EXHIBIT 10.3
EXECUTION COPY
U.S. $800,000,000
CREDIT AGREEMENT
Dated as of June 6, 2003
among
THE XXXXXXXX COMPANIES, INC.
NORTHWEST PIPELINE CORPORATION
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
as Borrowers
CITIBANK, N.A.
as Administrative Agent and Collateral Agent
BANK OF AMERICA, N.A.
as Syndication Agent
JPMORGAN CHASE BANK
as Documentation Agent
CITIBANK, N.A.
BANK OF AMERICA, N.A.
as Issuing Banks
THE BANKS NAMED HEREIN
as Banks
and
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers & Joint Book Runners
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Certain Defined Terms..................................................................... 2
SECTION 1.2. Computation of Time Periods............................................................... 12
SECTION 1.3. Accounting Terms.......................................................................... 12
SECTION 1.4. Miscellaneous............................................................................. 12
ARTICLE II
AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES AND LETTERS OF CREDIT
SECTION 2.1. Revolving Credit Advances and Letters of Credit........................................... 13
SECTION 2.2. Issuance of and Drawings and Reimbursement Under Letters of Credit........................ 13
SECTION 2.3. Making the Revolving Credit Advances...................................................... 17
SECTION 2.4. Voluntary Reduction of the Commitments.................................................... 18
SECTION 2.5. Prepayments............................................................................... 19
SECTION 2.6. Increased Costs........................................................................... 19
SECTION 2.7. Payments and Computations................................................................. 20
SECTION 2.8. Taxes..................................................................................... 21
SECTION 2.9. Sharing of Payments, Etc.................................................................. 24
SECTION 2.10. Evidence of Debt......................................................................... 24
SECTION 2.11. Fees..................................................................................... 25
SECTION 2.12. Repayment of Revolving Credit Advances................................................... 26
SECTION 2.13. Interest................................................................................. 26
SECTION 2.14. Interest Rate Determination.............................................................. 27
SECTION 2.15. Optional Conversion of Revolving Credit Advances......................................... 27
SECTION 2.16. Illegality............................................................................... 28
SECTION 2.17. Additional Interest on Eurodollar Rate Advances.......................................... 28
SECTION 2.18. Existing Letters of Credit............................................................... 28
ARTICLE III
CONDITIONS
SECTION 3.1. Conditions Precedent to Effectiveness of Agreement........................................ 29
SECTION 3.2. Conditions Precedent to a Revolving Credit Advance and an Issuance of a Letter of Credit.. 30
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the Borrowers........................................... 32
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.1. Affirmative Covenants..................................................................... 34
SECTION 5.2. Negative Covenants........................................................................ 36
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Events of Default......................................................................... 37
ARTICLE VII
THE AGENT; THE COLLATERAL AGENT; AND ISSUING BANKS
SECTION 7.1. Agent's and Collateral Agent's Authorization and Action................................... 39
SECTION 7.2. Agent's and Collateral Agent's Reliance, Etc.............................................. 39
SECTION 7.3. Issuing Banks' Reliance, Etc.............................................................. 40
SECTION 7.4. Rights.................................................................................... 40
SECTION 7.5. Indemnification........................................................................... 41
SECTION 7.6. Successor Agent and Collateral Agent...................................................... 42
SECTION 7.7. Bank Credit Decision...................................................................... 42
SECTION 7.8. Certain Rights of the Collateral Agent.................................................... 43
- ii -
SECTION 7.9. Other Agents.............................................................................. 43
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Amendments, Etc........................................................................... 43
SECTION 8.2. Notices, Etc.............................................................................. 44
SECTION 8.3. No Waiver; Remedies....................................................................... 45
SECTION 8.4. Costs and Expenses........................................................................ 46
SECTION 8.5. Binding Effect; Transfers................................................................. 47
SECTION 8.6. Governing Law............................................................................. 50
SECTION 8.7. Interest.................................................................................. 51
SECTION 8.8. Execution in Counterparts................................................................. 51
SECTION 8.9. Survival of Agreements, Representations and Warranties, Etc............................... 51
SECTION 8.10. Confidentiality.......................................................................... 51
SECTION 8.11. Waiver of Jury Trial..................................................................... 53
SECTION 8.12. Severability............................................................................. 53
SECTION 8.13. Forum Selection and Consent to Jurisdiction.............................................. 53
SECTION 8.14. Nature of Obligations.................................................................... 53
- iii -
Schedules and Exhibits
Schedule I - Bank Information
Schedule II - Notice Information for the Borrowers
Schedule III - Commitments
Exhibit A - Opinion of Xxxxx X. Xxxxxx, Esq., General Counsel of TWC
Exhibit B - Opinion of White & Case LLP, New York Counsel
Exhibit C - Form of Transfer Agreement
Exhibit D-1 - Notice of Letter of Credit
Exhibit D-2 - Notice of Revolving Credit Borrowing
Exhibit E - Form of Security Agreement
Exhibit F - Form of Note
- iv -
CREDIT AGREEMENT
This Credit Agreement dated as of June 6, 2003 (as may be
further amended, modified, supplemented, renewed, extended or restated from time
to time, this "Agreement"), is by and 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 together with TWC and NWP, the "Borrowers" and each, a
"Borrower"), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as banks (the "Banks"), CITIBANK, N.A.
("Citibank") and BANK OF AMERICA, N.A. ("BofA") (the "Issuing Banks" and each,
an "Issuing Bank"), CITIBANK, as agent (together with any successor agent
appointment pursuant to Article VII, the "Agent") and collateral agent (together
with any successor agent appointment pursuant to Article VII, the "Collateral
Agent"), BofA, as syndication agent, JPMORGAN CHASE BANK ("JPMorgan") as
documentation agent (the "Documentation Agent"), and CITIGROUP GLOBAL MARKETS
INC. ("CGMI") and BANC OF AMERICA SECURITIES LLC ("BAS", together with CGMI, the
"Co-Lead Arrangers"), as joint lead arrangers and joint book runners. In
consideration of the mutual covenants and agreements contained herein, the
Borrowers, the Banks, the Issuing Banks, the Agent, and the Co-Lead Arrangers
hereby agree as set forth herein.
PRELIMINARY STATEMENTS
WHEREAS, each of the Borrowers is a borrower under that
certain First Amended and Restated Credit Agreement dated as of October 31, 2002
(as amended, restated, supplemented or otherwise modified, the "Multiyear
Agreement") with the banks party thereto, JPMorgan and Commerzbank AG, as
co-syndication agents, Credit Lyonnais New York Branch, as documentation agent,
Citicorp USA, Inc. ("CUSA"), as agent, and CGMI (formerly known as Salmon Xxxxx
Xxxxxx Inc. ("SSBI")), as arranger;
WHEREAS, TWC is the borrower under that certain Amended and
Restated Credit Agreement dated as of October 31, 2002 (as amended, restated,
supplemented or otherwise modified, the "LC Agreement"; and together with the
Multiyear Agreement, the "Existing Credit Documentation") with the banks party
thereto, CUSA, as agent and collateral agent, BofA, as syndication agent, and
CGMI (formally known as SSBI), as arranger;
WHEREAS, the Borrowers have requested that the Banks lend to
the Borrowers and the Issuing Banks issue Letters of Credit for the account of
the Borrowers to (a) refinance in full outstanding indebtedness under the
Existing Credit Documentation (it being understood that such letters of credit
shall be fully cash-collateralized) and (b) provide for the working capital
needs and general corporate purposes of the Borrowers, including, without
limitation, acquisition of the Borrowers' equity securities and debt; and
WHEREAS, the Issuing Banks and Banks are willing to lend such
amounts and to issue such Letters of Credit on the terms and subject to the
conditions hereinafter set forth (including Article III);
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1.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):
"Agent" means Citibank, in its capacity as administrative
agent pursuant to Article VII hereof and any successor Agent pursuant
to Section 7.6.
"Agreement" has the meaning specified in the first paragraph
of this Agreement.
"Applicable Margin" means, for any Eurodollar Rate Advance,
0.75% per annum.
"Authorized Financial Officer" means the Chief Financial
Officer, Chief Accounting Officer, and the Treasurer of any Person.
"Authorized Officer" means the President, Chief Executive
Officer, Chief Financial Officer, the General Counsel, any Vice
President, the Secretary, the Assistant Secretary, the Treasurer,
Assistant Treasurer, or the Controller of a Person or any other officer
designated as an "Authorized Officer" by the Board of Directors (or
equivalent governing body) of such Person.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time as set forth in Section 2.1(b) (assuming compliance at such
time with all conditions to drawing).
"Banks" means the lenders listed on the signature pages hereof
and each other Person that becomes a Bank pursuant to Section 8.5(a).
"Base Rate" means a fluctuating interest rate per annum 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; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.13(a)(i).
"BofA" has the meaning specified in the recitals hereto.
"Borrowers" has the meaning specified in the recitals hereto.
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"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City.
"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.
"CGMI" has the meaning specified in the recitals hereto.
"Change of Control Event" means the occurrence of any of the
following: (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 l3d-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 50% 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 on or after the date
of this Agreement, individuals who at the beginning of such period were
directors of TWC or who were elected or nominated 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.
"Citibank" has the meaning specified in the recitals hereto.
"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.
"Co-Lead Arrangers" has the meaning specified in the recitals
hereto.
"Collateral" has the meaning specified in the Security
Agreement.
"Collateral Account" has the meaning specified in the Security
Agreement.
"Collateral Agent" means Citibank in its capacity as
Collateral Agent pursuant to Article VII and any successor in such
capacity pursuant to Section 7.6.
"Collateral Coverage Requirement" means any time that the
aggregate xxxx-to-market value of all Collateral is equal to or greater
than 105% of the Total Credit Exposure.
"Commitment" means a Revolving Credit Commitment or a Letter
of Credit Commitment.
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"Commitment Fee" has the meaning specified in Section 2.11(c).
"Consolidated" refers to the consolidation of the accounts of
any Person and its consolidated subsidiaries in accordance with
generally accepted accounting principles.
"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.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Sections 2.15, 2.16 and
2.17.
"Credit Documents" means this Agreement, the Security
Agreement, the Letter of Credit Documents, each Letter of Credit, each
Note, each Notice of Letter of Credit, each Notice of Revolving Credit
Borrowing, and each certificate pursuant to Sections 3.2(ii),
5.1(b)(ii), and 5.1(b)(iii) at any time executed and/or delivered to
the Agent, the Collateral Agent, any Issuing Bank, or any Bank in
connection therewith.
"Cross-Acceleration Event" means the occurrence or existence
of any event or condition under any agreement or instrument relating to
any Debt which is outstanding in a principal amount of at least
$250,000,000 in the aggregate (excluding Debt incurred pursuant to any
Letter of Credit or Revolving Credit Advance) of any Borrower the
result of which is the acceleration of the final stated maturity of
such Debt or any such Debt shall not be paid at its final stated
maturity (giving effect to any applicable grace periods and any
extensions thereof).
"CUSA" has the meaning specified in the recitals hereto.
"Debt" means, in the case of any Person, the principal or
equivalent amount (without duplication) of (i) indebtedness of such
Person for borrowed money, (ii) obligations of such Person evidenced by
bonds, debentures or notes, (iii) obligations of such Person to pay the
deferred purchase price of property or services (other than trade
payables), (iv) obligations of such Person as lessee under leases that
are, in accordance with generally accepted accounting principles,
recorded as capital leases, and (v) obligations of such Person under
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of indebtedness or obligations of others of the
kinds referred to in clauses (i) through (iv) of this definition.
"Default" means any event or condition that, upon the giving
of notice or passage of time or both, if required by Section 6.1, would
constitute an Event of Default.
"Designating Bank" has the meaning specified in Section
8.5(g).
"Documentation Agent" has the meaning specified in the
recitals hereto.
"Dollars" and "$" means lawful money of the United States of
America.
4
"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 in the Transfer Agreement pursuant to
which it became a Bank, or such other office of such Bank as such Bank
may from time to time specify to the Borrowers and the Agent.
"XXXXX" means "Electronic Data Gathering, Analysis and
Retrieval" system (or any successor system thereof), a database
maintained by the Securities and Exchange Commission containing
electronic filings of issuers of certain securities.
"Effective Date" has the meaning specified in Section 3.1.
"Eligible Assignee" means (i) any Bank, (ii) any affiliate of
any Bank, and (iii) any other Person not covered by clause (i) or (ii)
of this definition that is consented to by the Borrowers, the Agent and
the Issuing Banks (which consents shall not be unreasonably withheld);
provided that if any Event of Default has occurred and is continuing,
no consent of the Borrowers shall be required; provided further that
neither the Borrowers nor any affiliate of the Borrowers shall be an
Eligible Assignee.
"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" means any trade or business (whether or not
incorporated) which is a member of a group of which the Borrowers are
members 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 Federal Reserve Board, 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 in the Transfer Agreement
pursuant to which it became a Bank (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 Revolving Credit Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Xxxxx 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 Revolving Credit Borrowing for
5
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 a Revolving Credit Advance
that bears interest as provided in Section 2.13(a)(ii).
"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 6.1.
"Existing Credit Documentation" has the meaning specified in
the preliminary statements hereto.
"Federal Funds Rate" means, for any day, a fluctuating
interest rate per annum equal for such day 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.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any federal agency or authority of the
United States from time to time succeeding to its function.
"Financial Letter of Credit" means any Letter of Credit
supporting only indebtedness for borrowed money.
"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
6
year (e.g., the "2002 Fiscal Year") refer to the Fiscal Year ending on
December 31 of such calendar year.
"Fronting Fee" shall have the meaning specified in Section
2.11(b)(i).
"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.
"Indemnified Parties" has the meaning assigned to such term in
Section 8.4(b).
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing, the period
commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance and ending on the last day of the period selected by a Borrower
pursuant to the provisions below and, thereafter, with respect to
Eurodollar Rate Advances, 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 a Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two,
three or six months, as a 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;
provided, however, that:
(i) a Borrower may not select any Interest
Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Revolving Credit Borrowing shall be of the same duration;
(iii) 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, however, 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; and
(iv) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number
of
7
months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of
such succeeding calendar month.
"Issuing Banks" has the meaning specified in the recitals
hereto.
"JPMorgan" has the meaning specified in the recitals hereto.
"Judgment Event" means any judgment or order rendered against
any Borrower for the payment of money in excess of $250,000,000 (and
not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has provided coverage and has
acknowledged liability) shall remain undischarged, unvacated, unbonded
or unstayed for a period of 60 days.
"LC Agreement" has the meaning specified in the recitals
hereto.
"LC Participation Percentage" of any Bank means, at any time,
the percentage set opposite such Bank's name on Schedule III or as
reflected for such Bank in the relevant Transfer Agreement to which it
is a party, as such amount may be terminated, reduced or increased
pursuant to Section 8.5(a).
"Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Lending Office" opposite its name on
Schedule I hereto or in the relevant Transfer Agreement delivered
pursuant to Section 8.5(a), or such other office of such Bank as such
Bank may from time to time specify to the Borrowers and the Agent.
"Letter of Credit Commitment" of any Issuing Bank means, at
any time, the amount set opposite such Bank's name on Schedule III
under the heading "Letter of Credit Commitments" or as reflected for
such Bank in the relevant Transfer Agreement to which it is a party, as
such amount may be terminated, reduced or increased pursuant to Section
2.4, Section 6.1 or Section 8.5(a).
"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 (i) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (ii) any
collateral security for any of such obligations, each as the same may
be modified and supplemented and in effect from time to time.
"Letter of Credit Fee" shall have the meaning specified in
Section 2.11(b)(ii).
