EXHIBIT 10.4
EXECUTION COPY
THE XXXXXXXX COMPANIES, INC.
MULTIYEAR CREDIT AGREEMENT
CONSENT AND WAIVER
DATED AS OF JANUARY 22, 2003
This CONSENT AND WAIVER, dated as of January 22, 2003, under
(a) the First Amended and Restated Credit Agreement dated October 31, 2002 (the
"Credit Agreement"), among The Xxxxxxxx Companies, Inc., a Delaware corporation
("TWC"), Northwest Pipeline Corporation, a Delaware corporation ("NWP"),
Transcontinental Gas Pipe Line Corporation, a Delaware corporation ("TGPL"), and
Texas Gas Transmission Corporation, a Delaware corporation ("TGT"); TWC, NWP,
TGPL and TGT each a "Borrower" and collectively, the "Borrowers"), the financial
institutions and other Persons from time to time party thereto (the "Banks"),
JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank) and Commerzbank AG, as
Co-Syndication Agents, Credit Lyonnais New York Branch, as Documentation Agent,
and Citicorp USA, Inc., as agent (the Agent") and (b) the Collateral Trust
Agreement, dated as of July 31, 2002, among TWC and certain of its Subsidiaries
in favor of Citibank, N.A., as collateral trustee (the "Collateral Trustee") for
the benefit of the holders of the Secured Obligations (as defined therein), as
amended by that First Amendment to Collateral Trust Agreement dated October 31,
2002 (such agreement, as amended, being referred to herein as the ~'Collateral
Trust Agreement"). Capitalized terms used without definition in this Consent and
~Waiver shall have the meanings provided in the Credit Agreement and the
Collateral Trust Agreement. Any amendment to the definition of any term provided
in the Credit Agreement shall promptly be provided in writing to the Collateral
Trustee and shall have no effect hereunder unless consented to by the Collateral
Trustee.
WITNESSETH:
WHEREAS, pursuant to Section 5.01(e) of the Credit
Agreement, TWC is required to grant an Acceptable Security Interest over any
portion of the Refinery located in Alaska owned by TWC or any of its
Subsidiaries within 15 Business Days of December 31, 2002;
WHEREAS, TWC was recently informed by its local counsel that
Alaska regulations require additional provisions (the "Regulatory Provisions")
be added to the pledge of certain of the real property interests related to the
Refinery located in Alaska (the "Alaska Refinery");
WHEREAS, pursuant to that certain notice letter dated January
22, 2003 (the "Notice Letter"), delivered by TWC, TWC has requested that the
Banks consent to an extension of the time period for granting an Acceptable
Security Interest in the Alaska Refinery; and
WHEREAS, the Banks party hereto are willing to grant the
requests of TWC;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and subject to the
terms and conditions hereof, the parties hereto agree as follows:
SECTION 1. Consent and Waiver. Subject to the occurrence of
the Effective Date (as defined herein), the Banks agree as follows:
(a) The Banks party hereto, each as holders of the Secured
Obligations, consent to an extension of the time period with respect to
the requirement to grant an Acceptable Security Interest in the Alaska
Refinery to April, 25, 2003.
(b) The Banks hereby instruct the Collateral Agent to
undertake any and all actions as the Collateral Agent reasonably
determines are necessary or desirable to ascertain the possible effect
of the Regulatory Provisions.
SECTION 2. Conditions to Effectiveness. The provisions of this
Consent and Waiver shall become effective as of the date first above written
(the "Effective Date") when, and only when, the Agent or Collateral Trustee, as
applicable, shall have received counterparts of this Consent and Waiver duly
executed by each of the Borrowers and Banks constituting, in the aggregate, the
Majority Banks.
SECTION 3. Reference to and Effect on the Transaction
Documents.
(a) On and after the effectiveness of this Consent and Waiver,
each reference in the Credit Agreement to "hereunder", "hereof' or
words of like import referring to the Credit Agreement and each
reference in the other Transaction Documents (as defined below) to the
"Credit Agreement", "thereunder", "thereof' or words of like import
referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified by this Consent and Waiver.
(b) The Credit Agreement and each of the L/C Collateral
Documents (together, the "Transaction Documents"), as specifically
modified by this Consent and Waiver, are and shall continue to be in
full force and effect and are hereby in all respects ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Consent
and Waiver shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Bank, the Agent, the
Collateral Agent or the Collateral Trustee under any of the Transaction
Documents, nor constitute a waiver of any provision of any of the
Transaction Documents.
