary" of any Person means (i) any corporation, partnership,
joint venture or other entity of which more than 50% of the outstanding
Equity Interests having ordinary voting power to elect a majority of the
board of directors of such corporation, partnership, joint venture or other
entity or others performing similar functions (irrespective of whether or
not at the time Equity Interests of any other class or classes of such
corporation, partnership, joint venture or other entity shall or might have
voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person and (ii) any Person that is
under the direct or indirect control of such Person, by voting rights,
contract or otherwise, and in accordance with generally accepted accounting
principles, is Consolidated with a Borrower in its Consolidated financial
statements; provided that, for greater certainty, (x) MLP and its
Subsidiaries (A) shall be considered Subsidiaries of NewGP, but (B) shall
not otherwise be considered Subsidiaries or Guarantors of the Borrowers or
their respective Subsidiaries and (y) NewGP shall be considered a
Subsidiary of TWC.
"Surety Administrative Agent" means Citibank, N.A., in its capacity as
surety administrative agent under the terms of the Midstream Guaranty and
its successors or assigns appointed pursuant to Section 7(e) of the
Midstream Guaranty.
"Synthetic Lease" means any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real,
personal or mixed) (i) that is not a capital lease in accordance with
generally accepted accounting principles and (ii) in respect of which the
lessee retains or obtains ownership of the property so leased for federal
income tax purposes, other than any such lease under which such Person is
the lessor.
"Tangible Net Worth" of any Person means, as of any date of
determination, the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to be
determined in accordance with generally accepted accounting principles,
excluding, however, from the determination of total assets (i) patents,
patent
26
applications, trademarks, copyrights and trade names, (ii) goodwill,
organizational, experimental, research and development expense and other
like intangibles, (iii) treasury stock, (iv) monies set apart and held in a
sinking or other analogous fund established for the purchase, redemption or
other retirement of capital stock or Subordinated Debt, and (v) unamortized
debt discount and expense.
"Termination Date" means the earlier of (i) the Stated Termination
Date or (ii) the date of termination in whole of the Commitments pursuant
to Section 2.04, 2.17 or 6.01.
"Termination Event" means (i) a "reportable event," as such term is
described in Section 4043(c) of ERISA (other than a "reportable event" not
subject to the provision for 30-day notice to the PBGC or a "reportable
event" as such term is described in Section 4043(c)(3) of ERISA) which
might reasonably be expected to result in a termination of, or the
appointment of a trustee to administer, a Plan, or which causes a Borrower,
due to actions of the PBGC, to be required to contribute at least
$75,000,000 in excess of the contributions which otherwise would have been
made to fund a Plan based upon the contributions recommended by such Plan's
actuary), or (ii) the withdrawal of any Borrower or any ERISA Affiliate of
any Borrower 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 any Borrower or any ERISA
Affiliate of any Borrower under Section 4064 of ERISA upon the termination
of a Plan or Multiple Employer Plan, or (iii) the distribution of a notice
of intent to terminate a Plan pursuant to Section 4041(a)(2) of ERISA or
the treatment of a Plan amendment as a termination under Section 4041 of
ERISA, or (iv) the institution of proceedings to terminate a Plan by the
PBGC under Section 4042 of ERISA, or (v) any other event or condition which
might reasonably be expected to result in the termination of, or the
appointment of a trustee to administer, any Plan under Section 4042 of
ERISA.
"TGPL" means Transcontinental Gas Pipe Line Corporation, a Delaware
corporation.
"TGPL Bond Offering" means that certain $325,000,000, 8.875% Senior
Notes due 2012 issued on July 3, 2002 by TGPL.
"TGT" means Texas Gas Transmission Corporation, a Delaware
corporation.
"Trading Book" means all ▇▇▇▇ to market daily and forward traded
transactions inclusive of structured portfolio transactions consisting
primarily of tolling and full requirements transactions.
"Transfer Agreement" has the meaning specified in Section 8.06.
"TravelCenters" means ▇▇▇▇▇▇▇▇ TravelCenters, Inc.
"TWC" means The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware corporation.
27
"TWC Asset Dispositions" means the sale by TWC or by any of its
Subsidiaries of (a) WPC, (b) MAPL Asset Disposition, (c) Seminole Asset
Disposition, (d) the Refineries, (e) Soda Ash, (f) TravelCenters, and (g)
Bio-Energy.
"TWC Asset Disposition Documents" means all material agreements
relating to the TWC Asset Dispositions.
"TWC Preferred Stock" means the shares of preferred stock of TWC which
may be perpetual preferred stock or mandatorily convertible into shares of
common stock of TWC.
"Type" has the meaning set forth in the definition herein of A
Advance.
"UBOC Turbine Financing" means the transactions contemplated by (i)
the Turbine Financing and Agency Agreement, dated as of April 16, 2002,
between Union Bank of California, N.A., each of the other financial
institutions party thereto as a Lender or Certificate Holder, WEMT
Statutory Trust 2002 and EMT (the "TFA AGREEMENT") and (ii) the Operative
Documents and the Lease (as such terms are defined in the TFA Agreement).
"Unrated" means, as to any Borrower, that no senior unsecured
long-term debt of such Borrower is rated by S&P and no senior unsecured
long-term debt of such Borrower is rated by Moody's.
"WCG" means ▇▇▇▇▇▇▇▇ Communications Group, Inc., a Delaware
corporation.
"WCG Note" means that certain promissory note dated March 28, 2001
issued by WCG to WCG Note Trust, a Delaware business trust, in a principal
amount of $1,500,000,000 with a maturity date of March 31, 2008.
"WCG Note Trust Bonds" means those certain debt securities issued by
WCG Note Trust and WCG Note Corp. on March 28, 2001.
"WCG Refinancing Transaction" means any transaction or series of
related transactions pursuant to which TWC or any Subsidiary of TWC becomes
directly and primarily liable to the holders of the WCG Senior Notes for an
aggregate amount not exceeding the outstanding principal amount of the WCG
Senior Notes, together with all accrued and unpaid interest thereon, any
fees, and any premiums or make-whole payments payable as a result of a
prepayment or early redemption of the WCG Senior Notes, including, without
limitation, by means of (i) any amendment to the transaction documents
pursuant to which the WCG Senior Notes were issued, (ii) an exchange offer
or tender offer for the WCG Senior Notes or the WCG Note in consideration
for which TWC or any Subsidiary of TWC issues debt securities of TWC or any
Subsidiary of TWC, (iii) any redemption or repurchase, in whole or in part,
of the WCG Senior Notes by TWC or any Subsidiary of TWC, (iv) any exercise
of the "Share Trust Release Option" as defined in the transaction documents
pursuant to which the WCG Senior
28
Notes were issued or (v) TWC or any Subsidiary of TWC making any payments
in respect of the WCG Senior Notes or the WCG Note.
"WCG Reimbursement Obligations" means any obligations of any WCG
Subsidiary in favor of TWC, any Subsidiary of TWC or the WCG Senior Notes
Issuer pursuant to which such WCG Subsidiary has agreed to pay TWC, any
Subsidiary of TWC or the WCG Senior Notes Issuer an amount equal to or less
than the total amount of the obligations incurred by TWC and/or its
Subsidiaries in connection with the WCG Refinancing Transaction, including,
without limitation, in respect of principal, interest, fees and any
premiums or make-whole payments payable as a result of a prepayment or
early redemption of the WCG Senior Notes.
"WCG Senior Notes" means those certain 8.25% Senior Secured Notes due
2004 in an aggregate principal amount of $1,400,000,000 issued by the WCG
Senior Notes Issuer.
"WCG Senior Notes Issuer" means, collectively, WCG Note Trust, a
Delaware business trust, and WCG Note Corp., Inc., a Delaware corporation.
"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
TWC. 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 $1,500,000,000. TWC shall have a contingent obligation with
respect to repayment of indebtedness or return on and of equity of the SPV
(or SPVs) or WCG or a WCG Subsidiary in regard to such transaction, which
contingent obligation shall terminate in each case no later than four (4)
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 TWC are not possible or will not result in additional
proceeds.
"WCG Synthetic Lease" means that certain Amended and Restated Lease
between State Street Bank and Trust Company of Connecticut, National
Association, as Lessor and ▇▇▇▇▇▇▇▇ Communications, Inc., as Lessee, dated
as of September 2, 1998, as amended, which has been terminated and was
fully repaid on March 29, 2002.
"WCGS Subsidiaries" means, collectively, WCG and any direct or
indirect Subsidiary of WCG.
"WCG Unwind Transaction" means a transaction in which (i) TWC's and/or
its Subsidiaries' Sale Leaseback transactions dated as of September 13,
2001, with (x) WCG and its Subsidiary, ▇▇▇▇▇▇▇▇ Technology Center, LLC
("WTC"), involving the ▇▇▇▇▇▇▇▇ Technology Center, and (y) WCG and its
Subsidiary, ▇▇▇▇▇▇▇▇ Communications, LLC, involving corporate aircraft
(collectively, the "WCG Sale Leaseback") are terminated, (ii) in exchange
for such termination, TWC receives a promissory note or notes payable by
the reorganized WCG, WTC and/or the other WCG Subsidiaries, individually or
as co-
29
makers, in an aggregate principal amount of $175,000,000 or less, and (iii)
consideration from TWC and its Subsidiaries includes termination of the
existing WCG Sale Leaseback and transfer of the Equity Interests in
▇▇▇▇▇▇▇▇ Aircraft Leasing, LLC, but does not include any cash payment by
TWC or any of its Subsidiaries to WCG or WTC.
"WECI Note" means that certain promissory note, dated as of December
28, 2000, issued by ▇▇▇▇▇▇▇▇ Energy (Canada), Inc. in favor of the
Registered Holders (as defined therein), as amended by Prairie Wolf
Investors, L.L.C. Amendment No. 1, dated as of August 29, 2001, by
Amendment No. 2 to Certain Prairie Wolf Operative Documents, dated as of
March 28, 2002, and by Amendment No. 3 to Certain Operative Documents and
Consents, dated as of October 31, 2002.
"WGPC" means ▇▇▇▇▇▇▇▇ Gas Pipeline Company, LLC, a Delaware limited
liability company.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary of such
Person all of the capital stock and other equity interests of which is
owned by such Person or any Wholly-Owned Subsidiary of such Person.
"Withdrawal Liability" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
"WPC" means ▇▇▇▇▇▇▇▇ Gas Pipeline Central, Inc., a Delaware
corporation.
"WPXE" means WPX Enterprises, Inc., a Delaware corporation.
Section 1.02. Computation of Time Periods. In this Agreement in the
computation of periods 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 1.03. 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 1.04. Miscellaneous. 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 Articles and Sections of and Schedules and Exhibits to this Agreement,
unless otherwise specified. The term "including" shall mean "including,
without limitation,". References to any document, instrument or agreement
(a) shall include all exhibits, schedules and other attachments thereto,
(b) shall include all documents, instruments or agreements issued or
executed in replacement thereof and (c) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
modified and supplemented from time to time and in effect at any given
time, so long as such amended, modified or supplemented document,
instrument or agreement does not violate the terms of this Agreement.
30
Section 1.05. Ratings. A rating, whether public or private, by S&P or
Moody's shall be deemed to be in effect on the date of announcement or
publication by S&P or Moody's, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or in
the absence of such announcement or publication, the effective date of, any
change in, or withdrawal or termination of, such rating. In the event the
standards for any rating by Moody's or S&P are revised, or any such rating is
designated differently (such as by changing letter designations to different
letter designations or to numerical designations), the references herein to such
rating shall be deemed to refer to the revised or redesignated rating for which
the standards are closest to, but not lower than, the standards at the date
hereof for the rating which has been revised or redesignated, all as determined
by the Majority Banks in good faith. Long-term debt supported by a letter of
credit, guaranty, insurance or other similar credit enhancement mechanism shall
not be considered as senior unsecured long-term debt. If either Moody's or S&P
has at any time more than one rating applicable to senior unsecured long-term
debt of a Borrower, the lowest such rating shall be applicable for purposes
hereof. For example, if Moody's rates some senior unsecured long-term debt of a
Borrower Ba1 and other such debt of such Borrower Ba2, the senior unsecured
long-term debt of such Borrower shall be deemed to be rated Ba2 by Moody's.
Article II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The A Advances. Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make A Advances to each Borrower from time
to time on any Business Day during the period from July 31, 2002 until the
Termination Date in an aggregate amount outstanding not to exceed at any time
such Bank's Commitment to such Borrower, provided that the aggregate amount of
the Commitments of the Banks to any Borrower shall, except for purposes of
Section 2.03(a), be deemed used from time to time to the extent of the aggregate
amount of the B Advances then outstanding to such Borrower and such deemed use
of the aggregate amount of such Commitments shall be applied to the Banks
ratably according to their respective Commitments to such Borrower (such deemed
use of the aggregate amount of the Commitments of any Borrower being a "B
Reduction"), and provided further that the aggregate amount of all A Advances to
all Borrowers by any Bank shall not exceed at any time outstanding such Bank's
Commitment to TWC (determined after giving effect to such Bank's ratable share
of all B Reductions). Each A Borrowing shall be in an aggregate amount not less
than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, and
shall consist of A Advances of the same Type made to the same Borrower on the
same day by the Banks ratably according to their respective Commitments. Within
the limits of each Bank's Commitment to a Borrower, such Borrower may borrow,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
Section 2.02. Making the A Advances.
(a) Each A Borrowing shall be made on notice, given not later than (1)
in the case of a proposed Borrowing comprised of Eurodollar Rate Advances,
11:00 A.M. (New
31
York City time) at least three Business Days prior to the date of the
proposed Borrowing, and (2) in the case of a proposed Borrowing comprised
of Base Rate Advances, 10:00 A.M. (New York City time) on the date of the
proposed Borrowing, by the Borrower requesting such A Borrowing to the
Agent, which shall give to each Bank prompt notice thereof by telecopy,
telex or cable. Each such notice of an A Borrowing (a "Notice of A
Borrowing") shall be by telephone, confirmed immediately in writing, or by
telecopy, telex or cable in substantially the form of Exhibit B-1 hereto,
executed by the Borrower requesting such A Borrowing and specifying therein
the requested (i) date of such A Borrowing (which shall be a Business Day),
(ii) initial Type of A Advances comprising such A Borrowing, (iii)
aggregate amount of such A Borrowing, and (iv) in the case of an A
Borrowing comprised of Eurodollar Rate Advances, initial Interest Period
for each such A Advance. Each Bank shall, before 11:00 A.M. (New York City
time) on the date of such A Borrowing, make available for the account of
its Applicable Lending Office to the Agent at its New York address referred
to in Section 8.02, in same day funds, such Bank's ratable portion of such
A Borrowing. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make
such funds available to the Borrower requesting such A Borrowing at the
Agent's aforesaid address.
(b) Anything herein to the contrary notwithstanding:
(i) at no time shall there be outstanding to any one Borrower
more than ten A Borrowings comprised of Eurodollar Rate Advances;
(ii) no Borrower may select Eurodollar Rate Advances for any
Borrowing if the aggregate amount of such Borrowing is less than
$10,000,000;
(iii) if the Majority Banks shall notify the Agent that either
(A) the Eurodollar Rate for any Interest Period for any Eurodollar
Rate Advances will not adequately reflect the cost to such Banks of
making or funding their respective Eurodollar Rate Advances for such
Interest Period, or (B) that U.S. dollar deposits for the relevant
amounts and Interest Period for their respective Advances are not
available to them in the London interbank market, or it is otherwise
impossible to have Eurodollar Rate Advances, the Agent shall forthwith
so notify the Borrowers and the Banks, whereupon (I) each Eurodollar
Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and (II)
the obligations of the Banks to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Agent, at the
request of the Majority Banks, shall notify the Borrowers and the
Banks that the circumstances causing such suspension no longer exist,
and, except as provided in Section 2.02(b)(v), each Advance comprising
any requested A Borrowing shall be a Base Rate Advance;
(iv) if the Agent is unable to determine the Eurodollar Rate for
Eurodollar Rate Advances, the obligation of the Banks to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall
32
notify the Borrowers and the Banks that the circumstances causing such
suspension no longer exist, and, except as provided in Section
2.02(b)(v), each Advance comprising any requested A Borrowing shall be
a Base Rate Advance; and
(v) if a Borrower has requested a proposed A Borrowing consisting
of Eurodollar Rate Advances and as a result of circumstances referred
to in Section 2.02(b)(iii) or (iv) such A Borrowing would not consist
of Eurodollar Rate Advances, such Borrower may, by notice given not
later than 3:00 P.M. (New York City time) at least one Business Day
prior to the date such proposed A Borrowing would otherwise be made,
cancel such A Borrowing, in which case such A Borrowing shall be
cancelled and no Advances shall be made as a result of such requested
A Borrowing, but such Borrower shall indemnify the Banks in connection
with such cancellation as contemplated by Section 2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrowers, except as set forth in Section 2.02(b)(v). In the case of any A
Borrowing requested by a Borrower which the related Notice of A Borrowing
specifies is to be comprised of Eurodollar Rate Advances, such Borrower
shall indemnify each Bank against any loss, cost or expense incurred by
such Bank as a result of any failure to fulfill on or before the date
specified in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without limitation, 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 such Bank to fund the A Advance to be made by such Bank as part
of such A Borrowing when such A Advance, as a result of such failure, is
not made on such date. A certificate in reasonable detail as to the basis
for and the amount of such loss, cost or expense submitted to such Borrower
and the Agent by such Bank shall be prima facie evidence of the amount of
such loss, cost or expense. If an A Borrowing requested by a Borrower which
the related Notice of A Borrowing specifies is to be comprised of
Eurodollar Rate Advances is not made as an A Borrowing comprised of
Eurodollar Rate Advances as a result of Section 2.02(b), such Borrower
shall indemnify each Bank against any loss (excluding loss of profits),
cost or expense incurred by such Bank by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank prior to the
time such Bank is actually aware that such A Borrowing will not be so made
to fund the A Advance to be made by such Bank as part of such A Borrowing.
A certificate in reasonable detail as to the basis for and the amount of
such loss, cost or expense submitted to such Borrower and the Agent by such
Bank shall be prima facie evidence of the amount of such loss, cost or
expense.
(d) Unless the Agent shall have received notice from a Bank prior to
the date of any A Borrowing to a Borrower that such Bank will not make
available to the Agent such Bank's ratable portion of such A Borrowing, the
Agent may assume that such Bank has made such portion available to the
Agent on the date of such A Borrowing in accordance with subsection (a) of
this Section 2.02 and the Agent may, in reliance upon such assumption, make
available to such Borrower requesting such A Borrowing on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made
33
such ratable portion available to the Agent, such Bank and such Borrower
severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the
interest rate applicable at the time to A Advances comprising such A
Borrowing and (ii) in the case of such Bank, the Federal Funds Rate. If
such Bank shall repay to the Agent such corresponding amount, such amount
so repaid shall constitute such Bank's A Advance as part of such A
Borrowing for purposes of this Agreement.
(e) The failure of any Bank to make the A Advance to be made by it as
part of any A Borrowing shall not relieve any other Bank of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing,
but no Bank shall be responsible for the failure of any other Bank to make
the A Advance to be made by such other Bank on the date of any A Borrowing.
Section 2.03. Fees.
(a) Commitment Fee. TWC agrees to pay to the Agent for the account of
each Bank a commitment fee on the average daily unused (for the purposes of
this Section 2.03(a), A Advances made to any Borrower shall be considered
to have been made to TWC, but B Advances to any Borrower shall not, for
purposes of this Section 2.03(a), be considered to be usage of any
Commitment) portion of such Bank's Commitment to TWC from July 31, 2002
until the Termination Date at a rate per annum from time to time equal to
the Applicable Commitment Fee Rate from time to time, payable in arrears on
the last day of each March, June, September and December during the term
such Bank has any Commitment to any Borrower and on the Termination Date.
(b) Agent's Fees. TWC agrees to pay to the Agent, for its sole
account, such fees as may be separately agreed to in writing by TWC and the
Agent.
Section 2.04. Reduction of the Commitments.
(a) Optional. Each Borrower shall have the right, upon at least three
Business Days notice to the Agent, to terminate in whole or reduce ratably
in part the unused portions of the respective Commitments of the Banks to
such Borrower, provided that each partial reduction shall be in the
aggregate amount of at least $10,000,000, and provided further, that the
aggregate amount of the Commitments of the Banks to any Borrower shall not
be reduced to an amount which is less than the aggregate principal amount
of the Advances then outstanding to such Borrower, and provided further,
that the aggregate amount of the Commitments of the Banks to TWC shall not
be reduced to an amount which is less than the aggregate principal amount
of the Advances then outstanding to the Borrower as to which the aggregate
outstanding principal amount of Advances is then the largest.
(b) Termination. If all of the Commitments of the Banks to a Borrower
(other than TWC) are terminated pursuant to Section 2.04(a) and such
Borrower has paid all principal, interest, fees, costs and other amounts
owed by it hereunder, such Borrower
34
shall have the right, upon at least three Business Days' notice to the
Agent, to elect to cease to be a Borrower hereunder, except for purposes of
the definition herein of Majority Banks and for purposes of Sections 2.11,
2.14 and 8.04.
(c) Mandatory. By no later than five Business Days from the date of
receipt by TWC or any of its Subject Subsidiaries of any Net Cash Proceeds
from (i) any asset disposition (other than the MAPL Asset Disposition, the
Seminole Asset Disposition, dispositions permitted pursuant to Section
5.02(l)(i) and (iii), and any disposition of Collateral (other than the
Refineries in Alaska and Memphis and the assets related thereto)), (ii) an
issuance of TWC Preferred Stock, (iii) any disposition of Collateral
permitted pursuant to Section 5.02(l) (other than the Refineries in Alaska
and Memphis and the assets related thereto, and dispositions permitted
pursuant to Section 5.02(l)(i) and (iii)), or (iv) any issuance of Equity
Interests by TWC (other than TWC Preferred Stock), TWC shall apply such Net
Cash Proceeds as follows:
(A) So long as the aggregate Commitments of the Banks to TWC are
greater than $400,000,000:
(1) in the case of any such Net Cash Proceeds arising from any
disposition referred to in clause (i) above which consists of the Refinery
in Alaska owned by certain Subsidiaries and the assets related thereto, 50%
of such Net Cash Proceeds shall be applied on a pro-rata basis to the
permanent ratable reduction of the respective Commitments of the Banks to
TWC;
(2) in the case of any such Net Cash Proceeds arising from any asset
disposition referred to in clause (i) above and not otherwise applied
pursuant to sub-clause (1) above (including any disposition of the Refinery
in Memphis, Tennessee owned by certain Subsidiaries and the assets related
thereto), 50% of such Net Cash Proceeds shall be applied on a pro-rata
basis, without duplication, to the permanent ratable (A) reduction of the
respective Commitments of the Banks to TWC, (B) reduction of the
outstanding amounts of the Progeny Facilities (excluding the Prairie Wolf
Facility) and (C) cash collateralization of the Legacy L/Cs;
(3) in the case of any such Net Cash Proceeds arising from an issuance
of TWC Preferred Stock referred to in clause (ii) above, 100% of such Net
Cash Proceeds shall be applied on a pro-rata basis, without duplication, to
the permanent ratable (x) reduction of the respective Commitments of the
Banks to TWC, (y) reduction of the outstanding amounts of the Progeny
Facilities (excluding the Prairie Wolf Facility) and (z) cash
collateralization of the Legacy L/Cs;
(4) in the case of any such Net Cash Proceeds arising from any
disposition of Collateral referred to in clause (iii) above, 50% of such
Net Cash Proceeds shall be applied on a pro-rata basis to the permanent
ratable (x) reduction of the respective Commitments of the Banks to TWC and
(y) Cash Collateralization of the Letter of Credit Commitments; and
(5) in the case of any such Net Cash Proceeds arising from any
issuance of Equity Interests referred to in clause (iv) above, 50% of such
Net Cash Proceeds shall be
35
applied on a pro-rata basis, without duplication, to the permanent ratable
(w) reduction of the respective Commitments of the Banks to TWC, (x) Cash
Collateralization of the Letter of Credit Commitments, (y) reduction of the
outstanding amounts of the Progeny Facilities (excluding the Prairie Wolf
Facility) and (z) cash collateralization of the Legacy L/Cs;
(B) From such time that the aggregate Commitments of the Banks to TWC
are equal to or less than $400,000,000:
(1) 50% of any Net Cash Proceeds arising from an asset disposition
referred to in clause (A)(1) or (A)(4) above shall be applied, first, to
fully Cash Collateralize the Letter of Credit Commitments and, second, upon
the Letter of Credit Commitments being fully Cash Collateralized, to a
pro-rata and permanent ratable (without duplication) (x) reduction of the
outstanding amounts of the Progeny Facilities (excluding the Prairie Wolf
Facility) and (y) cash collateralization of the Legacy L/Cs, and third,
upon the full Cash Collateralization of the Letter of Credit Commitments,
the reduction of the outstanding amounts of the Progeny Facilities
(excluding the Prairie Wolf Facility) to zero, and the full cash
collateralization of the Legacy L/Cs, to a pro-rata and permanent reduction
of the respective Commitments of the Banks to TWC;
(2) 50% of any Net Cash Proceeds arising from an asset disposition
referred to in clause (A)(2) above shall be applied, first, on a pro-rata
basis, without duplication, to the permanent ratable (x) reduction of the
outstanding amounts of the Progeny Facilities (excluding the Prairie Wolf
Facility) and (y) cash collateralization of the Legacy L/Cs, and, second,
upon the reduction of the outstanding amounts of the Progeny Facilities
(excluding the Prairie Wolf Facility) to zero and the full cash
collateralization of the Legacy L/Cs, to a pro-rata and permanent reduction
of the respective Commitments of the Banks to TWC;
(3) 100% of any Net Cash Proceeds arising from an issuance of TWC
Preferred Stock referred to in clause (A)(3) above shall be applied, first,
on a pro-rata basis, without duplication, to the permanent ratable (x)
reduction of the outstanding amounts of the Progeny Facilities (excluding
the Prairie Wolf Facility) and (y) cash collateralization of the Legacy
L/Cs and, second, upon the reduction of the outstanding amounts of the
Progeny Facilities (excluding the Prairie Wolf Facility) to zero and the
full cash collateralization of the Legacy L/Cs, to a pro-rata and permanent
reduction of the respective Commitments of the Banks to TWC; and
(4) 50% of any Net Cash Proceeds arising from an issuance of Equity
Interests referred to in clause (A)(5) above shall be applied, first, on a
pro-rata basis, without duplication, to the permanent ratable (x) Cash
Collateralization of the Letter of Credit Commitments, (x) reduction of the
outstanding amounts of the Progeny Facilities (excluding the Prairie
Wolf Facility) and (y) cash collateralization of the Legacy L/Cs, and
second, upon the full Cash Collateralization of the Letter of Credit
Commitments, the reduction of the outstanding amounts of the Progeny
Facilities (excluding the Prairie
36
Wolf Facility) to zero, and the full cash collateralization of the Legacy
L/Cs, to a pro-rata and permanent reduction of the respective Commitments
of the Banks to TWC.
provided, that no such mandatory (w) reduction of the Commitments, (x)
reduction of the outstanding amounts of the Progeny Facilities (excluding the
Prairie Wolf Facility), (y) cash collateralization of the Legacy L/Cs, or (z)
Cash Collateralization of the Letter of Credit Commitments shall be required
pursuant to this Section 2.04 (c) until the earlier of (A) such time as the
aggregate amount of Net Cash Proceeds from such asset dispositions and equity
issuances that have not previously been applied to a mandatory reduction of
Commitments shall exceed $50,000,000 and (B) the end of the Fiscal Quarter in
which such Net Cash Proceeds are received by TWC or any of its Subsidiaries. If
a reduction of the Commitments pursuant to this Section 2.04(c) shall cause the
Commitments as so reduced to be less than the aggregate outstanding principal
amount of the Advances (such positive difference between the Commitments and the
outstanding Advances being referred to herein as the "EXCESS AMOUNT"), TWC shall
repay an aggregate principal amount equal to no less than such Excess Amount,
and except as set forth in this proviso, the obligation of TWC to apply Net Cash
Proceeds to the reduction of the Commitments of the Banks shall not require any
payments to the Banks.
Section 2.05. Repayment of A Advances. Each Borrower shall repay, on the
Stated Termination Date or such earlier date as the Notes may be declared due
pursuant to Article VI, the unpaid principal amount of each A Advance made by
each Bank to such Borrower.
Section 2.06. Interest on A Advances. Each Borrower shall pay interest on
the unpaid principal amount of each A Advance made by each Bank to such Borrower
from the date of such A Advance until such principal amount shall be paid in
full, at the following rates per annum:
(a) Base Rate Advances. At such times as such A Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate plus the
Applicable Margin in effect from time to time, payable quarterly in arrears
on the last day of each March, June, September and December and on the date
such Advance shall be Converted or paid in full; provided that any amount
of principal of any Base Rate Advance, interest, fees and other amounts
payable hereunder (other than principal of any Eurodollar Rate Advance)
which is not paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest, 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 to the sum of the Base Rate plus the Applicable Margin
in effect from time to time plus 2% per annum.
(b) Eurodollar Rate Advances. At such times as such A Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such A Advance to the sum of the Eurodollar Rate for
such Interest Period plus the Applicable Margin in effect from time to time
for such A Advance, payable on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each day
which occurs during such Interest Period every three months from
37
the first day of such Interest Period; provided that any amount of
principal of any Eurodollar Rate Advance which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear
interest, 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 to
the sum of the rate per annum required to be paid on such A Advance at such
time plus 2% per annum.
Section 2.07. Additional Interest on Eurodollar Rate Advances. Each
Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each Eurodollar Rate Advance of such Bank to such Borrower, from the date of
such Advance until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period,
payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Bank and notified to such
Borrower through the Agent. A certificate as to the amount of such additional
interest submitted to such Borrower and the Agent by such Bank shall be
conclusive and binding for all purposes, absent manifest error. No Bank shall
have the right to recover any additional interest pursuant to this Section 2.07
for any period more than 90 days prior to the date such Bank notifies the
Borrowers that additional interest may be charged pursuant to this Section 2.07.
Section 2.08. Interest Rate Determination. The Agent shall give prompt
notice to the Borrower to which an A Advance is made and the Banks of the
applicable interest rate for each Eurodollar Rate Advance determined by the
Agent for purposes of Section 2.06(b).
Section 2.09. Evidence of Debt.
(a) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of each Borrower to such
Bank resulting from each A Advance and B Advance made by such Bank,
including the amounts of principal and interest payable and paid to such
Bank from time to time hereunder.
(b) The Agent shall maintain accounts in which it shall record (i) the
Borrower and the amount of each Advance made hereunder, the Type thereof
and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
each Borrower to each Bank hereunder and (iii) the amount of any sum
received by the Agent hereunder for the account of the Banks and each
Bank's share thereof.
(c) The entries made in good faith in the accounts maintained pursuant
to paragraph (a) or (b) of this Section shall be prima facie evidence of
the existence and amounts of the obligations recorded therein absent
manifest error; provided that the failure of any Bank or the Agent to
maintain such accounts or any error therein shall not
38
in any manner affect the obligation of the Borrowers to repay the Advances
in accordance with the terms of this Agreement.
(d) Any Bank may request that the A Advances or any B Advance made by
it be evidenced by a Note. In such event, the Borrowers (or, in the case of
a B Advance, the relevant Borrower) shall prepare, execute and deliver to
such Bank a Note or Notes payable to the order of such Bank. Thereafter,
the Advances evidenced by such Note and interest thereon shall at all times
(including after assignment pursuant to Section 8.06) be represented by one
or more Notes payable to the order of the payee named therein.
Section 2.10. Prepayments.
(a) No Borrower shall have any right to prepay any principal amount of
any A Advance except as provided in this Section 2.10.
(b) Any Borrower may, in respect of Base Rate Advances upon notice to
the Agent before 10:00 A.M. (New York City time) on the date of prepayment,
and in respect of Eurodollar Rate Advances upon at least three Business
Days' notice to the Agent, in each case stating the proposed date (which
shall be a Business Day) and aggregate principal amount of the prepayment,
and if such notice is given such Borrower shall prepay the outstanding
principal amounts of the A Advances comprising part of the same A Borrowing
in whole or ratably in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid and amounts, if any,
required to be paid pursuant to Section 8.04(b) as a result of such
prepayment; provided, however, that each partial prepayment pursuant to
this Section 2.10(b) shall be in an aggregate principal amount not less
than $5,000,000 and in an aggregate principal amount such that after giving
effect thereto no A Borrowing comprised of Base Rate Advances shall have a
principal amount outstanding of less than $5,000,000 and no A Borrowing
comprised of Eurodollar Rate Advances shall have a principal amount
outstanding of less than $10,000,000.
