WORKING CAPITAL LOAN AGREEMENT
Exhibit 10.4
Execution Copy
AGREEMENT made August 23, 2005 (the “Effective Date”), between The Xxxxxxxx Companies, Inc., a
Delaware corporation, with principal offices at Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000
(“Lender”) and Xxxxxxxx Partners L.P., a Delaware limited partnership with principal offices at Xxx
Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 (“Borrower”) (this “Agreement”).
1. Loan. Lender shall make revolving loans to Borrower during the term of this Agreement in an
aggregate amount outstanding of up to, but not exceeding, $20,000,000 at any time.
2. Term. Borrower may borrow sums from Lender up to the total loan commitment of $20,000,000 at
any time from the Effective Date to May 3rd, 2007 (the “Maturity Date”). Notwithstanding the
foregoing, for a period of at least fifteen consecutive days during each twelve month period
commencing with the Effective Date, Borrower shall have no borrowings under this loan outstanding.
Borrower hereby promises to pay to Lender interest when due hereunder and all outstanding
principal, interest and other payments owing under this Agreement in full on the Maturity Date.
3. Early Termination. Notwithstanding anything contained in this Agreement to the contrary, in the
event of a Change of Control (hereinafter defined) of the General Partner (hereinafter defined),
the Maturity Date shall be deemed to have immediately occurred as of the date of such Change of
Control. As used herein, the following terms shall have the following meanings: “General Partner”
means Xxxxxxxx Partners GP LLC, a Delaware limited liability company (including any permitted
successors and assigns under the Limited Partnership Agreement of the Borrower). “Change of
Control” means any of the following events: (i) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all or substantially all of the General
Partner’s assets to any other Person, unless immediately following such sale, lease, exchange or
other transfer such assets are owned, directly or indirectly, by the General Partner; (ii) the
dissolution or liquidation of the General Partner; (iii) the consolidation or merger of the General
Partner with or into another Person pursuant to a transaction in which the outstanding membership
interests of the General Partner are changed into or exchanged for cash, securities or other
property, other than any such transaction where (a) the outstanding membership interests of the
General Partner are changed into or exchanged for Voting Securities of the surviving corporation or
its parent and (b) the Lender continues to own, directly or indirectly, not less than a majority of
the outstanding Voting Securities of the surviving corporation or its parent immediately after such
transaction; and (iv) other than Lender and its affiliates, a “person” or “group” (within the
meaning of Sections 13(d) or 14(d)(2) of the Exchange Act) being or becoming the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of all of the then
outstanding membership interests of the General Partner, except in a merger or consolidation which
would not constitute a Change of Control under clause (iii) above. “Exchange Act” means the
Securities Exchange Act of 1934, as amended. “Person” means a corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or any other entity.
“Voting Securities” means securities of any class of Person entitling the holders thereof to vote
in the election of members of the
board of directors or other similar governing body of the Person, or in the case of a limited
partnership, a majority of the general partner interests in such limited partnership.
4. Procedure for Borrowing. Borrower may borrow in amounts of not less than $50,000.00, and in
additional multiples of not less than $5,000.00, by giving written notice to Lender. The
procedure for the Borrower requesting borrowings and the Lender making advances hereunder shall be
the same as that for Revolving Credit Borrowings and Revolving Credit Advances under the Amended
and Restated Credit Agreement dated as of May 20, 2005 among The Xxxxxxxx Companies, Inc.,
Northwest Pipeline Corporation, Transcontinental Gas Pipe Line Corporation, and Xxxxxxxx Partners
L.P. as Borrowers, and Citicorp USA, Inc. as Administrative Agent and Collateral Agent, Citibank
N.A. and Bank of America N.A., as Issuing Banks, and the Banks parties thereto as it may be amended
or restated from time to time (the “Xxxxxxxx Companies Credit Agreement”) except that notices and
payments shall be sent to the applicable addresses for the Lender and the Borrower as set forth
herein.
5. Revolving Nature and Availability. Subject to the terms and conditions hereof, the Borrower may
increase or decrease loans under this Agreement by making drawdowns, repayments and further
drawdowns.