SECTION 4. Execution in Counterparts. This Consent and Waiver
may be
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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 but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Consent and Waiver by telecopier shall be effective as delivery of a manually
executed counterpart of this Consent and Waiver.
SECTION 5. Governing Law. This Consent and Waiver shall be
governed by, and construed in accordance with, the laws of the State of New York
and shall be subject to the jurisdictional and service provisions of the Credit
Agreement, as if this were a part of the Credit Agreement.
SECTION 6. Entire Agreement; Modification. This Consent and
Waiver constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof, there being no other agreements or understandings,
oral, written or otherwise, respecting such subject matter, any such agreement
or understanding being superseded hereby, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, and
may not be amended, extended or otherwise modified, except in a writing executed
in whole or in counterparts by each party hereto.
SECTION 7. Waiver Provisions. This Consent and Waiver is
subject to the provisions of Section 8.01 of the Credit Agreement.
[Signatures follow.]
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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.
CITICORP USA, INC. as Agent and as Bank
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Attorney-in-Fact
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JPMORGAN CHASE BANK (formerly known as
THE CHASE MANHATTAN BANK),
as Co-Syndication Agent and as Bank
By: /s/ Xxxxxx X. How
-----------------------------------------
Name: Xxxxxx X. How
Title: Vice President
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COMMERZBANK AG,
as Co-Syndication Agent and as Bank
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Senior Vice President & General Manager
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
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CREDIT LYONNAIS NEW YORK BRANCH,
As Documentation Agent and as Bank
By: /s/ Phillippe Soustra
------------------------------------------------
Name: Phillippe Soustra
Title: Executive Vice President
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BANK ONE, N.A. (Main Office - Chicago),
As Bank
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
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UBS AG, STAMFORD BRANCH, as Bank
By: /s/ Xxxxx Xxxxx
------------------------------------------------
Name: Xxxxx Xxxxx
Title: Recovery Management
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Director
Recovery Management
SOCIETE GENERALE, SOUTHWEST AGENCY,
As Bank
By: /s/ J. Xxxxxxx XxXxxxxx, Xx.
---------------------------------------------------
Name: J. Xxxxxxx XxXxxxxx, Xx.
Title: Managing Director
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NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH, as Bank
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
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MIZUHO CORPORATE BANK, LIMITED,
NEW YORK BRANCH, as Bank
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: SVP and Manager
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FLEET NATIONAL BANK
(formerly known as BANK BOSTON, N.A.)
as Bank
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Officer
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CIBC INC., as Bank
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Executive Director
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BARCLAYS BANK PLC, as Bank
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Director, Loan Transaction Management
00
XXX XXXX XX XXXX XXXXXX, as Bank
By: /s/ X. Xxxxxx
-----------------------------------------------
Name: X. Xxxxxx
Title: Assistant Agent
00
XXX XXXX XX XXX XXXX, as Bank
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
16
BANK OF MONTREAL, as Bank
By: /s/ XxxxXxx Xxxxx
---------------------------------------------------
Name: XxxxXxx Xxxxx
Title: Director
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BANK OF AMERICAN, N.A., as Bank
By: /s/ Xxxxxx X. Xxx
-------------------------------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
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ABN AMRO BANK, N.V., as Bank
By: /s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Group Vice President
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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BANK OF OKLAHOMA, N.A., as Bank
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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CREDIT SUISSE FIRST BOSTON, as Bank
By: /s/ S. Xxxxxxx Xxx
-------------------------------------------------
Name: S. Xxxxxxx Xxx
Title: Director
By: /s/ Xxx Xxxxxx
-------------------------------------------------
Name: Xxx Xxxxxx
Title: Associate
00
XXXXXX XX, XXX XXXX BRANCH, as Bank
By: /s/ Xxxxxxxxx Xxxxxxxxxx
---------------------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director, Credit Department
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
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ROYAL BANK OF CANADA, as Bank
By: /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Manager
00
XXXXXXX XXXXXXXX (XXXXX) INC., as Bank
By: /s/ Xxxx Xxxx
---------------------------------------------------
Name: Xxxx Xxxx
Title: Vice President
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Acknowledged and Agreed:
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
TEXAS GAS TRANSMISSION CORPORATION
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Treasurer
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Treasurer
NORTHWEST PIPELINE CORPORATION
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Treasurer
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