(c) Each Borrower will give notice to the Agent at or before the time
of each prepayment by such Borrower of Advances pursuant to this Section
2.10 specifying the Advances which are to be prepaid and the amount of such
prepayment to be applied to such Advances, and each payment of any Advance
pursuant to this Section 2.10 or any other provision of this Agreement
shall be made in a manner such that all Advances comprising part of the
same Borrowing are paid in whole or ratably in part.
Section 2.11. Increased Costs.
(a) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation, application or applicability of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or
other governmental or monetary authority (whether or not having the force
of law), there shall be any increase in the cost to any Bank of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances to any
Borrower,
39
then such Borrower shall from time to time, upon demand by such Bank (with
a copy of such demand to the Agent), pay to the Agent for the account of
such Bank additional amounts sufficient to compensate such Bank for such
increased cost. A certificate as to the amount of such increased cost,
submitted to such Borrower and the Agent by such Bank, shall be prima facie
evidence of the amount of such increased cost. No Bank shall have the right
to recover any such increased costs for any period more than 90 days prior
to the date such Bank notifies the Borrowers of any such introduction,
change, compliance or proposed compliance.
(b) If any Bank determines that compliance with any law or regulation
or any guideline or request from any central bank or other governmental or
monetary 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 Bank or any corporation controlling such Bank and that the amount of
such capital is increased by or based upon the existence of such Bank's
commitment to lend to any Borrower hereunder and other commitments of this
type, then, upon demand by such Bank (with a copy of such demand to the
Agent), such Borrower shall immediately pay to the Agent for the account of
such Bank, from time to time as specified by such Bank, additional amounts
sufficient to compensate such Bank or such corporation in the light of such
circumstances, to the extent that such Bank reasonably determines such
increase in capital to be allocable to the existence of such Bank's
commitment to lend hereunder. A certificate as to the amount of such
additional amounts, submitted to such Borrower and the Agent by such Bank,
shall be prima facie evidence of the amount of such additional amounts. No
Bank shall have any right to recover any additional amounts under this
Section 2.11(b) for any period more than 90 days prior to the date such
Bank notifies the Borrowers of any such compliance.
(c) In the event that any Bank makes a demand for payment under
Section 2.07, Section 2.14 or this Section 2.11, TWC may within ninety days
of such demand, if no Event of Default or event which, with the giving of
notice or lapse of time or both, would constitute an Event of Default then
exists, replace such Bank with another commercial bank in accordance with
all of the provisions of the last sentence of Section 8.06(a) (including
execution of an appropriate Transfer Agreement) provided that (i) all
obligations of such Bank to lend hereunder shall be terminated and the
Notes payable to such Bank and all other obligations owed to such Bank
hereunder shall be purchased in full without recourse at par plus accrued
interest at or prior to such replacement, (ii) such replacement bank
(unless such replacement bank is already a Bank prior to the effectiveness
of such replacement) shall be reasonably satisfactory to the Agent, (iii)
such replacement bank shall, from and after such replacement, be deemed for
all purposes to be a "Bank" hereunder with a Commitment to each Borrower in
the amount of the respective Commitment of such Bank to such Borrower
immediately prior to such replacement (plus, if such replacement bank is
already a Bank prior to such replacement the respective Commitment of such
Bank to such Borrower prior to such replacement), as such amount may be
changed from time to time pursuant hereto, and shall have all of the
rights, duties and obligations hereunder of the Bank being replaced, and
(iv) such other actions shall be taken by the Borrowers, such Bank and such
replacement bank as may be appropriate to effect the replacement of such
Bank with such replacement bank on terms
40
such that such replacement bank has all of the rights, duties and
obligations hereunder as such Bank (including, without limitation,
execution and delivery of new Note(s) of each Borrower to such replacement
bank if requested by such replacement bank or if required pursuant to
Section 2.09, redelivery to each Borrower in due course of the Note(s) of
such Borrower payable to such Bank and specification of the information
contemplated by Schedule I as to such replacement bank).
(d) Before making any demand under this Section 2.11, each Bank agrees
to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost and would not, in the reasonable
judgment of such Bank, be otherwise disadvantageous to such Bank.
Section 2.12. Illegality.
(a) Notwithstanding any other provision of this Agreement, if any Bank
shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or that any
central bank or other governmental or monetary authority shall assert that
it is unlawful, for any Bank or its Eurodollar Lending Office to perform
its obligations hereunder to make, or Convert a Base Rate Advance into, a
Eurodollar Rate Advance or to continue to fund or maintain any Eurodollar
Rate Advance, then, on notice thereof to the Borrowers by the Agent, (i)
the obligation of each of the Banks to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Agent, at the request
of the Majority Banks, shall notify the Borrowers and the Banks that the
circumstances causing such suspension no longer exist, and (ii) the
Borrowers shall forthwith prepay in full all Eurodollar Rate Advances of
all Banks then outstanding together with all accrued interest thereon and
all amounts payable pursuant to Section 8.04(b), unless each Bank shall
determine in good faith in its sole opinion that it is lawful to maintain
the Eurodollar Rate Advances made by such Bank to the end of the respective
Interest Periods then applicable thereto or unless the Borrowers, within
five Business Days of notice from the Agent, Convert all Eurodollar Rate
Advances of all Banks then outstanding into Base Rate Advances in
accordance with Section 2.19.
(b) If legally permissible, before delivering any notice to the Agent
under this Section 2.12 regarding illegality of Eurodollar Rate Advances,
each Bank agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would avoid
the need for, or reduce the amount of, such increased cost and would not,
in the reasonable judgment of such Bank, be otherwise disadvantageous to
such Bank.
Section 2.13. Payments and Computations.
(a) Each Borrower shall make each payment hereunder to be made by it
not later than 11:00 A.M. (New York City time) on the day when due in U.S.
dollars to the
41
Agent at its New York address referred to in Section 8.02 in same day
funds. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest or commitment fees
ratably (other than amounts payable pursuant to Sections 2.02(c), 2.07,
2.11, 2.14, 2.16 or 8.04(b)) to the Banks for the account of their
respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Bank to such Bank for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. In no event shall any Bank be
entitled to share any fee paid to the Agent pursuant to Section 2.03(b),
any auction fee paid to the Agent pursuant to Section 2.16(a)(i) or any
other fee paid to the Agent, as such.
(b) [Intentionally omitted.]
(c) (i) All computations of interest based on clause (a) of the
definition herein of Base Rate and of commitment fees shall be made by the
Agent on the basis of a year of 365 or 366 days, as the case may be, and
(ii) all computations of interest based on the Eurodollar Rate, the Federal
Funds Rate or clause (b) of the definition herein of Base Rate shall be
made by the Agent, and all computations of interest pursuant to Section
2.07 shall be made by a Bank, 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 commitment
fees are payable. Each determination by the Agent (or, in the case of
Section 2.07, by a Bank) of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) 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 or commitment
fee, as the case may be; 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.
(e) Unless the Agent shall have received notice from a Borrower prior
to the date on which any payment is due by such Borrower to any Bank
hereunder that such Borrower will not make such payment in full, the Agent
may assume that such Borrower has made such payment in full to the Agent on
such date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount
then due such Bank hereunder. If and to the extent such Borrower shall not
have so made such payment in full to the Agent, each Bank shall repay to
the Agent forthwith on demand such amount distributed to such Bank together
with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
42
Section 2.14. Taxes.
(a) Any and all payments by any Borrower hereunder shall be made, in
accordance with Section 2.13, free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges
or withholdings with respect thereto, and all liabilities with respect
thereto, excluding in the case of each Bank and the Agent, (i) taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank or the Agent (as the case
may be) is organized or any political subdivision thereof and (ii) taxes
imposed as a result of a present or former connection between such Bank or
the Agent, as the case may be, and the jurisdiction imposing such tax or
any political subdivision thereof and, in the case of each Bank, taxes
imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof, other than any such connection arising solely from the
Bank or Agent having executed or delivered, or performed its obligations or
received a payment under, or taken any other action related to this
Agreement (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 Bank or
the Agent, (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 2.14) such Bank or the Agent
(as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(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 any Notes executed by it or from the execution, delivery
or registration of, or otherwise with respect to, this Agreement or such
Notes (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Bank and the Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) owed and paid by such Bank or the Agent (as the case may be)
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date such Bank or the Agent (as the case may be)
makes written demand therefor, provided that, such Borrower shall have no
liability pursuant to this clause (c) of this Section 2.14 to indemnify a
Bank or the Agent for Taxes or Other Taxes which were paid by such Bank or
the Agent more than ninety days prior to such written demand for
indemnification.
(d) In the event that a Bank or the Agent receives a written
communication from any governmental authority with respect to an assessment
or proposed assessment of any Taxes, such Bank or Agent shall promptly
notify TWC in writing and provide
43
TWC with a copy of such communication. The Agent or a Bank's failure to
provide a copy of such communication to TWC shall not relieve any Borrower
of any of its obligations under Section 2.14(c).
(e) Within 30 days after the date of the payment of Taxes by or at the
direction of any Borrower, such Borrower will furnish to the Agent, at its
address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof. Should any Bank or the Agent ever
receive any refund, credit or deduction from any taxing authority to which
such Bank or the Agent would not be entitled but for the payment by a
Borrower of Taxes as required by this Section 2.14 (it being understood
that the decision as to whether or not to claim, and if claimed, as to the
amount of any such refund, credit or deduction shall be made by such Bank
or the Agent, as the case may be, in its reasonable judgment), such Bank or
the Agent, as the case may be, thereupon shall repay to such Borrower an
amount with respect to such refund, credit or deduction equal to any net
reduction in taxes actually obtained by such Bank or the Agent, as the case
may be, and determined by such Bank or the Agent, as the case may be, to be
attributable to such refund, credit or deduction.
(f) Each Bank organized under the laws of a jurisdiction outside the
United States shall on or prior to the date of its execution and delivery
of this Agreement in the case of each Bank which is a party to this
Agreement on the date this Agreement becomes effective and on the date of
the Transfer Agreement pursuant to which it becomes a Bank is first
effective in the case of each other Bank, and from time to time thereafter
as necessary or appropriate (but only so long thereafter as such Bank
remains lawfully able to do so), provide the Agent and each Borrower with
two original Internal Revenue Service Forms W-8BEN or W-8ECI (or, in the
case of a Bank that has provided a certificate to the Agent that it is not
(i) a "bank" as defined in Section 881(c)(3)(A) of the Internal Revenue
Code, (ii) a ten-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of such Borrower or (iii) a
controlled foreign corporation related to such Borrower (within the meaning
of Section 864(d)(4) of the Internal Revenue Code), Internal Revenue
Service Form W-8BEN), or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Bank is exempt from or
entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement or any other Loan Document or, in the case of a
Bank that has certified that it is not a "bank" as described above,
certifying that such Bank is a foreign corporation. If the forms provided
by a Bank at the time such Bank first becomes a party to this Agreement
indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless
and until such Bank provides the appropriate forms certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms.
(g) For any period with respect to which a Bank has failed to provide
any Borrower with the appropriate form, certificate or other document
described in subsection (f) of this Section 2.14 (other than if such
failure is due to a change in the applicable law, or in the interpretation
or application thereof, occurring after the date on
44
which a form, certificate or other document originally was required to be
provided) such Bank shall not be entitled to indemnification under
subsection (a) or (c) of this Section 2.14 with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should
a Bank become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrowers shall take
such steps as such Bank shall reasonably request to assist such Bank in
recovering such Taxes.
(h) Any Bank claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts to change the jurisdiction of
its Applicable Lending Office if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the reasonable judgment of such Bank,
be otherwise materially disadvantageous to such Bank.
(i) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 2.14 shall survive the payment in full of
principal and interest hereunder and the termination of the Commitments.
(j) Notwithstanding any provision of this Agreement or the Notes to
the contrary, this Section 2.14 shall be the sole provision governing
indemnities and claims for taxes under this Agreement and the Notes, if
any.
Section 2.15. Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary or involuntary, or through the exercise of any right
of set-off or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.02(c), 2.07, 2.11, 2.14 or 8.04(b)) in excess of its
ratable share of payments on account of the A Advances obtained by all the
Banks, such Bank shall forthwith purchase from the other Banks such
participations in the A Advances owed to them as shall be necessary to cause
such purchasing Bank 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 Bank, such purchase from each Bank
shall be rescinded and such Bank shall repay to the purchasing Bank the purchase
price to the extent of such Bank's ratable share (according to the proportion of
(i) the amount of the participation purchased from such Bank as a result of such
excess payment to (ii) the total amount of such excess payment) of such recovery
together with an amount equal to such Bank's ratable share (according to the
proportion of (i) the amount of such Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount so
recovered. Each Borrower agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.15 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 Bank were the direct creditor
of such Borrower in the amount of such participation.
Section 2.16. The B Advances.
45
(a) Each Bank severally agrees that each Borrower may make B
Borrowings under this Section 2.16 from time to time on any Business Day
during the period from July 31, 2002 until the earlier of (I) the
Termination Date or (II) the date occurring 30 days prior to the Stated
Termination Date in the manner set forth below; provided that, following
the making of each B Borrowing, the aggregate amount of the Advances then
outstanding to such Borrower shall not exceed the aggregate amount of the
Commitments of the Banks to such Borrower (computed without regard to any B
Reduction) and the aggregate amount of all Advances then outstanding shall
not exceed the aggregate amount of the Commitments of the Banks to TWC
(computed without regard to any B Reduction).
(i) A Borrower may request a B Borrowing under this Section 2.16
by delivering to the Agent, by telecopier, telex or cable, confirmed
immediately in writing, a notice of a B Borrowing (a "Notice of B
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying the date and aggregate amount of the proposed B Borrowing,
the maturity date for repayment of each B Advance to be made as part
of such B Borrowing (which maturity date may not be earlier than the
date occurring 7 days after the date of such B Borrowing or later than
the earlier of (x) 6 months after the date of such B Borrowing or (y)
the Stated Termination Date), the interest payment date or dates
relating thereto, and any other terms to be applicable to such B
Borrowing (including, without limitation, the basis to be used by the
Banks in determining the rate or rates of interest to be offered by
them as provided in paragraph (ii) below and prepayment terms, if any,
but excluding any waiver or other modification to any of the
conditions set forth in Article III), not later than 10:00 A.M. (New
York City time) (A) at least one Business Day prior to the date of the
proposed B Borrowing, if such Borrower shall specify in the Notice of
B Borrowing that the rates of interest to be offered by the Banks
shall be fixed rates per annum and (B) at least five Business Days
prior to the date of the proposed B Borrowing, if such Borrower shall
instead specify in the Notice of B Borrowing the basis to be used by
the Banks in determining the rates of interest to be offered by them.
The Agent shall in turn promptly notify each Bank of each request for
a B Borrowing received by it from a Borrower by sending such Bank a
copy of the related Notice of B Borrowing. Each time that a Borrower
gives a Notice of B Borrowing, such Borrower shall pay to the Agent an
auction fee equal to $2000.
(ii) Each Bank may, if in its sole discretion it elects to do so,
irrevocably offer to make one or more B Advances to a Borrower as part
of such proposed B Borrowing at a rate or rates of interest specified
by such Bank in its sole discretion, by notifying the Agent (which
shall give prompt notice thereof to such Borrower), before 10:00 A.M.
(New York City time) (x) on the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to clause (A)
of paragraph (i) above, and (y) three Business Days before the date of
such proposed B Borrowing in the case of a Notice of B Borrowing
delivered pursuant to clause (B) of paragraph (i) above, of the
minimum amount and maximum amount of each B Advance which such Bank
would be willing to make
46
as part of such proposed B Borrowing (which amounts may, subject to
the proviso to the first sentence of this Section 2.16(4), exceed such
Bank's Commitment to such Borrower), the rate or rates of interest
therefor, and such Bank's Applicable Lending Office with respect to
such B Advance; provided that, if the Agent in its capacity as a Bank
shall, in its sole discretion, elect to make any such offer, it shall
notify such Borrower of such offer before 9:45 A.M. (New York City
time) on the date on which notice of such election is to be given to
the Agent by the other Banks. If any Bank wishes to request a B Note
in respect to its B Advance, such request shall be delivered with the
notice referred to in the preceding sentence. If any Bank shall elect
not to make such an offer, such Bank shall so notify the Agent, before
10:00 A.M. (New York City time) on the date on which notice of such
election is to be given to the Agent by the other Banks, and such Bank
shall not be obligated to, and shall not, make any B Advance as part
of such B Borrowing; provided that the failure by any Bank to give
such notice shall not cause such Bank to be obligated to make any B
Advance as part of such proposed B Borrowing.
(iii) The Borrower requesting such proposed B Borrowing shall, in
turn, before 11:00 A.M. (New York City time) (x) on the date of such
proposed B Borrowing in the case of a Notice of B Borrowing delivered
pursuant to clause (A) of paragraph (i) above and (y) three Business
Days before the date of such proposed B Borrowing in the case of a
Notice of B Borrowing delivered pursuant to clause (B) of paragraph
(i) above, either
(A) cancel such B Borrowing by giving the Agent notice to
that effect, or
(B) accept one or more of the offers made by any Bank or
Banks pursuant to paragraph (ii) above, in order of the lowest to
highest rates of interest or margins (or, if two or more Banks
bid at the same rates of interest, and the amount of accepted
offers is less than the aggregate amount of such offers, the
amount to be borrowed from such Banks as part of such B Borrowing
shall be allocated among such Banks pro rata on the basis of the
maximum amount offered by such Banks at such rates or margin in
connection with such B Borrowing), in any aggregate amount up to
the aggregate amount initially requested by such Borrower in the
relevant Notice of B Borrowing, by giving notice to the Agent of
the amount of each B Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to such Borrower by the Agent on behalf
of such Bank for such B Advance pursuant to paragraph (ii) above)
to be made by each Bank as part of such B Borrowing, and reject
any remaining offers made by Banks pursuant to paragraph (ii)
above by giving the Agent notice to that effect.
47
(iv) If the Borrower requesting such B Borrowing notifies the
Agent that such B Borrowing is cancelled pursuant to paragraph
(iii)(A) above, the Agent shall give prompt notice thereof to the
Banks and such B Borrowing shall not be made.
(v) If the Borrower requesting such B Borrowing accepts one or
more of the offers made by any Bank or Banks pursuant to paragraph
(iii)(B) above, the Agent shall in turn promptly notify (A) each Bank
that has made an offer as described in paragraph (ii) above, of the
date and aggregate amount of such B Borrowing and whether or not any
offer or offers made by such Bank pursuant to paragraph (ii) above
have been accepted by such Borrower, (B) each Bank that is to make a B
Advance as part of such B Borrowing, of the amount of each B Advance
to be made by such Bank as part of such B Borrowing, and (C) each Bank
that is to make a B Advance as part of such B Borrowing, upon receipt,
that the Agent has received forms of documents appearing to fulfill
the applicable conditions set forth in Article III. Each Bank that is
to make a B Advance as part of such B Borrowing shall, before 12:00
noon (New York City time) on the date of such B Borrowing specified in
the notice received from the Agent pursuant to clause (A) of the
preceding sentence or any later time when such Bank shall have
received notice from the Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending
Office to the Agent at its New York address referred to in Section
8.02 such Bank's portion of such B Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Agent of such funds, the Agent will make such
funds available to such Borrower at the Agent's aforesaid address.
Promptly after each B Borrowing the Agent will notify each Bank of the
amount of the B Borrowing, the Borrower to which such B Borrowing was
made, the consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount of not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof. Each
Borrower agrees that it will not request a B Borrowing unless, upon the
making of such B Borrowing, the limitations set forth in the proviso to the
first sentence of Section 2.16(a) are complied with.
(c) Within the limits and on the conditions set forth in this Section
2.16, each Borrower may from time to time borrow under this Section 2.16,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.16, provided that a B Borrowing shall not be made by any Borrower
within three Business Days of the date of another B Borrowing to such
Borrower.
(d) Each Borrower shall repay to the Agent for the account of each
Bank which has made a B Advance to such Borrower, or each other holder of a
B Note of such Borrower, on the maturity date of each B Advance made to
such Borrower (such maturity date being that specified by such Borrower for
repayment of such B Advance in the
48
related Notice of B Borrowing delivered pursuant to subsection (a)(i) above
and provided in the B Note, if any, evidencing such B Advance) the then
unpaid principal amount of such B Advance. No Borrower shall have any right
to prepay any principal amount of any B Advance unless, and then only on
the terms, specified by such Borrower for such B Advance in the related
Notice of B Borrowing delivered pursuant to subsection (a)(i) above and set
forth in the B Note evidencing such B Advance.
(e) Each Borrower shall pay interest on the unpaid principal amount of
each B Advance made to such Borrower from the date of such B Advance to the
date the principal amount of such B Advance is repaid in full, at the rate
of interest for such B Advance specified by the Bank making such B Advance
in its notice with respect thereto delivered pursuant to subsection (a)(ii)
above, payable on the interest payment date or dates specified by such
Borrower for such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the B Note evidencing
such B Advance.
(f) The indebtedness of each Borrower resulting from each B Advance
made to such Borrower as part of a B Borrowing shall, if requested by the
Bank making such B Advance, be evidenced by a separate B Note of such
Borrower payable to the order of the Bank making such B Advance.
(g) The failure of any Bank to make the B Advance to be made by it as
part of any B Borrowing shall not relieve any other Bank of its obligation,
if any, hereunder to make its B Advance on the date of such B Borrowing,
but no Bank shall be responsible for the failure of any other Bank to make
the B Advance to be made by such other Bank on the date of any B Borrowing.
Section 2.17. Optional Termination. Notwithstanding anything to the
contrary in this Agreement, if (i) any Person (other than a trustee or other
fiduciary holding securities under an employee benefit plan of TWC or of any
Subsidiary of TWC) or two or more Persons acting in concert (other than any
group of employees of TWC or of any of its Subsidiaries) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of securities of TWC (or other securities convertible into such
securities) representing 35% or more of the combined voting power of all
securities of TWC entitled to vote in the election of directors, other than
securities having such power only by reason of the happening of a contingency,
or (ii) during any period of up to 24 consecutive months, commencing before or
after the date of this Agreement, individuals who at the beginning of such
24-month period were directors of TWC or who were elected by individuals who at
the beginning of such period were such directors or by individuals elected in
accordance with this clause (ii) shall cease for any reason (other than as a
result of death, incapacity or normal retirement) to constitute a majority of
the board of directors of TWC, or (iii) any Person (other than TWC or a
Wholly-Owned Subsidiary of TWC) or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into a merger or
purchase agreement with a Borrower pursuant to which such Person or Persons
shall have acquired the power to exercise, directly or indirectly, a controlling
influence over the management or policies of any Borrower; then the Agent shall
at the request, or may
49
with the consent, of the Majority Banks, by notice to the Borrowers, declare all
of the Commitments and the obligation of each Bank to make Advances to be
terminated, whereupon all of the Commitments and each such obligation shall
forthwith terminate, and no Borrower shall have any further right to borrow
hereunder.
Section 2.18. Extension of Termination Date. By notice given to the Agent
and the Banks, at least thirty days but not more than sixty days before July 1
of any year after 2003, the Borrowers may request the Banks to extend the Stated
Termination Date for an additional year to a date which is an anniversary date
of the Stated Termination Date. Within thirty days after receipt of such
request, each Bank that agrees, in its sole and absolute discretion, to so
extend the Stated Termination Date shall notify the Borrowers and the Agent in
writing that it so agrees, and if all Banks so agree the Stated Termination Date
shall be so extended.
Section 2.19. Voluntary Conversion of Advances. Any Borrower may on any
Business Day, if no Event of Default then exists as to such Borrower, upon
notice (which shall be irrevocable) given to the Agent not later than 11:00 A.M.
(x) in the case of a proposed Conversion into Eurodollar Rate Advances, on the
third Business Day prior to the date of the proposed Conversion, and (y) in the
case of a proposed Conversion into Base Rate Advances, on the date of the
proposed Conversion, and subject to the provisions of Sections 2.02 and 2.12,
Convert all Advances of one Type comprising the same A Borrowing into Advances
of the other Type; provided that (i) no Conversion of any Eurodollar Rate
Advances shall occur on a day other than the last day of an Interest Period for
such Eurodollar Rate Advances, except as contemplated by Section 2.12, and (ii)
Advances may not be Converted into Eurodollar Rate Advances if the aggregate
unpaid principal amount of the Advances is less than $10,000,000. Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the A Advances to be Converted, and (iii)
if such Conversion is into Eurodollar Rate Advances, the duration of the
Interest Period for each such Advance.
Section 2.20. Automatic Provisions.
(a) If any Borrower shall fail to select the duration of any Interest
Period for Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01 and no
Event of Default shall exist, the Agent will forthwith so notify such
Borrower and the Banks, and such Advances will automatically, on the last
day of the then existing Interest Period therefor, continue as Eurodollar
Rate Advances with an Interest Period of one month. If any Event of Default
shall exist, such Advances shall convert into Base Rate Advances on the
last day of the then existing Interest Period.
(b) On the date on which the aggregate unpaid principal amount of the
Eurodollar Rate Advances of any Borrower shall be reduced to less than
$10,000,000, all of such Eurodollar Rate Advances shall automatically
Convert into Base Rate Advances.
50
Article III
CONDITIONS
Section 3.01. Conditions Precedent to Effectiveness. Subject to Section
3.04 below, the amendment and restatement of the Existing Credit Agreement and
the obligation of each Bank to make Advances under this Agreement is subject to
the condition precedent that the Agent shall have received the following, in
form and substance satisfactory to the Agent and (except for the Notes, if any)
in sufficient copies for each Bank:
(a) Certified copies of the resolutions of the Board of Directors, or
the Executive Committee thereof, of each Borrower and each of such
Borrower's Subsidiaries being a party to any L/C Collateral Document
authorizing the execution of this Agreement, the other Credit Documents to
which each Borrower or Subsidiary is a party, each Notice of A Borrowing,
each Notice of B Borrowing, and all other documents, in each case
evidencing any necessary company action and governmental and other third
party approvals and consents, if any, with respect to each such Credit
Document.
(b) A certificate of the Secretary or an Assistant Secretary of each
Borrower and each of such Borrower's Subsidiaries being a party to any L/C
Collateral Document certifying (i) that attached thereto is a complete and
correct copy of the Certificate of Incorporation and Bylaws, or other
applicable formation documents, of such Borrower or Subsidiary together
with any amendments thereto, with a copy of a certificate of the Secretary
of State of the jurisdiction of incorporation, or organization of such
Borrower or Subsidiary, dated reasonably near the Effective Date,
certifying that such Borrower or Subsidiary is duly qualified and in good
standing in such State, (ii) the absence of any amendments to the
Certificate of Incorporation and Bylaws of such Borrower or Subsidiary
since the date of the Secretary of State's certificate referred to in this
clause (b), (iii) the due incorporation and good standing or valid
existence of such Borrower or Subsidiary as an entity organized under the
laws of the jurisdiction of its incorporation or organization, and the
absence of any proceeding for the dissolution or liquidation of such
Borrower or Subsidiary, and (iv) the names and true signatures of the
officers of such Borrower or Subsidiary authorized to sign this Agreement,
the other Credit Documents, Notices of A Borrowing, Notices of B Borrowing
and any Notes to be executed by such Borrower and any other documents to be
delivered hereunder by such Borrower.
(c) An opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, General Counsel of TWC,
substantially in the form of Exhibit C hereto and as to such other matters
as any Bank through the Agent may reasonably request.
(d) An opinion of New York counsel to the Borrowers and Guarantors,
substantially in the form of Exhibits D-1 and D-2 hereto and as to such
other matters as any Bank through the Agent may reasonably request.
51
(e) A duly executed and fully effective amendment and restatement of
the L/C Agreement and amendment of each of the Progeny Facility documents,
other than those automatically amended by virtue of the amendment to this
Agreement, each dated the date of this Agreement.
(f) A certificate of an officer of each Borrower stating the
respective ratings by each of S&P and ▇▇▇▇▇'▇ of the senior unsecured
long-term debt of such Borrower as in effect on the date of this Agreement.
(g) A certificate of an officer of each Borrower and each of its
Subsidiaries being a party to any L/C Collateral Document, dated as of the
date of execution and delivery by each Borrower of this Agreement (the
statements made in each such certificate shall be true on and as of such
date), certifying as to (i) the truth, in all material respects, of the
representations and warranties contained in this Agreement (in the case of
each Borrower only) and the Credit Documents as though made on and as of
the date of the execution and delivery of this Agreement other than any
such representations or warranties that, by their terms, refer to a
specific date other than such date, in which case as of such specific date
and (ii) the absence of any event (x) occurring and continuing after giving
effect to this Agreement, the ▇▇▇▇▇▇▇ Loan Agreement and the agreements
referred to in Section 3.01(e) hereof, and assuming the consummation of the
transactions contemplated thereby, or (y) resulting from the execution and
delivery of this Agreement and the Credit Documents and the performance of
such Borrower or such Subsidiary, as applicable, of its obligations
hereunder or under any other Credit Document, that constitutes an Event of
Default (other than any Event of Default which may arise as a result of a
draw or the probability of a draw under a letter of credit).
(h) Evidence that all agency, trustee, custodial, filing service,
legal and other fees and disbursements incurred and invoiced the day
immediately prior to the Effective Date, including all fees of the
Collateral Trustee, Collateral Agent and the Agent and their respective
counsel, have been fully paid by the Borrowers.
(i) A duly executed and effective amendment to the Pledge Agreement,
Security Agreement, Collateral Trust Agreement, LLC Guaranty, and Midstream
Guaranty each dated the date of this Agreement.
(j) A duly executed and fully effective amendment and restatement of
the Holdings Guaranty.
(k) TWC shall have paid in full all accrued fees and expenses of the
Agent (including the accrued fees and expenses of counsel to the Agent and
local counsel to the Agent)
(l) Counterparts of this Agreement, duly executed on behalf of each of
the Borrowers and the Majority Banks.
For purposes of determining compliance with the conditions specified in
this Section 3.01, each Bank shall be deemed to have (i) consented to, approved,
authorized and
52
accepted and to be satisfied with each document or other matter required under
this Section 3.01 (provided that each Bank has received access to a copy of each
document set forth in clauses (i) and (j) hereof and the L/C Agreement) and (ii)
authorized the Collateral Agent and the Collateral Trustee to execute the
documents set forth in clauses (i) and (j) hereof, as applicable, unless both
(x) an officer of the Agent responsible for the transactions contemplated by
this Agreement shall have received written notice from such Bank prior to the
making of an initial Advance specifying its objection thereto and (y) such Bank
shall not have accepted any portion of the fees set forth in Section 2.03(a).
The Agent shall give TWC notice when all actions required by Section 3.01 have
been satisfied.
Section 3.02. Additional Conditions Precedent to Each A Borrowing. The
obligation of each Bank to make an A Advance to a Borrower on the occasion of
any A Borrowing (including the initial A Borrowing) shall be subject to the
further conditions precedent that on the date of such A Borrowing the following
statements shall be true (and each of the giving of the applicable Notice of A
Borrowing and the acceptance by such Borrower of the proceeds of such A
Borrowing shall constitute a representation and warranty by such Borrower that
on the date of such A Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01 and
each of the L/C Collateral Documents pertaining to such Borrower and its
Subsidiaries are correct on and as of the date of such A Borrowing, before
and after giving effect to such A Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(b) No event has occurred and is continuing, or would result from such
A Borrowing or from the application of the proceeds therefrom, 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; and
(c) After giving effect to such A Borrowing and all other Borrowings
which have been requested on or prior to such date but which have not been
made prior to such date, the aggregate principal amount of all Advances
will not exceed the aggregate of the Commitments of the Banks to TWC
(computed without regard to any B Reduction).