"Letter of Credit Interest" means, for each Bank, (i) such
Bank's participation interest in Letters of Credit (and, in the case of
an Issuing Bank, such Issuing Bank's retained interest in Letters of
Credit issued by it), and (ii) such Bank's rights and interests in
Reimbursement Obligations and fees, interest and other amounts payable
in connection with Letters of Credit and Reimbursement Obligations.
8
"Letter of Credit Liability" means at any time and in respect
of any Letter of Credit, the sum (without duplication) of (a) the
Available Amount of such Letter of Credit at such time (after giving
effect to any step up provision or other mechanism for increase, if
any, and assuming that all conditions to drawing have been satisfied)
plus (b) the aggregate unpaid amount of all drawings under such Letter
of Credit that are unpaid at such time. For purposes of this Agreement,
a Bank shall be deemed to hold a Letter of Credit Liability in an
amount equal to its LC Participation Percentage in the related Letter
of Credit.
"Letters of Credit" has the meaning assigned to such term in
Section 2.1(b).
"Majority Banks" means, at any time, Banks owed or holding
more than 50% of the sum of (i) the aggregate unpaid principal amount
of Revolving Credit Advances outstanding at such time, or if no such
principal amount is then outstanding, the aggregate Revolving Credit
Commitments and (ii) the aggregate Available Amount of all Letters of
Credit outstanding at such time, or if no such Available Amount of
Letters of Credit are then outstanding, then (x) the LC Participation
Percentages, or (y) if the Letter of Credit Commitments have terminated
and any Letter of Credit or any Letter of Credit Interest is
outstanding, then the aggregate unpaid principal amount of the
outstanding Letter of Credit Interests; provided that for purposes of
this definition no Borrower shall be considered a "Bank".
"Mandatory Prepayment Event" means any of the following:
Change of Control Event; Cross-Acceleration Event; or Judgment Event.
"Multiemployer Plan" means any multiemployer plan, as defined
in Section 4001 (a)(3) of ERISA, which is maintained by (or to which
there is an obligation to contribute of) the Borrowers or an ERISA
Affiliate of the Borrowers.
"Note" means a promissory note of a Borrower payable to the
order of any Bank, in substantially the form of Exhibit F 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 2.10
or 8.6, together with any other note accepted from time to time in
substitution or replacement therefore.
"Notice of Letter of Credit" has the meaning specified in
Section 2.2(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.3(a).
"NWP" has the meaning specified in the recitals hereto.
"Obligations" means all Reimbursement Obligations and all
other Debt, advances, debts, liabilities, obligations, indemnities,
covenants and duties owing by any Borrower to any Bank, the Agent, the
Collateral Agent, any Issuing Bank, or any other Person required to be
indemnified under any Credit Document, of any kind or nature, present
or future, whether or not evidenced by any Note, guaranty or other
instrument, arising under or in connection with this Agreement or any
other Credit Document or any of the
9
transactions evidenced by this Agreement or any other Credit Document,
whether or not for the payment of money, whether arising by reason of
an extension of credit, loan, guaranty, indemnification or in any other
manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing
or hereafter arising and however acquired. The term "Obligations"
includes all interest, charges, expenses, fees, attorneys' fees and
disbursements and any other sum chargeable to any Borrower under this
Agreement or any other Credit Document.
"PBGC" means the Pension Benefit Guaranty Corporation.
"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.
"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 such
contributions has accrued during any of the five plan years preceding
the date of the termination of such plan by, the Borrowers or any ERISA
Affiliate of the Borrowers for employees of the Borrowers 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.
"Public Filings" means the Borrowers' (i) annual report on
Form 10-K/A for the year ended December 31, 2002, (ii) quarterly report
on Form 10-Q for the quarter ended March 31, 2003, and (iii) each other
quarterly and annual and other reports filed with the SEC from time to
time.
"Register" has the meaning specified in Section 8.5(c).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Reimbursement Obligations" means, at any time, the
obligations of any of the Borrowers then outstanding, or that may
thereafter arise, in respect of all Letters of Credit then outstanding
to reimburse amounts paid by any Issuing Bank in respect of any
drawings under a Letter of Credit.
"Revolving Credit Advance" means an advance by a Bank to a
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Banks, pursuant to Section 2.1(a).
"Revolving Credit Commitment" means, with respect to any Bank
at any time, the amount set forth opposite such Banks' name on Schedule
III hereto under the caption "Revolving Credit Commitment" or, if such
Bank has entered into one or more Transfer
10
Agreements, set forth for such Bank in the Register maintained by the
Agent pursuant to Section 8.5(c) as such Lender's "Revolving Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.4.
"Security Agreement" means a Security Agreement executed by
TWC in substantially the form of Exhibit E.
"SPC" has the meaning specified in Section 8.5(g).
"Subsidiary" of any Person means 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.
"Termination Date" means the earlier of (i) June 6, 2005 or
(ii) the date of termination in whole of the Commitments pursuant to
Section 2.4 or 6.1.
"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 TWC, 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 a Borrower or any
ERISA Affiliate of such 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 a Borrower or any ERISA Affiliate of such 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" has the meaning specified in the recitals hereto.
"Total Credit Exposure" means the sum of the Total L/C
Exposure plus the Total Loan Exposure plus the amount of any other
Obligations that are not paid when due and remain outstanding.
"Total L/C Exposure" means at any time, the aggregate amount
of all Letter of Credit Liabilities with respect to all issued Letters
of Credit.
11
"Total Loan Exposure" means at any time, the aggregate
principal amount of all outstanding Revolving Credit Advances.
"Transfer Agreement" means an agreement executed pursuant to
Section 8.5 by an assignor Bank and assignee Bank substantially in the
form of Exhibit C, which agreement shall be executed by the Borrowers
and the Agent to evidence the consent of each if such consent is
required pursuant to the definition herein of "Eligible Assignee" or
the terms of Section 8.5.
"TWC" has the meaning specified in the recitals hereto.
"Unused Revolving Credit Commitment" with respect to each Bank
at any time, (a) such Bank's Revolving Credit Commitment at such time
minus (b) the sum of (i) the aggregate principal amount of all
Revolving Credit Advances made by such Bank and outstanding at such
time and (ii) such Bank's Letter of Credit Liability.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary
of such Person all of the Equity Interests in which are owned by such
Person and/or one or more other Wholly-Owned Subsidiaries of such
Person.
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. 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 1.3. Accounting Terms. All accounting terms not
specifically defined shall be construed in accordance with general accounting
principles, and each reference herein to "generally accepted accounting
principles" shall mean U.S. generally accepted accounting principles in effect,
consistently applied.
SECTION 1.4. 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.
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ARTICLE II
AMOUNTS AND TERMS OF THE REVOLVING CREDIT
ADVANCES AND LETTERS OF CREDIT
SECTION 2.1. Revolving Credit Advances and Letters of Credit.
(a) Revolving Credit Advances. Each Bank severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to each Borrower from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an aggregate
amount to all Borrowers not to exceed at any time such Bank's Unused Revolving
Credit Commitment at such time. Each Revolving Credit Borrowing shall be in an
aggregate amount of not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Revolving Credit Advances made
on the same day by the Banks ratably according to their respective Revolving
Credit Commitments. Within the limits of this Section 2.1(a), a Borrower may
borrow under this Section 2.1(a), prepay pursuant to Section 2.5 and reborrow
under this Section 2.1(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the
terms and conditions hereinafter set forth, to issue standby or trade letters of
credit (collectively, the "Letters of Credit", and each a "Letter of Credit")
for the account of any Borrower (such issuance, and any funding of a draw
thereunder, to be made by the Issuing Banks in reliance on the agreements of the
other Banks pursuant to Section 2.2) from time to time on any Business Day
during the period from the Effective Date until 30 days prior to the Termination
Date in an aggregate Available Amount (i) for all Letters of Credit issued by
the Issuing Banks not to exceed at any time the lesser of (A) the aggregate of
all Letter of Credit Commitments at such time and (B) the Letter of Credit
Commitment of such Issuing Bank at such time and (ii) for each such Letter of
Credit not to exceed an amount equal to the Unused Revolving Credit Commitments
of the Banks at such time; provided that at no time shall all Letter of Credit
Liabilities exceed the aggregate amount of the Letter of Credit Commitments. No
Letter of Credit shall have an expiration date (including all rights of a
Borrower or the beneficiary to require renewals) later then 10 Business Days
prior to the Termination Date. Within the limits referred to above, a Borrower
may request the issuance of Letters of Credit under this Section 2.1(b), repay
any Letter of Credit Liability resulting from drawings thereunder pursuant to
Section 2.2(a) and request the issuance of additional Letters of Credit under
this Section 2.1(b).
SECTION 2.2. Issuance of and Drawings and Reimbursement Under
Letters of Credit.
(a) Notice of Issuance. A Borrower shall give the Agent
and the Issuing Bank from which it is requesting a Letter of Credit at least
three Business Days' (or such shorter period as agreed to by the Agent and such
Issuing Bank) prior notice, in the form of Exhibit D-1 (a "Notice of Letter of
Credit"), specifying the Business Day such Letter of Credit is to be issued and
the account party or parties therefor and describing in reasonable detail the
proposed terms of such Letter of Credit (including the beneficiary thereof) and
the nature of the transactions or obligations proposed to be supported thereby.
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(b) Participations in Letters of Credit. On each day
during the period commencing with the issuance by any Issuing Bank of any Letter
of Credit and until such Letter of Credit shall have expired or been terminated,
the Letter of Credit Commitment of each Issuing Bank shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to the Available
Amount of such Letter of Credit. Each Bank agrees that, upon the issuance of any
Letter of Credit hereunder by any Issuing Bank, it shall automatically acquire a
participation in such Issuing Bank's liability under such Letter of Credit in an
amount equal to such Bank's LC Participation Percentage of such liability, and
each Bank thereby shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and shall be unconditionally obligated to
such Issuing Bank to the extent provided in this Section 2.2(b).
(c) Reimbursement Obligations; Notice of Drawings. Upon
receipt from the beneficiary of any Letter of Credit of any demand for payment
under such Letter of Credit, the Issuing Bank that issued such Letter of Credit
shall promptly notify the applicable Borrower (through the Agent) of the amount
to be paid by such Issuing Bank as a result of such demand and the date on which
payment is to be made by such Issuing Bank to such beneficiary in respect of
such demand, which shall be (unless same day payment is required by the terms of
such Letter of Credit pursuant to a request of such Borrower) at least one
Business Day after the date on which the Agent shall deliver such notice to the
applicable Borrower pursuant to this sentence. Notwithstanding the identity of
the account party of any Letter of Credit, the Borrowers hereby unconditionally
agree to pay and reimburse the Agent for the account of the Issuing Bank that
issued a Letter of Credit for the amount of each demand for payment under such
Letter of Credit that is in substantial compliance with the provisions of such
Letter of Credit at or prior to the date on which payment is to be made by such
Issuing Bank to the beneficiary thereunder, without presentment, demand, protest
or other formalities of any kind, together with interest thereon at a rate per
annum equal to the Base Rate for the period from the date of such demand until
the date of such reimbursement; provided that, to the extent that any
Reimbursement Obligation has not been reimbursed by any Borrower to the
applicable Issuing Bank hereunder, the Collateral Agent shall withdraw funds
from the Collateral Account upon the request (such request to be delivered to
the Collateral Agent by TWC on the same day of the receipt of notice from the
Agent to the Borrowers pursuant to this Section 2.2(c)) of TWC (in accordance
with the Security Agreement), in an amount of such outstanding Reimbursement
Obligation and apply such funds for the satisfaction and reimbursement of such
Issuing Bank. The Borrowers' obligations to reimburse each Issuing Bank as
provided herein shall be absolute, unconditional and irrevocable under all
circumstances whatsoever, including the following circumstances: (i) any lack of
validity of this Agreement, the other Credit Documents or the other documents to
be delivered under this Agreement; (ii) the existence of any claim, set-off,
defense or other right that a Borrower may have at any time against the Agent,
any Bank, any Issuing Bank or any other Person, whether in connection with the
transactions contemplated by this Agreement or any unrelated transaction; (iii)
any action or inaction taken or suffered by any Issuing Bank under a Letter of
Credit if taken in good faith and in conformity with applicable law; (iv) the
payment by any Issuing Bank under a Letter of Credit against presentation of a
demand, statement or other document which in the sole discretion of such Issuing
Bank substantially complies with the terms of such Letter of Credit, including
any demand, statement or other document which is forged, fraudulent, invalid or
inaccurate in any respect; (v) any exchange, release or non-perfection of any
collateral for, or any release or amendment or waiver of or consent to departure
from any guarantee of, all or any of the Obligations of the applicable Borrower
in respect of any Letter of
14
Credit; and (vi) any determination of invalidity or unenforceability with
respect to any Letter of Credit after payment by an Issuing Bank thereunder.
(d) Payments by Banks to Issuing Banks. To the extent
that a Borrower fails to make any payment to an Issuing Bank that such Borrower
is required to make pursuant to Section 2.2(c), each Bank (other than such
Issuing Bank) shall pay to the Agent, for the account of such Issuing Bank in
Dollars and in immediately available funds, the amount of such Bank's LC
Participation Percentage of any payment under a Letter of Credit upon notice by
such Issuing Bank (through the Agent) to such Bank requesting such payment and
specifying such amount. Each such Bank's obligation to make such payment to the
Agent for the account of such Issuing Bank under this Section 2.2(d), and such
Issuing Bank's right to receive the same, shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever other than the gross
negligence or willful misconduct of such Issuing Bank in making payment under
such Letter of Credit, including the failure of any other Bank to make its
payment under this Section 2.2(d), the financial condition of a Borrower (or any
account party in respect of such Letter of Credit), the existence of any Event
of Default or the termination of the Letter of Credit Commitments. If any Bank
shall default in its obligation to make any such payment to the Agent for the
account of an Issuing Bank, for so long as such default shall continue the Agent
may, at the request of such Issuing Bank withhold from any payments received by
the Agent under this Agreement for the account of such Bank the amount so in
default and, to the extent so withheld and pay the same to such Issuing Bank for
application to such defaulted obligation.
(e) Participations in Reimbursement Obligations. Upon the
making of each payment by a Bank to an Issuing Bank pursuant to Section 2.2(d)
in respect of any Letter of Credit, such Bank shall, automatically and without
any further action on the part of the Agent, any Issuing Bank or such Bank,
acquire (i) a funded participation in an amount equal to such payment in the
Reimbursement Obligation owing to such Issuing Bank by the applicable Borrower
hereunder and under the Letter of Credit Documents relating to such Letter of
Credit and (ii) a participation in a percentage equal to such Bank's LC
Participation Percentage in any interest or other amounts payable by the
Borrowers hereunder and under such Letter of Credit Documents in respect of such
Reimbursement Obligation (other than the Fronting Fee contemplated by Section
2.11(b)(i)). Upon receipt by any Issuing Bank from or for the account of a
Borrower of any payment in respect of any Reimbursement Obligation or any such
interest or other amount (including by way of setoff or application of proceeds
of any collateral security or the withdrawal and application of funds from the
Collateral Account as required by Section 2.2(c)), such Issuing Bank shall
promptly pay to the Agent, for the account of each Bank entitled thereto, such
Bank's Participation Percentage of such payment, each such payment by such
Issuing Bank to be made in the same currency and funds in which received by any
Issuing Bank. In the event any payment received by such Issuing Bank and so paid
to the Banks hereunder is rescinded or must otherwise be returned by any Issuing
Bank, each Bank shall, upon the request of such Issuing Bank (through the
Agent), repay to such Issuing Bank (through the Agent) the portion of such
payment paid to such Bank.
(f) Information Provided by Issuing Banks to Banks.