6. Conditions of Loans. The obligation of Lender to make the loans described herein is subject to
the following conditions:
(a) A Default has not occurred and is continuing;
(b) the proceeds of the proposed loan disbursement are, at the date of the relevant request,
needed by the Borrower for working capital purposes, as reasonably determined by Borrower.
7. Interest. The Borrower promises to pay interest on the unpaid principal amount from time to
time outstanding, on the same dates and at the same rates and calculated in the same manner as
apply to Revolving Credit Advances made to Lender under the Xxxxxxxx Companies Credit Agreement,
including, without limitation, that Borrower shall have the right to elect whether borrowings made
hereunder shall be Base Rate Advances or Eurodollar Rate Advances and, with respect to Eurodollar
Rate Advances, shall have the right to select interest periods in the same manner as Lender has the
right to select such periods under the Xxxxxxxx Companies Credit Agreement. All payments of
principal and interest shall be payable in lawful currency of the United States of America at the
office of the Lender as provided above or such other address as the holder hereof shall have
designated to the Borrower, in immediately available funds.
8. Prepayment. Borrower may prepay all or part of any amounts outstanding hereunder at any time
without payment of penalty. Any partial prepayment, however, shall be applied against unpaid
installments outstanding hereunder in the inverse order of maturity beginning with the shortest
maturity and shall not be made in amounts of less than $5,000.
9. Default. Borrower shall be in default (“Default”) if any of the following events occur and
continue:
(a) It becomes insolvent or admits in writing its inability to pay its debts as they mature;
applies for, consents to, or acquiesces in the appointment of a trustee or receiver for any of its
property; in the absence of an application, consent, or acquiescence a trustee or receiver is
appointed for it or a substantial part of its property and is not discharged within 60 days; it
otherwise commits an act of bankruptcy; or any bankruptcy, reorganization, debt arrangement, or
other proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation
proceeding, is instituted by or against it and if instituted is consented to or acquiesced in by it
or remains for 60 days undismissed;
(b) It defaults in the performance of the terms and conditions of this Agreement and such
default continues for 30 days after notice thereof from Lender; or
(c) Any government, board, agency, department, or commission takes possession or control of a
substantial part of Borrower’s property and such possession or control continues for 30 days.
10. Acceleration at Option of Lender. If any of the events listed in paragraph 9(a), (b), or (c)
occur and continue, Lender may declare the amounts outstanding under this Agreement immediately due
and payable, at which time all unpaid installments shall immediately become due and payable.
Lender shall promptly advise Borrower in writing of any acceleration under this paragraph, but the
failure to do so shall not impair the effect of a subsequent declaration.
11. Cross-References to Xxxxxxxx Companies Credit Agreement. Notwithstanding anything contained in
this Agreement to the contrary, in the event (i) there is a default under the Xxxxxxxx Companies
Credit Agreement, and/or (ii) the Xxxxxxxx Companies Credit Agreement or the commitments of the
lenders to make loans thereunder are terminated for any reason, Lender and Borrower agree that any
provision in this Agreement that relies on cross-references to the Xxxxxxxx Companies Credit
Agreement shall be interpreted as if the Xxxxxxxx Companies Credit Agreement was not in default and
was in full force and effect, the intention of the parties to this Agreement being that Borrower
shall, following such default and/or termination, have the right to continue to make revolving
borrowings under this Agreement at the interest rates and upon the other terms and conditions so
cross-referenced as if such default and/or termination had not occurred with respect to the
Xxxxxxxx Companies Credit Agreement. The parties hereto agree and acknowledge that the reduction
in, or termination of, the commitments under the Xxxxxxxx Companies Credit Agreement or the failure
or refusal of the lenders under the Xxxxxxxx Companies Credit Agreement to make loans thereunder
for any reason, including, without limitation, due to a default thereunder and/or the termination
thereof, shall not affect Lender’s obligations to make loans under this Agreement.
12. Binding Effect. This Agreement shall be binding on the respective successors and assigns of
Lender and Borrower and shall inure to the benefit of Lender’s successors and assigns.
13. Loan Expenses. Except as expressly set forth herein, Borrower shall not be required to pay any
fees or other expenses of Lender in connection with this Agreement or the Loans made hereunder.