Section 3.03. Conditions Precedent to Each B Borrowing. The obligation of
each Bank which is to make a B Advance to a Borrower on the occasion of a B
Borrowing (including the initial B Borrowing) to make such B Advance as part of
such B Borrowing is subject to the further conditions precedent that (i) at or
before the time required by paragraph (iii) of Section 2.16(a), the Agent shall
have received the written confirmatory notice of such B Borrowing contemplated
by such paragraph, (ii) on or before the date of such B Borrowing, but prior to
such B Borrowing, if the Bank making any B Advance shall have requested a B Note
pursuant to Section 2.16(a)(ii), the Agent shall have received a B Note executed
by such Borrower payable to the order of such Bank for the B Advances to be made
by such Bank as part of such B Borrowing, in a principal amount equal to the
principal amount of the B Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such B Advance in accordance with Section 2.16, and
(iii) on the date of such B Borrowing the following statements
53
shall be true (and each of the giving of the applicable Notice of B Borrowing
and the acceptance by such Borrower of the proceeds of such B Borrowing shall
constitute a representation and warranty by such Borrower that on the date of
such B Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01 and
in each of the L/C Collateral Documents pertaining to such Borrower and its
Subsidiaries are correct on and as of the date of such B Borrowing, before
and after giving effect to such B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date;
(b) No event has occurred and is continuing, or would result from such
B Borrowing or from the application of the proceeds therefrom, 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;
(c) Following the making of such B Borrowing and all other Borrowings
to be made on the same day to such Borrower under this Agreement, the
aggregate principal amount of all Advances to such Borrower then
outstanding will not exceed the aggregate amount of the Commitments to such
Borrower (computed without regard to any B Reduction);
(d) After giving effect to such B Borrowing and all other
Borrowings which have been requested on or prior to such date but which
have not been made prior to such date, the aggregate principal amount
of all Advances will not exceed the aggregate of the Commitments of the
Banks to TWC (computed without regard to any B Reduction); and
Section 3.04. Special Condition to Effectiveness of Certain Provisions.
Notwithstanding any contrary term or provision in Section 3.01 or elsewhere in
this Agreement, amendments relating to the release of Collateral to the extent
not permitted in the Existing Agreement without the consent of all Banks shall
be of no force and effect until (a) the Agent shall have received (i) a duly
executed counterpart hereof from each Bank listed on the signature pages hereof
and (ii) a duly executed counterpart of the L/C Agreement from each lender being
a party thereto and (b) all other conditions set forth in Section 3.01 are fully
satisfied.
Article IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as to itself and its Subsidiaries as follows:
(a) Each Borrower is duly organized or validly formed, validly
existing and (if applicable) 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 the failure to have which could not reasonably be
54
expected to have a material adverse effect on the business, assets,
condition or operation of such Borrower and its Material Subsidiaries taken
as a whole. Each Material Subsidiary (other than NewGP, if applicable) of
each 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
such Borrower and its Material Subsidiaries (other than NewGP, if
applicable) taken as a whole. Each Material Subsidiary of a Borrower (other
than NewGP, if applicable) 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 the failure to have which could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operation of such Borrower and its Material
Subsidiaries (other than NewGP, if applicable) taken as a whole.
(b) After giving effect to this Agreement, the L/C Agreement, the
▇▇▇▇▇▇▇ Loan Agreement and the Progeny Facilities and assuming the
consummation of the transactions contemplated thereby, the execution,
delivery and performance by each Borrower and the Guarantors of the Credit
Documents to which it is shown as being a party delivered hereunder and the
consummation of the transactions contemplated thereby are within such
Borrower's or such Guarantor's, as the case maybe, corporate or limited
liability company powers, have been duly authorized by all necessary
corporate or limited liability company action, do not contravene (i) any
Borrower's or such Guarantor's, as the case maybe, charter, by-laws or
formation agreement or (ii) law or any restriction under any material
agreement binding on or affecting any Borrower or Guarantor (other than any
default which may arise as a result of a draw or the probability of a draw
under a letter of credit) and will not result in or require the creation or
imposition of any Lien prohibited by this Agreement.
(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 each Borrower or
Guarantor of any Credit Document to which any of them is a party, or the
consummation of the transactions contemplated thereby.
(d) Each Credit Document has been duly executed and delivered by each
Borrower or such Guarantor as the case may be, and is the legal, valid and
binding obligation of each Borrower or such Guarantor as the case may be,
enforceable against each Borrower or such Guarantor as the case may be, 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. The A Notes, if any, of each Borrower are, and when executed the
B Notes, if any, of such Borrower will be, the legal, valid and binding
obligations of such Borrower enforceable against such Borrower in
accordance with their respective terms, except as such enforceability may
be limited by any applicable
55
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and by general principles of equity.
(e) (i) The Consolidated and Consolidating balance sheets of TWC and
its Subsidiaries as at December 31, 1999, and the related Consolidated and
Consolidating statements of income and cash flows of TWC and its
Subsidiaries for the fiscal year then ended, copies of which have been
furnished to each Bank, and the Consolidated and Consolidating balance
sheet of TWC and its Subsidiaries as at March 31, 2000, and the related
Consolidated and Consolidating statements of income and cash flows of TWC
and its Subsidiaries for the three months then ended, duly certified by an
authorized financial officer of TWC, copies of which have been furnished to
each Bank, fairly present (in the case of such balance sheets as at March
31, 2000, and such statements of income and cash flows for the three months
then ended, subject to year-end audit adjustments) the Consolidated and
Consolidating financial condition of TWC and its Subsidiaries as at such
dates and the Consolidated and Consolidating results of operations of TWC
and its Subsidiaries for the year and three-month period, respectively,
ended on such dates, all in accordance with generally accepted accounting
principles consistently applied.
(ii) The Consolidating balance sheets of TWC and its Subsidiaries
as at December 31, 1999, and March 31, 2000, referred to in Section
4.01(e)(i), and the related Consolidating statements of income and
cash flows of TWC and its Subsidiaries for the fiscal year and three
months, respectively, then ended referred to in Section 4.01(e)(i), to
the extent such balance sheets and statements pertain to NWP, fairly
present (subject, in the case of such balance sheet as at March 31,
2000 and such statements of income and cash flows for the three months
then ended, to year-end audit adjustments) the Consolidated financial
condition of NWP and its Subsidiaries as at such dates and the
Consolidated results of operations of NWP and its Subsidiaries for the
year and three-month period, respectively, ended on such dates, all in
accordance with generally accepted accounting principles consistently
applied.
(iii) [Intentionally Omitted.]
(iv) The Consolidated balance sheet of TGPL and its Subsidiaries
as at December 31, 1999, and the related Consolidated statement of
income and cash flows of TGPL and its Subsidiaries for the fiscal year
then ended, copies of which have been furnished to each Bank, and the
Consolidated balance sheet of TGPL and its Subsidiaries as at March
31, 2000, and the related Consolidated statement of income and cash
flows of TGPL and its Subsidiaries for the three months then ended,
duly certified by an authorized financial officer of TGPL, copies of
which have been furnished to each Bank, fairly present, subject, in
the case of such balance sheet as at March 31, 2000, and such
statement of income and cash flows for the three months then ended, to
year-end audit adjustments, the Consolidated financial condition of
TGPL and its Subsidiaries as at such dates and the Consolidated
results of operations of TGPL and its Subsidiaries for the year and
56
three-month period, respectively, ended on such dates, all in
accordance with generally accepted accounting principles consistently
applied.
(v) The Consolidated balance sheet of TGT and its Subsidiaries as
at December 31, 1999, and the related Consolidated statement of income
and cash flows of TGT and its Subsidiaries for the fiscal year then
ended, copies of which have been furnished to each Bank, and the
Consolidated balance sheet of TGT and its Subsidiaries as at March 31,
2000, and the related Consolidated statement of income and cash flows
of TGT and its Subsidiaries for the three months then ended, duly
certified by an authorized financial officer of TGT, copies of which
have been furnished to each Bank, fairly present, subject, in the case
of such balance sheet as at March 31, 2000, and such statement of
income and cash flows for the three months then ended, to year-end
audit adjustments, the Consolidated financial condition of TGT and its
Subsidiaries as at such dates and the Consolidated results of
operations of TGT and its Subsidiaries for the year and three-month
period, respectively, ended on such dates, all in accordance with
generally accepted accounting principles consistently applied.
(f) Except as set forth on Schedule VIII or in the Public Filings or
as otherwise disclosed in writing by a Borrower to the Banks and the Agent
after the date hereof and approved by the Majority Banks, there is, as to
each Borrower, no pending or, to the knowledge of such Borrower, threatened
action or proceeding affecting such Borrower or any Material Subsidiary
(other than NewGP, if applicable) of such Borrower before any court,
governmental agency or arbitrator, which could reasonably be expected to
materially and adversely affect the financial condition or operations of
such Borrower or Material Subsidiary and its respective Subsidiaries taken
as a whole or which purports to affect the legality, validity, binding
effect or enforceability of this Agreement or any Note.
(g) No proceeds of any Advance will be used for any purpose or in any
manner contrary to the provisions of Section 5.02(k).
(h) No Borrower is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any such margin stock (other than purchases of common stock expressly
permitted by Section 5.02(k)) or to extend credit to others for the purpose
of purchasing or carrying any such margin stock. Following the application
of the proceeds of each Advance, not more than 25% of the value of the
assets of any Borrower will be represented by such margin stock and not
more than 25% of the value of the assets of any Borrower and its
Subsidiaries (or, in the case of TWC, the Borrower, its Subsidiaries and
the WCG Subsidiaries) will be represented by such margin stock.
57
(i) 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.
(j) No Termination Event has occurred or is reasonably expected to
occur with respect to any Plan that could reasonably be expected to have a
material adverse effect on any of the Borrowers or on any Material
Subsidiary (other than NewGP, if applicable) of a Borrower (including, in
the case of TWC, any material WCG Subsidiaries). No Borrower nor any ERISA
Affiliate of any Borrower has received any notification that any
Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA, and no Borrower is aware of any reason to
expect that any Multiemployer Plan is to be in reorganization or to be
terminated within the meaning of Title IV of ERISA that would have any
material adverse effect on any Borrower, any Material Subsidiary (other
than NewGP, if applicable) of a Borrower (including, in the case of TWC,
any material WCG Subsidiaries) or any ERISA Affiliate of a Borrower.
(k) As of the date of this Agreement, the United States federal income
tax returns of each Borrower and the Material Subsidiaries (other than
NewGP, if applicable) of each Borrower have been examined through the
fiscal year ended December 31, 1995. Each Borrower and the Subsidiaries of
each Borrower have filed all United States federal income tax returns and
all other material domestic tax returns which are required to be filed by
them and have paid, or provided for the payment before the same become
delinquent of, all taxes due pursuant to such returns or pursuant to any
assessment received by any Borrower or any such Subsidiary, other than
those taxes contested in good faith by appropriate proceedings. The
charges, accruals and reserves on the books of each Borrower and the
Material Subsidiaries of each Borrower in respect of taxes are adequate.
(l) No Borrower is 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.
(m) Except as set forth in the Public Filings or as otherwise
disclosed in writing by any Borrower to the Banks and the Agent after the
date hereof and approved by the Majority Banks, each Borrower and its
respective Material Subsidiaries (other than NewGP, if applicable) are in
compliance in all material respects with all Environmental Protection
Statutes to the extent material to the operations or the Consolidated
financial condition of each Borrower and its Consolidated Subsidiaries
taken as a whole. Except as set forth in the Public Filings or as otherwise
disclosed in writing by any Borrower to the Banks and the Agent after the
date hereof and approved by the Majority Banks, the aggregate contingent
and non-contingent liabilities of each Borrower and its Consolidated
Subsidiaries (other than those reserved for in accordance with generally
accepted accounting principles and set forth in the financial statements
regarding any such Borrower referred to in Section 4.01(e) and delivered to
each Bank and excluding
58
liabilities to the extent covered by insurance if the insurer has confirmed
that such insurance covers such liabilities or which such Borrower
reasonably expects to recover from ratepayers) which are reasonably
expected to arise in connection with (i) the requirements of Environmental
Protection Statutes or (ii) any obligation or liability to any Person in
connection with any Environmental matters (including any release or
threatened release (as such terms are defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980) of any
Hazardous Waste, Hazardous Substance, other waste, petroleum or petroleum
products into the Environment) could not reasonably be expected to have a
material adverse effect on the business, assets, conditions or operations
of any Borrower and its respective Consolidated Subsidiaries, taken as a
whole. Each Borrower and its respective Material Subsidiaries (other than
NewGP, if applicable) holds, or has submitted a good faith application for
all Environmental Permits (none of which have been terminated or denied)
required for any of its current operations or for any property owned,
leased, or otherwise operated by it; and is, and within the period of all
applicable statutes of limitation has been, in compliance with all of its
Environmental Permits.
(n) Other than the Permitted Liens, each Borrower and its Subject
Subsidiaries has good, valid and indefeasible title to, or a valid
leasehold interest in, its respective property and to all property
reflected by its respective balance sheet referenced in clause (e) above as
being owned by such Borrower (except property sold or otherwise disposed of
by a Borrower or its Subject Subsidiaries in conformity with the terms and
conditions of this Agreement). TWC and each of the Midstream Subsidiaries
have sufficient title to all Midstream Assets they collectively own and
operate as is necessary for the conduct of the Midstream Business after the
date hereof in accordance with the ownership and operation of the Midstream
Business in the twelve months prior to the date hereof. There exists, or
following completion of the post-closing items more fully described in
Schedule XIII, there will exist an Acceptable Security Interest in all
Collateral other than the Excluded Collateral.
(o) The Persons listed on Schedule XIV are all of the Midstream
Subsidiaries and own, lease or hold all Midstream Assets necessary and/or
appropriate for the operation and carrying on of the Midstream Business
associated with the Midstream Assets as conducted during the 12 months
preceding the date hereof.
(p) Neither TWC nor any Midstream Subsidiary is in default under or
with respect to any of its Contractual Obligations in any respect which
could reasonably be expected to have a material adverse effect on the
Midstream Business of TWC or any Midstream Subsidiary. No Default or Event
of Default has occurred and is continuing.
(q) Except as would not have a material adverse effect on the conduct
of the Midstream Business conducted by the Midstream Subsidiaries, the
various gathering systems which comprise part of the Midstream Assets are
covered by recorded fee deeds, right of ways, easements, leases,
servitudes, permits, licenses, or other instruments in favor of the
Midstream Subsidiaries (or their predecessors in title) and their
successors and assigns, which instruments establish a contiguous right of
way for the respective
59
gathering systems and grant the right to construct, operate, and maintain
the respective gathering system in, over, under, and across the land
covered thereby; provided, that certain licenses and permits from
railroads, utilities, owners of meter sites, and from the various state and
local Governmental Authorities and rights granted by Hydrocarbon producers
on their respective properties may not be recorded. The pipelines
comprising the various gathering systems which are part of the Midstream
Assets of the Midstream Subsidiaries are located within the confines of
contiguous rights of way and do not encroach upon any adjoining property in
any material respects. The rights of ingress and egress held by the
Midstream Subsidiaries with respect to such gathering systems allow the
applicable Midstream Subsidiaries to inspect, operate, repair, and maintain
such gathering systems in a normal manner consistent with past practices.
(r) After giving effect to this Agreement and the concurrent
amendments to various financing arrangements and agreements of each
Borrower and its Subsidiaries, each Borrower, individually and together
with its Subsidiaries, is Solvent.
(s) No Borrower nor any Midstream Subsidiary is in default under or
with respect to any of its margin requirements and capital assurance
requirements in any respect which could reasonably be expected to have a
material adverse effect on the Midstream Business of TWC, or any Midstream
Subsidiary. No Default or Event of Default has occurred and is continuing.
Article V
COVENANTS OF THE BORROWERS
Section 5.01. Affirmative Covenants. So long as any Note shall remain
unpaid, any Advance shall remain outstanding or any Bank shall have any
Commitment to any Borrower hereunder, each Borrower will, unless the Majority
Banks shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subject
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (except where failure to comply could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of such Borrower and its Subject
Subsidiaries taken as a whole), such compliance to include, without
limitation, the payment and discharge before the same become delinquent of
all taxes, assessments and governmental charges or levies imposed upon it
or any of its Subject Subsidiaries or upon any of its property or any
property of any of its Subject Subsidiaries, and all lawful claims which,
if unpaid, might become a Lien upon any property of it or any of its
Subject Subsidiaries; provided that no Borrower nor any Subject Subsidiary
of a Borrower shall be required to pay any such tax, assessment, charge,
levy or claim which is being contested in good faith and by proper
proceedings and with respect to which reserves in conformity with generally
accepted accounting principles, if required by such principles, have been
provided on the books of such Borrower or such Subject Subsidiary, as the
case may be.
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(b) Reporting Requirements. Furnish to each of the Banks:
(i) as soon as possible and in any event within five days after
the occurrence of each Event of Default or each event which, with the
giving of notice or lapse of time or both, would constitute an Event
of Default, continuing on the date of such statement, a statement of
an authorized financial officer of such Borrower setting forth the
details of such Event of Default or event and the actions, if any,
which such Borrower has taken and proposes to take with respect
thereto;
(ii) as soon as available and in any event not later than 60 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year of such Borrower, (1) the unaudited Consolidated balance
sheet of such Borrower and its Consolidated Subsidiaries as of the end
of such Fiscal Quarters and the unaudited Consolidated statements of
income and cash flows of such Borrower and its Consolidated
Subsidiaries for the period commencing at the end of the previous year
and ending with the end of such quarter, all in reasonable detail and
duly certified (subject to year-end audit adjustments and the lack of
footnotes) by an authorized financial officer of such Borrower as
having been prepared in accordance with generally accepted accounting
principles; provided that, if any financial statement referred to in
this clause (ii) of Section 5.01(b) is readily available on-line
through ▇▇▇▇▇ as of the date on which such financial statement is
required to be delivered hereunder, such Borrower shall not be
obligated to furnish copies of such financial statement; and (2) a
certificate of an authorized financial officer of such Borrower (a)
stating that he has no knowledge that a Default or Event of Default
has occurred and is continuing or, if a Default or Event of Default
has occurred and is continuing, a statement as to the nature thereof
and the action, if any, which such Borrower proposes to take with
respect thereto, and (b) showing in detail the calculation supporting
such statement in respect of Sections 5.02(b) and 5.02(m);
(iii) as soon as available and in any event not later than 105
days after the end of each Fiscal Year of such Borrower, (1) a copy of
the annual audited report for such year for such Borrower and its
Consolidated Subsidiaries, including therein Consolidated balance
sheet of such Borrower and its Consolidated Subsidiaries as of the end
of such Fiscal Year and Consolidated statements of income and cash
flows of such Borrower and its Consolidated Subsidiaries for such
Fiscal Year, in each case prepared in accordance with generally
accepted accounting principles and reported on by Ernst & Young, LLP
or such other independent certified public accountants of recognized
standing acceptable to the Majority Banks; provided that if any
financial statement referred to in this clause (iii) of Section
5.01(b) is readily available on-line through ▇▇▇▇▇ as of the date on
which such financial statement is required to be delivered hereunder,
such Borrower shall not be obligated to furnish copies of such
financial statement; and (2) a letter of such accounting firm to the
Banks (a) stating that, in the course of the regular audit of the
business of such Borrower
61
and its Consolidated Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default or Event of Default has occurred and is continuing, or if, in
the opinion of such accounting firm, a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof, and
(b) showing in detail the calculations supporting such statement in
respect of Sections 5.02(b) and 5.20(m), (which letter may
nevertheless be limited in form, scope and substance to the extent
required by applicable accounting rules or guidelines in effect from
time to time);
(iv) such other information respecting the business or
properties, or the condition or operations, financial or otherwise, of
such Borrower or any of its Material Subsidiaries as any Bank through
the Agent may from time to time reasonably request;
(v) promptly after the sending or filing thereof, copies of all
proxy material, reports and other information which such Borrower
sends to any of its security holders, and copies of all final reports
and final registration statements which such Borrower or any Material
Subsidiary of such Borrower files with the Securities and Exchange
Commission or any national securities exchange; provided that, if such
proxy materials and reports, registration statements and other
information are readily available on-line through ▇▇▇▇▇, such Borrower
or Material Subsidiary shall not be obligated to furnish copies
thereof;
(vi) as soon as possible and in any event within 30 Business Days
after such Borrower or any ERISA Affiliate knows or has reason to know
(A) that any Termination Event described in clause (i) of the
definition of Termination Event with respect to any Plan has occurred
that could have a material adverse effect on such Borrower or any
Material Subsidiary of such Borrower or (B) that any other Termination
Event with respect to any Plan has occurred or is reasonably expected
to occur that could have a material adverse effect on such Borrower or
any Material Subsidiary of such Borrower, a statement of the chief
financial officer or chief accounting officer of such Borrower
describing such Termination Event and the action, if any, which such
Borrower proposes to take with respect thereto;
(vii) promptly and in any event within 25 Business Days after
receipt thereof by such Borrower or any ERISA Affiliate of such
Borrower, copies of each notice received by such Borrower or any ERISA
Affiliate of such Borrower from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any
Plan;
(viii) within 30 days following request therefor by any Bank,
copies of each Schedule B (Actuarial Information) to each annual
report (Form 5500 Series) of such Borrower or any ERISA Affiliate of
such Borrower with respect to each Plan;
62
(ix) promptly and in any event within 25 Business Days after
receipt thereof by such Borrower or any ERISA Affiliate of such
Borrower from the sponsor of a Multiemployer Plan, a copy of each
notice received by such Borrower or any ERISA Affiliate of such
Borrower concerning (A) the imposition of a Withdrawal Liability by a
Multiemployer Plan, (B) the determination that a Multiemployer Plan
is, or is expected to be, in reorganization within the meaning of
Title IV of ERISA, (C) the termination of a Multiemployer Plan within
the meaning of Title IV of ERISA, or (D) the amount of liability
incurred, or expected to be incurred, by such Borrower or any ERISA
Affiliate of such Borrower in connection with any event described in
clause (A), (B) or (C) above that, in each case, could have a material
adverse effect on such Borrower or any ERISA Affiliate of such
Borrower;
(x) not more than 60 days (or 105 days in the case of the last
fiscal quarter of a fiscal year of such Borrower) after the end of
each fiscal quarter of such Borrower, a certificate of an authorized
financial officer of such Borrower stating the respective ratings, if
any, by each of S&P and ▇▇▇▇▇'▇ of the senior unsecured long-term debt
of such Borrower as of the last day of such quarter;
(xi) promptly after any withdrawal or termination of any letter
of credit, guaranty, insurance or other credit enhancement referred to
in the second to last sentence of Section 1.05 or any change in the
indicated rating set forth therein or any change in, or issuance,
withdrawal or termination of, the rating of any senior unsecured
long-term debt of such Borrower by S&P or ▇▇▇▇▇'▇, notice thereof; and
(xii) promptly after any officer of such Borrower obtains
knowledge thereof, notice of (1) any material violation of,
noncompliance with, or remedial obligations under, any Environmental
Protection Statute or notification of such violation or noncompliance
received from any Governmental Authority, and (2) any material release
or threatened material release of Hazardous Substance or Hazardous
Waste affecting any property owned, leased or operated by such
Borrower or any Subsidiary of such Borrower that such Borrower or such
Subsidiary is compelled by the requirements of any Environmental
Protection Statute to report to any governmental agency, department,
board or other instrumentality.
(c) Maintenance of Insurance. Maintain, and cause each of its Material
Subsidiaries (other than NewGP, if applicable) 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 such Borrower or such Material Subsidiaries operate,
provided that such Borrower or any of its Subsidiaries may self-insure to
the extent and in the manner normal for companies of like size, type and
financial condition.
63
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subject Subsidiaries (other than the WCG Senior Notes
Issuer) to preserve and maintain, its corporate existence, rights,
franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified, and cause each Subject Subsidiary to qualify
and remain qualified, as a foreign corporation in each jurisdiction in
which qualification is necessary or desirable in view of its business and
operations or the ownership of its properties, except (i) in the case of
any Subject Subsidiary of such Borrower, where the failure of such Subject
Subsidiary to so preserve, maintain, qualify and remain qualified could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of such Borrower and its Subject
Subsidiaries taken as a whole; (ii) in the case of such Borrower, where the
failure of such Borrower to preserve and maintain such rights, franchises
and privileges and to so qualify and remain qualified could not reasonably
be expected to have a material adverse effect on the business, assets,
condition or operations of such Borrower and its Subject Subsidiaries taken
as a whole; (iii) such Borrower and its Subject Subsidiaries may consummate
any merger or consolidation permitted pursuant to Section 5.02(c); (iv) any
Borrower and any of its Subject Subsidiaries may be converted into a
limited liability company by statutory election; provided that any such
conversion of a Borrower shall not affect its liabilities and obligations
to the Banks pursuant to this Agreement and (v) Permitted Dispositions and
other dispositions permitted hereunder.
(e) Acceptable Security Interest. Cause an Acceptable Security
Interest to exist at all times in all Collateral, except as to the Excluded
Collateral and as otherwise contemplated by Section 5.01(g).
Notwithstanding the foregoing, if TWC and its Subsidiaries, as applicable,
have not entered into and duly executed a purchase and sale agreement (the
"SALE AGREEMENT") for the Refineries on or before December 31, 2002, with
an agreed closing date of no later than March 31, 2003, then TWC shall
grant an Acceptable Security Interest over any part of the Refineries to
the extent owned by TWC or any of its Subsidiaries within 15 Business Days
of the earlier of (i) December 31, 2002, if the Sale Agreement in
connection with such part of the Refineries has not been executed by
December 31, 2002, and (ii) March 31, 2003, if the sale in connection with
such part of the Refineries has not been fully and duly consummated and
closed by March 31, 2003, and all filing fees, expenses, mortgage taxes and
any other costs and expenses of the Collateral Agent or Collateral Trustee
incurred in connection therewith shall be payable by TWC on demand.
(f) Further Assurances. At any time and from time to time, such
Borrower shall, at its expense, promptly execute and deliver to the
Collateral Trustee and/or the Collateral Agent such further instruments and
documents, and take such further action (including, without limitation,
with respect to the granting of an Acceptable Security Interest, on any
personal or real property of TWC, any Restricted Midstream Subsidiary
which, on the date of this Agreement, is subject to any contractual
restriction prohibiting the granting of such a Lien on such property, if
such contractual restriction shall terminate prior to the Termination
Date), as the Majority Banks may from time to time reasonably request, in
order to further carry out the intent and purpose of the Credit Documents
and to establish and protect the rights, interests and remedies created, or
64
intended to be created, in favor of the Collateral Trustee, Collateral
Agent or any of the Banks, including the execution, delivery, recordation
and filing of security agreements, financing statements and continuation
statements under the law of any applicable jurisdiction and mortgages and
deeds of trust necessary to grant an Acceptable Security Interest on all
Collateral (other than any item of Collateral included in the definition of
"Excluded Collateral" and subject to a contractual restriction prohibiting
the granting of a Lien hereunder which contractual restriction has not
terminated) of such Borrower and its Subsidiaries whether such Collateral
is now owned, leased, possessed by license or any other means of acquiring
a possessory interest or hereafter acquired or possessed (each such
mortgage or deed of trust being an "Additional Mortgage"); provided,
however, that neither NewGP, nor MLP, nor their respective Subsidiaries
shall be required to ▇▇▇▇▇ ▇ ▇▇▇▇ on any of their property.
(g) Post-Closing Requirements. On or before the dates more fully set
forth in Schedule XIII hereto, the Borrowers shall satisfy, or shall cause
satisfaction, of the items more fully set forth in such Schedule XIII.
(h) Subsidiaries. (i) Give the Agent thirty days prior written notice
of the creation or acquisition of any Subsidiary (other than (w) a Project
Financing Subsidiary, (x) NewGP, (y) any Subsidiary of either NewGP or Apco
Argentina, Inc., or (z) the WCG Senior Notes Issuer) and (ii) concurrently
with the creation or acquisition of any such Subsidiary, cause such
Subsidiary (other than (w) a Project Financing Subsidiary, (x) NewGP, (y)
any Subsidiary of either MLP or NewGP, or (z) the WCG Senior Notes Issuer)
to provide to the Collateral Agent a Security Agreement granting an
Acceptable Security Interest in the Equity Interests of such Subsidiary for
the benefit of the Collateral Trustee, appropriate legal opinions and, if
such Subsidiary owns any real property, a Mortgage covering such real
property, all of which shall be in the form and substance satisfactory to
the Collateral Agent; provided, however, that the requirements set forth in
this clause (ii) shall not apply to any Subsidiary of each Borrower newly
created solely in connection with Permitted Dispositions or any sales and
dispositions permitted by 5.02(l) so long as the Permitted Dispositions or
other sales or dispositions are consummated within sixty (60) days of the
creation of such Subsidiary; provided, further, that if such Permitted
Disposition or other sale or disposition is not consummated within such
sixty (60) day period, the requirements set forth in clause (ii) above
shall apply with respect to such Subsidiary on the Business Day immediately
following the end of such sixty (60) day period.
(i) Bond Offerings. Cause the net proceeds from the TGPL Bond Offering
to be maintained in a separate, segregated account in the name of TGPL to
be used solely as set forth in the offering documents for the TGPL Bond
Offering.
(j) Midstream Subsidiaries. Cause the representation set forth in
Section 4.01(o) to be true at all times; provided that, for purposes of
this clause (j), Schedule XIV shall be deemed to be modified from time to
time to reflect the (x) divestiture of Midstream Subsidiaries and (y)
formation of new Midstream Subsidiaries, in each case to
65
the extent such divestiture or formation has been made in accordance with
the terms of this Agreement.
(k) Cash Deposits. Maintain all or substantially all of its and its
Subject Subsidiaries' cash deposits with one or more of the Banks party to
this Agreement, other than any cash deposits held in local operational
accounts or any international accounts.
(l) ▇▇▇▇▇▇▇ Liquidity Reserve. Cause RMT to at all times maintain the
"Borrower Liquidity Reserve" (as defined in the ▇▇▇▇▇▇▇ Loan Agreement).
(m) Replacement of Legacy L/C with Letter of Credit. TWC shall cause
the issuance of a letter of credit to replace a Legacy L/C to the extent
the replacement of such Legacy L/C shall be necessary to prevent the
occurrence of a default in relation to, and draw on, such Legacy L/C.
Section 5.02. Negative Covenants. So long as any Note shall remain unpaid,
any Advance shall remain outstanding or any Bank shall have any Commitment to
any Borrower hereunder, no Borrower will, without the written consent of the
Majority Banks:
(a) Liens, Etc. Create, assume, incur or suffer to exist, or permit
any of its Subject Subsidiaries to create, assume, incur or suffer to
exist, any Lien on or in respect of any of its property, whether now owned
or hereafter acquired, or assign or otherwise convey, or permit any such
Subject Subsidiary to assign or otherwise convey, any right to receive
income, in each case to secure or provide for the payment of any Debt,
trade payable or other obligation or liability of any Person (other than
obligations or liabilities that are (i) neither Debt nor trade payables,
(ii) incurred, and are owed to trading counterparties, in the ordinary
course of the trading business of the Borrowers or any of their Subject
Subsidiaries, (iii) secured only by cash, short-term investments or a
Letter of Credit and (iv) permitted by Section 5.02(o)); provided, however,
that, notwithstanding the foregoing, (1) the Borrowers or any of their
Subject Subsidiaries may create, incur, assume or suffer to exist Permitted
Liens and (2) RMT and RMT LLC may create, incur, assume or suffer to exist
any Lien created pursuant to the ▇▇▇▇▇▇▇ Loan Agreement.
(b) Debt.
(i) In the case of TWC, permit the ratio of (A) the aggregate
amount of Consolidated Debt of TWC and its Consolidated Subsidiaries
to (B) the sum of the Consolidated Net Worth of TWC plus the aggregate
amount of Consolidated Debt of TWC and its Consolidated Subsidiaries
to exceed at any time (x) on or before December 30, 2002, 0.70 to
1.00, (y) after December 30, 2002 and on or before March 30, 2003,
0.68 to 1.00 and (z) after March 30, 2003, 0.65 to 1.00; and
(ii) In the case of any Borrower (other than TWC), permit the
ratio of (A) the aggregate amount of Consolidated Debt of such
Borrower and its Subsidiaries on a Consolidated basis, to (B) the sum
of the Consolidated Net
66
Worth of such Borrower plus the aggregate amount of Consolidated Debt
of such Borrower and its Subsidiaries on a Consolidated basis to
exceed at any time 0.55 to 1.00.
(c) Merger and Sale of Assets. Merge or consolidate with or into any
other Person, or sell, lease or otherwise transfer a material part of its
assets, or permit any of their Major Subsidiaries (other than Apco
Argentina, Inc. and its Subsidiaries, and New GP, if applicable) to merge
or consolidate with or into any other Person, or sell, lease or otherwise
transfer a material part of such Major Subsidiary's assets, except that
this Section 5.02(c) shall not prohibit any sale or transfer permitted by
Section 5.02 (l), (f), (o) or any Permitted Disposition.