Promptly after the issuance of or amendment to any Letter of Credit, the Issuing
Bank that issued such Letter of Credit will notify the Agent and the applicable
Borrower in writing of such issuance or amendment and such notice shall be
accompanied by a copy of such issued or amended Letter of
15
Credit. Upon receipt of such notice, the Agent shall notify each Bank of such
issuance or amendment and, if requested by a Bank, the Agent shall provide such
Bank with copies of such issued or amended Letter of Credit and any related
Letter of Credit Documents thereto.
(g) Conditions Precedent to Issuance, Extension and
Modification. The issuance by any Issuing Bank of a Letter of Credit, or any
extension of any outstanding Letter of Credit, shall be subject to satisfaction
of each of the conditions precedent set forth in Article III, and shall further
be subject to the conditions precedent that (i) such Letter of Credit shall be
in such form and contain such terms as shall be reasonably satisfactory to such
Issuing Bank consistent with its then current practices and procedures of
general applicability with respect to letters of credit of the same type and
(ii) the applicable Borrower shall have executed and delivered such agreements
and other instruments relating to such Letter of Credit as such Issuing Bank
shall have reasonably requested consistent with its then current practices and
procedures of general applicability with respect to letters of credit of the
same type; provided that in the event of any conflict between any such
application, agreement or other instrument and the provisions of this Agreement,
the provisions of this Agreement shall control. The issuance by any Issuing Bank
of any amendment, modification or supplement to any Letter of Credit hereunder
which increases the stated amount thereof or extends the termination date
thereof shall be subject to the same conditions applicable under this Section
2.2 to the issuance of new Letters of Credit, and no such modification or
supplement shall be issued hereunder unless the Letter of Credit affected
thereby would have complied with such conditions had it originally been issued
hereunder in such modified or supplemented form.
(h) Interest Payable to Issuing Banks by Banks. To the
extent that any Bank shall fail to pay any amount required to be paid pursuant
to Sections 2.2(d) or (e) on the due date therefor, such Bank shall pay interest
to the Issuing Bank owed such amount (through the Agent) on such amount from and
including such due date to but excluding the date such payment is made at a rate
per annum equal to the Federal Funds Rate.
(i) Indemnification of the Banks, Issuing Banks and
Agent. The Borrowers hereby indemnify and hold harmless each Bank, each Issuing
Bank and the Agent from and against any and all claims, damages, losses,
liabilities, costs and expenses that such Bank, such Issuing Bank or the Agent
may incur (or that may be claimed against such Bank, such Issuing Bank or the
Agent by any Person whatsoever) by reason of or in connection with the execution
and delivery or transfer of or payment or refusal to pay by each Issuing Bank
under any Letter of Credit (EXPRESSLY INCLUDING ANY SUCH CLAIM, DAMAGE, LOSS,
LIABILITY OR EXPENSE ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY
NEGLIGENCE OF SUCH BANK, SUCH ISSUING BANK OR THE AGENT, AS THE CASE MAY BE, BUT
EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE ATTRIBUTABLE TO THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH BANK, SUCH ISSUING BANK AND THE
AGENT). IT IS THE INTENT OF THE PARTIES HERETO THAT EACH BANK, EACH ISSUING BANK
OR THE AGENT, AS THE CASE MAY BE, SHALL, TO THE EXTENT PROVIDED IN THIS SECTION
2.2(i), BE INDEMNIFIED FOR ITS OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE;
provided that the Borrowers shall not be required to indemnify any Bank, any
Issuing Bank or the Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (A) in the case of
16
each Issuing Bank, the willful misconduct or gross negligence of such Issuing
Bank in determining whether a request presented under any Letter of Credit
complied with the terms of such Letter of Credit or (B) in the case of any Bank,
such Bank's failure to pay its Letter of Credit Liabilities pursuant to Sections
2.2(d), (e) and (h).
SECTION 2.3. Making the Revolving Credit Advances.
(a) Each Revolving Credit Borrowing shall be made on
notice, given not later than 11:00 a.m. (New York City time) on the third
Business Day prior to the date of the proposed Revolving Credit Borrowing in the
case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, or
10:00 a.m. (New York City Time) the Business Day of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by the Borrower to the Agent, which shall give to each Bank
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be by
telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit D-2 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of Revolving Credit
Advance, (iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in
the case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances,
initial Interest Period for each such Revolving Credit Advance. Each Bank shall,
before 12:00 p.m. (New York City time) on the date of such Revolving Credit
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at the Agent's Account, in same day funds, such Bank's ratable portion
of such Revolving Credit 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 at the Agent's address
referred to in Section 8.2.
(b) Anything in Section 2.3(a) to the contrary
notwithstanding, a Borrower may not select Eurodollar Rate Advances for any
Revolving Credit Borrowing if the aggregate obligation of the Banks to make
Eurodollar Rate Advances shall then be suspended pursuant to Sections 2.3(e),
2.14 or 2.16.
(c) No Borrower may select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowings is less than $10,000,000.
(d) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on such Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, the Borrowers shall indemnify each
Bank against any loss, cost or expense incurred by such Bank as a result of any
failure by the Borrowers to fulfill on or before the date specified in such
Notice of Revolving Credit Borrowing for such Revolving Credit 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 Revolving Credit Advance to be made by such Bank as part
of such Revolving Credit Borrowing when such Revolving Credit Advance, as a
result of such failure, is not made on such date.
17
(e) If the Agent is unable to determine the Eurodollar
Rate for Eurodollar Rate Advances, the obligation of the Banks to make, or to
Convert Revolving Credit Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrowers and the Banks that the
circumstances causing such suspension no longer exist, and, except as provided
in Section 2.3(f), each Revolving Credit Advance comprising any requested
Revolving Credit Borrowing shall be a Base Rate Advance.
(f) If a Borrower has requested a proposed Revolving
Credit Borrowing consisting of Eurodollar Rate Advances and as a result of
circumstances referred to in Section 2.3(e) or Section 2.14(b) such Revolving
Credit 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 Revolving Credit Borrowing would
otherwise be made, cancel such Revolving Credit Borrowing, in which case such
Revolving Credit Borrowing shall be cancelled and no Revolving Credit Advances
shall be made as a result of such requested Revolving Credit Borrowing, but such
Borrower shall indemnify the Banks in connection with such cancellation as
contemplated by Section 2.3(d).
(g) Unless the Agent shall have received notice from a
Bank prior to the date of any Revolving Credit Borrowing that such Bank will not
make available to the Agent such Bank's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Bank has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
Section 2.3(a) and the Agent may, in reliance upon such assumption, make
available to a Borrower on such date a corresponding amount. If and to the
extent that such Bank shall not have so made such ratable portion available to
the Agent, such Bank and 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 Revolving Credit Advances
comprising such Revolving Credit 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 Revolving Credit
Advance as part of such Revolving Credit Borrowing for purposes of this
Agreement and such Borrower shall be relieved of its obligations to repay such
amount under this Section 2.3(g).
(h) The failure of any Bank to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Bank of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Bank shall be responsible for the failure of any other Bank to make the
Revolving Credit Advance to be made by such other Bank on the date of any
Revolving Credit Borrowing.
SECTION 2.4. Voluntary Reduction of the Commitments. 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 (i) the Unused Revolving
Credit Commitments and (ii) the unused portions of the Letter of Credit
Commitments; provided that each partial reduction shall be in the aggregate
amount of at least $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall be made ratably among the Banks or Issuing Banks, as the case
may be, in accordance
18
with their respective Commitments hereunder; and provided further that the
aggregate amount of the Letter of Credit Commitments shall not be reduced to an
amount which is less than the aggregate amount of all Letter of Credit
Liabilities.
SECTION 2.5. Prepayments.
(a) Optional. Each Borrower may, upon notice to the Agent
(i) before 10:00 a.m. (New York City time) for Base Rate Advances on the date of
prepayment and (ii) upon at least three Business Days' notice to the Agent for
Eurodollar Rate Advances stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given by such Borrower shall,
prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest and fees to the date of such prepayment on
the principal amount prepaid and amounts, if any, required to be paid pursuant
Section 8.4(c) as a result of such prepayment; provided, however, that each
prepayment pursuant to this Section 2.5(a) shall be in an aggregate principal
amount not less than $5,000,000.
(b) Mandatory. Upon the date of receipt of written notice
by the Borrowers from the Agent or the Majority Banks of the occurrence of any
Mandatory Prepayment Event (such written notice to be delivered by the Agent or
the Majority Banks to the Borrowers not later than ten Business Days from the
date of an occurrence of any Mandatory Prepayment Event), all then outstanding
Revolving Credit Advances, including any amounts required to be paid pursuant to
Section 8.4(c) as a result of such prepayment, shall be repaid by the Borrowers
(which the Borrowers may elect to repay using amounts on deposit in the
Collateral Account (in accordance with the Security Agreement) if and to the
extent funds are available in such Collateral Account) by no later than 10
Business Days from the date of receipt of such written notice of such Mandatory
Prepayment Event.
SECTION 2.6. Increased Costs.
(a) If any Bank or Issuing 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 Issuing Bank, as the case may be, or
any corporation controlling such Bank or Issuing Bank, as the case may be, and
that the amount of such capital is increased by or based upon the existence of
such Bank's or such Issuing Bank's, as the case may be, commitment to lend
hereunder, issue Letters of Credit or purchase participations in Letters of
Credit and other commitments of this type, then, upon demand by such Bank or
Issuing Bank, as the case may be (with a copy of such demand and related
certificate (which certificate shall specify in reasonable detail the nature of
such change in capital requirements, the proposed (or actual) compliance change
to be adopted by the applicable Bank or Issuing Bank and the calculations upon
which any compensation is claimed hereunder) to the Agent), the Borrowers shall
immediately pay to the Agent within five Business Days of receipt of such demand
for the account of such Bank or Issuing Bank, as the case may be, from time to
time as specified by such Bank or Issuing Bank, as the case may be, additional
amounts sufficient to compensate such Bank or Issuing Bank, as the case may be,
or such corporation in the light of such circumstances, to the extent that such
Bank or Issuing Bank, as the case may be,
19
reasonably determines such increase in capital to be allocable to the existence
of such Bank's or such Issuing Bank's, as the case may be, commitment to lend,
issue Letters of Credit or purchase participations in Letters of Credit
hereunder. A certificate as to the amount of such additional amounts, submitted
to the Borrowers and the Agent by such Bank or Issuing Bank, as the case may be,
shall be prima facie evidence of the amount of such additional amounts. No Bank
or Issuing Bank shall have any right to recover any additional amounts under
this Section 2.6(a) for any period more than 90 days prior to the date such Bank
or Issuing Bank, as the case may be, notifies the Borrowers of any such
compliance.
(b) In the event that any Bank (i) makes a demand for
payment under Section 2.2, 2.8, 2.17 or this Section 2.6, or (ii) does not agree
to provide its consent or agree to any amendment or waiver pursuant to Section
8.1 where such consent or agreement to provide an amendment or waiver is
required of all the Banks hereto, TWC may within ninety (90) days of such demand
or non-consent, if no Default or Event of Default then exists, replace such Bank
with another commercial bank in accordance with all of the provisions of the
second and third sentences of Section 8.5(a), and clauses (b) and (d) of Section
8.5 (including execution of an appropriate Transfer Agreement); provided that
(w) all obligations of such Bank to lend hereunder or purchase participations in
Letters of Credit shall be terminated and the Letter of Credit Interests held by
such Bank and 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 and fees at or prior to such replacement, (x) such replacement bank
shall be an Eligible Assignee, (y) such replacement bank shall, from and after
such replacement, be deemed for all purposes to be a "Bank" hereunder with a
Revolving Credit Commitment and Letter of Credit Liabilities in the amount of
the Revolving Credit Commitment and Letter of Credit Liabilities 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 Revolving Credit
Commitment and Letter of Credit Liabilities 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, including obligations under Section 2.1(b), and (z)
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 such that such replacement bank has all of
the rights, duties and obligations hereunder as such Bank (including
specification of the information contemplated by Schedule I as to such
replacement bank).
(c) Before making any demand under this Section 2.6, each
Bank agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different 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 2.7. 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
Dollars to the Agent at its New York address referred to in Section 8.2, in each
case in same day funds, without deduction, counterclaim or offset of any kind.
The Agent will promptly thereafter cause to be distributed
20
like funds relating to the payment of principal, interest or any fees to the
Banks for the account of their respective 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 Lending Office, in each case to be applied in accordance with
the terms of this Agreement. The Agent will promptly pay to the Collateral Agent
like funds relating to the payment of any amount payable to the Collateral
Agent. In no event shall any Bank be entitled to share any fee paid to the Agent
pursuant to Section 2.11(a), any other fee paid to the Agent, as such, or any
Fronting Fee paid to an Issuing Bank pursuant to Section 2.11(b)(i).
(b) (i) All computations of interest based on clause (a)
of the definition herein of "Base Rate" and all computations of all Commitment
Fees, Letter of Credit Fees, Fronting Fees and all other 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 and interest pursuant to Section 2.17 shall be made by the Agent 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, letter of credit fees or other fees are payable. Each
determination by the Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder 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, commitment fee, letter of
credit fee or any other fee hereunder, as the case may be; provided, however,
that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Revolving Credit Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) 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.
SECTION 2.8. Taxes.
(a) Any and all payments by any Borrower hereunder shall
be made, in accordance with Section 2.7, 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 net
income or net profits, 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
21
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 net income or net profits, and franchise taxes
imposed on it, by the jurisdiction of such Bank's 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 for Taxes (including deductions for Taxes applicable to
additional sums payable under this Section 2.8) 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 for Taxes 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 from the execution, delivery or registration of, or otherwise with
respect to, this Agreement (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Bank, each Issuing
Bank and the Agent for the full amount of Taxes or Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.8) owed and paid by such Bank, such Issuing 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, such Issuing 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 2.8 to indemnify a
Bank, an Issuing Bank or the Agent for Taxes or Other Taxes which were paid by
such Bank, such Issuing Bank or the Agent, as the case may be, more than ninety
days prior to such written demand for indemnification.
(d) In the event that a Bank, an Issuing 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, such
Issuing Bank or Agent, as the case may be, shall promptly notify TWC in writing
and provide TWC with a copy of such communication. The Agent's, an Issuing
Bank's or a Bank's failure to provide a copy of such communication to TWC shall
not relieve TWC of any of its obligations hereunder.
(e) Promptly following 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 8.2, the original or a certified copy of a
receipt evidencing payment thereof (or, if no such receipt is reasonably
available, other evidence of payment reasonably acceptable to the Agent). Should
any Bank, any Issuing Bank or the Agent ever receive any refund, credit or
deduction from any taxing authority to which such Bank, such Issuing Bank or the
Agent, as the case may be, would not be entitled but for the payment by such
Borrower of Taxes as required by this Section 2.8 (it
22
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, such Issuing Bank or the Agent, as the case may be, in its
reasonable judgment), such Bank, such Issuing 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, such Issuing Bank or the Agent, as the case may be, and
determined by such Bank, such Issuing 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 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 each of 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 Code, (ii) a ten-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of such Borrower or (iii) a
controlled foreign corporation related to such Borrower (within the meaning of
Section 864(d)(4) of the 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 Credit
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 2.8 (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 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 2.8 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 (at such
Bank's expense) to assist such Bank in recovering such Taxes.
(h) Any Bank claiming any additional amounts payable
pursuant to this Section 2.8 agrees to use reasonable efforts to change the
jurisdiction of its 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.