14. Commitment Fee. The Borrower shall pay to the Lender a commitment fee on the daily average
unused amount of the revolving loans for the period from and including the Effective Date up to,
but excluding, the Maturity Date at a rate of 0.30% per annum. Accrued commitment fees shall be
payable quarterly in arrears on the last day of each fiscal quarter of Borrower and on the Maturity
Date. All commitment fees shall be computed on the basis of a year of 365 days (or 366 days in a
leap year) and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).
15. Non-Waiver. No delay or failure by Lender to exercise any right under this Agreement, and no
partial or single exercise of that right, shall constitute a waiver of that or any other right,
unless otherwise expressly provided herein.
16. Governing Law. This Agreement shall be construed in accordance with and governed by the laws
of the State of New York.
17. Headings. Headings in this Agreement are for convenience only and shall not be used to
interpret or construe its provisions.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the same instrument.
19. Time of Essence. Time is expressly declared to be the essence of this Agreement.
20. Entire Agreement; Modification. This instrument and any other loan documents executed in
connection herewith constitute the entire Agreement between Lender and Borrower and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no oral agreements between the parties. This Agreement may not be modified except in a
writing signed by both parties.
21. Notices. All notices under this Agreement shall be in writing and delivered to the respective
parties at their principal offices stated at the beginning hereof.
22. No Third Party Beneficiaries. The agreement of the Lender to make the loan to the Borrower for
the account of the Borrower on the terms and conditions set forth in this Agreement, is solely for
the benefit of the Borrower and no other person has any rights hereunder against the Lender or with
respect to the extension of credit contemplated hereby.
23. Special Exculpation. No claim may be made by the Borrower or any other person against the
Lender, directors, officers, employees, attorneys or agents of any of them for any special,
indirect, consequential or punitive damages in respect of any claim for breach of contract or any
other theory of liability arising out of or relating to this Agreement or any other financing
document or the transactions contemplated hereby or thereby, or any act, omission or event
occurring in connection therewith and the Borrower hereby waives, releases and agrees not to xxx
upon any claim for any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
24. Waiver of Jury Trial. Each of the Borrower and the Lender hereby irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
25. Indemnification. Borrower agrees to pay on demand all reasonable costs and expenses incurred
by Lender in connection with enforcement of this Agreement. Borrower agrees to the fullest extent
permitted by law, to indemnify and hold harmless the Lender and each of its directors, officers,
employees and agents (each an “Indemnified Party”) from and against any and all claims, damages,
liabilities and expenses (including without limitation fees and disbursements of counsel) arising
out of or in connection with any investigation, litigation or proceeding (whether or not any
Indemnified Party is a party) arising out of, related to or in connection with this Agreement, the
loans made hereunder or any transaction in which any proceeds of all or any part of the loans made
hereunder are applied.
26. Severability. If any term or provision of this Agreement shall be determined to be illegal or
unenforceable, all other terms and provisions of this Agreement shall nevertheless remain effective
and shall be enforced to the fullest extent permitted by applicable law.
27. Further Assurances. The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and (c) to do such
other acts and things, all as the other party may reasonably request for the purpose of carrying
out the intent of this Agreement.
28. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any amounts outstanding hereunder, together with all fees, charges and
other amounts which are treated as interest on such amounts under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by Lender in accordance with applicable law,
the rate of interest payable in respect of such amounts outstanding hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such amounts outstanding but
were not payable as a result of the operation of this Section 28 shall be cumulated and the
interest and Charges payable to Lender in respect of other amounts outstanding hereunder or periods
shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender. “Federal Funds Effective Rate” as used herein means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds
brokers, as published on the next succeeding
business day by the Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a business day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the quotations for such day for such transactions received by Lender from three Federal funds
brokers of recognized standing selected by it.
In witness whereof the parties have caused this Agreement to be executed by their proper
officers on the day and year first above written.
| The Xxxxxxxx Companies, Inc. | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
| Name: Xxxxxx X. Xxxxxxx | ||||||||
| Title: Senior Vice President and Chief Financial Officer | ||||||||
| Xxxxxxxx Partners L.P. | ||||||||
| By: | Xxxxxxxx Partners GP LLC, | |||||||
| it general partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||||||
| Name: Xxxx X. Xxxxxxxxx | ||||||||
| Title: Chief Operating Officer | ||||||||