(d) Agreements to Restrict Certain Transfers. Enter into or suffer to
exist, or permit any of its Subject Subsidiaries to enter into or suffer to
exist, any consensual encumbrance or consensual restriction (except under
governmental regulations) on its ability or the ability of any of its
Subject Subsidiaries (i) to pay, directly or indirectly, dividends or make
any other distributions in respect of its capital stock or pay any Debt or
other obligation owed to a Borrower or to any of its Subject Subsidiaries;
or (ii) to make loans or advances to a Borrower or any Subject Subsidiary
thereof, except, as to (i) and (ii) above, (1) encumbrances and
restrictions on any Subsidiary that is not a Material Subsidiary, (2) those
encumbrances and restrictions existing on July 31, 2002, (3) other
customary encumbrances and restrictions now or hereafter existing of a
Borrower or any Subsidiary thereof entered into in the ordinary course of
business that are not more restrictive in any material respect than the
encumbrances and restrictions with respect to a Borrower or its
Subsidiaries existing on July 31, 2002, (4) encumbrances or restrictions on
any Subsidiary that is obligated to pay Non-Recourse Debt arising in
connection with such Non-Recourse Debt, (5) encumbrances and restrictions
on Apco Argentina, Inc. or its Subsidiaries and (6) encumbrances and
restrictions on any Subsidiary pursuant to the ▇▇▇▇▇▇▇ Loan Agreement.
(e) Loans and Advances; Investments. (i) Make or permit to remain
outstanding, or allow any of its Subject Subsidiaries to make or permit to
remain outstanding, any loan or advance to, or own, purchase or acquire any
obligations or debt or Equity Interests of, any WCG Subsidiary, except that
a Borrower and its Subject Subsidiaries may (1) permit to remain
outstanding, and to replace or refinance, loans and advances and other
financing arrangements to, or Equity Interest in, a WCG Subsidiary existing
or owned (in the case of such Equity Interests) as of July 31, 2002 and
listed on Exhibit E hereof, but no such replacement or refinancing shall
exceed the amount of such loans, advances or other amounts outstanding
immediately prior to such replacement or refinancing, (2) pursuant to the
WCG Unwind Transaction, acquire and own the promissory notes referred to in
clause (ii) of the definition herein of WCG Unwind Transaction, (3) receive
any distribution from WCG or any Subsidiary thereof in connection with the
bankruptcy proceedings of WCG or any Subsidiary thereof and (4) purchase
WCG Note Trust Bonds in accordance with Section 5.02(o). Except for those
investments permitted in subsections (1), (2) and (3) above, no Borrower
shall, and no Borrower shall permit any of its Subject Subsidiaries to,
acquire or otherwise invest in
67
Equity Interests in, or make any loan or advance to, a WCG Subsidiary; and
(ii) to the extent not expressly permitted by the terms of this Agreement,
(x) amend or modify in any manner the ▇▇▇▇▇▇▇ Loans or the ▇▇▇▇▇▇▇ Loan
Agreement on terms or conditions which would (1) increase the collateral
therefor to include assets not owned by ▇▇▇▇▇▇▇ on the date hereof except
for assets acquired hereafter by ▇▇▇▇▇▇▇ in the ordinary course of business
as presently conducted by ▇▇▇▇▇▇▇, (2) shorten the maturity of the ▇▇▇▇▇▇▇
Loans or (3) add any additional obligors with respect thereto or (y)
replace or refinance the ▇▇▇▇▇▇▇ Loans unless the Board of Directors of TWC
shall determine by resolution that such replacement or refinancing is on
the best terms reasonably available to TWC or ▇▇▇▇▇▇▇ at such time.
(f) Maintenance of Ownership of Certain Subsidiaries. Sell, issue or
otherwise dispose of, or create, assume, incur or suffer to exist any Lien
on or in respect of, or permit any of its Subsidiaries to sell, issue or
otherwise dispose of or create, assume, incur or suffer to exist any Lien
on or in respect of, any Equity Interests or any direct or indirect
interest in any Equity Interests in any of its Material Subsidiaries (other
than NewGP, if applicable, the Refineries, MAPL, Seminole and their
respective Subsidiaries and the Persons or assets referenced on Schedule
VII); provided, however, that this Section 5.02(f) shall not prohibit (i)
Permitted Liens, (ii) the sale or other disposition of the Equity Interests
in any Subsidiary of a Borrower to the Borrower or any Wholly-Owned
Subsidiary of a Borrower if, but only if, (x) there shall not exist or
result a Default or Event of Default and (y) in the case of each sale or
other disposition referred to in this proviso involving such Borrower or
any of its Subsidiaries, such sale or other disposition could not
reasonably be expected to impair materially the ability of such Borrower to
perform its obligations hereunder and under any other Credit Document and
such Borrower shall continue to exist, (iii) any Subsidiary from selling or
otherwise disposing of any direct or indirect Equity Interests in any
Subsidiary (other than TGPL, TGT, or NWP) of a Borrower, (iv) any RMT Asset
Disposition, (v) the sale or other disposition of the Equity Interests in
any Subsidiary of TWC pursuant to, and in accordance with the ▇▇▇▇▇▇▇ Loan
Agreement and (vi) any Permitted Disposition; provided that, except with
respect to any Permitted Disposition, or any RMT Asset Disposition, after
giving effect to any such sale or other disposition of any Equity Interests
owned directly or indirectly by a Major Subsidiary, such Subsidiary
continues to be a Major Subsidiary. Nothing herein shall be construed to
permit the Borrower or any of its Subject Subsidiaries to purchase shares,
any interest in shares or any ownership interest in a WCG Subsidiary except
as permitted by Section 5.02(e).
(g) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate of such Borrower to terminate, any Plan so as to result in any
material liability of such Borrower or any Material Subsidiary (other than
NewGP, if applicable) of such Borrower (including, in the case of TWC, any
material WCG Subsidiary) or any such ERISA Affiliate to the PBGC, if such
material liability of such ERISA Affiliate could reasonably be expected to
have a material adverse effect on such Borrower or any Material Subsidiary
(other than NewGP, if applicable) of such Borrower, or (ii) permit to occur
any Termination Event with respect to a Plan which would have a material
adverse effect
68
on such Borrower or any Subject Subsidiary of such Borrower (including, in
the case of TWC, any material WCG Subsidiary).
(h) Transactions with Related Parties. Make any sale to, make any
purchase from, extend credit to, make payment for services rendered by, or
enter into any other transaction with, or permit any Material Subsidiary of
such Borrower to make any sale to, make any purchase from, extend credit
to, make payment for services rendered by, or enter into any other
transaction with, any Related Party of such Borrower or of such Material
Subsidiary unless as a whole such sales, purchases, extensions of credit,
rendition of services and other transactions are (at the time such sale,
purchase, extension of credit, rendition of services or other transaction
is entered into) on terms and conditions reasonably fair in all material
respects to such Borrower or such Material Subsidiary in the good faith
judgment of such Borrower.
(i) Guarantees. After July 31, 2002, enter into any agreement to
guarantee or otherwise become contingently liable for, or permit any of its
Subject Subsidiaries to guarantee or otherwise become contingently liable
for, Debt or any other obligation of any WCG Subsidiary or to otherwise
assure a WCG Subsidiary, or any creditor of a WCG Subsidiary, against loss,
except as set forth in Exhibit M.
(j) Sale and Lease-Back Transactions. Enter into, or permit any of its
Subject Subsidiaries (other than Apco Argentina, Inc.) to enter into, any
Sale and Lease-Back Transaction, if after giving effect thereto such
Borrower would not be permitted to incur at least $1.00 of additional Debt
secured by a Lien permitted by paragraph (y) of Schedule VI.
(k) Use of Proceeds. Use any proceeds of any Advance for any purpose
other than general corporate purposes relating to the business of a
Borrower and its Subsidiaries, but excluding in the case of TWC, any WCG
Subsidiary (including, without limitation, repurchases by TWC of its
capital stock, working capital and capital expenditures), or use any such
proceeds in any manner which violates or results in a violation of law;
provided, however, that no proceeds of any Advance will be used to acquire
any equity security of a class which is registered pursuant to Section 12
of the Securities Exchange Act of 1934, as amended (other than any purchase
of common stock of any corporation, if such purchase is not subject to
Sections 13 and 14 of the Securities Exchange Act of 1934 and is not
opposed, resisted or recommended against by such corporation or its
management or directors, provided that the aggregate amount of common stock
of any corporation (other than Apco Argentina Inc., a Cayman Islands
corporation), purchased during any calendar year shall not exceed 1% of the
common stock of such corporation issued and outstanding at the time of such
purchase) or in any manner which contravenes law, and no proceeds of any
Advance will be used to purchase or carry any margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System). No Borrower may use any Advance to make any loan or
advance to, or to own, purchase or acquire any obligations or debt
securities of, any WCG Subsidiary or to acquire or otherwise invest in any
stock or other equity or other ownership interest in a WCG Subsidiary,
provided, however, that nothing contained
69
herein shall prohibit or otherwise restrict the ability of TWC or any
Subsidiary of TWC to use the proceeds of any Advance to own, purchase or
acquire the WCG Senior Notes pursuant to the WCG Refinancing Transaction.
Notwithstanding anything to the contrary contained herein, if any, (i) with
respect to EMT, proceeds of any Advance shall only be used, directly or
indirectly, as necessary for the orderly disposition of the Trading Book
and (ii) no proceeds of any Advance shall be used to pay any principal
amounts outstanding, interest, fees or other costs with respect to the
▇▇▇▇▇▇▇ Loan, it being understood that proceeds of any Advance may be used
to support margin requirements with regard to Hedging Agreements on oil and
gas.
(l) Asset Disposition. Sell, lease, transfer or otherwise dispose of,
or permit any of their Material Subsidiaries or the Guarantors to sell,
lease, transfer or otherwise dispose of, any property of the Borrowers or
any Guarantor or any Material Subsidiary of the Borrowers, except:
(i) sales of inventory in the ordinary course of business and on
reasonable terms;
(ii) sales of worn out, surplus, or obsolete equipment in the
ordinary course of business, if no Event of Default exists at the time
of such sale;
(iii) replacement of equipment in the ordinary course of business
with other equipment at least as useful and beneficial to TWC or its
Material Subsidiaries and their respective businesses as the equipment
replaced if no Event of Default exists at the time of such replacement
and an Acceptable Security Interest exists in such other equipment at
the time of such replacement;
(iv) sales of other immaterial Property (other than Equity
Interests, Debt or other obligations of any Subsidiary) in the
ordinary course of business and on reasonable terms, if no Event of
Default exists at the time of such sale; provided that Property may
not be sold pursuant to this clause (iv) if the aggregate fair market
value of all Property sold pursuant to this clause (iv) exceeds
$250,000 in any year;
(v) sales or other dispositions of assets which are not
Collateral for cash in arm's length transactions;
(vi) sales, leases, transfers or other dispositions of the
Refineries (in whole or in part, including to each other);
(vii) the MAPL Asset Disposition and Seminole Asset Disposition;
(viii) sales or other dispositions of assets of NewGP or its
Subsidiaries and the transfer by ▇▇▇▇▇▇▇▇ ▇▇ LLC to NewGP of the
general partnership interests and incentive distribution rights in
MLP;
(ix) Permitted Dispositions;
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(x) sale of Equity Interests in NewGP;
(xi) transfers by the Guarantors to other Guarantors and
transfers by non-Guarantor Subsidiaries to any other Subsidiary, in
each case in the ordinary course of business;
(xii) transfers to the State of California of up to 6 turbines in
connection with the settlement of the California Proceedings;
(xiii) the Arctic Fox Capital Contribution; and
(xiv) transfers of Assets and Property by Subsidiaries of TGT
which may not be restricted pursuant to that certain Indenture dated
as of April 11, 1994 between TGT, as Issuer, and The Chase Manhattan
Bank, as Trustee;
provided that (A) 50% of the gross cash proceeds resulting from any
disposition of Collateral permitted pursuant to clauses (ii), (iv) through
(vii), (ix) and (x), shall be deposited immediately upon receipt to the
Collateral Account to be maintained with, and under the control of, the
Collateral Trustee pursuant to the Collateral Trust Agreement and applied
in accordance with the terms and conditions of the L/C Agreement and this
Agreement and (B) assets disposed of pursuant to clauses (i) through (v)
shall not constitute a material part of the assets of TGPL, TGT or NWP and
(C) with respect to any Collateral replaced, exchanged or transferred (in
the case of clause (xi) only), or any non-cash proceeds received from the
sale, transfer or other disposition of Collateral, in each case pursuant to
this Section 5.02(l), such Borrower shall undertake all actions as more
fully set forth in, and subject to, Section 5.01(f) to (1) grant an
Acceptable Security Interest in favor of the Collateral Trustee on any new
Collateral resulting from any such replacement or exchange or on the
non-cash proceeds received from the sale or other disposition of Collateral
and (2) in the case of Collateral transferred pursuant to clause (xi), to
maintain an Acceptable Security Interest on such transferred Collateral.
In connection with a requested release of Collateral pursuant to this
Section 5.02(l), TWC shall deliver a Release Notice (as defined in the
Collateral Trust Agreement) to the Collateral Trustee and the Collateral
Trustee shall be required to forward such notice to the designated group
pursuant to the terms of Section 2.5 of the Collateral Trust Agreement. If
the notice period specified in the Collateral Trust Agreement expires prior
to the Collateral Trustee receiving any objection to the specified release,
then (x) the Collateral Trustee will execute and deliver all documents as
may reasonably be requested to effect a release of the Liens on any such
Collateral held by the Collateral Trustee pursuant the Collateral Trust
Agreement and other L/C Collateral Documents, (y) any Guarantor that is the
owner of the assets subject to a disposition permitted pursuant to this
Section 5.02(l) and whose entire Equity Interests are being conveyed in
connection with such disposition, together with the Subsidiary or
Subsidiaries that own such Equity Interests with respect to such ownership,
shall be automatically released as a Guarantor under the Midstream Guaranty
and as a party, or parties as applicable, to the Collateral Trust
Agreement, Pledge Agreement and Security
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Agreement and (z) each Bank shall be deemed to have affirmatively approved
the release of such Collateral and to the extent applicable, the release of
such Guarantor and its owners, to the extent applicable, from the terms and
conditions of the Midstream Guaranty, Collateral Trust Agreement, Pledge
Agreement and Security Agreement.
Notwithstanding anything in this Section 5.02(l) to the contrary, and
for greater certainty, nothing in this Agreement shall prohibit (1) a
transfer of Equity Interests of RMT from TWC to RMT LLC or any RMT Asset
Disposition or (2) TWC or any of its Subsidiaries (including RMT LLC, RMT
and their respective Subsidiaries) from selling, leasing, transferring or
otherwise disposing of any property of the Borrowers or any Subsidiaries of
the Borrowers in accordance with the provisions of the ▇▇▇▇▇▇▇ Loan
Agreement. For the avoidance of doubt, modification or limitation of voting
rights with respect to any Equity Interests shall not constitute a
disposition of property.
The Banks hereby acknowledge that ▇▇▇▇▇▇▇▇ Midstream Natural Gas, Inc.
has entered into a storage lease more fully described on Schedule V
attached hereto. The property subject to the lease is encumbered by Liens
granted pursuant to the Security Documents. The Banks hereby authorize and
instruct the Collateral Trustee to execute the Non-Disturbance and
Attornment Agreement substantially in the form attached hereto as part of
Schedule V.
(m) Cash Flow to Interest Expense Ratio. Permit, for any period of
four consecutive quarters, the ratio of (A) the sum of Cash Flow of any
Borrower plus Interest Expense of such Borrower to (B) Interest Expense of
such Borrower to be less than 1.5 to 1.0.
(n) Restricted Payments. (i) Other than in connection with the Castle
Transaction, the Arctic Fox Capital Contribution and the Plowshare
Transaction, declare or pay any dividends, purchase, redeem, retire,
defease or otherwise acquire for value any of its Equity Interests now or
hereafter outstanding, return any capital to its stockholders, partners or
members (or the equivalent Persons thereof) as such, make any distribution
of assets, Equity Interests, obligations or securities to its stockholders,
partners or members (or the equivalent Person thereof) as such, or permit
any of its Subject Subsidiaries (other than Apco Argentina, Inc., TGT (to
the extent there exists any contractual restriction prohibiting the
Subsidiaries of TGT from restricting their ability to pay dividends) and
their respective Subsidiaries) to do any of the foregoing, (ii) permit any
of its Subject Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any Equity Interests in TWC or (iii) permit its
Subject Subsidiaries to make any prepayment with respect to any Debt (other
than Debt issued or incurred in connection with the Progeny Facilities and
related documents, Debt issued or incurred in connection with the terms of
Section 2.04(c), Debt issued prior to July 31, 2002 pursuant to the certain
Indenture dated May 1, 1990 with Transco Energy Company as issuer and Bank
of New York as trustee, as supplemented from time to time, the WCG Note
Trust Bonds, Debt under the ▇▇▇▇▇▇▇ Loan Agreement, Debt of Subsidiaries of
TGT and Debt incurred in connection with the UBOC Turbine Financing) or
repurchase any Debt securities except any repurchase or prepayment as
required by the terms thereof in effect on July 31, 2002,
72
except that, so long as no Default shall have occurred and be continuing at
the time of any action described in clauses (i), (ii) (other than with
respect to RMT LLC and its Subsidiaries) and (iv) below or would result
therefrom:
(i) TWC may (A) declare and pay cash dividends and distributions
on its (1) 9 7/8% Cumulative Convertible Preferred Stock, (2) December
2000 Cumulative Convertible Preferred Stock and (3) March 2001
Mandatorily Convertible Single Reset Preferred Stock, (B) declare and
pay cash dividends and distributions on TWC Preferred Stock issued on
or after July 30, 2002 in form and substance satisfactory to the Agent
and (C) in any Fiscal Quarter, declare and pay cash dividends to its
holders of common stock and purchase, redeem, retire or otherwise
acquire shares of its own outstanding common stock for cash if after
giving effect thereto the aggregate amount of such dividends,
purchases, redemptions, retirements and acquisitions paid or made in
any such Fiscal Quarter would be not greater than the sum of
$6,250,000;
(ii) TWC or any Subsidiary of TWC may (A) declare and pay cash
dividends or pay subordinated loans owed to TWC or any Subsidiary of
TWC (as the case may be), (B) declare and pay cash dividends or pay
subordinated loans, in each case in the ordinary course of business
consistent with past practice, owed to any other Subsidiary of TWC
(and payments to the holders of the Designated Minority Interests made
concurrently with and in the same form as the payments to Subsidiaries
of TWC);
(iii) TWC or any Subsidiary of TWC may make payments to
non-Subsidiaries to the extent required under Financing Transactions
or other agreements in effect as of July 31, 2002, including without
limitation payments made in connection with a downgrade by S&P and
▇▇▇▇▇'▇ of TWC's senior unsecured long-term debt rating; and
(iv) TWC or any Subsidiary of TWC may make payments to
non-Subsidiaries to the extent required under the organizational
documents of the Deepwater JV.
(o) Investments in Other Persons. Make or hold, or permit any of its
Subject Subsidiaries to make or hold, any Investment in any Person, except:
(i) equity Investments by a Borrower and its Subsidiaries in
their Subsidiaries outstanding on July 31, 2002 and additional
Investments in Subsidiaries engaged in businesses reasonably related
to the businesses carried on by such Borrower and its Subsidiaries on
July 31, 2002 (including without limitation the Arctic Fox Capital
Contribution) provided that any such additional cash Investments shall
not exceed $75,000,000 annually, except to the extent such cash
Investments are immediately returned to the Person making such
Investment as a dividend, distribution or repayment of Debt;
73
(ii) loans and advances to employees in the ordinary course of
the business of a Borrower and its Subsidiaries as presently
conducted;
(iii) Investments of a Borrower and its Subsidiaries in Cash
Equivalents;
(iv) Investments existing on July 31, 2002 or commitments for
such Investments existing on July 31, 2002 and Investments made
pursuant to such commitments made after July 31, 2002;
(v) Investments by a Borrower and its Subsidiaries in Hedge
Agreements entered into in the ordinary course of business and not for
speculative purposes;
(vi) Investments consisting of intercompany debt;
(vii) Investments consisting of (A) the purchase of WCG Note
Trust Bonds in an aggregate principal amount not to exceed $75,000 or
(B) the Equity Interests in the WCG Senior Notes Issuer;
(viii) Investments by Apco Argentina, Inc. or its Subsidiaries in
accordance with applicable laws and their governing documents;
provided that such Investments shall only be made using cash
generated solely by their business, operations and financings;
(ix) Investments not exceeding $12,000,000 in ▇▇▇▇▇▇▇▇ Coal Seam
Gas Royalty Trust units pursuant to agreements in place on the date
hereof; provided that the purchase price of such units shall not
exceed the then existing market price for such units;
(x) Investments consisting of the acquisition of Equity Interests
of the Deepwater JV in exchange for the contribution of Deepwater
Assets to the Deepwater JV and Investments made to maintain such
Equity Interests;
(xi) Investments in Persons that are not Subsidiaries required to
be made by TWC or any of its Subsidiaries in order to avoid default
pursuant to agreements in existence on July 31, 2002;
(xii) any Investments necessary to maintain, in accordance with
the partnership agreement, the 2% general partnership interest of
NewGP in the MLP; provided, that the aggregate annual amount of such
Investments under this clause (xii) shall not exceed $10,000,000;
(xiii) Investments permitted pursuant to Section 5.02(e);
(xiv) the Investment in the 0.2% general partnership interest in
West Texas LPG Pipelines;
74
(xv) Investments by EMT contemplated by the UBOC Turbine
Financing; and
(xvi) other Investments in an aggregate amount invested not to
exceed $50,000,000 annually; provided that, with respect to
Investments made under this clause (xvi), (1) any newly acquired or
organized Subsidiary of a Borrower or any of its Subsidiaries shall be
a Wholly-Owned Subsidiary thereof; (2) immediately before and after
giving effect thereto, no Default shall have occurred and be
continuing or would result therefrom; and (3) any company or business
acquired or invested in pursuant to this clause (xvi) shall be in the
same line of business as the business of a Borrower or any of its
Subsidiaries.
(p) Subsidiary Debt. Permit any of its Subject Subsidiaries to create,
incur, assume or suffer to exist Debt, other than (except as set forth in
either Section 6(f) of the LLC Guaranty or Section 6(e) of the Holdings
Guaranty) (i) Debt incurred, assumed or suffered to exist by TGPL, TGT,
NWP, or Apco Argentina, Inc. or their Subsidiaries, (ii) Debt incurred,
assumed or suffered to exist by Subsidiaries (other than those referred to
in clause (i) and the Subsidiaries the stock of which is pledged under the
Pledge Agreement (as defined in the L/C Agreement)) in an aggregate amount
not to exceed $50,000,000 at any one time outstanding, (iii) Debt in
existence on July 31, 2002, (iv) Debt under the Guaranties, (v) Debt of the
Project Financing Subsidiaries; (vi) Debt under the ▇▇▇▇▇▇▇ Loan Agreement
(vii) Debt consisting of intercompany debt so long as obligations of the
debtors thereunder are subordinated to their obligations under the Credit
Documents and are incurred in the ordinary course of the cash management
systems of the Borrowers and their Subsidiaries, (viii) any Permitted
Refinancing Debt incurred in exchange for, or the net proceeds of which are
used to refund, refinance or replace Debt permitted to be incurred under
this clause (p), and (ix) Debt incurred in connection with the Deepwater
Transactions and the UBOC Turbine Financing.
(q) Agreement to Restrict Transfers to NewGP. In the case of TWC,
transfer, or permit any of its Subject Subsidiaries to transfer, any
property to NewGP, except a transfer to NewGP of the Equity Interest in MLP
held by ▇▇▇▇▇▇▇▇ ▇▇ LLC or any other transfer necessary to maintain the 2%
general partnership interest of NewGP in MLP; provided that the aggregate
annual amount of such Investments under this Section 5.02(q) shall not
exceed $10,000,000.
(r) Cash Collateralization of Legacy L/Cs. In the case of TWC, from
July 31, 2002, prepay any Progeny Facility or reduce the commitment of any
lender under any Progeny Facility, or cash collateralize any Legacy L/Cs;
provided, that TWC may (i) prepay any Progeny Facility, (ii) reduce the
commitment of any lender under any Progeny Facility and (iii) cash
collateralize any Legacy L/Cs under any of the following circumstances:
(1) TWC may apply Net Cash Proceeds as required by Section 2.04(c);
75
(2) TWC may pay principal of a Progeny Facility as such principal
matures, and make any required prepayment or reduction of the
commitments of any lender thereunder, in each case in accordance
with the terms of such Progeny Facility in effect on July 31,
2002, and may prepay any such Progeny Facility simultaneously
with the disposition of the assets associated with such Progeny
Facility;
(3) TWC may make prepayments, reductions of commitments and cash
collateralizations on a pro-rata basis to (x) the permanent
ratable reduction of the outstanding amounts of the Progeny
Facilities and (y) cash collateralize the Legacy L/Cs until and
unless the Legacy L/Cs are fully cash collateralized, in which
case such prepayments, reductions of commitments or cash
collateralizations may be made on a pro-rata basis to the
permanent ratable reduction of the outstanding amounts of the
Progeny Facilities;
(4) TWC, in its sole absolute discretion, make any prepayment,
commitment reduction or cash collateralization of the type set
forth in clauses (i) through (iii) above in an aggregate amount
not to exceed $65,000,000 per annum; and
(5) TWC may prepay, defease or otherwise satisfy in whole or in part
all of its obligations arising under the Letter of Credit and
Reimbursement Agreement dated as of May 15, 1994, among Tulsa
Parking Authority, TWC, Bank of Oklahoma, National Association,
and Bank of America, N.A. (formerly NationsBank of Texas, N.A.),
relative to Tulsa Parking Authority First Mortgage Revenue Bonds,
as amended, and all documents, instruments, agreements,
certificates and notices at any time executed and/or delivered in
connection therewith.
For the avoidance of doubt, nothing in this Section 5.02(r) shall
limit or restrict TWC from any payment or taking any action that is
required by the terms of any Progeny Facility or Legacy L/Cs in effect on
the date hereof.
Article VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Any Borrower (i) shall fail to pay any principal of any Advance or
of any Note executed by it when the same becomes due and payable, (ii)
shall fail to pay any interest on any Advance or on any Note or (iii) shall
fail to pay any fee or other amount
76
to be paid by it hereunder or under any Credit Document to which it is a
party within ten days after the same becomes due and payable; or
(b) Any certification, representation or warranty made by any Borrower
or Guarantor herein or in any other Credit Document or by any Borrower or
Guarantor (or any officer of any Borrower or Guarantor) in writing under or
in connection with this Agreement or in any other Credit Document or any
instrument executed in connection herewith (including, without limitation,
representations and warranties deemed made pursuant to Section 3.02 or
3.03) shall prove to have been incorrect in any material respect when made
or deemed made; or
(c) Any Borrower or Guarantor shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(b) on its part to be
performed or observed and such failure shall continue for ten Business Days
after the earlier of the date notice thereof shall have been given to such
Borrower by the Agent or any Bank or the date such Borrower shall have
knowledge of such failure, (ii) any term, covenant or agreement contained
in this Agreement (other than a term, covenant or agreement contained in
Section 5.01(b) or Section 5.02), any Note or any other Credit Document on
its part to be performed or observed and such failure shall continue for
five Business Days after the earlier of the date notice thereof shall have
been given to such Borrower by the Agent or any Bank or the date such
Borrower or Guarantor, as applicable shall have knowledge of such failure
or (iii) any term, covenant or agreement contained in Section 5.02; or
(d) Any Borrower or any Subsidiary of any Borrower shall fail to pay
any principal of or premium or interest on any Debt which is outstanding in
a principal amount of at least $60,000,000 in the aggregate (excluding Debt
incurred pursuant to any Advance) of such Borrower and/or a Subsidiary of
such Borrower (as the case may be), when the same becomes due and payable
(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 any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid (other
than (i) by a regularly scheduled required prepayment, (ii) as required in
connection with any permitted sale of assets, (iii) as required in
connection with any casualty or condemnation or (iv) as required pursuant
to an illegality event of the type set forth in Section 2.12), prior to the
stated maturity thereof; provided, however, that the provisions of this
Section 6.01(d) shall not apply to any Non-Recourse Debt of any
Non-Borrowing Subsidiary of a Borrower; or
(e) Any Borrower or any Material Subsidiary of any Borrower shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any
77
proceeding shall be instituted by or against any Borrower or any Material
Subsidiary of any Borrower 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 and, in the case of any such proceeding
instituted against it (but not instituted by it), shall remain undismissed
or unstayed for a period, of 60 days; or any Borrower or any Material
Subsidiary of any Borrower shall take any action to authorize any of the
actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$60,000,000 shall be rendered against any Borrower or any Material
Subsidiary of any Borrower and remain unsatisfied and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) Any Termination Event with respect to a Plan shall have occurred
and, 30 days after notice thereof shall have been given to any Borrower by
the Agent, (i) such Termination Event shall still exist and (ii) the sum
(determined as of the date of occurrence of such Termination Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which a Termination Event shall have occurred and then
exist (or in the case of a Plan with respect to which a Termination Event
described in clause (ii) of the definition of Termination Event shall have
occurred and then exist, the liability related thereto) is equal to or
greater than $75,000,000; or
(h) Any Borrower or any ERISA Affiliate of any Borrower shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer
Plans in connection with Withdrawal Liabilities (determined as of the date
of such notification), exceeds $75,000,000 in the aggregate or requires
payments exceeding $50,000,000 per annum;
(i) Any Borrower or any ERISA Affiliate of any Borrower shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrowers and their
respective ERISA Affiliates to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan
years which include July 31, 2002 by an amount exceeding $75,000,000;
(j) Any provision (other than any provision excepted from, or subject
to a qualification in, the opinion delivered pursuant to Section 3.01(c),
but only to the extent of such exception or qualification) of any L/C
Collateral Document for any reason is not
78
a legal, valid, binding and enforceable obligation of any Borrower or
Guarantor party thereto or any Borrower or Guarantor party thereto shall so
state in writing;
(k) Any material portion of the Collateral that is not covered by
adequate insurance shall be destroyed or any material portion of the
Collateral shall otherwise become unavailable for use by its owner for a
period in excess of 30 days (or 90 days if such owner has business
interruption insurance adequate to cover the loss to it resulting from such
Collateral being unavailable for use) or title to any material portion of
the Collateral shall be successfully challenged; or
(l) Any "Default" or "Event of Default" as defined in any L/C
Collateral Document shall occur.
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of Banks owed more than 50% in principal amount of the A Advances then
outstanding or, if no A Advances are then outstanding, Banks having more than
50% of the principal amount of the Commitments, by notice to the Borrowers,
declare all of the Commitments and the obligation of each Bank to make Advances
to be terminated, whereupon all of the Commitments and each such obligation
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of Banks owed more than 50% in principal amount of the A Advances then
outstanding or if no A Advances are then outstanding, Banks having more than 50%
of the Commitments, or, if no A Advances are then outstanding and all
Commitments have terminated, Banks owed more than 50% in principal amount of the
B Advances then outstanding, by notice to the Borrower as to which an Event of
Default exists (determined as contemplated by the definition herein of Events of
Default), declare the principal of the Advances of such Borrower, all interest
thereon and all other amounts payable by such Borrower under this Agreement and
any other Credit Document to be forthwith due and payable, whereupon such
principal of the Advances, such interest and all such amounts shall become and
be forthwith due and payable, without requirement of any presentment, demand,
protest, notice of intent to accelerate, further notice of acceleration or other
further notice of any kind (other than the notice expressly provided for above),
all of which are hereby expressly waived by each Borrower; provided, however,
that in the event of any Event of Default described in Section 6.01(e), (A) the
obligation of each Bank to make Advances shall automatically be terminated and
(B) the principal of the Advances outstanding, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest, notice of intent to accelerate, notice of acceleration or any
other notice of any kind, all of which are hereby expressly waived by each
Borrower. For purposes of this Section 6.01, any Advance owed to an SPC shall be
deemed to be owed to its Designating Bank.
Article VII
THE AGENT
Section 7.01. Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as
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are reasonably incidental thereto. As to any matters not expressly provided for
by this Agreement (including, without limitation, enforcement of the terms of
this Agreement or collection of the principal of, and interest on the Advances,
fees and any other amounts due and payable pursuant to this Agreement), the
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 Banks owed more
than 50% of the principal amount of the A Advances then outstanding is owed or,
if no A Advances are then outstanding, Banks having more than 50% of the
Commitments (or, if no A Advances are then outstanding and all Commitments have
terminated, upon the instructions of Banks owed more than 50% of the principal
amount of the B Advances then outstanding), and such instructions shall be
binding upon all Banks; provided, however, that the Agent shall not be required
to take any action which exposes the Agent to personal liability or which is
contrary to any Note, this Agreement or applicable law. The Agent agrees to give
to each Bank prompt notice of each notice given to it by any Borrower pursuant
to the terms of this Agreement.