23
(i) If a Borrower determines in good faith that a
reasonable basis exists for contesting a Tax, the relevant Bank, or the Agent,
as applicable, shall provide reasonable cooperation to such Borrower in
challenging such Tax at such Borrower's expense and if requested by such
Borrower in writing; provided, however, that no Bank shall be required to take
any action hereunder which, in the reasonable discretion of such Bank, would
cause such Bank or its applicable lending office to suffer a legal, regulatory
or material economic disadvantage.
(j) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 2.8 shall survive the payment in full of
principal and interest hereunder and the Termination Date.
(k) Notwithstanding any provision of this Agreement or
the Notes to the contrary, this Section 2.8 shall be the sole provision
governing indemnities and claims for taxes under this Agreement.
SECTION 2.9. 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 Revolving Credit Advances
made by it or its Letter of Credit Interest (other than pursuant to Section 2.6,
2.8, 2.17, 8.4(b) or 8.4(c)) in excess of its ratable share of payments on
account of all Revolving Credit Advances and Letter of Credit Interests obtained
by all the Banks, such Bank shall forthwith purchase from the other Banks such
participations in the Revolving Credit Advances and Letter of Credit Interests
of such other Banks 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 2.9 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; provided, that in no event shall the
Borrowers be liable for duplicative payments under this Section 2.9 in respect
to any Obligation or other liability under the Credit Documents.
SECTION 2.10. Evidence of Debt. Each Bank and Issuing Bank
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of each Borrower to such Bank or Issuing Bank
resulting from each Revolving Credit Advance or Letter of Credit Interest owing
to such Bank or Issuing Bank, as the case may be, from time to time, including
the amounts of principal and interest payable and paid to such Bank or Issuing
Bank from time to time hereunder. Each Borrower agrees that upon notice by any
Bank to such Borrower (with a copy of such notice to the Agent) to the effect
that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Bank to evidence (whether
24
for purposes of pledge, enforcement or otherwise) such Revolving Credit Advance
owing to, or to be made by, such Bank, such Borrower shall promptly execute and
deliver to such Bank, with a copy to the Agent, a Note in substantially the form
of Exhibit F hereto payable to the order of such Bank. All references to Notes
in the Credit Documents shall mean Notes, if any, to the extent issued
hereunder.
(a) The Register maintained by the Agent pursuant to
Section 8.5(c) shall set forth (i) the date and amount of each Letter of Credit
and Revolving Credit Borrowing made hereunder, the Type of Revolving Credit
Advances comprising such Revolving Credit Borrowing and, if appropriate, the
Interest Period applicable thereto, (ii) the terms of each Transfer Agreement
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Bank
hereunder, and (iv) the amount of any sum received by the Agent from any
Borrower hereunder and each Bank's share thereof.
(b) Entries made in good faith by the Agent in the
Register pursuant to subsection (b) above, and by each Bank or Issuing Bank in
its account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from any Borrower to, in the case of the Register, the Agent
and, in the case of such account or accounts, such Bank, Issuing Bank or the
Agent, under this Agreement, absent manifest error; provided, however, that the
failure of the Agent or such Bank or Issuing Bank to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrowers under this
Agreement.
SECTION 2.11. Fees.
(a) Agent's and Collateral Agent's Fees. TWC agrees to
pay to the Agent and the Collateral Agent, for their respective sole account,
such fees as may be separately agreed to in writing by TWC and the Agent and the
Collateral Agent.
(b) Letter of Credit Fees.
(i) Fronting Fee. The Borrowers agree to pay to the Agent
for the account of each Issuing Bank a fronting fee (a "Fronting Fee")
based on the Available Amount of each Letter of Credit (for the stated
duration thereof, and giving effect to any step up provision or other
mechanism for increase that (x) occurs automatically and is not subject
to the occurrence or satisfaction or any condition or contingency or
(y) that is unilaterally exercisable by such Borrower) issued by such
Issuing Banks in an amount equal to 0.125% per annum. All Fronting Fees
payable pursuant to this Section 2.11(b)(i) shall be payable in arrears
on the last Business Day of each Fiscal Quarter and on the Termination
Date. In addition, the Borrowers shall pay directly to each Issuing
Bank for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and
charges, of such Issuing Bank relating to Letters of Credit as from
time to time in effect. Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.
25
(ii) Participating Banks. The Borrowers agree to pay to
the Agent for the account of each Bank a letter of credit fee (a
"Letter of Credit Fee") based on such Bank's LC Participation
Percentage of the average daily aggregate Available Amount of all
Letters of Credit outstanding from time to time at a rate of 0.75% per
annum (for the stated duration thereof, and giving effect to any step
up provision or other mechanism for increase that (x) occurs
automatically and is not subject to the occurrence or satisfaction or
any condition or contingency or (y) is unilaterally exercisable by the
Borrowers). All amounts payable pursuant to this Section 2.11(b)(ii)
shall be paid in arrears on the last Business Day of each Fiscal
Quarter and on the Termination Date.
(c) Commitment Fees. The Borrowers agree to pay to the
Agent for the account of each Bank a commitment fee (a "Commitment Fee"), in an
amount equal to 0.10% per annum on such Bank's Unused Revolving Credit
Commitment. All amounts payable pursuant to this Section 2.11(c) shall be paid
in arrears on the last Business Day of each Fiscal Quarter and on the
Termination Date.
SECTION 2.12. Repayment of Revolving Credit Advances. Each
Borrower shall repay to the Agent for the ratable account of the Banks on the
Termination Date, or such earlier date as the Notes may become due and payable
pursuant to Article VI, the aggregate principal amount of the Revolving Credit
Advances then outstanding.
SECTION 2.13. Interest.
(a) Scheduled Interest. Each Borrower shall pay interest
on the unpaid principal amount of each Revolving Credit Advance owing to each
Bank from the date of such Revolving Credit Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per annum equal
at all times the Base Rate in effect from time to time, payable in
arrears quarterly on the last Business Day of each Fiscal Quarter
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.1(a), the Borrowers shall pay
interest on (i) the unpaid principal amount of each (x) Revolving Credit Advance
owing to each Bank, payable in arrears in the
26
amounts and on the dates referred to in Section 2.13(a) or (y) Reimbursement
Obligation owing to each Bank, payable in arrears in the amounts and from the
date referred to in Section 2.2(c), plus 2% per annum above the rate per annum
required to be paid on such Revolving Credit Advance pursuant to Section 2.13(a)
or such rate per annum required to be paid on such Reimbursement Obligation
pursuant to Section 2.2(c) and (ii) to the fullest extent permitted by law, the
amount of any interest, Fronting Fee, Commitment Fee, Letter of Credit Fee or
any other fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to Section 2.13(a)(i).
SECTION 2.14. Interest Rate Determination.
(a) The Agent shall give prompt notice to the Borrowers
and the Banks of the applicable interest rate determined by the Agent for
purposes of Section 2.13(a)(i) or 2.13(a)(ii).
(b) If, with respect to any Eurodollar Rate Revolving
Credit Advances, the Majority Banks notify the Agent that the Eurodollar Rate
for any Interest Period for such Revolving Credit Advances will not adequately
reflect the cost to such Majority Banks of making, funding or maintaining their
respective Eurodollar Rate Advances for such Interest Period, 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 obligation of
the Banks to make, or to Convert Revolving Credit Advances into, Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrowers and the
Banks that the circumstances causing such suspension no longer exist.
(c) If a Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify such Borrower and the Banks and such Revolving
Credit Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Revolving Credit Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than
$10,000,000, such Revolving Credit Advances shall automatically Convert into
Base Rate Advances and the applicable Borrower shall pay any amounts required to
be paid pursuant Section 8.4(c) as a result of such Conversion.
(e) Upon the occurrence and during the continuance of any
Event of Default under Section 6.1(a), (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 obligation of the Banks to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.15. Optional Conversion of Revolving Credit
Advances. Any Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 a.m.
27
(New York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.14 and 2.16, Convert all
Revolving Credit Advances of one Type comprising the same Revolving Credit
Borrowing into Revolving Credit Advances of the other Type; provided, however,
that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be
made only on the last day of an Interest Period for such Eurodollar Rate
Advances and any Conversion of Base Rate Advances into Eurodollar Rate Advances
shall be in an amount not less than $10,000,000. Each such notice of a
Conversion shall, within the restrictions specified above, specify (a) the date
of such Conversion, (b) the Revolving Credit Advances to be Converted and (c) if
such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on such Borrower.
SECTION 2.16. Illegality. 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 makes it
unlawful, or any central bank or other governmental authority having relevant
jurisdiction asserts that it is unlawful, for any Bank or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate
Advance will automatically, upon such demand, Convert into a Base Rate Advance
and (b) the obligation of the Banks to make Eurodollar Rate Advances or to
Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrowers and the Banks that the
circumstances causing such suspension no longer exist.
SECTION 2.17. 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 Revolving Credit 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 (a) the Eurodollar Rate for the Interest Period for such
Revolving Credit Advance from (b) 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 Revolving Credit 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 2.17 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 2.17.
SECTION 2.18. Existing Letters of Credit. Effective as of the
Effective Date, all "Letters of Credit" issued and outstanding under the LC
Agreement for the account of TWC shall be deemed to be Letters of Credit
hereunder.
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ARTICLE III
CONDITIONS
SECTION 3.1. Conditions Precedent to Effectiveness of
Agreement. Article II hereof shall become effective on and as of the first date
(the "Effective Date") on which the Agent shall have received counterparts of
this Agreement duly executed by the Borrowers and all of the Banks and the
following additional conditions precedent have been satisfied or the following
additional documents have been received (except as provided otherwise in Section
3.1(i) below, all in form and substance satisfactory to the Agent):
(a) Except as otherwise disclosed publicly (including
disclosure in Public Filings prior to the date hereof) or to the
Co-Lead Arrangers and the Banks prior to the date hereof, there shall
not have occurred a material adverse change in the business, financial
condition, operations or properties of the Borrowers and their
Subsidiaries, taken as a whole, since December 31, 2002.
(b) The Agent shall have received (in addition to a fully
executed counterpart of this Agreement) the Notes, to the extent
requested by a Bank and an executed copy of each other Credit Document.
(c) The Agent shall have received certified copies of the
resolutions of the Board of Directors, or the Executive Committee
thereof, of each Borrower authorizing the execution of this Agreement,
the Notes and each Notice of Letter of Credit and Notice of Revolving
Credit Borrowing, and any other Credit Documents to which such Borrower
is a party, 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 and the transactions thereunder and hereunder.
(d) The Agent shall have received a certificate of the
Secretary or an Assistant Secretary of each Borrower certifying the
names and true signatures of the officers of such Borrower authorized
to sign each Credit Document to which it is or is to be a party and the
other documents to be delivered hereunder and thereunder.
(e) The Agent shall have received a copy of a certificate
of the Secretary of State of the jurisdiction of incorporation of each
Borrower, dated reasonably near the Effective Date, certifying (i) as
to a true and correct copy of the charter of such Borrower, and each
amendment thereto on file in such Secretary's office and (ii) that (x)
such amendments are the only amendments to such Borrower's charter or
other organizational documents on file in such Secretary's office, (y)
such Borrower has paid all franchise taxes to the date of such
certificate and (z) such Borrower is duly incorporated and in good
standing or presently subsisting under the laws of the State of the
jurisdiction of its incorporation.
(f) The Agent shall have received opinions of each of (i)
Xxxxx X. Xxxxxx, Esq., General Counsel of TWC, substantially in the
forms of Exhibit A hereto and (ii) White & Case LLP, New York counsel
to the Borrowers, substantially in the form of
29
Exhibit B, and, in each case, as to such other matters as any Bank
through the Agent may reasonably request.
(g) The Agent shall have received a certificate of each
Borrower, signed on behalf of such Borrower by an Authorized Officer
thereof, dated as of the Effective Date (the statements made in which
certificate shall be true on and as of the Effective Date), certifying
as to (i) the absence of any amendments to the charter of such Borrower
since the date of the Secretary of State's certificate referred to in
clause (e) above, (ii) a true and correct copy of the bylaws of such
Borrower as in effect on the date on which the resolutions referred to
in clause (c) were adopted and on the Effective Date, (iii) the due
incorporation and good standing or valid existence of such Borrower as
a corporation organized under the laws of the jurisdiction of its
incorporation or organization, (iv) the truth, in all material
respects, of the representations and warranties contained in this
Agreement and the Credit Documents as though made on and as of the
Effective Date other than any such representations or warranties that,
by their terms, refer to a specific date other than the Effective Date,
in which case as of such specific date and (v) the absence of any event
occurring and continuing, or resulting from the consummation of the
transactions hereunder or pursuant to the Credit Documents, that
constitutes an Event of Default (other than any Event of Default which
may arise as a result of a draw or probability of a draw under a Letter
of Credit).
(h) TWC shall have paid in full all accrued fees and
expenses of the Agent, the Co-Lead Arrangers and the Banks (including
the accrued reasonable fees and expenses of counsel to the Agent and
the Co-Lead Arrangers for which an invoice has been received by the
Borrowers).
(i) Evidence that the Existing Credit Documentation shall
have been terminated including (unless TWC otherwise agrees) release of
substantially all liens thereunder and TWC shall have paid or agreed to
pay all fees and expenses reasonably incurred pursuant therewith.
SECTION 3.2. Conditions Precedent to a Revolving Credit
Advance and an Issuance of a Letter of Credit. The obligation of each Bank to
make a Revolving Credit Advance on the occasion of any Revolving Credit
Borrowing and each Issuing Bank to issue or renew a Letter of Credit shall be
subject to the further conditions precedent that (i) the Agent shall have
received a Notice of Revolving Credit Borrowing in the form of Exhibit D-2
hereto or a Notice of Letter of Credit in the form of Exhibit D-1 hereto, as the
case may be, (ii) in the case of each Revolving Credit Advance and issuance or
renewal of a Financial Letter of Credit only, the Agent shall have received a
certificate of an Authorized Officer of TWC certifying that the delivery and
deposit of Collateral to the Collateral Account in connection with such
Revolving Credit Borrowing or issuance or renewal of a Financial Letter of
Credit does not give rise to default or an event of default pursuant to the
terms and conditions of any material indenture, agreement or other instrument of
the Borrowers which restricts the amount of Collateral which the Borrowers are
permitted to provide hereunder in such detail as the Agent may reasonably
require and (iii) on the date of such Revolving Credit Borrowing or issuance of
such Letter of Credit, the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing or Notice of Letter of Credit and
the acceptance by such Borrower of the proceeds of
30
such Revolving Credit Borrowing or issuance of such Letter of Credit shall
constitute a representation and warranty by such Borrower that on the date of
such Revolving Credit Borrowing or such Letter of Credit is issued such
statements are true):
(a) there has been no Change of Control Event;
(b) each of the representations and warranties contained
in Section 4.1(a) through (d), (h) and (l) are correct in all material
respects on and as of the date of such Revolving Credit Borrowing or
issuance or renewal of such Letter of Credit, before and after giving
effect to such Revolving Credit Borrowing or issuance or renewal of
such Letter of Credit, as though made on and as of such date (unless
such representation and warranty speaks solely as of a particular date
or a particular period, in which case, as of such date or for such
period);
(c) solely in connection with any Revolving Credit
Borrowing or issuance or renewal of a Financial Letter of Credit, there
has been no, nor will there be, any Cross-Acceleration Event or
Judgment Event before or after giving effect to such Revolving Credit
Borrowing or issuance or renewal of such Financial Letter of Credit;
(d) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or issuance or renewal of
such Letter of Credit, which constitutes a Default or Event of Default;
(e) after giving effect to such Revolving Credit
Borrowing or issuance of such Letter of Credit and Letters of Credit
which have been requested by such Borrower on or prior to such date but
which have not been made or issued prior to such date, the sum of the
aggregate amount of all Revolving Credit Advances and Letter of Credit
Liabilities will not exceed the aggregate of the Commitments of the
Banks; and
(f) the aggregate xxxx-to-market value of all Collateral
in the Collateral Account for which the Collateral Agent has a
first-priority perfected security interest shall be equal to or greater
than the Collateral Coverage Requirement before and after giving effect
to such Revolving Credit Borrowing or issuance or renewal of such
Letter of Credit.
provided that, notwithstanding anything in this Section 3.2 to the contrary,
with respect to any Letters of Credit which shall automatically renew by their
own terms unless a notice of non-renewal is given by the applicable Issuing
Bank, such Issuing Bank may give such notice of non-renewal (after notice to
such Borrower and in no event earlier than the date 10 days prior to the latest
date on which it is entitled to do so) if applicable conditions precedent
pursuant to this Section 3.2 are not satisfied at the date of issuance of the
notice of non-renewal.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the Borrowers.