Section 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
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 Agent: (i) may treat a Bank
as the obligee of any Advance or, if applicable, the payee of any Note until the
Agent receives and accepts a Transfer Agreement executed by a Borrower (if
required pursuant to Section 8.06), the Bank which the assignor Bank, and the
assignee in accordance with the last sentence of Section 8.06(a); (ii) may
consult with legal counsel (including counsel for any Borrower), 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 Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with any Note, this Agreement or any other Credit Document; (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 or any
other Credit Document on the part of any Borrower or Guarantor or to inspect the
property (including the books and records) of any Borrower or Guarantor; (v)
shall not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Credit Document or any other instrument or document furnished pursuant hereto or
thereto (including any Note requested by a Bank, delivered to a Bank pursuant to
Section 8.06 or otherwise held by a Bank); and (vi) shall incur no liability
under or in respect of any Note or this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
Section 7.03. CUSA, Chase, Commerzbank, Credit Lyonnais and Affiliates.
With respect to its Commitments, the Advances made by it and the Notes, if any,
issued to it, CUSA shall have the same rights and powers under any such Note and
this Agreement as any other Bank and may exercise the same as though it was not
the Agent; with respect to its Commitments, the Advances made by it and the
Notes, if any, issued to it, each of Chase, Commerzbank and Credit Lyonnais
shall have the rights and powers under any Note and this
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Agreement as any other Bank and may exercise the same as though it was not a
Co-Syndication Agent or Documentation Agent, as the case may be. The term "Bank"
or "Banks" shall, unless otherwise expressly indicated, include each of Chase,
Commerzbank and Credit Lyonnais in its individual capacity. Chase, Commerzbank
and Credit Lyonnais and the respective affiliates of each may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, any Borrower, any Subsidiary of any Borrower, any
Person who may do business with or own, directly or indirectly, securities of
any Borrower or any such Subsidiary and any other Person, all as if Chase and
Commerzbank were not the Co-Syndication Agents and Credit Lyonnais were not the
Documentation Agent without any duty to account therefor to the Banks.
Section 7.04. Bank Credit Decision. Each of the Banks and the other
beneficiaries of any L/C Collateral Document parties hereto (both on its own
behalf and on behalf of any of its affiliates that is a beneficiary of any L/C
Collateral Document) acknowledges that it has, independently and without
reliance upon the Collateral Trustee, Agent, any Co-Syndication Agent, the
Documentation Agent, the Arranger or any other Bank and based on the financial
statements referred to in Section 4.01(e) and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Banks and the other
beneficiaries of any Security Document parties hereto (both on its own behalf
and on behalf of any of its Affiliates that is a beneficiary of any Security
Document) also acknowledges that it will, independently and without reliance
upon the Collateral Trustee, Agent, any Co-Syndication Agent, the Documentation
Agent, the Arranger or any other Bank 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 and the
other Credit Documents. Neither the Collateral Trustee nor the Collateral Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to provide any Person with any credit or other information with respect
thereto, whether coming into its possession before the issuance of any Letter of
Credit or at any time or times thereafter.
Section 7.05. Indemnification. The Banks agree to indemnify the Agent (to
the extent not reimbursed by the Borrowers), ratably according to the respective
principal amounts of the A Advances then owed to each of them (or if no A
Advances are at the time outstanding, ratably according to either (i) the
respective amounts of their Commitments to TWC, or (ii) if all Commitments to
TWC have terminated, the respective amounts of the Commitments to TWC
immediately prior to the time the Commitments to TWC terminated), from and
against any and all claim, damages, losses, liabilities, obligations, penalties,
actions, judgments, suits, costs, expenses or disbursements (including
reasonable fees and disbursements of counsel) of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement or any other Credit Document or any
action taken or omitted by the Agent under this Agreement or any other Credit
Document (EXPRESSLY INCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE
ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF THE AGENT, BUT
EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE ATTRIBUTABLE TO THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE AGENT). IT IS THE INTENT OF THE
PARTIES HERETO THAT THE AGENT SHALL, TO THE EXTENT PROVIDED IN
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THIS SECTION 7.05, BE INDEMNIFIED FOR ITS OWN ORDINARY, SOLE OR CONTRIBUTORY
NEGLIGENCE. Without limitation of the foregoing, each Bank agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
to the extent that the Agent is not reimbursed for such expenses by the
Borrowers.
Section 7.06. Successor Agent. The Agent may resign at any time as Agent
under this Agreement by giving written notice thereof to the Banks and the
Borrowers and may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have the
right to appoint, with the consent of TWC (which consent shall not be
unreasonably withheld and shall not be required if an Event of Default exists),
a successor Agent from among the Banks. If no successor Agent shall have been so
appointed by the Majority Banks with such consent, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a Bank which is a commercial bank organized 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
Agent under this Agreement by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent and shall function as the Agent under this
Agreement, and the retiring Agent shall be discharged from its duties and
obligations as Agent under this Agreement. After any retiring Agent's
resignation or removal hereunder as 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 Agent under this Agreement.
Section 7.07. Co-Syndication Agents; Documentation Agent. The other agents,
Collateral Trustee, Co-Syndication Agents and the Documentation Agent have no
duties or obligations under this Agreement. None of the other agents, Collateral
Trustee, Co-Syndication Agents or the Documentation Agent shall have, by reason
of this Agreement, the Notes or any other Credit Document if any, a fiduciary
relationship in respect of any Bank or the holder of any Note, and nothing in
this Agreement or the Notes, express or implied, is intended or shall be so
construed to impose on any of the other agents, Collateral Trustee,
Co-Syndication Agents or the Documentation Agent any obligation in respect of
this Agreement or the Notes or any other Credit Document.
Article VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by any Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Majority Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for
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which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Banks, do any of the following: (a)
waive any of the conditions specified in Article III, (b) increase the
Commitments of the Banks or subject the Banks to any additional obligations, (c)
reduce the principal of, or interest on, the outstanding Advances or any fees or
other amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the outstanding Advances or any fees or other
amounts payable hereunder, (e) take any action which requires the signing of all
the Banks pursuant to the terms of this Agreement, (f) change the definition of
Majority Banks or otherwise change the percentage of the Commitments or of the
aggregate unpaid principal amount of the A Advances or B Advances, or the number
of Banks, which shall be required for the Banks or any of them to take any
action under this Agreement, (g) amend, waive any provision of, or consent to
any departure by any Borrower from, Section 2.04(c) or this Section 8.01 or (h)
release any of the Collateral (except as contemplated by the terms of Section
5.02(1) and Schedule VII on the date hereof); and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Agent under any Note or this Agreement.
Section 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopy, telegraphic, telex or
cable communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to any Bank, as specified opposite its name on Schedule I hereto
or specified pursuant to Section 8.06(a); if to any Borrower, as specified
opposite its name on Schedule II hereto; and if to CUSA, as Agent, to its
address at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier
number: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇▇▇ Account Officer, with a copy to
Citicorp North America, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: The ▇▇▇▇▇▇▇▇ Companies,
Inc. Account Officer; or, as to any Borrower or the Agent, at such other address
as shall be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be designated by
such party in a written notice to the Borrowers and the Agent. All such notices
and communications shall, when mailed, telecopied, telegraphed, telexed or
cabled, be effective when received in the mail, sent by telecopier to any party
to the telecopier number as set forth herein or on Schedule I or Schedule II or
specified pursuant to Section 8.06(a) (or other telecopy number specified by
such party in a written notice to the other parties hereto), delivered to the
telegraph company, telexed to any party to the telex number set forth herein or
on Schedule I or Schedule II or specified pursuant to Section 8.06(a) (or other
telex number designated by such party in a written notice to the other parties
hereto), confirmed by telex answerback, or delivered to the cable company,
respectively, except that notices and communications to the Agent shall not be
effective until received by the Agent. Any notice or communication to a Bank
shall be deemed to be a notice or communication to any SPC designated by such
Bank and no further notice to an SPC shall be required. Delivery by telecopier
of an executed counterpart of this Agreement or any other Credit Document shall
be effective as delivery of a manually executed counterpart thereof.
Section 8.03. No Waiver; Remedies. No failure on the part of any Bank, the
Collateral Trustee, the Surety Administrative Agent or the Agent to exercise,
and no delay in exercising, any right under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise
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of any other right. The remedies provided in this Agreement are cumulative and
not exclusive of any remedies provided by law.
Section 8.04. Costs and Expenses.
(a) (i) TWC agrees to pay on demand all reasonable out-of-pocket costs
and expenses of the Arranger and the Agent in connection with the
preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes, if any, the other Credit Documents
and the other documents to be delivered under this Agreement, including,
without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Agent with respect thereto and with respect to advising the
Agent as to its rights and responsibilities under this Agreement and any
Note, and (ii) each Borrower agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable counsel fees
and expenses, which may include allocated costs of in-house counsel), of
the Agent and each Bank in connection with the enforcement (whether before
or after the occurrence of an Event of Default and whether through
negotiations (including formal workouts and restructurings), legal
proceedings or otherwise) against such Borrower or any Guarantor of any
Note of such Borrower, this Agreement or any Credit Document.
(b) If any payment (or purchase pursuant to Section 2.11(c)) of
principal of, or Conversion of, any Eurodollar Rate Advance or B Advance
made to any Borrower is made other than on the last day of an Interest
Period relating to such Advance (or in the case of a B Advance, other than
on the original scheduled maturity date thereof), as a result of a payment
pursuant to Section 2.10 or 2.12 or acceleration of the maturity of the
Advances pursuant to Section 6.01 or for any other reason or as a result of
any purchase pursuant to Section 2.11 (c) or any Conversion, such Borrower
shall, upon demand by any Bank (with a copy of such demand to the Agent),
pay to the Agent for the account of such Bank any amounts required to
compensate such Bank for any additional losses, costs or expenses which it
may reasonably incur as a result of any such payment, purchase or
Conversion, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund or maintain such Advance.
(c) Each Borrower agrees, to the fullest extent permitted by law, to
indemnify and hold harmless the Agent, the Arranger and each Bank and each
of their respective directors, officers, employees and agents from and
against any and all claims, damages, liabilities and out-of-pocket expenses
(including, without limitation, reasonable fees and disbursements of
counsel) for which any of them may become liable or which may be incurred
by or asserted against the Agent, the Arranger or such Bank or any such
director, officer, employee or agent (other than by another Bank or any
successor or assign of another Bank), in each case in connection with or
arising out of or by reason of any investigation, litigation, or
proceeding, whether or not the Agent, the Arranger or such Bank or any such
director, officer, employee or agent is a party thereto, arising out of,
related to or in connection with this Agreement or any transaction in which
any proceeds of all or any part of the Advances are applied (EXPRESSLY
INCLUDING ANY
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SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE ATTRIBUTABLE TO THE
ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PARTY, BUT
EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE ATTRIBUTABLE
TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY).
IT IS THE INTENT OF THE PARTIES HERETO THAT EACH INDEMNIFIED PARTY SHALL,
TO THE EXTENT PROVIDED IN THIS SECTION 8.04(C), BE INDEMNIFIED FOR ITS OWN
ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE.
Section 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances of a Borrower due and payable pursuant to the provisions of
Section 6.01, each Bank 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 Bank to or for the credit
or the account of such Borrower against any and all of the obligations of such
Borrower now or hereafter existing under this Agreement, the other Credit
Documents and the Notes, if any, held by such Bank, irrespective of whether or
not such Bank shall have made any demand under this Agreement the other Credit
Documents or such Notes and although such obligations may be unmatured. Each
Bank agrees promptly to notify such Borrower after such set-off and application
made by such Bank, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Bank
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which such Bank may have.
Section 8.06. Binding Effect; Transfers.
(a) This Agreement shall become effective when it shall have been
executed by the Borrowers and the Agent and when each Bank listed on the
signature pages hereof has delivered an executed counterpart hereof to the
Agent, has sent to the Agent a facsimile copy of its signature hereon or
has notified the Agent that such Bank has executed this Agreement and
thereafter shall be binding upon and inure to the benefit of the Borrowers,
the Agent and each Bank and their respective successors and assigns, except
that the Borrowers shall not have the right to assign any of their
respective rights hereunder or any interest herein without the prior
written consent of all of the Banks. Each Bank may assign to one or more
banks, financial institutions or government entities all or any part of, or
may grant participations to one or more banks, financial institutions or
government entities in or to all or any part of, any Advance or Advances
owing to such Bank, any Note or Notes held by such Bank and all or any
portion of such Bank's Commitments, and to the extent of any such
assignment or participation (unless otherwise stated therein) the assignee
or purchaser of such assignment or participation shall, to the fullest
extent permitted by law, have the same rights and benefits hereunder and
under such Note or Notes as it would have if it were such Bank hereunder,
provided that, except in the case of an assignment meeting the requirements
of the next sentence hereof, (1) such Bank's obligations under this
Agreement, including, without limitation,
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its Commitments to the Borrowers hereunder, shall remain unchanged, such
Bank shall remain responsible for the performance thereof, such Bank shall
remain the holder of any such Note or Notes for all purposes under this
Agreement, and the Borrowers, the other Banks and the Agent shall continue
to deal solely with and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement; and (2) no Bank shall
assign or grant a participation that conveys to the assignee or participant
the right to vote or consent under this Agreement, other than the right to
vote upon or consent to (i) any increase in the amount of any Commitment of
such Bank; (ii) any reduction of the principal amount of, or interest to be
paid on, such Bank's Advance or Advances; (iii) any reduction of any fee or
other amount payable hereunder to such Bank; or (iv) any postponement of
any date fixed for any payment of principal of, or interest on, such Bank's
Advance or Advances or Note or Notes or any fee or other amount payable
hereunder to such Bank.
If (I) the assignee of any Bank either (1) is another Bank or is an
affiliate of a Bank (2) is approved in writing by the Agent and the
Borrowers or (3) is approved in writing by the Agent and either an Event of
Default exists or the Borrowers have relinquished the right to approve the
assignment pursuant to Section 8.06(b), and (II) such assignee assumes all
or any portion (which portion shall be a constant, and not a varying,
percentage, and the amount of the Commitment to TWC assigned, whether all
or a portion, shall be in a minimum amount of $10,000,000 or such lesser
amount as shall represent the entire remaining interest of such assigning
Bank or as may be otherwise approved in writing by the Agent and TWC for
such assignment) of each of the Commitments of such assigning Bank to the
respective Borrowers (either all of each such Commitment shall be assigned
or the percentage portion of each such Commitment assigned shall be the
same as to each Borrower) by executing a document in the form of Exhibit F
(or with such changes thereto as have been approved in writing by the Agent
in its sole discretion as evidenced by its execution thereof) duly executed
by the Agent, the Borrowers (unless an Event of Default exists), such
assigning Bank and such assignee and delivered to the Agent ("Transfer
Agreement"), then upon such delivery, (i) such assigning Bank shall be
released from its obligations under this Agreement with respect to all or
such portion, as the case may be, of its Commitments, (ii) such assignee
shall become obligated for all or such portion, as the case may be, of such
Commitments and all other obligations of such assigning Bank hereunder with
respect to or arising as a result of all or such portion, as the case may
be, of such Commitments, (iii) such assignee shall be assigned the right to
vote or consent under this Agreement, to the extent of all or such portion,
as the case may be, of such Commitments, (iv) each Borrower shall deliver,
in replacement of any A Note of such Borrower executed to the order of such
assigning Bank then outstanding or as may be requested by the assignee or
assigning Bank (a) to such assignee upon its request or as required by
Section 2.09, a new A Note of such Borrower in the amount of the Commitment
of such assigning Bank to such Borrower which is being so assumed by such
assignee plus, in the case of any assignee which is already a Bank
hereunder, the amount of such assignee's Commitment to such Borrower
immediately prior to such assignment (any such assignee which is already a
Bank hereunder agrees to ▇▇▇▇ "exchanged" and return to such Borrower, with
reasonable promptness following the delivery of such new A Note, the A Note
being replaced
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thereby, if any), (b) to such assigning Bank, upon its request or as
required by Section 2.09, a new A Note in the amount of the balance, if
any, of the Commitment of such assigning Bank to such Borrower (without
giving effect to any B Reduction) retained by such assigning Bank (and such
assigning Bank agrees to ▇▇▇▇ "Exchanged" and return to such Borrower, with
reasonable promptness following delivery of such new A Notes, the A Note
being replaced thereby), and (c) to the Agent, photocopies of such new A
Notes, if any, (v) if such assignment is of all of such assigning Bank's
Commitments to the Borrowers, all of the outstanding A Advances made by
such assigning Bank shall be transferred to such assignee, (vi) if such
assignment is not of all of such Commitments, a part of each A Advance to
each Borrower equal to the amount of such Advance multiplied by a fraction,
the numerator of which is the amount of such portion of such assigning
Bank's Commitment to such Borrower so assumed and the denominator of which
is the amount of the Commitment of such assigning Bank to such Borrower
(without giving effect to any B Reduction) immediately prior to such
assumption, shall be transferred to such assignee and evidenced by such
assignee's A Note from such Borrower, if requested or required by Section
2.09, and the balance of such A Advance shall be evidenced by such
assigning Bank's new A Note, if any, from such Borrower delivered pursuant
to clause (iv)(b) of this sentence, (vii) if such assignee is not a "Bank"
hereunder prior to such assignment, such assignee shall become a party to
this Agreement as a Bank and shall be deemed to be a "Bank" hereunder, and
the amount of all or such portion, as the case may be, of the Commitment to
each of the respective Borrowers so assumed shall be deemed to be the
amount for such Borrower set opposite such assigning Bank's name on
Schedule X for purposes of this Agreement, and (viii) if such assignee is
not a Bank hereunder prior to such assignment, such assignee shall be
deemed to have specified the offices of such assignee named in the
respective Transfer Agreement as its "Domestic Lending Office" and
"Eurodollar Lending Office" for all purposes of this Agreement and to have
specified for purposes of Section 8.02 the notice information set forth in
such Transfer Agreement; and the Agent shall promptly after execution of
any Transfer Agreement by the Agent and the other parties thereto notify
the Banks of the parties to such Transfer Agreement and the amounts of the
assigning Bank's Commitments assumed thereby.
(b) [Intentionally omitted]
(c) The Borrowers agree to promptly execute the Transfer Agreement
pertaining to any assignment as to which approval by the Borrowers of the
assignee is not required by clause (I) of the last sentence of Section
8.06(a).
(d) Notwithstanding anything to the contrary contained herein, any
Bank (a "Designating Bank") with the consent of the Agent and, if no Event
of Default has occurred and is continuing, the Borrowers may grant to a
special purpose funding vehicle (an "SPC"), identified as such in writing
from time to time by the Designating Bank to the Agent and the Borrowers,
the option to fund all or any part of any A Advance that such Designating
Bank is obligated to fund pursuant to this Agreement or to fund all or part
of any B Advance to a Borrower pursuant to Section 2.16 which the
Designating Bank has agreed to make; provided that, no Designating Bank
shall have granted at any
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one time such option to more than one SPC and further provided that (i)
such Designating Bank's obligations under this Agreement (including,
without limitation, its Commitment to each Borrower hereunder) shall remain
unchanged, (ii) such Designating Bank shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) the
Borrowers, the Agent and the other Banks shall continue to deal solely and
directly with such Designating Bank in connection with such Designating
Bank's rights and obligations under this Agreement, (iv) any such option
granted to an SPC shall not constitute a commitment by such SPC to fund any
Advance, and (v) neither the grant nor the exercise of such option to an
SPC shall increase the costs or expenses or otherwise increase or change
the obligations of a Borrower under this Agreement (including, without
limitation, its obligations under Section 2.14). The making of an Advance
by an SPC hereunder shall utilize the Commitment of the Designating Bank to
the same extent, and as if, such Advance were made by such Designating
Bank. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement to the extent
that any such indemnity or similar payment obligations shall have been paid
by its Designating Bank. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the
United States. In addition, notwithstanding anything to the contrary
contained in this Section 8.06, an SPC may not assign its interest in any
Advance except that, with notice to, but without the prior written consent
of, the Borrowers and the Agent and without paying any processing fee
therefor, such SPC may assign all or a portion of its interests in any
Advances to the Designating Bank or to any financial institutions
(consented to by the Borrowers and Agent), providing liquidity and/or
credit support to or for the account of such SPC to support the funding or
maintenance of Advances. Each Designating Bank shall serve as the agent of
its SPC and shall on behalf of its SPC: (i) receive any and all payments
made for the benefit of such SPC and (ii) give and receive all
communications and notices, and vote, approve or consent hereunder, and
take all actions hereunder, including, without limitation, votes,
approvals, waivers, consents and amendments under or relating to this
Agreement and the other Loan Documents. Any such notice, communication,
vote, approval, waiver, consent or amendment shall be signed by the
Designating Bank for the SPC and need not be signed by such SPC on its own
behalf. The Borrowers, the Agent and the Banks may rely thereon without any
requirement that the SPC sign or acknowledge the same or that notice be
delivered to the Borrowers. This section may not be amended without the
written consent of any SPC, which shall have been identified to the Agent
and the Borrowers.
(e) Any Bank may assign, as collateral or otherwise, any of its rights
(including, without limitation, rights to payments of principal of and/or
interest on the Advances) under this Agreement or any of its Notes to any
Federal Reserve Bank without notice to or consent of any Borrower or the
Agent.
88
Section 8.07. Governing Law. This Agreement, the Notes, if any, and the
other Credit Documents shall be governed by, and construed in accordance with,
the laws of the State of New York, except that Mortgages and Additional
Mortgages may, to the extent provided therein, be governed by and construed in
accordance with the laws of the respective states in which the real property is
covered thereby is located.
Section 8.08. Interest. It is the intention of the parties hereto that the
Agent and each Bank shall conform strictly to usury laws applicable to it, if
any. Accordingly, if the transactions with the Agent or any Bank contemplated
hereby would be usurious under applicable law, then, in that event,
notwithstanding anything to the contrary in this Agreement or any other
agreement entered into in connection with or as security for this Agreement, it
is agreed as follows: (i) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, taken, reserved, charged
or received by the Agent or such Bank, as the case may be, under the Notes, this
Agreement or under any other agreement entered into in connection with or as
security for this Agreement or the Notes shall under no circumstances exceed the
maximum amount allowed by such applicable law and any excess shall be cancelled
automatically and, if theretofore paid, shall at the option of the Agent or such
Bank, as the case may be, be credited by the Agent or such Bank, as the case may
be, on the principal amount of the obligations owed to the Agent or such Bank,
as the case may be, by the appropriate Borrower or refunded by the Agent or such
Bank, as the case may be, to the appropriate Borrower, and (ii) in the event
that the maturity of any Note or other obligation payable to the Agent or such
Bank, as the case may be, is accelerated or in the event of any required or
permitted prepayment, then such consideration that constitutes interest under
law applicable to the Agent or such Bank, as the case may be, may never include
more than the maximum amount allowed by such applicable law and excess interest,
if any, to the Agent or such Bank, as the case may be, provided for in this
Agreement or otherwise shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall, at the option of the
Agent or such Bank, as the case may be, be credited by the Agent or such Bank,
as the case may be, on the principal amount of the obligations owed to the Agent
or such Bank, as the case may be, by the appropriate Borrower or refunded by the
Agent or such Bank, as the case may be, to the appropriate Borrower.
Section 8.09. 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.
Section 8.10. Survival of Agreements, Representations and Warranties, Etc.
All warranties, representations and covenants made by any Borrower or any
officer of any Borrower herein or in any certificate or other document delivered
in connection with this Agreement shall be considered to have been relied upon
by the Banks and shall survive the issuance and delivery of the Notes, if any,
and the making of the Advances regardless of any investigation. The indemnities
and other payment obligations of each Borrower set forth in Sections 2.11, 2.14,
and 8.04, and the indemnities by the Banks in favor of the Agent and its
officers, directors, employees and agents, will survive the repayment of the
Advances and the termination of this Agreement
89
Section 8.11. Borrowers' Right to Apply Deposits. In the event that any
Bank is placed in receivership or enters a similar proceeding, each Borrower
may, to the full extent permitted by law, make any payment due to such Bank
hereunder, to the extent of finally collected unrestricted deposits of such
Borrower in U.S. dollars held by such Bank, by giving notice to the Agent and
such Bank directing such Bank to apply such deposits to such indebtedness. If
the amount of such deposits is insufficient to pay such indebtedness then due
and owing in full, such Borrower shall pay the balance of such insufficiency in
accordance with this Agreement.
Section 8.12. [Intentionally Omitted]
Section 8.13. Confidentiality. Each Bank agrees that it will not disclose
without the prior consent of TWC (other than to employees, auditors,
accountants, counsel or other professional advisors of the Agent or any Bank)
any information with respect to the Borrowers or their Subsidiaries (which term,
in the case of TWC, shall be deemed to include the WCG Subsidiaries), which is
furnished pursuant to this Agreement and which (i) the Borrowers in good faith
consider to be confidential and (ii) is either clearly marked confidential or is
designated by the Borrowers to the Agent or the Banks in writing as
confidential, provided that any Bank may disclose any such information (a) as
has become generally available to the public, (b) as may be required or
appropriate in any report, statement or testimony submitted to or required by
any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or submitted to or required by 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, (c) as may be required or appropriate in response to any
summons or subpoena in connection with any litigation, (d) in order to comply
with any law, order, regulation or ruling applicable to such Bank, (e) to the
prospective transferee or grantee in connection with any contemplated transfer
of any of the Commitments or Advances or any interest therein by such Bank or
the grant of an option to an SPC to fund any Advance, provided that such
prospective transferee executes an agreement with or for the benefit of the
Borrowers containing provisions substantially identical to those contained in
this Section 8.13, and provided further that if the contemplated transfer is a
grant of a participation in a Note (and not an assignment), no such information
shall be authorized to be delivered to such participant pursuant to this clause
(e) except (i) such information delivered pursuant to Section 4.01(e) or Section
5.01(b) (other than paragraph (iv) thereof) and if the contemplated transfer is
a grant of an option to fund Advances to an SPC pursuant to Section 8.06(d),
such SPC may disclose, on a confidential basis, any non-public information
relating to Advances funded by it to any rating agency, commercial paper dealer
or provider of any surety, guaranty or credit or liquidity enhancement to such
SPC, and (ii) if prior notice of the delivery thereof is given to TWC, such
information as may be required by law or regulation to be delivered, (f) in
connection with the exercise of any remedy by such Bank following an Event of
Default pertaining to this Agreement, any of the Notes or any other document
delivered in connection herewith, (g) in connection with any litigation
involving such Bank pertaining to this Agreement, any of the Notes or any other
document delivered in connection herewith, (h) to any Bank or the Agent, or (i)
to any affiliate of any Bank, provided that such affiliate executes an agreement
with or for the benefit of the Borrowers containing provisions substantially
identical to those contained in this Section 8.13.
90
Section 8.14. WAIVER OF JURY TRIAL. THE BORROWERS, THE AGENT, THE
CO-SYNDICATION AGENTS, THE DOCUMENTATION AGENT AND THE BANKS HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY NOTE, ANY OTHER CREDIT DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
Section 8.15. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Credit Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Section 8.16. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY CREDIT
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE AGENT, THE BANKS OR ANY BORROWER IN CONNECTION
HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ SITTING IN THE COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. THE BORROWERS IRREVOCABLY CONSENT TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN SECTION
8.02. THE BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH MAY HAVE OR HEREAFTER MAY HAVE TO
THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT SUCH BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER
HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THE CREDIT DOCUMENTS.
Section 8.17. Existing Defaults of No Effect. Any default
which has occurred and is continuing under the Existing Agreement, if any,
shall, upon the satisfaction of the conditions set forth in Section 3.01, be
deemed to be fully and completely remedied and of no
91
further force and effect, except to the extent that the event or condition
causing such default shall constitute a Default or an Event of Default under
this Agreement.
[Signatures follow.]
92
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWERS:
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
TEXAS GAS TRANSMISSION CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
NORTHWEST PIPELINE CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
AGENT:
CITICORP USA, INC., as Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CO-SYNDICATION AGENTS:
JPMORGAN CHASE BANK
(formerly known as
THE CHASE MANHATTAN BANK), as Co-Syndication
Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
COMMERZBANK AG,
as Co-Syndication Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice Pres. and Manager
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
DOCUMENTATION AGENT:
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: ▇.▇.
▇▇▇▇▇:
CITICORP USA, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By
Name:
Title:
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director
BANK ONE, N.A. (MAIN OFFICE - CHICAGO)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
JPMORGAN CHASE BANK
(formerly known as
THE CHASE MANHATTAN BANK)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Olivier Audermard
Name: Olivier Audermard
Title: Senior V.P.
ABN AMRO BANK, N.V.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Group Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANK OF MONTREAL
By /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Director
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BARCLAYS BANK PLC
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
CIBC INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
CREDIT SUISSE FIRST BOSTON
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
ROYAL BANK OF CANADA
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Manager
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and Manager
By /s/ ▇▇▇ Fort
Name: ▇▇▇ Fort
Title: Vice President
FLEET NATIONAL BANK
f/k/a Bank Boston, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Officer
SOCIETE GENERALE, SOUTHWEST AGENCY
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
TORONTO DOMINION (TEXAS), INC.
By /s/ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
UBS AG, STAMFORD BRANCH
By
Name:
Title:
By
Name:
Title:
▇▇▇▇▇ FARGO BANK TEXAS, N.A.
By /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
WESTLB AG, NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
By
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SUNTRUST BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
ARAB BANKING CORPORATION (B.S.C.)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: VP Head of Credit
BANK OF CHINA, NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: C.L.O.
BANK OF OKLAHOMA, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
BNP PARIBAS, HOUSTON AGENCY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Director
DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK, NEW YORK BRANCH
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior V.P.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
KBC BANK N.V.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
MIZUHO CORPORATE BANK, LTD
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President and Manager
SUMITOMO MITSUI BANKING CORPORATION
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
COMMERCE BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. Block
Name: ▇▇▇▇▇▇ ▇. Block
Title: Senior Vice President
ROYAL BANK OF SCOTLAND
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
RZB FINANCE, LLC
By
Name:
Title:
SCHEDULE I
APPLICABLE LENDING OFFICES
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ ------------------------------------------- -----------------------------------------
Citicorp USA, Inc. Citicorp USA, Inc. Citicorp USA, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notices: Notices:
Citicorp USA, Inc. Citicorp USA, Inc.
c/o Citibank, N.A. c/o Citibank, N.A.
Two Penns Way, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc. Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Account Officer Account Officer
with copy to: with copy to:
Citicorp North America, Inc. Citicorp North America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 127001 Telex: 127001
(Attn. Route Code HOUAA) (Attn. Route Code HOUAA)
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc. Account Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Officer Account Officer
Mizuho Corporate Bank, Limited Mizuho Corporate Bank, Limited Mizuho Corporate Bank, Limited
New York Branch New York Branch New York Branch
1251 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notices: Notices:
Mizuho Corporate Bank, Limited Mizuho Corporate Bank, Limited
Harborside Financial Center, 17th Floor Harborside Financial Center, 17th Floor
1800 Plaza Ten ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
with copy to: with copy to:
Mizuho Corporate Bank, Limited Mizuho Corporate Bank, Limited
One Houston Center One Houston Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Exhibit F-1
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ ------------------------------------------- -----------------------------------------
The Bank of Nova Scotia The Bank of Nova Scotia The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 30308 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 00542319 Telex: 00542319
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with copy to: with copy to:
1100 Louisiana, Suite 3000 1100 Louisiana, Suite 3000
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Attn:
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
with copy to: with copy to:
Bank of America Bank of America
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇
Bank One, NA Bank One, NA Bank One, NA
(Chicago) 1 Bank ▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
0634, 1 FNP, 10 IL 10634
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone:
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier:
Attn: Attn:
JPMorgan Chase Bank JPMorgan Chase Bank JPMorgan ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Schedule I-2
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ ------------------------------------------- -----------------------------------------
Commerzbank AG, Commerzbank AG, Atlanta Agency Commerzbank AG, Atlanta Agency
New York and Grand ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇
Cayman Branches Suite 3500 Suite 3500
Atlanta, Georgia 30309 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Credit Lyonnais Credit Lyonnais New York Branch Credit Lyonnais New York Branch
New York Branch 1301 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The Fuji Bank, Limited The Fuji Bank, Limited The Fuji Bank, Limited
2 World Trade Center, 79th Floor 2 World Trade Center, 79tb Floor
New York, New York 10048 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
National Westminster Bank PLC National Westminster Bank PLC National Westminster Bank PLC
New York Branch New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇
with copy to: with copy to:
National Westminster Bank PLC National Westminster Bank PLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇
ABN AMRO Bank, N.V. ABN AMRO Bank, N.V. ABN AMRO Bank, N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60604-1003 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Loan Administration Attn: Loan Administration
Schedule I-3
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ ------------------------------------------- -----------------------------------------
with copy to: with copy to:
ABN AMRO Bank, N.V. ABN AMRO Bank, N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 60604-1003 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank of Montreal Bank of Montreal Bank of Montreal
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Keiko Kuze Attn: Keiko Kuze
The Bank of New York The Bank of New York The Bank of New York
One ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Barclays Bank PLC Barclays Bank PLC - New York Branch Barclays Bank PLC - New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
CIBC Inc. CIBC Inc. CIBC Inc.