The Borrowers represent and warrant as follows:
(a) Each Borrower is duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
corporate powers and all governmental licenses, authorizations,
certificates, consents and approvals required to carry on its business
as now conducted in all material respects.
(b) After giving effect to this Agreement and assuming
the consummation of the transactions contemplated hereby, the
execution, delivery and performance by each of the Borrowers of the
Credit Documents to which it is a party and the consummation of the
transactions contemplated thereby are within such Borrower's corporate
power, have been duly authorized by all necessary corporate action, and
do not contravene (i) such Borrower's charter or by-laws, or (ii) law
or any restriction under any material agreement binding on or affecting
any Borrower (other than any default which may arise as a result of a
draw or the probability of a draw under a Letter of Credit).
(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 any
Borrower of any Credit Document to which any of them is a party, or the
consummation of the transactions contemplated thereby.
(d) Each Credit Document to which any Borrower is a party
has been duly executed and delivered by such Person and is the legal,
valid and binding obligation of such Person enforceable against such
Person in accordance with its terms, except as such enforceability may
be limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and by
general principles of equity.
(e) The Consolidated balance sheets of TWC and its
Subsidiaries as at December 31, 2002, and the related Consolidated
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 balance sheet of TWC and its Subsidiaries as
at March 31, 2003, and the related Consolidated 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 all
material respects (in the case of such balance sheets as at March 31,
2003, and such statements of income and cash flows for the three months
then ended, subject to normal recurring and other adjustments) the
Consolidated financial condition of TWC and its Subsidiaries as at such
dates and the Consolidated 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. Except as has been disclosed to each
Bank prior to the date of this Agreement,
32
from December 31, 2002 to the date of this Agreement, there has been no
material adverse change in the Consolidated financial condition or
Consolidated results of operations of TWC and its Consolidated
Subsidiaries.
(i) The Consolidated balance sheet of NWP and its
Subsidiaries as at December 31, 2002, and the related Consolidated
statement of income and cash flows of NWP and its Subsidiaries for the
fiscal year then ended, copies of which have been furnished to each
Bank, and the Consolidated balance sheet of NWP and its Subsidiaries as
at March 31, 2003, and the related Consolidated statement of income and
cash flows of NWP and its Subsidiaries for the three months then ended,
duly certified by an authorized financial officer of NWP, copies of
which have been furnished to each Bank, fairly present in all material
respects, subject, in the case of such balance sheet as at March 31,
2003, and such statements of income and cash flows for the three months
then ended, to normal recurring and other 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.
(ii) The Consolidated balance sheet of TGPL and its
Subsidiaries as at December 31, 2002, 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, 2003, 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 in all
material respects, subject, in the case of such balance sheet as at
March 31, 2003, and such statements 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 three-month period, respectively, ended
on such dates, all in accordance with generally accepted accounting
principles consistently applied.
(f) Except as set forth in the Public Filings, there is
no pending or, to the knowledge of each Borrower, threatened action or
proceeding affecting any Borrower or any of their Subsidiaries or
against any of its or their respective properties or revenues before
any Governmental Authority or arbitrator (other than such threatened
actions or proceedings which are being contested in good faith and by
appropriate proceedings and with respect to which liabilities in
conformity with generally accepted accounting principles, if required
by such principles, have been established by the applicable Borrower or
such Subsidiary, as the case may be) which could reasonably be expected
to materially and adversely affect the value of the Collateral or on
the ability of the Banks to exercise their rights and remedies in
respect of the Collateral.
(g) No Letter of Credit or Revolving Credit Advance has
been or will be used for any purpose or in any manner contrary to the
provisions of Section 5.2(b).
33
(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 Federal Reserve Board), and
no proceeds of any issuance of a Letter of Credit or Revolving Credit
Advance will be used to purchase or carry any such margin stock (other
than purchases of common stock expressly permitted by Section 5.2(b))
or to extend credit to others for the purpose of purchasing or carrying
any such margin stock.
(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 the value of the
Collateral, the perfection or priority of the liens of the Collateral
Agent (for the benefit of the Secured Parties) on any material portion
of such Collateral, or the ability of the Banks to exercise their
rights and remedies in respect of the Collateral. No Borrower has nor
has any ERISA Affiliate of any Borrower 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 the value of the
Collateral or the ability of the Banks to exercise their rights and
remedies in respect of the Collateral.
(k) 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.
(l) After taking all actions required to be made by TWC
which are necessary to perfect the security interest in the Collateral
created under the Security Agreement, the Security Agreement will
create in favor of the Collateral Agent for the benefit of the Secured
Parties (as defined in the Security Agreement) a valid, and together
with any applicable actions, perfected first priority security interest
in the Collateral, securing payment of the Secured Obligations (as
defined in the Security Agreement). TWC is the legal and beneficial
owner of the Collateral free and clear of any lien other than those in
favor of the Collateral Agent for the benefit of the Secured Parties.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.1. Affirmative Covenants. So long as any Revolving
Credit Advance shall remain unpaid, any Letter of Credit or Reimbursement
Obligation shall remain outstanding, any Letter of Credit Liability shall exist,
any Issuing Bank shall have any Letter of Credit Commitment or any Bank shall
have any Commitment hereunder, each Borrower will, unless the Majority Banks
shall otherwise consent in writing:
34
(a) Compliance with Laws, Etc. Comply in all material
respects with all applicable laws, rules, regulations and orders (other
than such non-compliance matters which are 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 established by the applicable Borrower
books of such Borrower) and where such failure to comply could not
reasonably be expected to have a material adverse effect on the value
of the Collateral, the perfection or priority of the liens of the
Collateral Agent (for the benefit of the Secured Parties) on any
material portion of such Collateral, or on the ability of the Banks to
exercise their rights and remedies in respect of the Collateral.
(b) Reporting Requirements. Furnish to each of the Banks:
(i) as soon as possible and in any event within
five Business Days after the occurrence of each Default, Event
of Default or Mandatory Prepayment Event, continuing on the
date of such statement, a statement of an Authorized Financial
Officer of such Borrower setting forth the details of such
Default or Event of Default 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
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 quarter 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 normal recurring and other
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 5.1(b) is readily available on-line
through XXXXX 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 stating that he or she 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;
(iii) as soon as available and in any event not
later than (1) 105 days after the end of each Fiscal Year of
such Borrower, a copy of the annual audited report for such
year for such Borrower and its Consolidated Subsidiaries,
including therein the 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
35
generally accepted accounting principles and reported on by
Ernst & Young, LLP or 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 5.1(b) is readily available
on-line through XXXXX as of the date on which such financial
statement is required to be delivered hereunder, the Borrowers
shall not be obligated to furnish copies of such financial
statement; and (2) 120 days after the end of each Fiscal Year
of such Borrower, a certificate of an Authorized Financial
Officer of such Borrower stating that he or she 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.
(iv) promptly after the sending or filing
thereof, copies of all proxy material, reports and other
information which any Borrower sends to any of its security
holders, and copies of all final reports and final
registration statements which any 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 XXXXX, such Borrower shall not be
obligated to furnish copies thereof.
(c) Preservation of Corporate Existence, Etc. Preserve
and maintain its existence, legal structure, legal name, and rights
(charter and statutory), in the jurisdiction of its incorporation or
formation, and qualify and remain qualified as a foreign corporation
and maintain and preserve its franchise and privileges in each
jurisdiction in which such qualification, franchise or privilege is
necessary or desirable in view of its business and operations in the
reasonable judgment of the applicable Borrower, except any Borrowers
may consummate any merger, consolidation or sale, lease or transfer all
or substantially of its assets as permitted pursuant to Section 5.2(a).
(d) Security Interest in Collateral. Cause, and take all
action reasonably requested by the Collateral Agent to maintain, a
first priority perfected security interest to exist at all times in the
Collateral held on deposit in the Collateral Account in favor of the
Collateral Agent for the benefit of itself and the Secured Parties (as
defined in the Security Agreement) pursuant to the Security Agreement.
SECTION 5.2. Negative Covenants. So long as any Revolving
Credit Advance shall remain unpaid, any Letter of Credit or Reimbursement
Obligation shall remain outstanding, any Letter of Credit Liability shall exist,
any Issuing Bank shall have any Letter of Credit Commitment or any Bank shall
have any Commitment hereunder, each Borrower will not, without the written
consent of the Majority Banks:
(a) Mergers, Etc. Merge or consolidate with or into any
other Person, or sell, lease or otherwise transfer all or substantially
all of its assets, except that any Borrower may merge into, consolidate
with or into or sell, lease or otherwise transfer all or substantially
all of its assets to any successor or purchaser Business Entity so long
as such successor or purchaser Business Entity shall be organized in
the United States of
36
America and shall have expressly assumed this Agreement and the
obligations of such Borrower hereunder and under the other Credit
Documents.
(b) Use of Proceeds. Use any Letter of Credit or proceeds
of any Revolving Credit Advance for any purpose other than general
corporate purposes relating to the business of a Borrower (including
without limitation, working capital, capital expenditures, and the
acquisition, purchase or redemption of any Equity Interests or of any
Debt of any Borrower or its Subsidiary), or use any Letter of Credit or
proceeds of any Revolving Credit Advance in any manner which violates
or results in a violation of law.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. 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 Reimbursement
Obligation when the same becomes due and payable, (ii) shall fail to
pay any principal of any Revolving Credit Advance or any Note executed
by it when the same becomes due and payable, (iii) shall fail to pay
any interest on any Reimbursement Obligation, Revolving Credit Advance
or Note within five Business Days after the same becomes due and
payable or (iv) shall fail to pay any fee or other amount 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 herein or in any other Credit Document or by any Borrower
(or any officer of any Borrower) in writing under or in connection with
this Agreement or in any other Credit Document or any instrument
executed in connection herewith (including representations and
warranties deemed made pursuant to Section 3.2) shall prove to have
been materially incorrect in any material respect when made or deemed
made; or
(c) Any Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.1(b)(i) 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 any
Authorized Financial Officer of such Borrower shall have actual
knowledge of such failure, or (ii) any term, covenant or agreement
contained in Section 5.1(b) (other than a term, covenant or agreement
contained in Section 5.1(b)(i)) 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 any Authorized Financial Officer of
such Borrower shall have actual knowledge of such failure, or (iii) any
term, covenant or agreement contained in this Agreement (other than a
term, covenant or agreement contained in Section 5.1(b), Section 5.1(d)
or Section 5.2) or any other Credit Document on its part to be
performed or observed and such
37
failure shall continue for thirty 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 any Authorized Financial Officer of such Borrower
shall have actual knowledge of such failure, or (iv) any term, covenant
or agreement contained in Section 5.1(d) on its part to be performed or
observed and such failure shall continue for one Business Day after the
earlier of the date notice thereof shall have been given to such
Borrower by the Agent or any Bank or the date any Authorized Financial
Officer of such Borrower shall have actual knowledge of such failure,
or (v) any term, covenant or agreement contained in Section 5.2; or
(d) Any Borrower (i) shall generally not pay its debts as
such debts become due, or (ii) shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the
benefit of creditors or any proceeding shall be instituted by or
against the 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
shall take any action to authorize any of the actions set forth above
in this subsection (d); or
(e) Any material provision in the Security Agreement for
any reason is not a legal, valid, binding and enforceable obligation of
any Borrower party thereto or any Borrower party thereto shall so state
in writing; or
(f) the aggregate xxxx-to-market value of the Collateral
shall be less than the Collateral Coverage Requirement for a period of
five consecutive Business Days after the date of receipt by the
Borrowers of written notice (which notice shall specify in reasonable
detail the calculation and amount of such shortfall amount) from the
Collateral Agent;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrowers, declare the
Commitments of each Bank, the obligations of each Issuing Bank to issue any
Letter of Credit and each Bank to make Revolving Credit Advances to be
terminated, whereupon each such obligation shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Majority Banks, by notice
to the Borrowers, declare the principal of the Reimbursement Obligations and
Revolving Credit Advances, all interest thereon and all other amounts payable by
the Borrowers under this Agreement and any other Credit Document to be forthwith
due and payable, whereupon 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 the Borrowers; provided, however, that in the event
of any Event of Default described in Section 6.1(d)(ii), (A) the Commitments of
each Bank, the obligation of each Issuing Bank to issue a Letter of Credit and
each Bank to make Revolving Credit Advances shall automatically be terminated
and (B) the principal of the Reimbursement Obligations and
38
Revolving Credit Advances, all such interest and all such other 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 the Borrowers.
For purposes of this Section 6.1, any Reimbursement Obligation or Revolving
Credit Advances owed to an SPC shall be deemed to be owed to its Designating
Bank.
ARTICLE VII
THE AGENT; THE COLLATERAL AGENT; AND ISSUING BANKS
SECTION 7.1. Agent's and Collateral Agent's Authorization and
Action. Each Bank hereby appoints and authorizes the Agent and the Collateral
Agent to take such action respectively as agent and collateral agent on its
behalf and to exercise such powers under this Agreement and the other Credit
Documents as are delegated respectively to the Agent and to the Collateral Agent
by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by the Credit
Documents (including enforcement of the terms of this Agreement or collection of
the Reimbursement Obligations or Notes, fees and any other amounts due and
payable pursuant to this Agreement), neither the Agent nor the Collateral Agent
shall 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 the Majority Banks,
and such instructions shall be binding upon all Banks and all holders of Notes;
provided, however, that the neither the Agent nor the Collateral Agent shall be
required to take any action which exposes the Agent or the Collateral Agent to
personal liability or which is contrary to the Credit Documents or applicable
law. The Agent and the Collateral Agent agree to give to each Bank prompt notice
of each notice given to it by any Borrower pursuant to the terms of this
Agreement or any other Credit Document.
SECTION 7.2. Agent's and Collateral Agent's Reliance, Etc.
Neither the Agent nor the Collateral Agent nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by them or 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 and the Collateral
Agent: (i) may consult with their respective legal counsel (including counsel
for any Borrower), independent public accountants and other experts selected by
them and shall not be liable for any action taken or omitted to be taken in good
faith by them in accordance with the advice of such counsel, accountants or
experts; (ii) make 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 this Agreement or any
other Credit Document; (iii) 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 to
inspect the property (including the books and records) of any Borrower; (iv)
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; (v) shall incur no liability under or
39
in respect of any Letter of Credit, 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 them in their reasonable
judgement to be genuine and signed or sent by the proper party or parties; (vi)
may treat any Issuing Bank that issues or has issued a Letter of Credit as being
the issuer of such Letter of Credit for all purposes and (vii) may treat a Bank
as the obligee of any Revolving Credit Advance or, if applicable, the payee of
any Note as the holder thereof, until the Agent receives and accepts a Transfer
Agreement executed by a Borrower (if required pursuant to Section 8.5), the
assignor Bank and the assigning Bank pursuant to Section 8.5.