Two Paces West Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 30339 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to: with a copy to:
1600 ▇▇▇▇▇, Suite 3000 1600 Smith, Suite 3000
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇
Credit Suisse First Boston Credit Suisse First Boston Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Schedule I-4
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ ------------------------------------------- -----------------------------------------
Royal Bank of Canada Royal Bank of Canada, New York Royal Bank of Canada, New York
One ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
Loan Processing Loan Processing
The Bank of Tokyo- The Bank of Tokyo-Mitsubishi, Ltd., The Bank of Tokyo-Mitsubishi, Ltd.,
Mitsubishi, Ltd., Houston Agency Houston Agency
Houston Agency ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002-5216 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇▇▇▇ Attn: ▇.▇. ▇▇▇▇▇▇▇▇
Fleet National Bank, Fleet National Bank Fleet National Bank
f/k/a BankBoston, N.A. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ DE 10006A
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Loan Administrator Attn: ▇▇▇▇ ▇▇▇▇▇▇, Loan Administrator
Societe Generale, Societe Generale, Southwest Agency Societe Generale, Southwest Agency
Southwest Agency ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ Row Attn: ▇▇▇▇▇▇ Row
Industrial Bank of Japan Industrial Bank of Japan Trust Company Industrial Bank of Japan Trust Company
Trust Company 1251 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 17th Floor ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Swift Address: TDOMU S4H Swift Address: TDOMU S4H
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
UBS AG, Stamford Branch UBS AG, Stamford Branch UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Schedule I-5
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ ------------------------------------------- -----------------------------------------
▇▇▇▇▇ Fargo Bank ▇▇▇▇▇ Fargo Bank, ▇.▇. ▇▇▇▇▇ Fargo Bank, N.A.
Texas, N.A. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 1740 Broadway
Denver, CO 80274 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
SunTrust Bank SunTrust Bank SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ N.E., 4th Floor ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ N.E., 4th Floor
Atlanta, Georgia 30308 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Westdeutsche Landesbank Westdeutsche Landesbank Girozentrale, Westdeutsche Landesbank Girozentrale,
Girozentrale, New York New York Branch New York Branch
Branch 1211 Avenue of the Americas ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Attn:
Credit Agricole Indosuez Credit Agricole Indosuez Credit Agricole Indosuez
Texas Commerce Tower Texas Commerce Tower
600 ▇▇▇▇▇▇, Suite 2340 600 ▇▇▇▇▇▇, Suite 2340
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
The Dai-Ichi Kangyo The Dai-Ichi Kangyo Bank, Ltd. The Dai-Ichi Kangyo Bank, Ltd.
Bank, Ltd. One World Trade Center, 48th Floor One World Trade Center, 48th Floor
New York, New York 10048 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Arab Banking Corporation Arab Banking Corp. Arab Banking Corp. (Grand Cayman)
(B.S.C.) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇▇ Attn: ▇.▇. ▇▇▇▇▇▇
Bank of China, New York Bank of China, New York Branch Bank of China, New York Branch
Branch ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ or Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ or
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇ ▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇ ▇▇▇
Telex: ITT 423635 Telex: ITT 423635
Attn: ▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇
Schedule I-6
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ ------------------------------------------- -----------------------------------------
Bank of Oklahoma, N.A. Bank of Oklahoma, N.A. Bank of Oklahoma, N.A.
One ▇▇▇▇▇▇▇▇ Center, 8th Floor One ▇▇▇▇▇▇▇▇ Center, 8th Floor
Tulsa, Oklahoma 74192 ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
BNP Paribas, BNP Paribas, Houston Agency BNP Paribas, Houston Agency
Houston Agency ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
DZ Bank DZ Bank DZ Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
KBC Bank N.V., New York KBC Bank N.V., New York Branch KBC Bank N.V., New York Branch
Branch ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇/ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇/
Loan Administration Loan Administration
The Sumitomo Bank, The Sumitomo Bank, Limited The Sumitomo Bank, Limited
Limited ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telex: SUMBK 420515/SUMBK Telex: SVMBK 420515/SUMBK
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: with copy to.
The Sumitomo Bank, Limited The Sumitomo Bank, Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Commerce Bank, N.A. Commerce Bank, N.A. Commerce Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 17th Floor ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Block Attn: ▇▇▇▇▇▇ ▇. Block
Schedule I-7
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ ------------------------------------------- -----------------------------------------
Wachovia Bank, National Association Wachovia Bank, National Association Wachovia Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
RZB Finance LLC RZB Finance LLC RZB Finance LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 1133 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Schedule I-8
SCHEDULE II
BORROWER INFORMATION
Name of Borrower Information for Notices
---------------- -----------------------
The ▇▇▇▇▇▇▇▇ Companies, Inc. The ▇▇▇▇▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Northwest Pipeline Corporation Northwest Pipeline Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Transcontinental Gas Pipe Line Corporation Transcontinental Gas Pipe Line Corporation
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Texas Gas Transmission Corporation Texas Gas Transmission Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE III
OUTSTANDING LETTERS OF CREDIT
SCHEDULE IV
EXISTING PROJECTS
1. Gulfstream
2. Devil's Tower
3. PIGAP II Project
4. Gulf Liquids
Schedule IV - 1
SCHEDULE V
STORAGE LEASE
On July 18, 2001 ▇▇▇▇▇▇▇▇ Midstream Natural Gas Liquids, Inc. ("WMNGL"), as
sublessor, and Liberty Gas Storage LLC ("Liberty"), as sublessee, entered into a
sublease agreement whereby, upon satisfaction of certain conditions precedent by
the sublessee, WMNGL would sublease certain sulphur mines located in Calcasieu,
Louisiana to Liberty for the development of natural gas storage facilities.
Schedule V - 1
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement
(this "Agreement"), is dated as of ____________ , 2002, by and between LIBERTY
GAS STORAGE PARTNERS, L.P., a Delaware limited partnership ("Liberty"), and
CITIBANK, N.A., as collateral agent (the "Agent") for certain lenders (the
"Lenders") described below.
RECITALS
A. WHEREAS, Liberty is the sublessee (by assignment from
Liberty Gas Storage LLC, a Delaware limited liability company) under the
Sublease Agreement dated July 18, 2001 (the "Sublease"), with ▇▇▇▇▇▇▇▇ MIDSTREAM
NATURAL GAS LIQUIDS, INC., a Delaware corporation ("▇▇▇▇▇▇▇▇"), as sublessor.
The Sublease covers a portion of certain lands, including pipeline corridors and
access rights of way, as well as certain salt caverns located thereon and
associated equipment, insofar and only insofar as same affect the following
described property situated in the Parish of Calcasieu, Louisiana:
[Part of Sections 17, 20, 29, 32, Township 9 South, Range 10
West, and more particularly described on Exhibit A-1, and
shown on Exhibit A-5 attached hereto and made a part hereof.]
[verify]
The term "Liberty Leased Assets" shall mean such property subleased by ▇▇▇▇▇▇▇▇
to Liberty, as described and defined in the Sublease.
B. The subleasehold estate created by the Sublease is a
portion of the leasehold estate created by the Lease Agreement dated January 1,
1991 (the "Burlington Lease") between Union Texas Petroleum Corporation and
Union Texas Products Corporation, recorded in Conveyance Book 2235, page 260,
under Clerk's File ▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇. By various
intermediate conveyances, the current lessor under the Burlington Lease is
Burlington Resources Corporation [verify] and the current lessee under the
Burlington Lease is ▇▇▇▇▇▇▇▇.
▇. ▇▇▇▇▇▇▇▇ has granted a mortgage dated __________, 2002
(the "Mortgage") recorded in Mortgage Book ___ , Page ___ , under Clerk File
No. ___, in Calcasieu Parish, Louisiana, encumbering the leasehold estate and
other rights of ▇▇▇▇▇▇▇▇ under the Burlington Lease to the Agent, for the
benefit of the Lenders from time to time parties ______________________
[INSERT description of loan].
Schedule V - 2
D. WHEREAS, Liberty has requested that the Agent agree not to
disturb Liberty's possessory rights in the Liberty Leased Assets in the event
the Agent should foreclose on the Mortgage, provided the Sublease is then in
full force and effect and provided further that Liberty attorns to the Agent or
the purchaser at any foreclosure sale of the leasehold estate under the
Burlington Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, Liberty and
Agent hereby agree as follows:
Section 1. Subordination. Subject to the express terms of this
Agreement, Liberty agrees that the Sublease, as the same may be modified,
amended or extended, and the subleasehold estate created thereby, and all of the
rights, remedies and options of Liberty thereunder, are and shall at all times
continue to be subject and subordinate in all respects to the Mortgage and the
lien thereof, and to all rights of Agent thereunder, including, without
limitation, all renewals, increases, modifications, consolidations and
extensions thereof.
Section 2. Non-Disturbance. Agent agrees that if any action or
proceeding is commenced by Agent for the foreclosure of the Mortgage and the
seizure and sale of the Liberty Leased Assets as part of the leasehold estate
under the Burlington Lease, or if Agent acquires the Liberty Leased Assets,
whether through foreclosure or deed in lieu of foreclosure (or dation en
paiement), Agent shall maintain Liberty in possession under the terms of the
Sublease, provided that at such time the Sublease shall be in full force and
effect and shall not have expired or been terminated.
Section 3. Attornment. Liberty agrees that if the Agent, any
of the Lenders or a purchaser at a sheriff's sale (each a "Transferee") shall
become the owner of the Liberty Leased Assets by reason of the foreclosure of
the Mortgage or the acceptance of a deed in lieu of foreclosure (or dation en
paiement) (a "Transfer Event"), and provided that at such time the Sublease
shall be in full force and effect and shall not have expired or been terminated,
the Sublease shall not be terminated or affected thereby, but shall continue in
full force and effect as a direct sublease between Liberty and such Transferee
upon all the terms, covenants and conditions set forth in the Sublease. Upon
such a Transfer Event, Liberty agrees to attorn to such Transferee as sublessor
under the Sublease, and to be bound by and perform all of the obligations
imposed by the Sublease on the sublessee thereunder. Also, upon such a Transfer
Event, the Transferee will be bound by all of the obligations imposed by the
Sublease on the sublessor; provided, however, that such Transferee shall not be:
(i) liable for any act or omission of ▇▇▇▇▇▇▇▇, provided that the foregoing
shall not be deemed to relieve such Transferee from the obligation to perform
any obligation of the sublessor under the Sublease which obligation (a)
Schedule V - 3
remains unperformed at the time that such Transferee succeeds to the interest of
sublessor under the Sublease and (b) is made known to Transferee and Transferee
is provided notice and given the same opportunity to cure as afforded ▇▇▇▇▇▇▇▇
under the Sublease; or (ii) bound by any rent which Liberty might have paid
under the Sublease for more than one month in advance, unless actually received
by such Transferee; or (iii) bound by any amendment or modification of the
Sublease that could have a material adverse affect on Agent's rights as a
secured party; or (iv) subject to any offsets or defenses that Liberty might
have against ▇▇▇▇▇▇▇▇ (or any prior sublessor, if applicable) unless Transferee
has been given written notice thereof and the same opportunity to cure as
afforded ▇▇▇▇▇▇▇▇ under the Sublease.
Section 4. Covenants of Liberty. Liberty covenants and agrees
that contemporaneously with any written notice sent by Liberty to ▇▇▇▇▇▇▇▇ of a
default by ▇▇▇▇▇▇▇▇ under the Sublease, Liberty shall contemporaneously send a
copy of such default notice to the Agent.
Section 5. Disclaimer by Agent. Notwithstanding any of the
provisions hereof, Agent shall have no obligation in favor of Liberty to perform
any term, covenant or condition contained in the Sublease, unless and until
Agent acquires ownership of the Liberty Leased Assets through foreclosure, deed
in lieu of foreclosure (or dation en paiement) or otherwise.
Section 6. New Lease. Upon the written request of either
Liberty or a Transferee to the other given within thirty (30) days after any
Transfer Event, Liberty and such Transferee shall execute a new sublease of the
Liberty Leased Assets upon the same terms and conditions as the Sublease, which
new sublease shall cover any unexpired term of the Sublease existing prior to
such Transfer Event.
Section 7. Notices. Any notice or other communication required
or permitted to be given pursuant to this Agreement shall be in writing and
shall be considered as properly dispatched if delivered in person, sent by a
nationally recognized overnight courier (fee prepaid), mailed by certified mail
(postage prepaid return receipt requested), or transmitted by telecopier to the
address as set forth below. The following are the addresses of the parties:
LIBERTY:
Liberty Gas Storage Partners, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ____________________
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule V - 4
AGENT:
Citibank, N. A.
Collateral Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Citicorp North America, Inc.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇)
Attention: The ▇▇▇▇▇▇▇▇ Companies, Inc. Account Officer
Section 8. Amendment. Neither this Agreement nor any
provisions hereof may be changed, waived, discharged or terminated orally or in
any manner other than by an instrument in writing signed by the party against
whom enforcement of the change, waiver, discharge or termination is sought.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF LOUISIANA, EXCLUDING
THE LOUISIANA LAW OF CONFLICTS.
Section 10. Successors. This Agreement shall inure to the
benefit of the parties hereto and their respective successors and assigns.
Section 11. Counterparts. This Agreement may be executed in
two or more counterparts, and it shall not be necessary that the signatures of
all parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Executed by the duly authorized representatives of Liberty and
the Agent as of the date hereinabove first written.
Schedule V - 5
LIBERTY GAS STORAGE ____________
By:________________________________,
Its:____________________________
By:_____________________________
Name:________________________
Title:_______________________
CITIBANK, as Collateral Agent
By:__________________________________
Name:__________________________
Title:_________________________
Schedule V - 6
STATE OF TEXAS
COUNTY OF __________
BEFORE ME, the undersigned Notary Public duly commissioned
qualified and sworn within and for the State and County written above,
personally came and appeared _______________, to me personally known, and who
being by me duly sworn, did say that he is the authorized ____________ of
_______________________, the _________ of LIBERTY GAS STORAGE
______________________, whose name is subscribed to the foregoing Subordination,
Non-Disturbance and Attornment Agreement, and that he executed the foregoing
Subordination, Non-Disturbance and Attornment Agreement by authority of said
company's __________________ on behalf of said company as its free act and deed.
THUS DONE AND SIGNED before me and the two undersigned witnesses
in the County and State aforesaid, on this ___ day of [___________], 2002.
Witness my hand and official seal.
WITNESSES:
-------------------------- -------------------------
Name: Name:
-------------------- -------------------
--------------------------
Name:
--------------------
----------------------------------
NOTARY PUBLIC
Schedule V - 7
Seal
My Commission expires:
Schedule V - 8
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned Notary Public duly commissioned
qualified and sworn within and for the State and County written above,
personally came and appeared _______________, to me personally known, and who
being by me duly sworn, did say that he is the authorized ____________ of
CITIBANK, N.A., as Collateral Agent, whose name is subscribed to the foregoing
Subordination, Non-Disturbance and Attornment Agreement, and that he executed
the foregoing Subordination, Non-Disturbance and Attornment Agreement by
authority of said company's __________________ on behalf of said company as its
free act and deed.
THUS DONE AND SIGNED before me and the two undersigned witnesses
in the County and State aforesaid, on this ___ day of [___________], 2002.
Witness my hand and official seal.
WITNESSES:
-------------------------- -------------------------
Name: Name:
-------------------- -------------------
--------------------------
Name:
--------------------
----------------------------------
NOTARY PUBLIC
Schedule V - 9
Seal
My Commission expires:
Schedule V - 10
EXHIBIT A-1
[Attach legal description from Sublease]
Schedule V - 11
SCHEDULE VI
PERMITTED LIENS
(a) (i) Any Lien existing on any property at the time of the acquisition thereof
and not created in contemplation of such acquisition by any Borrower or any of
its Subsidiaries, whether or not assumed by any Borrower or any of its
Subsidiaries, (ii) purchase money, construction or analogous Liens securing
obligations incurred in connection with or financing the direct or indirect
costs of or relating to the acquisition, construction (including design,
engineering, installation, testing and other related activities), development
(including drilling), improvement, repair or replacement of property (including
such Liens securing Debt or other obligations incurred in connection with the
foregoing or within 30 days of the later of (x) the date on which such Property
was acquired or construction, development, improvement, repair or replacement
thereof was complete or (y) if applicable, the final "in service" date for
commencement of full operations of such property), provided that all such Liens
attach only to the property acquired, constructed, developed, improved or
repaired or constituting replacement property, and the principal amount of the
Debt or other obligations secured by such Lien, together with the principal
amount of all other Debt secured by a Lien on such property, shall not exceed
the gross acquisition, construction, replacement and other costs specified above
of or for the property, (iii) Liens on receivables created pursuant to a sale,
securitization or monetization of such receivables, and Liens on rights of any
Borrower or any Subsidiary related to such receivables which are transferred to
the purchaser of such receivables in connection with such sale, securitization
or monetization; provided that the Liens secure only the obligations of any
Borrower or any of its Subsidiaries in connection with such sale, securitization
or monetization, (iv) Liens created by or reserved in any operating lease
(whether for real or personal property) entered into in the ordinary course of
business (excluding Synthetic Leases) provided that the Liens created thereby
(1) attach only to the Property leased to any Borrower or one of its
Subsidiaries, pursuant to such operating lease and (2) secure only the
obligations under such lease and supporting documents that do not create
obligations other than with respect to the leased property (including for rent
and for compliance with the terms of the lease), (v) Liens on property subject
to a Capital Lease created by such Capital Lease and securing only obligations
under such Capital Lease and supporting documents that do not create obligations
other than with respect to the leased property, (vi) any interest or title of a
lessor in the property subject to any Capital Lease, Synthetic Lease or
operating lease, (vii) Liens in the form of filed Uniform Commercial Code or
personal property security statements (or similar filings outside Canada and the
United States) to perfect any Permitted Lien, and (viii) Liens on up to four
aircraft owned or leased by any Borrower or any Subsidiary of any such Borrower.
(b) Any Lien existing on any property of a Subsidiary of any Borrower at the
time it becomes a Subsidiary of such Borrower and not created in contemplation
thereof and any Lien existing on any property of any Person at the time such
Person is merged or liquidated into or consolidated with any such Borrower or
any Subsidiary thereof and not created in contemplation thereof.
(c) Mechanics', materialmen's, workmen's, warehousemen's, carrier's, landlord's
or other similar Liens arising in the ordinary course of business securing
amounts incurred in the ordinary
Schedule VI - 1
course of business which are not more than 90 days past due or are being
contested in good faith by appropriate proceedings.
(d) Liens arising by reason of pledges, deposits or other security to secure
payment of workmen's compensation insurance or unemployment insurance, pension
plans or systems and other types of social security, and good faith deposits or
other security to secure tenders or leases of property or bids, in each case to
secure obligations of any Borrower or any of its Subsidiaries under such
insurance, tender, lease, bid or contract, as the case may be; provided,
however, that the only Liens permitted by this paragraph (d) shall be Liens
incurred in the ordinary course of business that do not secure any Debt or
accounts payable (other than accounts payable to the counterparties or obligees
applicable to the foregoing).
(e) Liens on deposits or other security given to secure public or statutory
obligations, or to secure or in lieu of surety bonds (other than appeal bonds)
and deposits as security for the payment of taxes or assessments or other
similar charges, in each case to secure obligations of any Borrower or any of
its Subsidiaries arising in the ordinary course of business; provided, however,
that the aggregate amount of obligations secured by Liens permitted by this
paragraph (e) shall not exceed 10% of Consolidated Tangible Net Worth of the
Borrower.
(f) Any Lien arising by reason of deposits with or the giving of any form of
security to any governmental agency or any body created or approved by law or
governmental regulation for any purpose at any time as required by law or
governmental regulation (i) as a condition to the transaction by any Borrower or
any of its Subsidiaries of any business or the exercise by any Borrower or any
of its Subsidiaries of any privilege or license, (ii) to enable any Borrower or
any of its Subsidiaries to maintain self-insurance or to participate in any fund
for liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to any Borrower or any of its Subsidiaries to share in the
privileges or benefits required for companies participating in such
arrangements.
(g) Liens incurred in the ordinary course of business upon rights-of-way
securing obligations (other than Debt and trade payables) of any Borrower or any
of its Subsidiaries.
(h) Undetermined mortgages and charges incidental to construction or maintenance
arising in the ordinary course of business which are not more than 90 days past
due or are being contested in good faith by appropriate proceedings.
(i) The right reserved to, or vested in, any municipality or governmental or
other public authority or railroad by the terms of any right, power, franchise,
grant, license, permit or by any provision of law, to terminate or to require
annual or other periodic payments as a condition to the continuance of such
right, power, franchise, grant, license or permit.
(j) The Lien of taxes, customs duties or other governmental charges or
assessments that are not at the time determined (or, if determined, are not at
the time delinquent), or that are delinquent but the validity of which is being
contested in good faith by any Borrower or any of its Subsidiaries by
appropriate proceedings and with respect to which reserves in conformity with
generally accepted accounting principles, if required by such principles, have
been provided on the books of the Borrower or the relevant Subsidiary of any
Borrower, as the case may be.
Schedule VI - 2
(k) The Lien reserved in (i) leases entered into in the ordinary course of
business for rent and for compliance with the terms of the lease in the case of
real or personal property leasehold estates or (ii) leases and sub-leases
granted to others that do not materially interfere with the ordinary course of
business of any Borrower and its Subsidiaries, taken as a whole.
(l) Defects and irregularities in the titles to any property (including
rights-of-way and easements) which are not material to the business, assets,
operations or financial condition of any Borrower and its Subsidiaries, taken as
a whole.
(m) Easements, exceptions or reservations in any property of any Borrower or any
of its Subsidiaries granted or reserved in the ordinary course of business for
the purpose of pipelines, roads, equipment, streets, alleys, highways,
railroads, the removal of oil, gas, coal or other minerals or timber, and other
like purposes, or for the joint or common use of real property, facilities and
equipment, or in favor of governmental authorities or public utilities, in each
case above which do not materially impair the use of such property for the
purposes for which it is held by any Borrower or such Subsidiary.
(n) Rights reserved to or vested in any municipality or public authority to
control or regulate any property of any Borrower 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 any Borrower or such
Subsidiary.
(o) Any obligations or duties, affecting the property of any Borrower or any of
its Subsidiaries, to any municipality or public authority with respect to any
franchise, grant, license or permit.
(p) The Liens of any judgments in an aggregate amount for any Borrower and all
of its Subsidiaries (i) not in excess of $8,500,000, the execution of which has
not been stayed and (ii) not in excess of $40,000,000, the execution of which
has been stayed and which have been appealed and secured, if necessary, by a
stay or appeal bond or other security of similar effect and stay or appeal bonds
in respect of the judgments permitted in clause (ii).
(q) Zoning laws and ordinances.
(r) Liens existing on July 1, 2002, that secure only Debt and other obligations
incurred or committed and available for draw down on or prior to or outstanding
on July 1, 2002 and listed on Schedule IX as secured by such Liens.
(s) Liens existing on July 1, 2002 (i) that cover only immaterial assets and
(ii) that secure only Debt and other obligations incurred or committed and
available for draw down on or prior to or outstanding on July 1, 2002.
(t) Liens reserved in customary oil, gas and/or mineral leases for bonus or
rental payments and for compliance with the terms of such leases and Liens
reserved in customary operating agreements, farm-out and farm-in agreements,
exploration agreements, development agreements and other similar agreements for
compliance with the terms of such agreements; provided that (i) such Liens do
not secure Debt or accounts payable (other than obligations under such lease or
Schedule VI - 3
agreement, as the case may be) and (ii) such leases and agreements are entered
into in the ordinary course of business.
(u) Liens arising in the ordinary course of business out of all presently
existing and future division and transfer orders, advance payment agreements,
processing contracts, gas processing plant agreements, operating agreements, gas
balancing or deferred production agreements, participation, joint venture, joint
operating, pooling, unitization or communitization agreements, pipeline,
gathering or transportation agreements, tariffs, platform agreements, drilling
contracts, injection or repressuring agreements, cycling agreements,
construction agreements, salt water or other disposal agreements, leases,
sub-leases or rental agreements, royalty interests, overriding royalty
interests, farm-out and farm-in agreements, exploration and development
agreements, and any and all other contracts or agreements covering, arising out
of, used or useful in connection with or pertaining to the exploration,
development, operation, production, sale, use, purchase, exchange, storage,
separation, dehydration, treatment, compression, gathering, transportation,
processing, improvement, marketing, disposal or handling of any property of a
Person (each such order, agreement or contract being a "Subject Document"),
provided that and to the extent that (i) such Subject Documents are entered into
the ordinary course of business and contain terms customary for such documents
in the industry, (ii) such permitted Liens shall not include any security
interests in accounts receivable or other receivables and do not secure Debt or
accounts payable (other than accounts payable arising under the particular
Subject Document that creates the Lien), and (iii) such Subject Documents do not
create nor do such Liens secure Financing Transactions.
(v) Liens arising by law under Section 9.343 of the Texas Uniform Commercial
Code or similar statutes of states other than Texas.
(w) Liens arising pursuant to the L/C Collateral Documents which secure the
obligations of the Borrowers and their Subsidiaries under this Agreement and the
L/C Agreement and certain public debt of TWC, including Liens securing Letters
of Credit resulting from the Cash Collateralization thereof in accordance with
Section 6.2 of the L/C Agreement.
(x) Liens (i) in existence prior to the date hereof in the nature of a right of
offset or netting of cash amounts owed arising in the ordinary course of
business (and Liens on the trading receivables owed by any trading counterparty
and/or affiliate thereof to a Borrower or any affiliate thereof granted by a
Borrower or any such affiliate thereof under agreements commonly in use in the
industry of a Borrower or such affiliate, but solely to secure the offset or
netting rights of such trading counterparty and/or affiliates thereof to the
payment of such trading receivables arising from and to the extent of the
trading obligations of a Borrower or any affiliate thereof to such trading
counterparty or its affiliates) and (ii) Liens in the nature of a right of
offset or netting of cash amounts owed arising in the ordinary course of
business granted by EMT to any of EMT's trading counterparties and/or affiliates
thereof solely to secure the obligations of EMT to such trading counterparty
and/or affiliates thereof (and the offset or netting rights of such trading
counterparty and/or affiliates thereof related thereto), including, with respect
to EMT only, Liens for such purposes on the trading receivables of EMT arising
from amounts owed by such trading counterparty and/or affiliates thereof to EMT;
provided,
Schedule VI - 4
however, that no such Liens granted by EMT shall in any way create rights of
offset or netting or Liens against a Borrower or any Subject Subsidiary or their
respective Assets.
(y) Any Lien not permitted by paragraphs (a) through (x) above or (z) through
(ii) below securing Debt or Specified Escrow Arrangements of the Borrower or any
of its Subsidiaries if at the time of, and after giving effect to, the creation
or assumption of any such Lien, the aggregate (without duplication) of the
principal or equivalent amount of all Debt of a Borrower and its Subsidiaries
secured by all such Liens not so permitted by paragraphs (a) through (x) above
or (z) through (ii) below plus the amount of Attributable Obligations (other
than those relating to Liens described in clause (a)(viii)) of a Borrower and
its Subsidiaries in respect of Sale and Lease-Back Transactions permitted by
Section 5.02(l) which does not exceed $100,000,000.
(z) To the extent applicable, any overriding royalties or other rights of
Pacific Northwest Pipeline Corporation, a Delaware corporation ("Pacific") and
▇▇▇▇▇▇▇▇ Petroleum Company ("▇▇▇▇▇▇▇▇") or their respective successors in
interest under a contract dated January 9, 1953, as amended, between ▇▇▇▇▇▇▇▇
and Pacific, to which the Borrower is successor in interest; and the obligations
of the Borrower to surrender, transfer, release or reassign the leases or
interests or rights to which said instruments relate under the conditions and
upon the occurrence of the events specified in said instruments.
(aa) Any option or other agreement to purchase any property of any Borrower or
any Subsidiary the purchase, sale or other disposition of which is not
prohibited by any other provision of this Agreement.
(bb) Liens securing reimbursement obligations with respect to letters of credit
that encumber documents and other property relating to such letters of credit
and the proceeds and products thereof.
(cc) Liens on the products and proceeds (including insurance, condemnation and
eminent domain proceeds) of and accessions to, and contract or other rights
(including rights under insurance policies and product warranties) derivative of
or relating to, property permitted to be subject to Liens under this Agreement
but subject to the same restrictions and limitations herein set forth as to
Liens on such property (including the requirement that such Liens on products,
proceeds, accessions and rights secure only obligations that such property is
permitted to secure).
(dd) Liens on the Property of a Project Finance Subsidiary or the Equity
Interests in such Project Finance Subsidiary securing the Non-Recourse Debt of
such Project Finance Subsidiary.
(ee) Liens on cash and short-term investments incurred in the ordinary course of
business, consistent with past practice and not for the purpose of securing Debt
(i) deposited by any Borrower or any of its Subsidiaries in margin accounts with
or on behalf of futures contract brokers or other counterparties or (ii) pledged
by any Borrower or any of its Subsidiaries, in the case of each of clauses (i)
and (ii) above, to secure its obligations with respect to (x) contracts
(including without limitation, physical delivery, option (whether cash or
financial), exchange, swap and futures contracts) for the purchase or sale of
any energy-related commodity or (y) interest rate or currency rate management
contracts.
Schedule VI - 5
(ff) Liens securing Debt of Apco Argentina, Inc. and/or its Subsidiaries;
provided that such Liens shall only apply to assets owned directly by Apco
Argentina, Inc. and/or its Subsidiaries.
(gg) Liens securing the ▇▇▇▇▇▇▇ Loan.
(hh) Liens securing Permitted Refinancing Debt (as defined below) (and related
obligations) covering the substantially the same collateral ) securing
(immediately prior to such refinancing) the Debt Refinanced (as defined below)
by such Permitted Refinancing Debt; provided that: (i) the principal amount of
such Permitted Refinancing Debt does not exceed the principal amount of the Debt
Refinanced (plus the amount of penalties, premiums (including required premiums
and the amount of any premiums reasonably determined by any Borrower being in
its best economic interest and as necessary to accomplish such Refinancing by
means of a tender offer or privately negotiated repurchase), fees, accrued
interest and reasonable expenses and other obligations incurred in connection
therewith) at the time of refinancing; and (ii) such Debt is incurred either by
any Borrower or by such Subsidiary that is the obligor of the Debt being
Refinanced. "Permitted Refinancing Debt" means any Debt of any Borrower or any
of its Subsidiaries issued to Refinance other Debt of any Borrower or any such
Subsidiaries. "Refinance" means, in respect of any Debt, to refinance, extend,
renew, refund, repay, prepay, replace, acquire, redeem, defease or retire, or to
issue other Debt in exchange or replacement, directly or indirectly for, such
Debt in whole or in part.
(ii) Liens extending, renewing or replacing any of the foregoing Liens, provided
that the principal amount of the Debt or other obligation secured by such Lien
is not increased or the maturity thereof shortened and such Lien is not extended
to cover any additional Debt, obligations or property, other than like
obligations of no greater principal amount and the substitution of like property
(or specific categories of property of the same grantor to the extent the terms
of the Lien being extended, renewed or replaced, extended to or covered such
categories of property) of no greater value.
(jj) Liens securing the obligations under that certain Master Agreement dated as
of March 6, 2000 among TWC as Guarantor, ▇▇▇▇▇▇▇▇ TravelCenters, Inc. and
certain other subsidiaries of TWC, as Lessees, Atlantic Financial Group, Ltd, as
Lessor, the Lenders party thereto, SunTrust Bank, as Agent, Societe Generale,
Southwest Agency, as Documentation Agent, and KBC Bank, N.V., as Syndication
Agent as amended, supplemented or otherwise modified.
(kk) Liens on cash deposits in the nature of a right of setoff, banker's lien,
counterclaim or netting of cash amounts owed arising in the ordinary course of
business on deposit accounts permitted pursuant to Section 5.01(k) of this
Agreement.
(ll) Liens securing the Legacy L/C's resulting from the cash collateralization
thereof in accordance with Section 2.04(c) of this Agreement.
(mm) Liens occurring in, arising from, or associated with Specified Escrow
Arrangements.
(nn) Liens granted in connection with (i) Second Amended and Restated
Participation Agreement dated as of January 28, 2002 among ▇▇▇▇▇▇▇▇ Oil
Gathering, L.L.C., a Delaware limited liability company, as Lessee, ▇▇▇▇▇▇▇▇
Field Services Company, a Delaware corporation,
Schedule VI - 6
as Construction Agent, The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware corporation as
Guarantor, ▇▇▇▇▇ Fargo Bank Northwest, National Association, (formerly known as
First Security Bank, National Association), as Certificate Trustee, ▇▇▇▇▇ Fargo
Bank Nevada, N.A., (successor by merger to First Security Trust Company of
Nevada), as Collateral Agent, the financial institutions named therein as
Certificate Holders, Hatteras Funding Corporation, a Delaware corporation, as CP
Lender, the financial institutions named therein as the Facility Lenders and
Purchasers, Bank of America, National Association, as Administrative Agent and
Administrator for the CP Lender, Banc of America Facilities Leasing, L.L.C, as
Arranger, Bank of Nova Scotia, as Syndication Agent, and Credit Agricole
Indosuez, as Documentation Agent, as amended, and related transaction documents
and (ii) Second Amended and Restated Participation Agreement dated as of January
28, 2002 among ▇▇▇▇▇▇▇▇ Field Services - Gulf Coast, L.P., a Delaware limited
partnership, as Lessee, ▇▇▇▇▇▇▇▇ Field Services Company, a Delaware Corporation,
as Construction Agent, The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware corporation, as
Guarantor, ▇▇▇▇▇ Fargo Bank Northwest, National Association, (formerly known as
First Security Bank, National Association), as Certificate Trustee, ▇▇▇▇▇ Fargo
Bank Nevada N.A., (successor by merger to First Security Trust Company of
Nevada), as Collateral Agent, the financial institutions named therein as
Certificate Holders, Hatteras Funding Corporation, a Delaware corporation, as CP
Lender, the financial institutions named therein as the Facility Lenders and
Purchasers, Bank of America, National Association, as Administrative Agent and
Administrator for the CP Lender, Banc of America Facilities Leasing, L.L.C., as
Arranger, Bank of Nova Scotia, as Syndication Agent, and Credit Agricole
Indosuez, as Documentation Agent, as amended, and related transaction documents.
Schedule VI - 7
Schedule VII
PERMITTED DISPOSITIONS
1. Apco Argentina
o Apco Argentina, Inc.
o Apco Properties Ltd. (100%)
o Petrolera ▇▇▇▇▇ Companc S.A. (33.6% - Currently in process of
purchasing an additional 5.5%)
2. Energy International
o Energy International Corporation (owns "Gas to Liquids"
technology).
3. Discovery
▇ ▇▇▇▇▇▇▇▇ Energy, L.L.C. owns a 50% interest in Discovery Producer
Services LLC (unregulated) which in turn is the sole member of
Discovery Gas Transmission LLC (regulated).
4. Southern Ute (Collateral)
▇ ▇▇▇▇▇▇▇▇ Field Services Company's interest in natural gas pipeline
gathering systems totaling approximately 91 miles of pipeline in
La Plata County, Colorado, together with all associated real
property interests, shipper contracts, and governmental permits,
licenses, orders, approvals, certificates of occupancy and other
authorizations.
5. Dry Trail CO2 Recovery Plant (Collateral)
▇ ▇▇▇▇▇▇▇▇ Field Services Company owns and operates a 50 MMcfd CO2
recovery plant in Texas County, Oklahoma located on 26 acres near
the town of Hough, Oklahoma to remove and recycle CO2 at
ExxonMobil's ▇▇▇▇▇▇ field enhanced oil recovery project.
6. Aux Sable and Alliance Canada Marketing ▇.▇.
▇ ▇▇▇▇▇▇▇▇ Alliance Canada Marketing Inc. has a 14.604% interest in
Alliance Canada Marketing Ltd. which owns a 1% interest in and is
the general partner of Alliance Canada Marketing L.P. (the
"Alliance LP"). ▇▇▇▇▇▇▇▇ Alliance Canada Marketing Inc. also owns
a 14.604% limited partnership interest in the remaining 99% of the
Alliance LP.
▇ ▇▇▇▇▇▇▇▇ Natural Gas Liquids Canada, Inc. has a 14.604% interest
in Aux Sable Canada Ltd. which owns a 1% interest in and is the
general partner of Aux Sable Canada LP (the "Canada LP"). ▇▇▇▇▇▇▇▇
Natural Gas Liquids Canada, Inc. also owns a 14.604% limited
partnership interest in the remaining 99% of the Canada LP.
Schedule VII-1
▇ ▇▇▇▇▇▇▇▇ Natural Gas Liquids, Inc. has a 14.604% interest in Aux
Sable Liquid Products Inc. which owns a 1% interest in and is the
managing general partner of Aux Sable Liquid Products LP (the
"Liquid LP"). ▇▇▇▇▇▇▇▇ Natural Gas Liquids, Inc. also owns a
14.604% limited partnership interest in the remaining 99% of the
Liquid LP.
7. Deepwater
Devil's Tower
o The Devil's Tower floating production facility currently under
construction that will be located on block 773 of Mississippi
Canyon. The oil and gas export pipelines attached to the Devil's
Tower Spar known as Canyon Chief and Mountaineer and associated
pumps, compressors, platforms and other equipment.
Gunnison
o The oil pipeline known as the Alpine Pipeline that begins at the
Gunnison discovery and terminated at the platform located at GA
244.
Canyon Station
o The Canyon Station fixed leg platform located at Main Pass block
261 which processes oil and gas production form deepwater ▇▇▇▇▇
located in Mississippi Canyon.
o Equity of the Deepwater JV.
o Collectively, the property referred to in this Item 8 shall be
referred to as the "Deepwater Assets"; provided, that, for
clarification, such assets are not subject to the Deepwater
Transactions so long as such Deepwater Transactions are in full
force and effect.
8. Gulf Liquids
o Gulf Liquids New River Project, LLC and its assets and
liabilities. Gulf Liquids New River Project LLC is 90% owned by
Gulf Liquids Holdings, LLC, which is 100% owned by EM&T.
9. EM&T (Collateral)
o Equity Interest in ▇▇▇▇▇▇▇▇ Energy Marketing & Trading Company.
10. Worthington Generation, L.L.C. (Collateral)
o Equity Interests and assets of Worthington Generation, L.L.C.
Schedule VII-2
11. ▇▇▇▇▇▇▇▇ Generation Company-▇▇▇▇▇▇▇▇ (Collateral)
o Equity Interests and assets of ▇▇▇▇▇▇▇▇ Generation
Company-Hazelton.
12. ▇▇▇▇▇▇▇▇ Energy (Canada), Inc. and its Subsidiaries
o Equity Interests and assets of ▇▇▇▇▇▇▇ Energy (Canada), Inc. and
its Subsidiaries.
13. Those certain gathering and related assets owned by ▇▇▇▇▇▇ Gathering
Company, L.L.C. and WFS Gathering Company, L.L.C. subject to purchase
and sale agreements with Enbridge Pipelines (Texas Gathering) Inc.
dated October 10, 2001 for a purchase price of approximately
$9,000,000. (Collateral)
14. Property received from any sale, transfer or other disposition of
Collateral made pursuant to Section 5.02(l). (Collateral)
15. Mapco Office Building. (Collateral)
16. For the avoidance of doubt, the disposition or redemption of the Class
B Units in MLP shall not be a Permitted Disposition.
17. Interests in joint development arrangements existing on July 31, 2002
by ▇▇▇▇▇▇▇▇ Energy Marketing & Trading Company, which are transferred
as a result of ▇▇▇▇▇▇▇▇ Energy Marketing & Trading Company's decision
not to continue funding.
Schedule VII-3
Schedule VIII
ADDITIONAL PUBLIC FILINGS
1. Consolidated Amended Complaint, In Re ▇▇▇▇▇▇▇▇ Securities Litigation,
Case No. 02-CV-72-H(M) in the United States District Court for the
Northern District of Oklahoma.
Schedule VII-4
Schedule IX
LIENS SECURING EXISTING DEBT/OBLIGATIONS
Liens existing on July 1, 2002, that secure only Debt and other
obligations incurred or committed and available for draw down on or prior to or
outstanding on July 1, 2002 and listed on Schedule IX as secured by such Liens.
See clause (r) on Schedule VI. Inclusion of the items on this Schedule shall not
be deemed an admission or representation that such items are properly
categorized as Debt or that they are secured.
1. Liens granted in connection with the Master Agreement dated as of
March 6, 2000, among TWC, as Guarantor, ▇▇▇▇▇▇▇▇ TravelCenters, Inc. and certain
other subsidiaries of TWC, as Lessees, Atlantic Financial Group, Ltd., as
Lessor, SunTrust Bank, as Agent, Societe Generale, Southwest Agency, as
Documentation Agent, and KBC Bank, N.V., as Syndication Agent and the Lenders
party thereto, as amended, and related transaction documents.
2. Liens granted in connection with the Joint Venture Sponsor
Agreement dated as of December 28, 2000, among TWC, as Sponsor and ▇▇▇▇▇▇▇▇
Field Services Company, in favor of Prairie Wolf Investors, L.L.C. ("Investor"),
Arctic Fox Assets, L.L.C., ▇▇▇▇▇▇▇▇ Energy (Canada), Inc. and the other
Indemnified Persons listed therein, as amended, and related transaction
documents.
3. Liens granted in connection with the PPH Sponsor Agreement dated
as Of December 31, 2001, by TWC, as Sponsor, in favor of Piceance Production
Holdings LLC, Plowshare Investors LLC ("Investor"), and other Indemnified
Persons listed in the agreement, as amended, and related transaction documents.
4. Liens granted in connection with the Parent Support Agreement
dated as of December 23, 1998, made by TWC in favor of Castle Associates L.P.
("Castle"), Colchester LLC ("Investor") and the other Indemnified Persons and
Guaranteed Parties listed therein, as amended, and related transaction
documents.
5. Liens granted in connection with the Loan Agreement dated as of
March 17, 1998 Pine Needle LNG Company, LLC among Pine Needle LNG Company, LLC
and Central Commercial Lending Institutions as the Lenders and Bank of Montreal
as the agent for the Lenders, and related transaction documents.
6. Liens granted in connection with the Finance Agreement among
WilPro Energy Services (El Furrial) Limited, Overseas Private Investment
Corporation dated as of January 31, 1999, and related transaction documents.
7. Liens granted in connection with the Letter of Credit and
Reimbursement Agreement dated as of May 15, 1994, among Tulsa Parking Authority,
The ▇▇▇▇▇▇▇▇
Schedule IX-1
Companies, Inc., Bank of Oklahoma, National Association and Bank of America,
N.A. (f/k/a NationsBank of Texas, N.A.), as amended, and related transaction
documents.
8. Liens granted in connection with the Loan Agreement dated as of
March 31, 1988 between Pan-Alberta Resources Inc. and Canadian Imperial Bank of
Commerce, as amended, and related transaction documents.
9. Liens granted in connection with the Turbine Financing and Agency
Agreement, dated as of April 16, 2002, among Union Bank of California, N.A.,
WEMT Equipment Statutory Trust 2002, Union Bank of California, N.A., as
administrative agent, and ▇▇▇▇▇▇▇▇ Energy Marketing & Trading Company, and
related transaction documents.
10. Liens granted in connection with the Amended and Restated LLC Loan
Agreement dated as of June 9, 2000 among Millennium Energy Fund, L.L.C. and MEF
Production Payment Trust, as amended, and the Amended and Restated Notes Credit
Agreement dated as of June 9, 2000 among MEF Production Payment Trust as the
Borrower, certain financial institutions thereto, Credit Lyonnais as Syndication
Agent, and Bank of Montreal, as Agent, and the Transaction Documents (as defined
therein) related thereto.
Schedule IX-2
Schedule X
COMMITMENTS
as of October 31, 2002
TWC TGPL
Banks Commitment NWP Commitment Commitment TGT Commitment
----- --------------- --------------- --------------- ---------------
Mizuho Corporate Bank, Ltd. $ 47,526,601.24 $ 35,500,000.00 $ 35,500,000.00 $ 17,750,000.00
The Bank of Nova Scotia 22,870,782.29 17,083,333.33 17,083,333.33 8,541,666.67
Bank of America, N.A. 22,870,782.29 17,083,333.33 17,083,333.33 8,541,666.67
Bank One, N.A. 22,870,782.29 17,083,333.33 17,083,333.33 8,541,666.67
JPMorgan Chase Bank (f/k/a The Chase
Manhattan) 22,870,782.29 17,083,333.33 17,083,333.33 8,541,666.67
Citicorp USA, Inc. 22,870,782.29 17,083,333.33 17,083,333.33 8,541,666.67
Commerzbank AG 22,870,782.29 17,083,333.33 17,083,333.33 8,541,666.67
Credit Lyonnais New York Branch 22,870,782.29 17,083,333.33 17,083,333.33 8,541,666.67
National Westminster Bank PLC 22,870,782.29 17,083,333.33 17,083,333.33 8,541,666.67
ABN Amro Bank N.V. 18,742,885.00 14,000,000.00 14,000,000.00 7,000,000.00
Bank of Montreal 18,742,885.00 14,000,000.00 14,000,000.00 7,000,000.00
The Bank of New York 18,742,885.00 14,000,000.00 14,000,000.00 7,000,000.00
Barclays Bank PLC 18,742,885.00 14,000,000.00 14,000,000.00 7,000,000.00
CIBC Inc. 18,742,885.00 14,000,000.00 14,000,000.00 7,000,000.00
Credit Suisse First Boston 18,742,885.00 14,000,000.00 14,000,000.00 7,000,000.00
Royal Bank of Canada 18,742,885.00 14,000,000.00 14,000,000.00 7,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 15,842,200.41 11,833,333.33 11,833,333.33 5,916,666.67
Fleet National Bank 15,842,200.41 11,833,333.33 11,833,333.33 5,916,666.67
Societe Generale 15,842,200.41 11,833,333.33 11,833,333.33 5,916,666.67
Toronto Dominion (Texas) Inc. 15,842,200.41 11,833,333.33 11,833,333.33 5,916,666.67
UBS AG, Stamford Branch 15,842,200.41 11,833,333.33 11,833,333.33 5,916,666.67
▇▇▇▇▇ Fargo Bank Texas, N.A. 15,842,200.41 11,833,333.33 11,833,333.33 5,916,666.67
WestLB AG, New York Branch 15,842,200.41 11,833,333.33 11,833,333.33 5,916,666.67
Credit Agricole Indosuez 8,813,618.54 6,583,333.34 6,583,333.34 3,291,666.64
Wachovia Bank, National Association 5,737,617.86 4,285,714.42 4,285,714.42 2,142,857.20
Arab Banking Corporation (B.S.C.) 5,522,457.19 4,125,000.00 4,125,000.00 2,062,500.00
Bank of China 5,522,457.19 4,125,000.00 4,125,000.00 2,062,500.00
Bank of Oklahoma, N.A. 5,522,457.19 4,125,000.00 4,125,000.00 2,062,500.00
BNP Paribas 5,522,457.19 4,125,000.00 4,125,000.00 2,062,500.00
DZ Bank AG 5,522,457.19 4,125,000.00 4,125,000.00 2,062,500.00
KBC Bank N.V. 5,522,457.19 4,125,000.00 4,125,000.00 2,062,500.00
Sumitomo Mitsui Banking Corporation 5,522,457.19 4,125,000.00 4,125,000.00 2,062,500.00
RZB Finance, LLC 3,319,052.22 2,479,166.68 2,479,166.68 1,239,583.33
Commerce Bank, N.A. 3,319,052.22 2,479,166.68 2,479,166.68 1,239,583.33
Suntrust Bank 3,076,000.68 2,297,618.93 2,297,618.93 1,148,809.45
--------------- --------------- --------------- ---------------
TOTAL $535,511,000.00 $400,000,000.00 $400,000,000.00 $200,000,000.00
Schedule X-1
SCHEDULE XI
RATING CATEGORIES
Pricing: Pricing is based upon the lower rating from S&P and ▇▇▇▇▇'▇, with
respect to TWC's senior unsecured long-term debt. The pricing grid
is as follows:
EURODOLLAR RATE ADVANCES
APPLICABLE MARGIN
RATING -----------------------------------
CATEGORY S&P OR ▇▇▇▇▇'▇ RATINGS OF THE *25% OF >25% OF APPLICABLE
OF THE SENIOR UNSECURED LONG-TERM COMMITMENTS COMMITMENTS COMMITMENT
BORROWER DEBT OF THE BORROWER DRAWN DRAWN FEE RATE
--------------- ------------------------------ -------------- ----------- ----------
One BB+ or Ba1 or higher 3.00% 3.25% .75%
Two BB or Ba2 3.50% 3.75% .875%
Three BB- or Ba3 4.00% 4.25% 1.00%
Four B+ or B1 4.25% 4.50% 1.25%
Five B or B2 or lower 4.50% 4.75% 1.50%
---------------
* less than or equal to
BASE RATE ADVANCES
APPLICABLE MARGIN
RATING -----------------------------------
CATEGORY S&P OR ▇▇▇▇▇'▇ RATINGS OF THE *25% OF >25% OF APPLICABLE
OF THE SENIOR UNSECURED LONG-TERM COMMITMENTS COMMITMENTS COMMITMENT
BORROWER DEBT OF THE BORROWER DRAWN DRAWN FEE RATE
--------------- ------------------------------ -------------- ----------- ----------
One BB+ or Ba1 or higher 1.75% 2.00% .75%
Two BB or Ba2 2.25% 2.50% .875%
Three BB- or Ba3 2.75% 3.00% 1.00%
Four B+ or B1 3.00% 3.25% 1.25%
Five B or B2 or lower 3.25% 3.50% 1.50%
---------------
* less than or equal to
Schedule XI-1
SCHEDULE XII
PROGENY FACILITIES
Parent Support Agreement dated as of December 23, 1998, made by The ▇▇▇▇▇▇▇▇
Companies, Inc. in favor of Castle Associates L.P., Colchester LLC, and the
other Indemnified Persons and Guaranteed Parties listed therein, as amended.
Notwithstanding anything herein to the contrary, for purposes of Section 2.04(c)
of this Agreement, the outstanding amount of this Progeny Facility shall equal
the outstanding Unrecovered Capital (as defined in the Castle Partnership
Agreement) of the Limited Partner (as defined in the Castle Partnership
Agreement) plus accrued and undistributed First Priority Return (as defined in
the Castle Partnership Agreement) to be distributed to the Limited Partner in
accordance with Section 4.01(a) of the Castle Partnership Agreement plus all
other amounts then due and payable to the Limited Partner.
First Amended and Restated Term Loan Agreement dated as of October 31, 2002,
among The ▇▇▇▇▇▇▇▇ Companies, Inc., as Borrower, and Credit Lyonnais New York
Branch, as Administrative Agent, and the Lenders named therein, as amended.
Second Amended and Restated Participation Agreement dated as of January 28, 2002
among ▇▇▇▇▇▇▇▇ Oil Gathering, L.L.C., a Delaware limited liability company, as
Lessee, ▇▇▇▇▇▇▇▇ Field Services Company, a Delaware corporation, as Construction
Agent, The ▇▇▇▇▇▇▇▇ Companies, Inc., a Delaware corporation, as Guarantor, ▇▇▇▇▇
Fargo Bank Northwest, National Association, (formerly known as First Security
Bank, National Association), as Certificate Trustee, ▇▇▇▇▇ Fargo Bank Nevada,
N.A., (successor by merger to First Security Trust Company of Nevada), as
Collateral Agent, the financial institutions named therein as Certificate
Holders, Hatteras Funding Corporation, a Delaware corporation, as CP Lender, the
financial institutions named therein as the Facility Lenders and Purchasers,
Bank of America, National Association, as Administrative Agent and Administrator
for the CP Lender, Banc of America Facilities Leasing, L.L.C., as Arranger, Bank
of Nova Scotia, as Syndication Agent, and Credit Agricole Indosuez, as
Documentation Agent, as amended.
Second Amended and Restated Participation Agreement dated as of January 28, 2002
among ▇▇▇▇▇▇▇▇ Field Services - Gulf Coast Company, L.P., a Delaware limited
partnership, as Lessee, ▇▇▇▇▇▇▇▇ Field Services Company, a Delaware corporation,
as Construction Agent, TWC, as Guarantor, ▇▇▇▇▇ Fargo Bank Northwest, National
Association, (formerly known as First Security National Bank , National
Association), as Certificate Trustee, ▇▇▇▇▇ Fargo Bank Nevada N.A., (successor
by merger to First Security Trust company of Nevada), as Collateral Agent, the
financial institutions named therein as Certificate Holders, Hatteras Funding
Corporation, a Delaware corporation, as CP Lender, the financial institutions
named therein as the Facility Lenders and Purchasers, Bank of America, National
Association, as Administrative Agent and Administrator for the CP Lender, Banc
of America Facilities Leasing, L.L.C., as Arranger, Bank of Nova Scotia, as
Syndication Agent, and Credit Agricole Indosuez, as Documentation Agent, as
amended by the Consent and First Amendment dated as of July 31, 2002 and the
consent and Second Amendment dated as of October 31, 2002.
Schedule XII-1
Term Loan Agreement dated as of January 29, 1999, among The ▇▇▇▇▇▇▇▇ Companies,
Inc., as Borrower, and The Fuji Bank, Limited, as Administrative Agent, and the
Banks named therein, as amended.
Joint Venture Sponsor Agreement dated as of December 28, 2000, among The
▇▇▇▇▇▇▇▇ Companies, Inc., as Sponsor and ▇▇▇▇▇▇▇▇ Field Services Company, in
favor of Prairie Wolf Investors, L.L.C., Arctic Fox Assets, L.L.C., ▇▇▇▇▇▇▇▇
Energy (Canada), Inc. and the other Indemnified Persons listed therein, as
amended.
Letter of Credit and Reimbursement Agreement dated as of May 15, 1994, among
Tulsa Parking Authority, The ▇▇▇▇▇▇▇▇ Companies, Inc., Bank of Oklahoma,
National Association, and Bank of America, N.A. (formerly NationsBank of Texas,
N.A.), relative to Tulsa Parking Authority First Mortgage Revenue Bonds, as
amended.
Master Agreement dated as of March 6, 2000, among The ▇▇▇▇▇▇▇▇ Companies, Inc.,
as Guarantor, ▇▇▇▇▇▇▇▇ TravelCenters, Inc. and certain other subsidiaries of
TWC, as Lessees, Atlantic Financial Group, Ltd., as Lessor, SunTrust Bank, as
Agent, Societe Generale, Southwest Agency, as Documentation Agent, and KBC Bank,
N.V., as Syndication Agent and the Lenders party thereto, as amended.
PPH Sponsor Agreement dated as of December 31, 2001, by The ▇▇▇▇▇▇▇▇ Companies,
Inc., as Sponsor, in favor of Piceance Production Holdings LLC, Plowshare
Investors LLC, and other Indemnified Persons listed in the agreement, as
amended. Notwithstanding anything herein to the contrary, for purposes of
Section 2.04(c) of this Agreement, the outstanding amount of this Progeny
Facility shall equal the outstanding Contributed Capital of the Class B
Preferred Member (each as defined in the PPH Company Agreement) plus the accrued
and unpaid Class B Priority Return (as defined in the PPH Company Agreement)
plus all other amounts then due and payable to the Class B Preferred Member.
Amended and Restated LLC Loan Agreement dated as of June 9, 2000 among
Millennium Energy Fund, L.L.C. and MEF Production Payment Trust, as amended, and
the Amended and Restated Notes Credit Agreement dated as of June 9, 2000 among
MEF Production Payment Trust as the Borrower, certain financial institutions
thereto, Credit Lyonnais as Syndication Agent, and Bank of Montreal, as Agent,
and the Transaction Documents (as defined therein) related thereto.
Outstanding letters of credit as of July 31, 2002 (as set forth on Schedule III)
to the extent they have not been fully cash collateralized.
All documents, instruments, agreements, certificates and notices at any time
executed and/or delivered in connection with any of the foregoing.
Schedule XII-2
SCHEDULE XIII
POST-CLOSING ITEMS
1. Consents. TWC shall use its best efforts to obtain those third
party consents that have been identified by TWC (pursuant to a written schedule
delivered in connection with the execution of this Agreement) as necessary in
connection with the execution, delivery, filing and performance of certain
Mortgages.
2. Legal Opinions. The Agent shall have received, with a counterpart
for each Issuing Bank, the executed legal opinions of local counsel to the
Agents in such states as requested by Agent which such legal opinions shall
cover such matters incident to the perfection of the Liens and the other
transactions contemplated by this Agreement as the Agent may reasonably require.
TO BE DELIVERED 30 DAYS AFTER THE REQUEST THEREFOR BY THE AGENT.
3. Actions to Perfect Liens. The Agent shall have received properly
completed and executed financing statements (or other similar documents),
including, without limitation, duly executed financing statements on form UCC-1,
necessary or, in the opinion of the Collateral Agent, desirable to perfect the
Liens created by the Security Documents, and the Collateral Agent shall be
reasonably satisfied that, other than filing such financing statements and other
similar documents and the Mortgages, no other filings, recordings, registrations
or other actions are necessary or, in the opinion of the Collateral Agent,
desirable to perfect the Liens created by the Security Documents. TO BE
COMPLETED 15 DAYS AFTER THE REQUEST THEREFOR BY THE AGENT.
4. Surveys. At the request of the Agent, the Agent shall have received
boundary line surveys of (i) the property leased by the Borrower and the
Midstream Subsidiaries located in the States of Alaska, Arkansas, Colorado, New
Mexico, Tennessee, and Wyoming, and (ii) the real property owned by Borrower and
the Midstream Subsidiaries located in the States of Alaska, Arkansas, Colorado,
New Mexico, Tennessee, and Wyoming, other than the Gathering Systems which
boundary line surveys shall in each case be (A) dated a date reasonably close to
the date of the Agreement (as determined by the Agent), (B) prepared by an
independent professional licensed land surveyor reasonably satisfactory to the
Agent, (C) prepared in a manner reasonably acceptable to the Agent and (D) shall
reflect that the buildings, structures and other improvements necessary for the
ownership and operation of the processing plants purported to be located on the
property surveyed do not protrude on any adjoining property nor do any
improvements located on land adjacent to the property surveyed encroach upon the
property surveyed, which encroachments or protrusions in either case could
reasonably be expected to adversely affect the ability of the Borrower or the
Midstream Subsidiaries to own, maintain, operate or sell the property surveyed
and/or the improvements located thereon. The Agent shall have received a
certificate of an authorized officer of the Borrower certifying said boundary
line surveys are true and correct as of the date of the Agreement. TO BE
COMPLETED 60 DAYS AFTER REQUEST BY THE AGENT THEREFOR.
Schedule XIII-1
5. Flood Insurance. If requested by the Agent, the Agent shall have
received a policy of flood insurance in form and substance satisfactory to the
Agent. TO BE COMPLETED 60 DAYS AFTER REQUEST BY THE AGENT THEREFOR.
6. Copies of Documents. If requested by the Agent, the Agent shall
have received a copy, certified by such parties as the Agent may deem
appropriate, of any document burdening the property covered by any Mortgage. TO
BE COMPLETED 30 DAYS AFTER REQUEST BY THE AGENT THEREFOR.
7. Lien Searches. The Agent shall have received the results of recent
lien searches by Persons reasonably satisfactory to the Agent, in each of the
jurisdictions and offices where assets of the Borrower or any of the Midstream
Subsidiaries are located or recorded, and such searches shall reveal no Liens on
any assets of the Borrower or any such Subsidiary, except for (i) Liens
permitted by the Agreement and (ii) Liens to be released or assigned to the
Agent, for the ratable benefit of the Banks, on the date of the Agreement in
connection with the execution, delivery and performance of the Credit Documents.
TO BE COMPLETED ON OR BEFORE NOVEMBER 15, 2002.
8. Insurance. The Agent shall have received (i) copies of, or an
insurance broker's or agent's certificate as to coverage under, the insurance
policies required by the Agreement and the applicable provisions of the Security
Documents, each of which policies shall be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement and to name
the Collateral Agent as additional insured, in form and substance satisfactory
to the Collateral Agent and (ii) confirmation from such insurance broker that
the scope and amount of coverage maintained by the Borrower and its Subsidiaries
are comparable to the scope and amount of the insurance maintained by other
companies of similar size in the same industry and general location. TO BE
COMPLETED ON OR BEFORE NOVEMBER 15, 2002.
9. Environmental Reports. If requested by the Agent, the Agent shall
have received environmental assessment reports from E.vironment, Inc. with
respect to processing, refining and other facilities and other parcels of real
property owned or leased by the Borrower and the Midstream Subsidiaries, and the
Issuing Banks shall be reasonably satisfied with the potential environmental
liabilities to which the Borrower and its Subsidiaries may be subject based on
such reports. TO BE COMPLETED 60 DAYS AFTER REQUEST THEREFOR BY THE AGENT.
10. Title Vested in Borrower. The Agent and the Issuing Banks shall be
reasonably satisfied that all filings and other actions required to be taken or
made in order to vest title to all of the Properties of the Borrower and the
Midstream Subsidiaries shall have been taken or made and are in full force and
effect. TO BE COMPLETED 60 DAYS AFTER REQUEST THEREFOR BY THE AGENT.
11. Mortgages. The Borrowers shall deliver to the Collateral Agent,
within fifteen Business Days of the delivery of any Mortgage to the Borrower
(or, with respect to Mortgages to be filed in Kansas, as promptly as possible
using its best efforts), evidence of such
Schedule XIII-2
recordings and filings as may be necessary, in the opinion of the Collateral
Agent, to perfect the Liens created by such Mortgage. Upon the request of
Collateral Agent, the Borrower shall provide all assistance as may be necessary
in connection with the preparation of the Mortgages.
12. Consents to the Pledging of Excluded Equity Interest. TWC shall
use its best efforts to obtain all third party consents necessary to pledge the
Excluded Equity Interests in (other than the Equity Interest in the Restricted
Midstream Subsidiaries and the Equity Interest of MLP held by NewGP) pursuant to
the Pledge Agreement. TO BE REQUESTED WITHIN 30 DAYS AFTER THE DATE OF THIS
AGREEMENT AND TO BE PURSUED DILIGENTLY THEREAFTER.
13. Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be satisfactory in form and substance to the Agent, and the Agent shall have
received such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
14. Additional Legal Opinions. The Agent shall have received, with a
counterpart for each Issuing Bank, executed legal opinions which confirm that
the Mortgages and deeds of trust filed with respect to the Collateral shall
continue to constitute valid, enforceable, and duly recorded liens on the real
property following the amendment and restatement of the Existing Credit
Agreement and of the L/C Agreement, securing the obligations of such agreements
as amended. To the extent that any supplemental deed of trust or mortgage
filings are required in connection with the above described legal opinions, the
Agent shall have received evidence of such recordings and filings as may be
necessary, in the opinion of the Collateral Agent, to ensure the continued
perfection of the Liens created by any such Mortgage. IN EACH CASE, TO BE
COMPLETED 30 DAYS AFTER THE DATE OF THIS AGREEMENT.
15. Approvals of and Consents to Assignments. In connection with the
termination of (a) the Amended and Restated Guarantee, dated as of July 25,
2000, issued by TWC for the benefit of The Commonwealth Plan, Inc. and CBL
Capital Corporation, as amended, (b) the Lease Agreement, dated as of December
29, 1995, between The Commonwealth Plan, Inc., as Lessor, and WFS - Pipeline
Company, as Lessee, and (c) the Lease Agreement, dated as of December 29, 1995,
between CBL Capital Corporation, as Lessor, and WFS - Offshore Gathering
Company, as Lessee, TWC and either WFS - Offshore Gathering Company or WFS -
Pipeline Company, as applicable, shall use their best efforts to obtain (i) the
approval of the United States Department of the Interior, Minerals Management
Service to the assignment of certain easements to WFS - Offshore Gathering
Company by CBL Capital Corporation and (ii) the consents of third parties
necessary to the assignments of any leases and/or easements by CBL Capital
Corporation to WFS - Offshore Gathering Company or by The Commonwealth Plan,
Inc. to WFS - Pipeline Company. TO BE COMPLETED ONE YEAR AFTER THE DATE OF THIS
AGREEMENT.
Schedule XIII-3
SCHEDULE XIV
MIDSTREAM SUBSIDIARIES
Delaware
▇▇▇▇▇▇▇▇ Energy Services, LLC
▇▇▇▇▇▇▇▇ Natural Gas Liquids, Inc.
▇▇▇▇▇▇▇▇ Midstream Natural Gas Liquids, Inc.