SECTION 7.3. Issuing Banks' Reliance, Etc. Neither the Issuing
Banks nor any directors, officers, agents or employees of the Issuing Banks
shall be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. The Issuing Banks shall not have, by reason of
this Agreement a fiduciary relationship in respect of any Bank; and nothing in
this Agreement, expressed or implied, is intended or shall be so construed as to
impose upon the Issuing Banks any obligations in respect of this Agreement
except as expressly set forth herein. Without limitation of the generality of
the foregoing, the Issuing Banks: (i) 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; (ii) make 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 this
Agreement or any other Credit Document; (iii) 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 to inspect the property (including the books and
records) of any Borrower; (iv) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other Credit Document or any other instrument or
document furnished pursuant hereto or thereto; and (v) shall incur no liability
under or in respect of any Letter of Credit 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 in its reasonable judgment
to be genuine and signed or sent by the proper party or parties.
SECTION 7.4. Rights. With respect to its Commitments, the
Revolving Credit Advances made by it and the Notes, if any, issued to it, or any
Letter of Credit Interest held by it, Citibank 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 and Collateral Agent; with respect to
its Letter of Credit Commitments, the Reimbursement Obligations owed to it, any
Letter of Credit Interest held by it, the Issuing Banks shall have the right and
power under this Agreement as any other Bank and may exercise the same as though
it was not an Issuing Bank, as the case may be. The term "Bank" or "Banks"
shall, unless otherwise expressly indicated, include each of the Issuing Banks
in their individual capacity. Citibank, each Issuing Bank 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 Person who may do business with or own, directly or indirectly, securities
of any Borrower and any other Person, all as if Citibank were not the Agent and
Collateral Agent and each Issuing Bank was not an Issuing Bank, in each case
without any duty to account therefor to the Banks.
40
SECTION 7.5. Indemnification. The Banks agree to indemnify the
Agent and the Collateral Agent (to the extent not reimbursed by the Borrowers),
ratably according to the respective Letter of Credit Interests then held by each
of them plus the respective principal amounts of the Revolving Credit Advances
owed to each of them (or if no Letter of Credit Interests or Revolving Credit
Advances are at the time outstanding, ratably according to their respective LC
Participation Percentage plus their Revolving Credit Commitments), from and
against any and all claims, damages, losses, liabilities and expenses (including
reasonable fees and disbursements of counsel) of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against either the Agent or
the Collateral 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 or the
Collateral 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 AND THE COLLATERAL AGENT). IT IS THE INTENT
OF THE PARTIES HERETO THAT THE AGENT AND THE COLLATERAL AGENT SHALL, TO THE
EXTENT PROVIDED IN THIS SECTION 7.5, BE INDEMNIFIED FOR RESPECTIVELY FOR THEIR
OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE. Without limitation of the
foregoing, each Bank agrees to reimburse the Agent and the Collateral Agent
promptly upon demand for their respective ratable shares of any out-of-pocket
expenses (including counsel fees) incurred respectively by the Agent and the
Collateral 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 or any other Credit Document to
the extent that the Agent and the Collateral Agent are not reimbursed for such
expenses by the Borrowers.
(a) The Banks agree to indemnify each Issuing Bank (to
the extent not reimbursed by the Borrowers), ratably according to the respective
Letter of Credit Interests then held by each of them plus the respective
principal amounts so the Revolving Credit Advances owed to each of them (or if
no Letter of Credit Interests or Revolving Credit Advances are at the time
outstanding, ratably according to their respective LC Participation Percentage
plus their Revolving Credit Commitments), from and against any and all claims,
damages, losses, liabilities and expenses (including reasonable fees and
disbursements of counsel) of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against any Issuing Bank in any way relating to or
arising out of this Agreement or any other Credit Document or any action taken
or omitted by any Issuing Bank 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 ANY ISSUING
BANK, BUT EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE
ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH ISSUING
BANK). IT IS THE INTENT OF THE PARTIES HERETO THAT AN ISSUING BANK SHALL, TO THE
EXTENT PROVIDED IN THIS SECTION 7.5, BE INDEMNIFIED FOR ITS OWN ORDINARY, SOLE
OR CONTRIBUTORY NEGLIGENCE. Without limitation of the foregoing, each Bank
agrees to reimburse each Issuing Bank promptly upon demand for its
41
ratable share of ay out-of-pocket expenses (including counsel fees) incurred by
such Issuing Bank in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
renegotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under this Agreement or any other Credit Documents
to the extent that such Issuing Bank is not reimbursed for such expenses by the
Borrowers.
SECTION 7.6. Successor Agent and Collateral Agent. The Agent
and Collateral Agent may resign at any time respectively as Agent and Collateral
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; provided, however, that any removal of the Agent will not be effective
until it has also been replaced as Collateral Agent. Upon any such resignation
or removal, the Majority Banks shall have the right to appoint, with the consent
of the Borrowers (which consent shall not be unreasonably withheld and shall not
be required if an Event of Default exists), a successor Agent and Collateral
Agent from among the Banks. If no successor Agent and Collateral Agent shall
have been so appointed by the Majority Banks with such consent, and shall have
accepted such appointment, within 30 days after the respective retiring Agent's
or Collateral Agent's giving of notice of resignation or the Majority Banks'
removal of the retiring Agent or Collateral Agent, then the retiring Agent or
Collateral Agent may, on behalf of the Banks, appoint respectively a successor
Agent or Collateral 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 or Collateral Agent under this Agreement
by respectively a successor Agent or Collateral Agent, such successor Agent or
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent or Collateral Agent
and shall function as the Agent or Collateral Agent under this Agreement, and
the retiring Agent or Collateral Agent shall be discharged from its duties and
obligations as Agent or Collateral Agent under this Agreement. After any
retiring Agent's or Collateral Agent's resignation or removal hereunder
respectively as Agent or Collateral 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 or Collateral Agent under this Agreement.
SECTION 7.7. Bank Credit Decision. Each of the Banks
acknowledges that it has, independently and without reliance upon the Collateral
Agent, the Agent, the Documentation Agent, the Co-Lead Arrangers, the Issuing
Banks or any other Bank and based on the financial statements referred to in
Section 4.1(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
Agreement parties hereto (both on its own behalf and on behalf of any of its
Affiliates that is a beneficiary of any Security Agreement) also acknowledges
that it will, independently and without reliance upon the Collateral Agent, the
Agent, the Documentation Agent, the Co-Lead Arrangers, the Issuing Banks 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. The
Collateral Agent shall not have any duty or responsibility, either initially or
on a continuing basis, to provide any Person with any
42
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 7.8. Certain Rights of the Collateral Agent. If the
Collateral Agent shall request instructions from the Majority Banks with respect
to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Collateral Agent shall be entitled
to refrain from such act or taking such action unless and until the Collateral
Agent shall have received instructions from the Majority Banks; and it shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Bank nor any beneficiary of any Security Agreement shall have any
right of action whatsoever against the Collateral Agent as a result of its
acting or refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Majority Banks or all of the Banks, as
the case may be. Furthermore, except for action expressly required of the
Collateral Agent hereunder, the Collateral Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall be
specifically indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
SECTION 7.9. Other Agents. The other agents, Documentation
Agent and the Co-Lead Arrangers have no duties or obligations under this
Agreement. None of the other agents, the Documentation Agent or the Co-Lead
Arrangers shall have, by reason of this Agreement or the other Credit Documents,
a fiduciary relationship in respect of any Bank, and nothing in this Agreement
or other Credit Documents, express or implied, is intended or shall be so
construed to impose on any of the other agents, the Documentation or the Co-Lead
Arrangers any obligation in respect of this Agreement or other Credit Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. 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 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) except as
provided in Section 3.1(i), waive any of the conditions specified in Article
III, (b) increase the Commitments of the Banks or the Letter of Credit
Commitments of the Issuing Banks or subject any Bank to any additional
obligation, (c) reduce the Reimbursement Obligations, (d) reduce the principal
of, or interest on (other than any interest pursuant to Section 2.13(b)), the
Revolving Credit Advances or any fees or other amounts payable hereunder, (e)
postpone any date fixed for any payment of the Reimbursement Obligations,
Revolving Credit Advances or any fees or other amounts payable hereunder, (f)
change the definition of Majority Banks or otherwise change the LC Participation
Percentages, the percentage of the Commitments or of the aggregate unpaid
principal amount of the Revolving Credit Advances, Letter of Credit Liabilities
or the Reimbursement Obligations, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Agreement,
(g) release any of the Collateral, except as set forth in the Security
43
Agreement or Section 2.2(c), (h) amend, waive any provision of, or consent to
any departure by any Borrower from Section 2.5(b), Section 2.9 or this Section
8.1, (i) decrease the percentage set forth in the definition of "Collateral
Coverage Requirement" or (j) amend or modify the definition of "Collateral" as
defined herein or as defined in the Security Agreement; 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 Credit Document; and provided further
that no amendment, waiver or consent shall, unless in writing and signed by each
Issuing Bank in addition to the Banks required above to take such action, affect
the rights or duties of any Issuing Bank under any Credit Document; and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Collateral Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Collateral Agent under any Credit
Document.
SECTION 8.2. Notices, Etc. All notices and other
communications provided for hereunder shall be either (x) in writing (including
telecopy communication) and mailed, telecopied or delivered or (y) as and to the
extent set forth in Section 8.2(b) and in the provisos to this Section 8.2(a),
in an electronic medium and delivered, as set forth in Section 8.2(b), if to any
Bank, as specified opposite its name on Schedule I hereto or specified in a
Transfer Agreement for any assignee Bank delivered pursuant to Section 8.5(a);
if to a Borrower, as specified opposite its name on Schedule II hereto; if to an
Issuing Bank to its address as specified opposite its name on Schedule I; and if
to Citibank, as Agent or Collateral Agent, to its address at 0 Xxxxx Xxx, Xxxxx
000, Xxx Xxxxxx, Xxxxxxxx 00000 (telecopier number: (000) 000-0000), Attention:
Xxxxxxxx Account Officer, with a copy to Citicorp North America, Inc., 0000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (telecopier number: (713)
654-2849), Attention: The Xxxxxxxx Companies, Inc. Account Officer, or, as to
any Borrower, any Issuing Bank, the Collateral Agent, 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 any Borrower, each Issuing Bank,
the Collateral Agent and the Agent; provided that materials required to be
delivered pursuant to Section 5.1(b)(ii), (iii) and (iv) shall be delivered to
the Agent as specified in Section 8.2(b) or as otherwise specified to any
Borrower by the Agent; provided, further, that any communication that (A)
relates to a request for a new, or a conversion of an existing, borrowing or
other extension of credit (including any election of an interest rate or
interest period relating thereto), (B) relates to the payment of any principal
or other amount due under the Credit Agreement prior to the scheduled date
therefor, (C) provides notice of any Default or Event of Default under the
Credit Agreement or (D) is required to be delivered to satisfy any condition
precedent to the effectiveness of the Credit Agreement and/or any borrowing or
other extension of credit thereunder, shall be in writing (including telecopy
communication) and mailed, telecopied or delivered pursuant to this Section
8.2(a). All such notices and communications shall, when mailed, telecopied or
e-mailed, 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 in a Transfer Agreement for any assignee Bank delivered pursuant
to Section 8.5(a) (or other telecopy number specified by such party in a written
notice to the other parties hereto) or confirmed by e-mail, 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 of any amendment or waiver of any
44
provision of this Agreement or any other Credit Document (other than a Letter of
Credit) shall be effective as delivery of a manually executed counterpart
thereof.
(a) So long as Citibank is the Agent, materials required
to be delivered pursuant to Section 5.1(b)(ii), (iii) and (iv) may be delivered
to the Agent (x) in an electronic medium in a format acceptable to the Agent and
the Lenders by e-mail at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx or (y) in accordance with
Section 8.2(a)(x). The Borrowers agree that the Agent may make such materials,
as well as any other written information, documents, instruments and other
material relating to any Borrower, any Subsidiaries or any other materials or
matters relating to this Agreement, the Notes or any of the transactions
contemplated hereby (collectively, the "Communications") available to the Banks
by posting such notices on "e-Disclosure" (the "Platform"), the Agent's internet
delivery system that is part of Fixed Income Direct, Global Fixed Income's
primary web portal. Although the primary web portal is secured with a dual
firewall and a User ID/Password Authorization System and the Platform is secured
through a single user per deal authorization method whereby each user may access
the Platform only on a deal-by-deal basis, the Borrowers acknowledge that (i)
the distribution of material through an electronic medium is not necessarily
secure and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or
completeness of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the Platform. No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the
Platform.
(b) Each Bank agrees that notice to it (as provided in
the next sentence) (a "Notice") specifying that any Communications have been
posted to the Platform shall constitute effective delivery of such information,
documents or other materials to such Bank for purposes of this Agreement;
provided that, if requested by any Bank, the Agent shall deliver a copy of the
Communications to such Bank by e-mail or telecopier. Each Bank agrees (i) to
notify the Agent in writing of such Bank's e-mail address to which a Notice may
be sent by electronic transmission (including by electronic communication) on or
before the date such Bank becomes a party to this Agreement (and from time to
time thereafter to ensure that the Agent has on record an effective e-mail
address for such Bank) and (ii) that any Notice may be sent to such e-mail
address.
SECTION 8.3. No Waiver; Remedies. No failure on the part of
any Bank, the Collateral Agent, any Issuing Bank, any Issuing Bank or the Agent
to exercise, and no delay in exercising, any right under this Agreement or any
other Credit Document 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 of any other right. The remedies provided in this
Agreement are cumulative and not exclusive of any remedies provided by law.
45
SECTION 8.4. Costs and Expenses.
(a) (i) TWC agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Co-Lead Arrangers, the Documentation
Agent, the Collateral Agent, the Agent and the Issuing Banks in connection with
the preparation, execution, delivery, administration, modification and amendment
of this Agreement, the Letters of Credit, the Notes, or any other Credit
Document and the other documents to be delivered under this Agreement, including
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, the Notes and any other Credit Document,
the reasonable costs and expenses of the Issuing Banks in connection with any
Letter of Credit, the reasonable costs and expenses of the Collateral Agent and
all amounts paid by the Collateral Agent pursuant to the Security Agreement, and
(ii) TWC agrees to pay on demand all costs and expenses, if any (including
reasonable counsel fees and expenses, which may include allocated costs of
in-house counsel), of the Agent, the Collateral Agent, the Documentation Agent,
the Issuing Banks 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 or restructurings), legal proceedings or
otherwise) against any Borrower.
(b) Each Borrower agrees, to the fullest extent permitted
by law, to indemnify and hold harmless the Agent, the Collateral Agent, the
Documentation Agent, the Issuing Banks, other agents, the Co-Lead Arrangers and
each Bank and each of their respective directors, officers, employees and agents
(the "Indemnified Parties") from and against any and all claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable fees
and disbursements of counsel) of any kind or nature whatsoever for which any of
them may become liable or which may be incurred by or asserted against any of
the Indemnified Parties (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 any of the
Indemnified Parties is a party thereto, arising out of, related to or in
connection with the Notes, any Letter of Credit, this Agreement, any Credit
Document or any transaction in which any proceeds of all or any part of Letters
of Credit or Revolving Credit Advances are applied (EXPRESSLY INCLUDING ANY 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 OR THE GROSS NEGLIGENCE OR WILFUL
MISCONDUCT OF THE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS OF SUCH
INDEMNIFIED PARTY). IT IS THE INTENT OF THE PARTIES HERETO THAT EACH INDEMNIFIED
PARTY SHALL, TO THE EXTENT PROVIDED IN THIS SECTION 8.4(b), BE INDEMNIFIED FOR
ITS OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by any Borrower to or for the account of a Bank
other than on the last day of the Interest Period for such Eurodollar Rate
Advance, as a result of a payment, prepayment or Conversion pursuant to this
Agreement or acceleration of the maturity of the Notes pursuant to
46
Section 6.1, such Borrower shall, upon demand by such 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
that it may reasonably incur as a result of such payment or Conversion,
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 any Bank to fund or maintain such Eurodollar
Rate Advance.