▇▇▇▇▇▇▇▇ Express, Inc. (a Delaware corporation)
▇▇▇▇▇▇▇▇ Field Services Group, Inc.
▇▇▇▇▇▇▇▇ Alaska Pipeline Company, L.L.C.
▇▇▇▇▇▇▇▇ Bio-Energy, L.L.C.
▇▇▇▇▇▇▇▇ Merchant Services Company, Inc.
MAPCO Inc.
WFS Enterprises, Inc.
WFS-Liquids Company
▇▇▇▇▇▇▇▇ Field Services Company
▇▇▇▇▇▇▇▇ Gas Processing Company
▇▇▇▇▇▇▇▇ Gas Processing - Wamsutter Company
North Padre Island Spindown, Inc.
▇▇▇▇▇▇▇▇ Ethanol Services, Inc.
▇▇▇▇▇▇▇▇ Energy Marketing & Trading Company
Worthington Generation, L.L.C.
Memphis Generation, L.L.C.
Gas Supply, L.L.C.
▇▇▇▇▇▇▇▇ Generation Company - Hazelton
Juarez Pipeline Company
MAPL Investments, Inc.
Williams Refining & Marketing, L.L.C.
Williams Memphis Terminal, Inc.
Williams Mid-South Pipelines, L.L.C.
Williams Olefins, L.L.C.
Williams Olefins Feedstock Pipelines, L.L.C.
Williams Generating Memphis, LLC
WFS - NGL Pipeline Company Inc.
WFS - Offshore Gathering Company
Baton Rouge Fractionators, L.L.C.
Tri-States NGL Pipeline, L.L.C.
WILPRISE Pipeline Company, L.L.C.
Williams Gulf Coast Gathering Company, LLC
WFS Gathering Company L.L.C.
Williams Field Services - Matagorda Offshore Company, LLC
Williams Gas Processing - Mid-Continent Region Company
WFS - OCS Gathering Co.
Schedule XIV-1
WFS - Pipeline Company
HI-BOL Pipeline Company
Goebel Gathering Company, L.L.C.
Williams Petroleum Pipeline Systems, Inc.
Williams GP LLC**
Williams Oil Gathering, L.L.C
Williams Field Services - Gulf Coast Company, L.P.
Gulf Liquids Holdings, L.L.C.*
Gulf Liquids New River Project, LLC*
Williams Petroleum Services, L.L.C.
Longhorn Enterprises of Texas, Inc.
E-Birchtree, LLC
Alaska
Williams Express, Inc. (an Alaska corporation)
Williams Alaska Petroleum, Inc.
Williams Alaska Air Cargo Properties, L.L.C.
Williams Lynxs Alaska CargoPort, L.L.C.
Texas
Black Marlin Pipeline Company
Rio Grande Pipeline Company
Kansas
Nebraska Energy, L.L.C
--------
* These entities shall be Midstream Subsidiaries to the extent that such
entities are Subsidiaries.
** Williams GP LLC shall not be deemed a Midstream Subsidiary until Williams
GP LLC has transferred the general partnership interests and incentive
distribution rights in MLP to NewGP.
Schedule XIV-2
EXHIBIT A-1
A PROMISSORY NOTE
U.S. $______________________ July 25, 2000
FOR VALUE RECEIVED, the undersigned,__________________________, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
___________________________ (the "Bank"), for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below), on the
Stated Termination Date (as defined in the Credit Agreement referred to below),
the principal amount of $_________, or, if less, the aggregate principal amount
of the A Advances (as defined in the Credit Agreement referred to below) owed to
the Bank by the Borrower on such Stated Termination Date.
The Borrower promises to pay interest on the unpaid principal amount hereof
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement referred to below. Both
principal and interest are payable in lawful money of the United States of
America to Citibank, N.A., as Agent, at 399 Park Avenue, New York, New York
10043, in same day funds.
This A Promissory Note is one of the A Notes referred to in, and is subject
to and entitled to the benefits of the Credit Agreement, dated as of July 25,
2000 (as amended or otherwise modified from time to time, the "Credit
Agreement"), by and among the Borrower, the Bank, certain other borrowers party
thereto, certain other financial institutions parties thereto, 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 for the Bank
and such other financial institutions. The Credit Agreement, among other things,
(i) provides for the making of advances to the Borrower from time to time
pursuant to Section 2.01 of the Credit Agreement in an aggregate outstanding
amount not to exceed at any time the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such advance owed to the
Bank being evidenced by this A Promissory Note and (ii) contains provisions for
the acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified. Capitalized
terms used herein which are not defined herein and are defined in the Credit
Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of intent
to accelerate, notice of acceleration and any other notice of any kind, except
as provided in the Credit Agreement. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
This A Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
Exhibit A-1-1
[BORROWER NAME]
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Exhibit A-1-2
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Principal Unpaid
Amount Of Paid or Principal Notation
Date Advance Prepaid Balance Made By
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Exhibit A-1-3
EXHIBIT A-2
B PROMISSORY NOTE
U.S. $______________________ Dated: ______________, ________
FOR VALUE RECEIVED, the undersigned, ________________________, a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_____________________ (the "Bank"), for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on _____________,
the principal amount of _____________ U.S. Dollars ($__________________).
The Borrower promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: ______% per annum (calculated on the basis
of a year of _____ days for the actual number of days elapsed).
Interest Payment
Date or Dates: ______________________
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, for the account of the Bank at
the office of Citibank, N.A., at 399 Park Avenue, New York, New York 10043, in
same day funds.
This B Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of the Credit Agreement, dated as of July 25, 2000 (as
amended or otherwise modified from time to time, the "Credit Agreement"), by and
among the Borrower, the Bank, certain other borrowers party thereto, certain
other financial institutions parties thereto, 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 for the Bank and such other
financial institutions. The Credit Agreement contains, among other things,
provisions for acceleration of the maturity hereof upon the happening of certain
stated events. Capitalized terms used herein which are not defined herein and
are defined in the Credit Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of intent
to accelerate, notice of acceleration and any other notice of any kind, except
as provided in the Credit Agreement. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
Exhibit A-2-1
This B Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[BORROWER]
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
Exhibit A-2-2
EXHIBIT B-1
NOTICE OF A BORROWING
[Date]
Citicorp USA, Inc., as Agent
for the Banks parties to the Credit
Agreement referred to below
399 Park Avenue
New York, New York 10043
ATTENTION: The Williams Companies, Inc. Account Officer
Ladies and Gentlemen:
The undersigned, ____________________ (the "Borrower"), (a) refers to
the Credit Agreement, dated as of July 25, 2000 (as amended or otherwise
modified from time to time, the "Credit Agreement"; the terms defined therein
and not defined herein being used herein as therein defined), by and among the
undersigned, certain other borrowers parties thereto, certain Banks parties
thereto, JPMorgan Chase Bank and Commerzbank AG, as Co-Syndication Agents,
Credit Lyonnais New York Branch, as Documentation Agent and Citicorp USA, Inc.,
as Agent for such Banks; (b) hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests an A
Borrowing under the Credit Agreement and (c) in that connection sets forth below
the information relating to such A Borrowing (the "Proposed A Borrowing") as
required by Section 2.02 (a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is __________,
19____.
(ii) The Type of A Advances comprising the Proposed A Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$__________________.
(iv) [The Interest Period for each A Advance made as part of the
Proposed A Borrowing is __________ months.]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed A Borrowing:
(a) the representations and warranties contained in Section 4.01
of the Credit Agreement as to the Borrower and its
Subsidiaries are correct on and as of the date of the Proposed
A Borrowing, before and after giving effect to the Proposed A
Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) no event has occurred and is continuing, or would result from
the Proposed A Borrowing or from the application of the
proceeds therefrom, which constitutes an
Exhibit B-1 - 1
Event of Default or which would constitute an Event of Default
but for the requirement that notice be given or time elapse or
both;
(c) [the senior unsecured debt of the Borrower is rated __________
by S&P and __________ by Moody's; and]
(d) after giving effect to the Proposed A Borrowing and all other
Borrowings which have been requested on or prior to the date
of the Proposed A Borrowing but which have not been made prior
to such date, the aggregate principal amount of all Advances
will not exceed the aggregate of the Commitments of the Banks
to the Borrower (computed without regard to any B Reduction).
Very truly yours,
[BORROWER]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
cc: Citicorp North America, Inc.
1200 Smith Street, Suite 2000
Houston, Texas 77002
Attn: The Williams Companies, Inc.
Account Officer
Exhibit B-I - 2
EXHIBIT B-2
NOTICE OF B BORROWING
[Date]
Citicorp USA, Inc., as Agent
for the Banks parties to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
ATTENTION: Bilal Aman
Ladies and Gentlemen:
The undersigned, ______________________ (the "Borrower"), (a) refers to
the Credit Agreement, dated as of July 25, 2000 (as amended or otherwise
modified from time to time, the "Credit Agreement"; the terms defined therein
and not defined herein being used herein as therein defined), by and among the
undersigned, certain other borrowers parties thereto, certain Banks parties
thereto, JPMorgan Chase Bank and Commerzbank AG, as Co-Syndication Agents,
Credit Lyonnais New York Branch, as Documentation Agent and Citicorp USA, Inc.,
as Agent for such Banks; (b) hereby gives you notice, irrevocably, pursuant to
Section 2.16 of the Credit Agreement that the undersigned hereby requests a B
Borrowing under the Credit Agreement and (c) in that connection sets forth the
terms on which such B Borrowing (the "Proposed B Borrowing") is requested to be
made:
(A) Date of B Borrowing _________________________________
(B) Amount of B Borrowing _______________________________
(C) Maturity Date _______________________________________
(D) Interest Rate Basis _________________________________
(E) Interest Payment Date(s) ____________________________
(F) Prepayment Permitted [Yes/No] [Conditions]
(G) _____________________ _________________
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed B Borrowing:
(e) the representations and warranties contained in Section 4.01
of the Credit Agreement as to the Borrower and its
Subsidiaries are correct on and as of the date of the Proposed
B Borrowing, before and after giving effect to the Proposed B
Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(f) no event has occurred and is continuing, or would result from
the Proposed B Borrowing or from the application of the
proceeds therefrom, which constitutes an
Exhibit B-2 - 1
Event of Default or which would constitute an Event of Default
but for the requirement that notice be given or time elapse or
both;
(g) following the making of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Credit
Agreement, the aggregate principal amount of all Advances of
the Banks to the Borrower then outstanding will not exceed the
aggregate amount of the Commitments of the Banks to the
Borrower (computed without regard to any B Reduction); and
(h) after giving effect to the Proposed B Borrowing and all other
Borrowings which have been requested on or prior to the date
of the Proposed B Borrowing but which have not been made prior
to such date, the aggregate principal amount of all Advances
will not exceed the aggregate of the Commitments of the Banks
(computed without regard to any B Reduction).
The undersigned hereby confirms that the Proposed B Borrowing is to be
made available to it in accordance with Section 2.16(a)(v) of the Credit
Agreement.
Very truly yours,
[BORROWER NAME]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
cc: Citicorp North America, Inc.
1200 Smith Street, Suite 2000
Houston, Texas 77002
Attn: The Williams Companies, Inc.
Account Officer
Exhibit B-2 - 2
EXHIBIT C
OPINION OF WILLIAM G. VON GLAHN
Exhibit C - 1
EXHIBIT D-1
OPINION OF NEW YORK COUNSEL
(ENFORCEABILITY)
Exhibit D - 1
EXHIBIT D-2
OPINION OF NEW YORK COUNSEL
(PERFECTION)
Exhibit D - 2
EXHIBIT E
INVESTMENTS DESCRIBED IN
PARAGRAPH 5.02(E) OF THE CREDIT AGREEMENT
Loan Agreement dated as of September 8, 1999 between Williams Communications,
Inc., as Borrower, and TWC, as Lender, filed as Exhibit 10.57 to WCG's Form
10-K/A for the fiscal year ended December 31, 1999.
Various immaterial intercompany receivables between TWC or its Subsidiaries and
the WCG Subsidiaries for services rendered, which are settled on a reasonably
prompt basis. Services are rendered to the WCG Subsidiaries by TWC or its
Subsidiaries pursuant to certain intercompany services agreements, all of which
are filed as exhibits to WCG's Form 10-K/A for the fiscal year ended December
31, 1999.
As of July 25, 2000, TWC's investment in WCG consists of 395,434,965 shares of
Class B common stock.
Exhibit E
EXHIBIT F
TRANSFER AGREEMENT
This Transfer Agreement, dated as of_____________________ (this
"Agreement"), is made by and among The Williams Companies, Inc., a Delaware
corporation ("TWC"), Northwest Pipeline Corporation ("NWP"), Transcontinental
Gas Pipe Line Corporation ("TGPL") and Texas Gas Transmission Corporation
("TGT"), each a Delaware corporation (TWC, NWP, TGPL and TGT being each a
"Borrower" and collectively, the "Borrowers"); Citibank, N.A., as Agent for the
banks party to the Credit Agreement, dated as of July 25, 2000 (as such may be
amended from time to time, the "Credit Agreement"), by and among the Borrowers,
such Agent and such banks; ____________________________ ("Assignor"); and
___________________ ("Assignee"). In consideration of the mutual covenants
herein contained, the parties hereto agree as set forth herein.
1. Transfer. Pursuant to the last sentence of Section 8.06(a) of the
Credit Agreement, Assignor hereby assigns to Assignee (without representation or
warranty to Assignee and without Assignee having recourse against Assignor as a
result of such assignment), and Assignee hereby assumes, a constant ____% of
each of the Assignor's Commitments (such term used throughout this Agreement
without giving effect to any B Reduction) to each of the Borrowers under the
Credit Agreement, such assignment from Assignor to Assignee being [all of
Assignor's Commitments to the Borrower] [(a) $______________ of Assignor's
$____________ Commitment to TWC; (b) $________ of Assignor's $____________
Commitment to NWP; (c) $_________________ of Assignor's $_____________
Commitment to TGPL; and (d) $_________________ of Assignor's $_______________
Commitment to TGT] (the amount of such Commitment to the Borrower so assigned is
called the "Assigned Portion" of such Commitment). [The Assignee is already a
Bank under the Credit Agreement with a Commitment of $__________, $__________,
$___________, $___________, $__________, $___________ and $_________ to TWC,
NWP, TGPL and TGT, respectively, prior to the assumption contemplated hereby.]
[The Assignee is hereby approved by the Agent [and the Borrowers] for purposes
of the assignment and assumption contemplated hereby.] As contemplated by such
Section 8.06, it is hereby agreed that:
(i) the Assignor is hereby released from all of its obligations
under the Credit Agreement with respect to or arising as a
result of the Assigned Portions of its Commitment assigned
hereby;
(ii) the Assignee hereby becomes obligated for the Assigned
Portions of such Commitment and all other obligations of the
Assignor (including, without limitation, obligations to the
Agent under Section 7.05 of the Credit Agreement or otherwise)
under the Credit Agreement with respect to or arising as a
result of the Assigned Portions of such Commitments;
(iii) the Assignee is hereby assigned the right to vote or consent
under the Credit Agreement and the other rights and
obligations of the Assignor under the Credit Agreement, in
each case to the extent of the Assigned Portions of such
Commitment;
Exhibit F
(iv) TWC, if requested or required to do so pursuant to Section
2.09 of the Credit Agreement, contemporaneously with its
execution and delivery hereof, will deliver, in replacement of
the A Note of the Assignor currently outstanding [(and in
replacement of Assignee's existing $______________ A Note)]
(a) to the Assignee, a new A Note in the amount of
$______________ [(and the Assignee agrees to mark "Exchanged"
and return to TWC, with reasonable promptness following such
delivery, any A Note of the Assignee being replaced thereby)],
(b) to the Assignor, a new A Note in the amount of
$______________ (and the Assignor agrees to return to TWC,
with reasonable promptness following delivery of such new A
Note, any A Note of the Assignor being replaced thereby,
marked "Exchanged"), and (c) to the Agent, photocopies of all
such new A Notes and of all such replaced A Notes;
(v) NWP, if requested or required to do so pursuant to Section
2.09 of the Credit Agreement, contemporaneously with its
execution and delivery hereof, will deliver, in replacement of
the A Note of the Assignor currently outstanding [(and in
replacement of Assignee's existing $___________ A Note)] (a)
to the Assignee, a new A Note in the amount of
$________________ [(and the Assignee agrees to mark
"Exchanged" and return to TWC, with reasonable promptness
following such delivery, any A Note of the Assignee being
replaced thereby)], (b) to the Assignor, a new A Note in the
amount of $___________ (and the Assignor agrees to return to
TWC, with reasonable promptness following delivery of such new
A Note, any A Note of the Assignor being replaced thereby,
marked "Exchanged"), and (c) to the Agent, photocopies of all
such new A Notes and of all such replaced A Notes;
(vi) TGPL, if requested or required to do so pursuant to Section
2.09 of the Credit Agreement, contemporaneously with its
execution and delivery hereof, will deliver, in replacement of
the A Note of the Assignor currently outstanding [(and in
replacement of Assignee's existing $________________ A Note)]
(a) to the Assignee, a new A Note in the amount of
$______________ [(and the Assignee agrees to mark "Exchanged"
and return to TGPL, with reasonable promptness following such
delivery, any A Note of the Assignee being replaced thereby)],
(b) to the Assignor, a new A Note in the amount of
$_____________ (and the Assignor agrees to return to TGPL,
with reasonable promptness following delivery of such new A
Note, any A Note of the Assignor being replaced thereby,
marked "Exchanged"), and (c) to the Agent, photocopies of all
such new A Notes and of all such replaced A Notes;
(vii) TGT, if requested or required to do so pursuant to Section
2.09 of the Credit Agreement, contemporaneously with its
execution and delivery hereof, will deliver, in replacement of
the A Note of the Assignor currently outstanding [(and in
replacement of Assignee's existing $_____________ A Note)] (a)
to the Assignee, a new A Note in the amount of $______________
[(and the Assignee agrees to mark "Exchanged" and return to
TGT, with reasonable promptness following such delivery, any A
Note of the Assignee being replaced thereby)], (b) to the
Assignor, a new A Note in the amount of $_____________ (and
the
Exhibit F
Assignor agrees to return to TGT, with reasonable promptness
following delivery of such new A Note, any A Note of the
Assignor being replaced thereby, marked "Exchanged"), and (c)
to the Agent, photocopies of all such new A Notes and of all
such replaced A Notes;
(viii) [inasmuch as there are currently no outstanding A Advances, no
transfer of A Advances is hereby made];
(ix) [$__________, $__________, $___________, $___________ of the
Assignor's outstanding A Advances to TWC, NWP, TGPL and TGT,
respectively, are hereby transferred to the Assignee, which
amounts represent [the aggregate amount of all of the
Assignor's outstanding A Advances to TWC, NWP, TGPL and TGT,
respectively,] [the amount of the assigned portions of the
outstanding A Advances of the Assignor to the Borrower being
hereby assigned to Assignee a portion of each such A Advance
with the assigned portion of each such A Advance being equal
to the amount of such A Advance multiplied by a fraction, the
numerator of which is the amount of the Assignor's Commitments
assumed hereby by the Assignee and the denominator of which is
the amount of the Assignor's Commitments (without giving
effect to any B Reduction) immediately prior to such
assumption]; [and)
(x) the Assignee hereby confirms that it is a party to the Credit
Agreement as a Bank and agrees that after giving effect to
this Agreement its Commitments will be $____________,
$____________, $_____________, $___________ to TWC, NWP, TGPL
and TGT, respectively; [and]
(xi) the Assignee hereby specifies the following offices as its
Applicable Lending Offices under the Credit Agreement:
Domestic Eurodollar
Lending Office Lending Office
-------------- --------------
Attention: Attention:
--------------------- ---------------
Telephone: Telephone:
--------------------- ---------------
Telecopy: Telecopy:
--------------------- ---------------
Answerback: Answerback:
--------------------- ---------------
Exhibit F
(xii) [the Assignee hereby specifies the following as its address
for notices and communications under the Credit Agreement:
[Assignee]
Attention: _____________________
Telephone: _____________________
Telecopy: _____________________
Answerback: _____________________
2. Miscellaneous.
2.1 Amendments, Etc. This Agreement shall not be amended,
waived or otherwise modified except in writing executed by the parties hereto.
2.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
2.3 Definitions. Capitalized terms used herein which are
defined in the Credit Agreement and not defined herein are used herein as
defined in the Credit Agreement.
2.4 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.
2.5 Effective Date. This Agreement shall be effective as of
the date first above written for purposes of computation of commitment fees
under the Credit Agreement and for all other relevant purposes.
2.6 Assignee Credit Decision. The Assignee acknowledges that
it has, independently and without reliance upon the Agent or any other Bank and
based on such financial statements and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. The Assignee also acknowledges that it will, independently
and without reliance upon the Agent or any other Bank 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 any Note, the
Credit Agreement or this Agreement.
2.7 Indemnity. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including
without limitation reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
performance or non-performance of obligations assumed by Assignee under this
Agreement.
Exhibit F
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
[NAME OF ASSIGNEE] THE WILLIAMS COMPANIES, INC.
By: By:
------------------------------- -----------------------------------
Name: Name:
------------------------------- -----------------------------------
Title: Title:
------------------------------ -----------------------------------
[NAME OF ASSIGNOR] NORTHWEST PIPELINE CORPORATION
By: By:
------------------------------- -----------------------------------
Name: Name:
------------------------------- -----------------------------------
Title: Title:
------------------------------ -----------------------------------
CITICORP USA, INC., AS AGENT TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By: By:
------------------------------- -----------------------------------
Name: Name:
------------------------------- -----------------------------------
Title: Title:
------------------------------ -----------------------------------
TEXAS GAS TRANSMISSION CORPORATION
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Exhibit F
EXHIBIT G
SECURITY AGREEMENT
Exhibit G
EXHIBIT H
LLC GUARANTY AGREEMENT
Exhibit H
EXHIBIT I
MIDSTREAM GUARANTY
Exhibit I
EXHIBIT J
PLEDGE AGREEMENT
Exhibit J
EXHIBIT K
HOLDINGS GUARANTY
Exhibit K
EXHIBIT L
LC SECURITY AGREEMENT
Exhibit L
EXHIBIT M
EXISTING LOANS AND INVESTMENTS IN WCG SUBSIDIARIES
TWC CONTINUING CONTRACTS TO WHICH WCG IS A PARTY
AGREEMENT DATE PARTIES
--------- ---- -------
----------------------------------------------------------------------------------------------------------------------
Amended and Restated Administrative Services Agreement
but excluding all Service Level Agreements included
therein other than those listed below
-------------------------------------------------------
Amended and Restated Administrative Services
Agreement - Cafeteria Card (SLA No. ASF-11)
-------------------------------------------------------
Amended and Restated Administrative Services
Agreement - Catering Services (SLA No. ASF-3)
-------------------------------------------------------
Amended and Restated Administrative Services 23-Apr-01 TWC and WCG
Agreement - Data Center Floor Space (SLA No. IT-23)
-------------------------------------------------------
Amended and Restated Administrative Services
Agreement - Security System Administration
(SLA No. ASR-2)
-------------------------------------------------------
Amended and Restated Administrative Services
Agreement - Telecommunications Support (PBX)
(SLA No. IT-19)
-------------------------------------------------------
Amended and Restated Administrative Services
Agreement - Warren Clinic (SLA No. HR-17)
-------------------------------------------------------
Amended and Restated Administrative Services
Agreement - Records Management (Revised)
(SLA No. ASF-9)
----------------------------------------------------------------------------------------------------------------------
Amended and Restated Confidentiality and 1-Feb-02 TWC and WCG
Nondisclosure Agreement
----------------------------------------------------------------------------------------------------------------------
Amended and Restated Cross-License Agreement 23-Apr-01 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
Amended and Restated Employee Benefits Agreement 23-Apr-01 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
Amended and Restated Separation Agreement 23-Apr-01 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
Amendment of State of Oklahoma OIC Agreement 23-Apr-01 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
ITWill Assignment and Assumption Agreement 23-Apr-01 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
Mutual Waiver, dated April 23, 2001 23-Apr-01 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
Professional Services Agreement 23-Apr-01 TWC, WCG, The Feinberg Group, LLP
----------------------------------------------------------------------------------------------------------------------
Relocation Services Agreement 2-Jan-02 Williams Relocation Management, Inc.
(a TWC subsidiary) and WCG
----------------------------------------------------------------------------------------------------------------------
Restructuring Support Agreement 23-Feb-02 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
Shareholder Agreement 23-Apr-01 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
Trademark License Agreement 23-Apr-01 TWC and WCG
----------------------------------------------------------------------------------------------------------------------
Guaranty Indemnification 26-Jul-02 TWC and WCG Agreement
----------------------------------------------------------------------------------------------------------------------
Reaffirmation and Cancellation Agreement 15-Oct-02 TWC and WCG and its Subsidiaries
All agreements and exhibits related to or incorporated by the foregoing that
were entered into to implement the transactions contemplated thereby, e.g.
Assignment and Assumption Agreements, Bills of Sale.
Exhibit M
TWC CONTINUING CONTRACTS TO WHICH WCG IS NOT A PARTY
AGREEMENT DATE PARTIES
--------- ---- -------
----------------------------------------------------------------------------------------------------------------------
Agreement Of Purchase And Sale And Construction 26-Feb-01 (as amended Williams Headquarters Building Company
Completion 13-Mar-01, and WCL
13-April-01,
13-Sep-01, 30-Apr-02
----------------------------------------------------------------------------------------------------------------------
Agreement To Terminate Aircraft Dry Lease - N352WC 27-Mar-02 Williams Aircraft Leasing, LLC (a TWC
subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Aircraft Dry Lease - N358WC 13-Sep-01 Williams Communications Aircraft, LLC
(a TWC subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Aircraft Dry Lease - N359WC 13-Sep-01 Williams Communications Aircraft, LLC
(a TWC subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Bank of Oklahoma Tower Use Agreement 23-Apr-01 Williams Headquarters Building Company
and WCL
----------------------------------------------------------------------------------------------------------------------
Central Plant Lease Agreement 23-Apr-01 (as amended Williams Headquarters Building Company
13-Sep-01) and Williams Technology Center, LLC (a
WCL subsidiary)
----------------------------------------------------------------------------------------------------------------------
Construction, Operating and Maintenance Agreement 1-Jan-97 (as amended Transcontinental Gas Pipe Line
19-Feb-99) Corporation (a TWC subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Consulting Services Agreement 29-Oct-01 Williams Pipe Line Company (a TWC
subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Co-Occupancy Agreement 18-Feb-99 Northwest Pipeline Corporation (a TWC
subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Co-Occupancy Agreement 22-Feb-99 Williams Gas Pipelines Central, Inc.
(a TWC subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Co-Occupancy Agreement 1-May-00 Williams Pipe Line Company (a TWC
subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Co-Occupancy Agreement 5-Mar-99 (as amended Mid-America Pipeline Company (a TWC
23-Apr-01) subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Co-Occupancy Agreement 5-Mar-99 (as amended Williams Field Services Company (a TWC
23-Apr-01) subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Dark Fiber IRU Agreement 26-Feb-01 Transcontinental Gas Pipe Line
Corporation (a TWC Subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Fairfax Terminal Station Site Lease 26-Aug-96 Williams Pipe Line Company (a TWC
subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
First Amendment to Level 3 Sublease Agreement 1-Jan-99 (as amended TWC and WCL
31-Dec-00 and assigned
23-Apr-01)
----------------------------------------------------------------------------------------------------------------------
Exhibit M
AGREEMENT DATE PARTIES
--------- ---- -------
----------------------------------------------------------------------------------------------------------------------
Lease Agreement 1-Jan-97 Williams Natural Gas Company (a TWC
subsidiary now known as Williams Gas
Pipelines Central, Inc.) and WCL
----------------------------------------------------------------------------------------------------------------------
Lease Agreement 1-Sep-95 Transcontinental Gas Pipe Line
Corporation (a TWC subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Lease Agreement 1-Mar-97 Texas Gas Transmission Corporation and
WCL
----------------------------------------------------------------------------------------------------------------------
Management Services Agreement 23-Apr-01 (as amended Williams Headquarters Building Company
13-Sep-01) and Williams Technology Center, LLC (a
WCL subsidiary)
----------------------------------------------------------------------------------------------------------------------
Master Agreement 23-Feb-99 (as amended Williams Pipe Line Company (a TWC
23-Apr-01) subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Nondisclosure Agreement 29-Oct-01 TWC and WCL
----------------------------------------------------------------------------------------------------------------------
Northwest Plaza Level Amended and Restated Lease 1-Jan-99 (as amended Original Amended and Restated Lease
Agreement 31-Dec-00) Agreement between Williams
Headquarters Building Company,
Landlord, and WCL, Tenant; amendment
between TWC, Sublessor, and WCG,
Sublessee
----------------------------------------------------------------------------------------------------------------------
Operation, Maintenance and Repair Agreement 19-Feb-99 (as amended Mid-America Pipeline Company,
31-Aug-99) Northwest Pipeline Corporation, Texas
Gas Transmission Corporation,
Transcontinental Gas Pipe Line
Corporation, Williams Field Services
Company, Williams Gas Pipelines
Central, Inc. and Williams Pipe Line
Company and WCL
----------------------------------------------------------------------------------------------------------------------
Partial Assignment and Assumption Agreement 26-Feb-01 Williams Headquarters Building Company
and Williams Technology Center, LLC (a
WCL subsidiary)
----------------------------------------------------------------------------------------------------------------------
Sale Agreement 14-Feb-97 Williams Pipe Line Company (a TWC
subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Southwest Plaza Level Amended and Restated Lease 1-Jan-99 Williams Headquarters Building Company
Agreement and WCL
----------------------------------------------------------------------------------------------------------------------
Sublease Agreement 1-May-00 Williams Pipe Line Company (a TWC
subsidiary) and WCG; WCG assigned its
rights to WCL on 2-Apr-02
----------------------------------------------------------------------------------------------------------------------
Technical Services Agreement 1998 Spectrum Network Systems Limited (now
known as PowerTel Limited, a 45% WCG
subsidiary) and Williams International
Services Company (a TWC subsidiary)
----------------------------------------------------------------------------------------------------------------------
Teleport Services Agreement 9-Oct-01 Williams Energy Marketing & Trading
co. (a TWC subsidiary and WCL
----------------------------------------------------------------------------------------------------------------------
The Depot Amended and Restated Lease Agreement 1-Jan-99 (as amended Williams Headquarters Building Company
31-Dec-00 and assigned and WCL
23-Apr-01)
----------------------------------------------------------------------------------------------------------------------
TWC Corporate Guarantee 23-Apr-01 TWC guaranteed a TWC subsidiary in
favor of a WCL subsidiary
----------------------------------------------------------------------------------------------------------------------
TWC Corporate Guarantee 23-Apr-01 TWC guaranteed a TWC subsidiary in
favor of a WCL subsidiary
----------------------------------------------------------------------------------------------------------------------
Exhibit M
AGREEMENT DATE PARTIES
--------- ---- -------
----------------------------------------------------------------------------------------------------------------------
TWC Guaranty 23-Apr-01 TWC guaranteed a TWC subsidiary in
favor of a WCL subsidiary
----------------------------------------------------------------------------------------------------------------------
User Agreement for Pipe 5-Mar-99 (as amended Williams Pipe Line Company (a TWC
23-Apr-01) subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Utility Service Agreement 23-Apr-01 (as amended Williams Headquarters Building Company
13-Sep-01) and Williams Technology Center, LLC (a
WCL subsidiary)
----------------------------------------------------------------------------------------------------------------------
Web Hosting and Streaming Services Agreement 2-Oct-00 Williams Energy Services, Inc. (a TWC
subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Weld County Sublease Agreement 19-Apr-96 Williams Natural Gas Company (a TWC
subsidiary) and WCL
----------------------------------------------------------------------------------------------------------------------
Declaration of Reciprocal Easements (as amended) 15-Oct-02 Williams Headquarters Building Company
and Williams Technology Center, LLC
----------------------------------------------------------------------------------------------------------------------
Membership Unit Purchase Agreement 15-Oct-02 Williams Aircraft, Inc. and Williams
Communications, LLC
----------------------------------------------------------------------------------------------------------------------
Real Estate Purchase Agreement 15-Jul-02 Williams Headquarters Building
Company, Williams Technology Center,
LLC, Williams Communications, LLC,
Williams Communications Group, Inc.
and Williams Aircraft Leasing, LLC
----------------------------------------------------------------------------------------------------------------------
All agreement and exhibits related to or incorporated by the foregoing that were
entered into to implement the transactions contemplated thereby, e.g. Assignment
and Assumption Agreements, Bills of Sale.
Exhibit M