(d) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in Sections 2.2, 2.6 and 2.8 and this Section 8.4 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the Notes.
SECTION 8.5. Binding Effect; Transfers.
(a) This Agreement shall become effective (other than
Article II, which shall become effective upon satisfaction of the conditions
precedent set forth in Section 3.1) when it shall have been executed by the
Borrowers, the Agent, the Collateral Agent and the Issuing Banks, 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, the Collateral Agent, the Issuing Banks and each Bank and their
respective successors and assigns; provided that the Borrowers shall not have
the right to assign any of their rights hereunder or any interest herein without
the prior written consent of the Agent. Each Bank may assign to one or more
banks, financial institutions or other entities all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Revolving Credit Advances owing to such Bank, any Note or Notes held by such
Bank, its Letter of Credit Commitments, its Letter of Credit Interest and any or
all of its Commitments); provided, however, that (i) each such assignment shall
be of a constant, and not a varying, percentage of all rights and obligations
under this Agreement and the Notes, (ii) except in the case of an assignment of
all of a Bank's rights and obligations under this Agreement or an assignment to
another Bank, the amount of the Commitment, Letter of Credit Commitment and/or
LC Participation Percentage of the assigning Bank being assigned pursuant to
each such assignment (determined as of the date of the Transfer Agreement with
respect to such assignment) shall in no event be less than $10,000,000 in the
aggregate or such lesser amount as may be consented to by the Agent and the
respective Borrowers, (iii) each such assignment shall be to an Eligible
Assignee, and (iv) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register maintained by the
Agent, a Transfer Agreement and, unless the assignment is to an affiliate of
such Bank, a processing and recordation fee of $3,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Transfer Agreement, (x) the assignee thereunder shall be a party hereto
as a "Bank" and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Transfer Agreement, have the rights and
obligations of a Bank hereunder (including obligations to the Agent and the
Collateral Agent pursuant to Section 7.6) and (y) the Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Transfer Agreement, relinquish its rights and be released
from its obligations under this Agreement, except for rights and obligations
which continue after repayment of the Reimbursement Obligations and
47
Revolving Credit Advances or termination of this Agreement pursuant to the
express terms of this Agreement (and, in the case of a Transfer Agreement
covering all of an assigning Bank's rights and obligations under this Agreement,
such Bank shall cease to be a party hereto).
(b) By executing and delivering a Transfer Agreement, the
Bank assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Transfer Agreement, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations (whether written or oral) made in or in connection
with this Agreement, any other Credit Document or any other instrument or
document furnished pursuant hereto or in connection herewith, the perfection,
existence, sufficiency or value of any Collateral or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Credit
Document or any other instrument or document furnished pursuant hereto or in
connection herewith; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Borrower or any other Person or the performance or observance by any
Borrower or any other Person of any of its respective obligations under the
Credit Documents or any other instrument or document furnished pursuant hereto
or in connection herewith; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of such financial statements and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Transfer Agreement; (iv)
such assignee will, independently and without reliance upon the Agent, the
Collateral Agent, any Issuing Bank, such assigning Bank or any other Bank and
based on such financial statements and such other documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis
and decisions in taking or not taking action under this Agreement, any of the
other Credit Documents or any other instrument or document; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Agent and the Collateral Agent, respectively, to act as Agent and
the Collateral Agent, respectively, on its behalf and to exercise such powers
and discretion under this Agreement, any other Credit Document or any other
document executed in connection herewith or therewith as are delegated to the
Agent and the Collateral Agent, respectively, by the terms hereof or thereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Bank.
(c) The Agent shall maintain a copy of each Transfer
Agreement, delivered to and accepted by it and a register for the recordation of
the names and addresses of each Bank together with its respective Commitment,
Letter of Credit Commitment, LC Participation Percentage, Letter of Credit
Interest and the principal amount of the Revolving Credit Advances owing to such
Bank from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent, the Issuing Banks and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by any Borrower
or any Bank at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a Transfer Agreement executed and
completed by an assigning Bank and an assignee representing that it is an
Eligible Assignee (and consented to by
48
the Agent and, if required, by the applicable Borrower), the Agent shall (i)
accept such Transfer Agreement, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to such Borrower. If requested
by the assigning or assignee Bank, each Borrower after its receipt of such
notice, shall, at its own expense, execute and deliver to the Agent in exchange
for the surrendered Notes, new Notes to the order of such assignee Bank in an
amount equal to the Commitment assumed by it pursuant to such Transfer Agreement
and, if the assigning Bank has retained a Commitment hereunder new Notes to the
order of the assigning Bank in an amount equal to the Commitment retained by it
hereunder. Such new Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Notes, shall be dated the
effective date of such Transfer Agreement and shall otherwise be in
substantially the form of Exhibit F hereto
(e) Each Bank may sell participations to one or more
banks or other entities (other than the Borrowers or any of their Affiliates) in
or to all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment, the Revolving Credit Advances
owing to it, the Notes held by it and its Letter of Credit Interest); provided,
however, that (i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrowers,
the Agent, the Collateral Agent, each Issuing Bank and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, (v) all amounts payable
under this Agreement shall be calculated as if such Bank had not sold such
participation, and (vi) the terms of any such participation shall not restrict
such Bank's ability to consent to any departure by any Borrower herefrom without
the approval of the participant, except that the approval of the participant may
be required to the extent that such amendment, waiver or consent would reduce
the principal of, or interest on, the Reimbursement Obligations or Revolving
Credit Advances or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Reimbursement Obligations or
Revolving Credit Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Notwithstanding any other provisions set forth in
this Agreement, any Bank may at any time create a security interest in all or
any portion of its rights under this Agreement (including its Letter of Credit
Interest) or any of its Notes in favor of any Federal Reserve Bank in accordance
with Regulation A of the Federal Reserve Board without notice to or consent of
the Borrowers or the Agent. Furthermore, any Bank may assign, as collateral or
otherwise, any of its rights (including rights to payments of principal of
and/or interest on its Letter of Credit Interest or Revolving Credit Advances
made by such Bank) under this Agreement, its Notes or any of its Letter of
Credit Interest to any Federal Reserve Bank without notice to or consent of any
Borrowers or the Agent.
(g) 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 payment to any Issuing Bank or Revolving
49
Credit Advance which the Designating Bank has agreed to make; provided that no
Designating Bank shall have granted at any one time such option to more than one
SPC; and provided further that (i) such Designating Bank's obligations under
this Agreement 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 Issuing Banks, the Collateral Agent, 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 drawing under a Letter of
Credit or to fund any Revolving Credit 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 its obligations under Section 2.7). The issuance of a Letter of
Credit or the making of a Revolving Credit Advance by an SPC hereunder shall
utilize the Commitment of the Designating Bank to the same extent, and as if,
such Revolving Credit Advance were made by or such Letter of Credit were issued
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
8.5, an SPC may not assign its interest in any Letter of Credit Interests or
Revolving Credit 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 Letter of Credit Interests or Revolving Credit Advance 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 Letter of Credit Interests or Revolving
Credit Advance. 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 votes, approvals, waivers, consents and amendments under or relating
to this Agreement, the Notes and the other Credit 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 Issuing Banks, the Collateral Agent, 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 or the SPC.
This Section 8.5(g) may not be amended without the written consent of any SPC,
which shall have been identified to the Agent and the Borrowers.
SECTION 8.6. Governing Law. This Agreement, the Notes and the
other Credit Documents shall be governed by, and construed in accordance with,
the laws of the State of New York.
50
SECTION 8.7. Interest. It is the intention of the parties
hereto that the Agent, each Issuing Bank, the Collateral Agent and each Bank
shall conform strictly to usury laws applicable to it, if any. Accordingly, if
the transactions with the Agent, any Issuing Bank, the Collateral 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, such Issuing Bank, the Collateral Agent or such Bank,
as the case may be, under this Agreement, the Notes and any other Credit
Document or under any other agreement entered into in connection with or as
security for this Agreement, the Notes or the other Credit Documents shall under
no circumstances exceed the maximum amount allowed by such applicable law and
any excess shall be canceled automatically and, if theretofore paid, shall at
the option of the Agent, such Issuing Bank, the Collateral Agent or such Bank,
as the case may be, be credited by the Agent, such Issuing Bank, the Collateral
Agent or such Bank, as the case may be, on the principal amount of the
obligations owed to the Agent, such Issuing Bank, the Collateral Agent or such
Bank, as the case may be, by the applicable Borrower or refunded by the Agent,
such Issuing Bank, the Collateral Agent or such Bank, as the case may be, to the
applicable Borrower, and (ii) in the event that the maturity of any obligation
payable to the Agent, such Issuing Bank, the Collateral 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, such Issuing Bank, the Collateral 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, such Issuing
Bank, the Collateral Agent or such Bank, as the case may be, provided for in
this Agreement or otherwise shall be canceled automatically as of the date of
such acceleration or prepayment and, if theretofore paid, shall, at the option
of the Agent, such Issuing Bank, the Collateral Agent or such Bank, as the case
may be, be credited by the Agent, such Issuing Bank, the Collateral Agent or
such Bank, as the case may be, on the principal amount of the obligations owed
to the Agent, such Issuing Bank, the Collateral Agent or such Bank, as the case
may be, by the Borrowers or refunded by the Agent, such Issuing Bank, the
Collateral Agent or such Bank, as the case may be, to the applicable Borrower.
SECTION 8.8. 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 8.9. 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 of any Letters of
Credit and the issuance and delivery of the Notes (if any) and the making of
Revolving Credit Advances regardless of any investigation.
SECTION 8.10. Confidentiality.
51
(a) Subject to paragraph (b) below, 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, which is furnished
pursuant to this Agreement and which (i) the Borrowers in good faith considers
to be confidential and (ii) is either clearly marked confidential or is
designated by the Borrowers to the Agent and the Banks in writing as
confidential; provided that any Bank may disclose any such information (1) as
has become generally available to the public, (2) 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 Federal Reserve
Board or the Federal Deposit Insurance Corporation or similar organizations
(whether in the United States or elsewhere) or their successors, (3) as may be
required or appropriate in response to any summons or subpoena in connection
with any litigation, (4) in order to comply with any law, order, regulation or
ruling applicable to such Bank, (5) to the prospective transferee or grantee in
connection with any contemplated transfer of any of the Commitments, Letter of
Credit Commitments, Letter of Credit Interests or Revolving Credit Advances or
any interest therein by such Bank or the grant of an option to an SPC to fund
any drawing under a Letter of Credit or Revolving Credit 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 8.10; and provided further that if the contemplated transfer is a
grant of an option to fund a drawing under a Letter of Credit or Revolving
Credit Advance to an SPC pursuant to Section 8.5(g), such SPC may disclose (x)
on a confidential basis, any non-public information relating to such drawings
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 (y) if
prior notice of the delivery thereof is given to the Borrowers, such information
as may be required by law or regulation to be delivered, (6) 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 of the other Credit Documents or any
other document delivered in connection herewith, (7) in connection with any
litigation involving such Bank pertaining to this Agreement, any of the Notes or
any of the other Credit Documents or any other document delivered in connection
herewith, (8) to any Bank, any Issuing Bank, the Collateral Agent or the Agent,
or (9) 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 8.10.
(b) Notwithstanding anything herein or in any of the
other Credit Documents to the contrary, the Borrowers, the Agent and each Bank
(and each employee, representative or other agent of any such Person) may
disclose to any and all Persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are
provided to such Person relating to such tax treatment and tax structure. For
purposes of this Section 8.11(b), "tax treatment" means the purported or claimed
U.S. federal income tax treatment of the transaction, and "tax structure" means
any fact that may be relevant to understanding the purported or claimed U.S.
federal income tax treatment of the transaction. The authorization to disclose
the tax treatment and tax structure of the transactions contemplated hereby
contained in the first sentence was applicable immediately upon commencement of
discussions between the Borrowers, the Agent and the Banks with respect to the
transactions contemplated hereby.
52
SECTION 8.11. Waiver of Jury Trial. THE BORROWERS, THE AGENT,
THE COLLATERAL AGENT, THE ISSUING BANK 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 OF THE NOTES, ANY LETTER OF CREDITS, ANY OTHER
CREDIT DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.12. 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 8.13. 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, ANY ISSUING BANK,
THE COLLATERAL AGENT OR THE BORROWERS IN CONNECTION HEREWITH OR THEREWITH MAY BE
BROUGHT AND MAINTAINED IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX 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 MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE SUCH COLLATERAL 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 ACCORDANCE WITH SECTION 8.2. THE BORROWERS HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH THEY 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
ANY 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, SUCH BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE
CREDIT DOCUMENTS.
SECTION 8.14. Nature of Obligations. Notwithstanding anything
in this Agreement to the contrary, (a) NWP and TGPL shall be obligated only with
respect in each case
53
for the Revolving Credit Advances made to such Borrower (and all interest and
fees thereto) under Section 2.1(a) and the Reimbursement Obligations and fees
with respect to the Letters of Credit issued for the account of such Borrower
pursuant to Section 2.1(b) and (b) TWC shall be obligated for all obligations of
each Borrower hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
54
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 XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer, Chairman
of the Board, and President
NORTHWEST PIPELINE CORPORATION
By: /s/ J. Xxxxxxx Xxxxxxxxx
Name: J. Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By: /s/ J. Xxxxxxx Xxxxxxxxx
Name: J. Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
CITIBANK, N.A., as Administrative Agent
and Collateral Agent
By: /s/ J. Xxxxx Xxxxx
Name: J. Xxxxx Xxxxx
Title: Vice President
CITIBANK, N.A. as Issuing Bank and Bank
By: /s/ J. Xxxxx Xxxxx
Name: J. Xxxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Syndication
Agent
By: /s/ Xxxxxx Xxx
Name: Xxxxxx X. Xxx
Title: Managing Director
55
BANK OF AMERICA, N.A., as Issuing Bank
and Bank
By: /s/ Xxxxxx Xxx
Name: Xxxxxx X. Xxx
Title: Managing Director
JPMORGAN CHASE BANK, as Documentation
Agent and Bank
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as Bank
By: /s/ X. Xxxx
Name: X. Xxxx
Title: Senior Manager
BARCLAYS BANK PLC, as Bank
By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Director, Loan Transaction
Management
THE ROYAL BANK OF SCOTLAND PLC, as Bank
By: /s/ X. X. Dundee
Name: Xxxxxxxx X. Dundee
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as Bank
By: /s/ O. Audemard
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
56
XXXXXX COMMERICAL PAPER, INC., as Bank
By: /s/ G. Xxxxxx Xxxxx
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
TORONTO DOMINION (TEXAS), INC., as Bank
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
WESTLB AG, NEW YORK BRANCH, as Bank
By: /s/ X. Xxxxxxxxxx
Name: Xxx Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Director
BANK ONE, N.A. (MAIN OFFICE - CHICAGO),
as Bank
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Director
XXXXXXX XXXXX BANK USA, as Bank
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC., as
bank
By: /s/ Jaap Tonckens
Name: Jaap L. Tonckens
Title: Vice President
57
BANK OF OKLAHOMA, N.A., as Bank
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
BMO XXXXXXX XXXXX FINANCING, INC., as
Bank
By: /s/ Xxxxxx X. XxXxxx
Name: Xxxxxx X. XxXxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY, as Bank
By: /s/ X. Xxxxxxxxx
Name: X. Xxxxxxxxx
Title: Vice President and Manager
By: /s/ J. Fort
Name: J. Fort
Title: Vice President
58
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Bank Lending Office
------------ --------------
Citibank, N.A. Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notices:
Citibank, N.A.
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attn: The Xxxxxxxx Companies, Inc.
Account Officer
with copies to:
Citicorp North America, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Attn: The Xxxxxxxx Companies, Inc.
Account Officer
Bank of America, N.A. Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx Xxxxx
with copies to:
Bank of America, N.A.
Bank of America Center
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx Xxx
The Bank of Nova Scotia The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
Telex: 00542319
Attn: Xxxxxx X. Xxxxx
with copies to:
0000 Xxxxxxxxx, Xxxxx 0000
59
Name of Bank Lending Office
------------ --------------
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn:
Bank One, NA Bank One, NA
(Chicago) 1 Bank One Plaza
0634, 1 FNP, 10
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn:
JPMorgan Chase Bank JPMorgan Chase Bank
0000 Xxxxxx - 00xx Xxxxx
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx Xxxxx
Credit Lyonnais Credit Lyonnais New York Branch
New York Branch 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxxxxxx Xxxxxx
Bank of Montreal Bank of Montreal
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx Xxxxx
BMO Xxxxxxx Xxxxx Financing, Inc.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx Xxxxxxx
Xxxxxx Xxxxxxx Senior Xxxxxx Xxxxxxx Senior Funding, Inc.
Funding, Inc. 0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxxx X'Xxxx
60
Name of Bank Lending Office
------------ --------------
Xxxxxxx Xxxxx Bank USA Xxxxxxx Xxxxx Bank USA
00 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx X. Xxxxxx
Barclays Bank PLC Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxxxx Xxxx
The Bank of Tokyo- The Bank of Tokyo-Mitsubishi, Ltd.,
Mitsubishi, Ltd., Houston Agency
Houston Agency 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: X.X. XxXxxxxx
Toronto Dominion (Texas), Toronto Dominion (Texas), Inc.
Inc. 000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Swift Address: TDOMU S4H
Telecopier: (000) 000-0000
Attn: Xxxx Xxxx
Xxxxxx Commercial Paper, Xxxxxx Commercial Paper, Inc.
Inc. 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx Xxxxxx
Westdeutsche Landesbank Westdeutsche Landesbank Girozentrale,
Girozentrale, New York New York Branch
Branch 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
The Royal Bank of Scotland The Royal Bank of Scotland
New York Branch
000 Xxxx Xxxxxx, 00xx Xxxxx
61
Name of Bank Lending Office
------------ --------------
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx Xxxx
Notices:
The Royal Bank of Scotland
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxxxx Dundee
Bank of Oklahoma, N.A. Bank of Oklahoma, N.A.
BOK Tower 0 XX
Xxx Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxx
62
SCHEDULE II
BORROWERS' INFORMATION
Name of Borrowers Information for Notices
----------------- -----------------------
The Xxxxxxxx Companies, Inc. The Xxxxxxxx Companies, Inc.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Northwest Pipeline Corporation Northwest Pipeline Corporation
0000 Xxxx Xxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Transcontinental Gas Pipe Line Corporation Transcontinental Gas Pipe Line Corporation
0000 Xxxx Xxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SCHEDULE III
COMMITMENTS
as of June 6, 2003
------------------------------------------------------------------------------------------------------------------------
Revolving Credit Letter of Credit LC Participation Percentage
Banks Commitment ($) Commitment ($) (%)
------------------------------------------------------------------------------------------------------------------------
Citibank, N.A 90,000,000 400,000,000 11.250
------------------------------------------------------------------------------------------------------------------------
Bank of America, N.A 90,000,000 400,000,000 11.250
------------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank 90,000,000 0 11.250
------------------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia 60,000,000 0 7.500
------------------------------------------------------------------------------------------------------------------------
Barclays Bank plc 60,000,000 0 7.500
------------------------------------------------------------------------------------------------------------------------
The Royal Bank of Scotland plc 60,000,000 0 7.500
------------------------------------------------------------------------------------------------------------------------
Credit Lyonnais New York Branch 60,000,000 0 7.500
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Commercial Paper, Inc. 60,000,000 0 7.500
------------------------------------------------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. 60,000,000 0 7.500
------------------------------------------------------------------------------------------------------------------------
WESTLB AG, New York Branch 35,000,000 0 4.375
------------------------------------------------------------------------------------------------------------------------
Bank One, N.A. (Main Office - Chicago) 35,000,000 0 4.375
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Bank USA 20,000,000 0 2.500
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx Senior Funding, Inc. 20,000,000 0 2.500
------------------------------------------------------------------------------------------------------------------------
Bank of Oklahoma, N.A 20,000,000 0 2.500
------------------------------------------------------------------------------------------------------------------------
BMO Xxxxxxx Xxxxx Financing, Inc. 20,000,000 0 2.500
------------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd., Houston Agency 20,000,000 0 2.500
------------------------------------------------------------------------------------------------------------------------
TOTAL $800,000,000* 100.000
------------------------------------------------------------------------------------------------------------------------
--------------------------
* The aggregate outstanding amount of all (i) Revolving Credit Advances and (ii)
Letters of Credit shall not exceed $800,000,000.
EXHIBIT A
TO
CREDIT AGREEMENT
OPINION OF XXXXX X. XXXXXX, ESQ.
GENERAL COUNSEL OF TWC
EXHIBIT B
TO
CREDIT AGREEMENT
OPINION OF WHITE & CASE, L.L.P.
NEW YORK COUNSEL
EXHIBIT C
TO
CREDIT AGREEMENT
FORM OF TRANSFER AGREEMENT
Dated __________, 20__
Reference is made to the Credit Agreement, dated as of June 6,
2003 (such Credit Agreement, as amended or otherwise modified from time to time,
being herein referred to as the "Credit Agreement"), among The Xxxxxxxx
Companies, Inc., Northwest Pipeline Corporation, and Transcontinental Gas Pipe
Line Corporation, as Borrowers, Citibank, N.A., as Agent for the Banks, Bank of
America N.A., as Syndication Agent, the Banks and Issuing Banks parties thereto.
Terms defined in the Credit Agreement are used herein with the same meaning.
___________________ (the "Assignor") and ________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse, and the Assignee hereby purchases and
assumes from the Assignor, an interest in and to all of the Assignor's
rights and obligations under the Credit Agreement and the other Credit
Documents executed in connection therewith as of the date hereof equal
to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement. After
giving effect to such sale and assignment, the Assignee's and
Assignor's respective Letter of Credit Commitments and LC Participation
Percentage will be as set forth in Schedule 1.
2. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, the
other Credit Documents or other instrument or document furnished
pursuant thereto or in connection therewith, the perfection, existence,
sufficiency or value of any Collateral, guaranty or insurance or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, any of the other Credit Documents or
any other instrument or document furnished pursuant thereto or in
connection therewith; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrowers or any other Person or the performance or observance by
the Borrowers or any other Person of any of their respective
obligations under the Credit Agreement, the other Credit Documents or
any other instrument or document furnished pursuant thereto or in
connection therewith.
3. The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.1(e) of the Credit Agreement and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Transfer
Agreement; (ii) agrees that it will, independently and without reliance
upon the Agent, any Issuing Bank, the Assignor, 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 the Credit Agreement, any other Credit Document, or
any other instrument or document; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes each of the Agent and the
Collateral Agent, respectively, to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent, respectively, by the terms
thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; and (vi)
specifies as its Lending Office (and address for notices) the office
set forth beneath its name on the signature pages hereof.
4. Following the execution of this Transfer Agreement by
the Assignor and the Assignee, this Transfer Agreement will be
delivered to the Agent for acceptance and recording by the Agent. The
effective date of this Transfer Agreement (the "Effective Date") shall
be the date of acceptance thereof by the Agent, unless otherwise
specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Transfer Agreement, have
the rights and obligations of a Bank thereunder and under the other
Credit Documents and (ii) the Assignor shall, to the extent provided in
this Transfer Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement and under the other Credit
Documents.
6. Upon such acceptance and recording by the Agent, from
and after the Effective Date, the Agent shall make all payments under
the Credit Agreement and the other instruments or documents furnished
pursuant thereto or in connection therewith in respect of the interest
assigned hereby (including all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments under the Credit Agreement
and the other instruments or documents furnished pursuant thereto or in
connection therewith for periods prior to the Effective Date directly
between themselves.
7. This Transfer Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Transfer 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. Delivery of an executed counterpart of Schedule 1 to
this Transfer Agreement by telecopier shall be as effective as delivery
of a manually executed counterpart of this Transfer Agreement.
2
IN WITNESS WHEREOF, the parties hereto have caused this
Transfer Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
3
Schedule 1
to
Transfer Agreement
Section 1.
LC Participation Percentage interest assigned: ____________%
Assignee's LC Participation Percentage interest before giving
effect to this Transfer Agreement: ____________%
Assignee's LC Participation Percentage interest after giving
effect to this Transfer Agreement: ____________%
Assignor's remaining LC Participation Percentage interest after
giving effect to this Transfer Agreement: ______ _____%
Section 2.
Letter of Credit Commitment interest assigned: $___________
Assignee's Letter of Credit Commitment before giving effect
to this Transfer Agreement: $___________
Assignee's Letter of Credit Commitment after giving effect to
this Transfer Agreement: $___________
Assignor's remaining Letter of Credit Commitment after
giving effect to this Transfer Agreement: $___________
Section 3.
Effective Date: _____________________, 20____
[NAME OF ASSIGNOR], as Assignor
By:_________________________
Name:
Title:
Dated:
[NAME OF ASSIGNEE], as Assignee
By:_________________________
Name:
Title:
Dated:
Lending Office (and address for notices):
[Address]
Approved this ___ day of ______, _______
THE XXXXXXXX COMPANIES, INC.
By:________________________
Name:
Title:
Approved this ___ day of ______, _______
[NAME OF [ISSUING BANK][BANK]], as [Issuing Bank][Bank]
By:________________________
Name:
Title:
Approved this ___ day of ______, _______
CITIBANK, N.A., as Agent
By:________________________
Name:
Title:
EXHIBIT D-1
TO
CREDIT AGREEMENT
FORM OF NOTICE OF LETTER OF CREDIT
[Date]
Citibank, N.A., as Agent
for the Banks parties to the Credit
Agreement referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Account Officer
Ladies and Gentlemen:
The undersigned, The Xxxxxxxx Companies, Inc. Northwest Pipeline Corporation,
and Transcontinental Gas Pipeline Corporation (the "Borrowers"), (a) refer to
that certain Credit Agreement, dated as of June 6, 2003 (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), among The Xxxxxxxx
Companies, Inc., Northwest Pipeline Corporation, Transcontinental Gas Pipe Line
Corporation, as Borrowers, Citibank, N.A., as Agent and Collateral Agent for the
Banks, Bank of America N.A., as Syndication Agent, the Banks and Issuing Banks
parties thereto and Citigroup Global Markets Inc., as Co-Lead Arrangers; (b)
hereby gives you notice, irrevocably, pursuant to Section 2.1 of the Credit
Agreement that the undersigned hereby requests _____________ (the "Issuing
Bank") to issue an irrevocable Letter of Credit as set forth below in such
language as the Issuing Bank may deem appropriate and (c) in that connection
sets forth below the information relating to such Letter of Credit (the "Letter
of Credit") as required by Section 2.1 of the Credit Agreement:
(i) The Business Day upon which the Letter of Credit will be
issued is ______________, 20____ (the "Issuance Date").
(ii) The account party for the Letter of Credit is the ___________.
(iii) Attached hereto as Exhibit A are the proposed terms of the
Letter of Credit (including the beneficiary thereof and the
nature of the transactions or obligations proposed to be
supported thereby).
The undersigned hereby certifies that each of the
representations and warranties pursuant to Section 3.2 of the Credit Agreement
are true on the date hereof, and will be true on the date of the Issuance Date.
Very truly yours,
[THE XXXXXXXX COMPANIES, INC. /
NORTHWEST PIPELINE CORPORATION /
TRANSCONTINENTAL GAS PIPELINE
CORPORATION]
By:_____________________________
Name:___________________________
Title:__________________________
cc: Citicorp North America, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: The Xxxxxxxx Companies, Inc.
Account Officer
[Issuing Bank]
EXHIBIT D-2
TO
CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
[Date]
Citibank, N.A., as Agent
for the Banks parties to the Credit
Agreement referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: The Xxxxxxxx Companies, Inc. Account Officer
Ladies and Gentlemen:
The undersigned, ____________________ (the "Borrower"), (a) refers to
the Credit Agreement, dated as of June 6, 2003 (as may be further amended,
modified, supplemented, renewed, extended or restated 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, [The Xxxxxxxx
Companies, Inc.,][Northwest Pipeline Corporation,][Transcontinental Gas Pipe
Line Corporation,] certain Banks parties thereto, Citibank, N.A., as
Administrative Agent and Collateral Agent, Bank of America N.A., as Syndication
Agent, Citibank, N.A. and Bank of America N.A., as Issuing Banks, Citigroup
Global Markets Inc. and Banc of America Securities LLC, as Co-Lead Arrangers;
(b) hereby gives you notice, irrevocably, pursuant to Section 2.3(a) of the
Agreement that the undersigned hereby requests a Revolving Credit Borrowing
under the Agreement and (c) in that connection sets forth below the information
relating to such Revolving Credit Borrowing (the "Proposed Revolving Credit
Borrowing") as required by Section 2.3 (a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
__________, 20____.
(ii) The type of Revolving Credit Advance comprising the Proposed
Revolving Credit Borrowing is a [Base Rate Advance]
[Eurodollar Rate Advance].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is $__________________.
(iv) [The Interest Period for each Revolving Credit Advance made as
part of the Proposed Revolving Credit Borrowing is __________
months.]
The undersigned hereby certifies that each of the representations and
warranties pursuant to Section 3.2 are true on the date hereof, and will be true
on the date of the Proposed Revolving Credit Borrowing.
Very truly yours,
[BORROWER]
By:_______________________________
Name:_____________________________
Title:____________________________
cc: Citicorp North America, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: The Xxxxxxxx Companies, Inc.
Account Officer
EXHIBIT E
TO
CREDIT AGREEMENT
FORM OF SECURITY AGREEMENT
EXHIBIT F
TO
CREDIT AGREEMENT
FORM OF NOTE
U.S.$_______________ Dated: _____________, 200_
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 Termination
Date (as defined in the Credit Agreement referred to below) the principal sum of
U.S.$___________ or, if less, the aggregate principal amount of the Revolving
Credit Advances made by the Bank to the Borrower pursuant to the Credit
Agreement, dated as of June 6, 2003 (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), among The Xxxxxxxx Companies,
Inc., Northwest Pipeline Corporation, Transcontinental Gas Pipe Line
Corporation, as Borrowers, Citibank, N.A., as Agent and Collateral Agent for the
Banks, Bank of America N.A., as Syndication Agent, the Banks and Issuing Banks
parties thereto and Citigroup Global Markets Inc. and Banc of America Securities
LLC, as Co-Lead Arrangers) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement. Both principal
and interest in respect of each Revolving Credit Advance are payable in lawful
money of the United States of America to the Agent at its account maintained at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in same day funds.
Each Revolving Credit Advance owing to the Bank by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Bank and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances by
the Bank to the Borrower from time to time in an aggregate amount not to exceed
at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note and (ii) contains provisions for
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 Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[BORROWER'S NAME]
By________________
Name:_____________
Title:____________
REVOLVING CREDIT ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------
AMOUNT OF AMOUNT OF
REVOLVING CREDIT PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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