WITNESSETH:
EXHIBIT 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (herein called this
"Amendment"), dated as of March 11, 2002, is entered into by and among the
Borrowers party to the Credit Agreement (as hereinafter defined), the Banks from
time to time party to the Credit Agreement, the Co-Syndication Agents as named
therein, the Documentation Agent as named therein and Citibank, N.A., as agent
for the Banks (in such capacity, the "Agent"). Except as otherwise defined or as
the context requires, terms defined in the Credit Agreement are used herein as
therein defined.
WITNESSETH:
WHEREAS, The Xxxxxxxx Companies, Inc., a Delaware Corporation ("TWC"),
Northwest Pipeline Corporation, a Delaware corporation ("NWP"), Transcontinental
Gas Pipe Line Corporation, a Delaware corporation ("TGPL"), Texas Gas
Transmission Corporation, a Delaware corporation ("TGT"; TWC, NWP, TGPL and TGT
each a "Borrower" and collectively, the "Borrowers" ) have entered into a
certain Credit Agreement dated as of July 25, 2000 with the financial
institutions from time to time party thereto (the "Banks"), The Chase Manhattan
Bank and Commerzbank AG, as Co-Syndication Agents, Credit Lyonnais New York
Branch, as Documentation Agent, and Citibank, N.A., as Agent (the "Original
Credit Agreement"), which Original Credit Agreement has been amended by a letter
agreement dated as of October 10, 2000, by a Waiver and First Amendment dated as
of January 31, 2001 and by a Second Amendment to Credit Agreement dated as of
February 7, 2002 (the Original Credit Agreement, as so amended to the date
hereof, the "Credit Agreement");
WHEREAS, the Borrowers and the Banks now desire to amend the Credit
Agreement in certain respects, as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrowers and the Banks hereby agree as
follows:
SECTION 1. Amendment of Section 5.02. Section 5.02 of the Credit
Agreement is hereby amended as follows:
(a) Clause (c) of Section 5.02 is hereby amended by deleting
the word "or" at the end of subclause (iv) thereof, deleting the period
at the end of subclause (v) thereof and inserting "; or" in its place,
and inserting the following new subclause (vi) immediately following
the existing clause (v):
"(vi) Kern River Gas Transmission Company in connection with
the transaction with a subsidiary of Berkshire Hathaway, Inc.
announced by TWC on March 7, 2002 from (1) selling, conveying
or otherwise transferring all or substantially all of its
assets or (2) merging or consolidating with or into another
Person."
SECTION 2. Representations and Warranties. To induce the Agent and the
Banks to enter into this Amendment, each of the Borrowers hereby reaffirms as to
itself and its
Subsidiaries, as of the date hereof, its representations and
warranties contained in Article IV of the Credit Agreement (except to the extent
such representations and warranties relate solely to an earlier date) and
additionally represents and warrants as follows:
(a) Each Borrower is duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
corporate or limited liability company powers and all governmental
licenses, authorizations, certificates, consents and approvals required
to carry on its business as now conducted in all material respects,
except for those licenses, authorizations, certificates, consents and
approvals which the failure to have could not reasonably be expected to
have a material adverse effect on the business, assets, condition or
operation of the Borrower and its Subsidiaries taken as a whole. Each
material Subsidiary of each Borrower is duly organized or validly
formed, validly existing and (if applicable) in good standing under the
laws of its jurisdiction of incorporation or formation, except where
the failure to be so organized, existing and in good standing could not
reasonably be expected to have a material adverse effect on the
business, assets, condition or operations of such Borrower and its
Subsidiaries taken as a whole. Each material Subsidiary of a Borrower
has all corporate or limited liability company powers and all
governmental licenses, authorizations, certificates, consents and
approvals required to carry on its business as now conducted in all
material respects, except for those licenses, authorizations,
certificates, consents and approvals which the failure to have could
not reasonably be expected to have a material adverse effect on the
business, assets, condition or operation of such Borrower and its
Subsidiaries taken as a whole.
(b) The execution, delivery and performance by each Borrower
of this Amendment and the consummation of the transactions contemplated
by this Amendment are within such Borrower's corporate powers, have
been duly authorized by all necessary corporate action, do not
contravene (i) such Borrower's charter or by-laws or (ii) any law or
any contractual restriction binding on or affecting such Borrower and
will not result in or require the creation or imposition of any Lien.
(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 this Amendment or the consummation of the transactions
contemplated by this Amendment.
(d) This Amendment has been duly executed and delivered by
each Borrower. This Amendment and the Credit Agreement as amended by
this Amendment are the legal, valid and binding obligations of each
Borrower enforceable against each Borrower in accordance with its
terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and by general principles of
equity.
(e) Except as set forth in the Public Filings and except for
certain class-action lawsuits filed on or after January 29, 2002
alleging fraud and other violations of applicable securities laws,
there is, as to each of the Borrowers, no pending or, to the knowledge
of such Borrower, threatened action or proceeding affecting such
Borrower or
2
any material Subsidiary of such Borrower (or in the case of
TWC, the Borrowers, any Subsidiary of a Borrower or
any WCG Subsidiary) before any court, governmental agency or
arbitrator, which could reasonably be expected to materially and
adversely affect the financial condition or operations of such Borrower
and its Subsidiaries taken as a whole or which purports to affect the
legality, validity, binding effect or enforceability of this Amendment,
the Credit Agreement or any Note. For the purposes of this Section,
"Public Filings" shall mean the respective annual reports of TWC or any
other Borrower on Form 10-K or Form 10-K/A for the year ended December
31, 2001, and TWC's and the Borrowers' respective reports on Form 8-K
for the period from March 1, 2002 through March 11, 2002.
(f) Upon giving effect to this Amendment, no event has
occurred and is continuing which constitutes an Event of Default or
which would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
SECTION 3. Conditions to Effectiveness. The effectiveness of this
Amendment is conditioned upon receipt by the Agent of all the following
documents, each in form and substance satisfactory to the Agent:
(a) Counterparts of this Amendment executed by each of the
Borrowers, the Agent and Banks constituting not less than the Majority
Banks; and
(b) Such other documents as the Agent shall have reasonably
requested.
SECTION 4. Effect. This Amendment shall be deemed to be an amendment to
the Credit Agreement, and the Credit Agreement, as amended hereby, is hereby
ratified, approved and confirmed in each and every respect. All references to
the Credit Agreement in any other document, instrument, agreement or writing
shall hereafter be deemed to refer to the Credit Agreement as amended hereby.
SECTION 5. Governing Law, Etc. THIS AMENDMENT SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICT OF LAW EXCEPT SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). Whenever possible each
provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Amendment
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.
SECTION 6. Counterpart Execution. This Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Amendment by signing one
or more counterparts.
SECTION 7. Successors and Assigns. This Amendment shall be binding upon
each of the Borrowers, the Agent and the Banks and their respective successors
and assigns, and shall inure to the benefit of each of the Borrowers, the Agent
and the Banks and the successors and assigns of the Banks.
3
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, to be effective
as of the date first written above.
BORROWERS:
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
TEXAS GAS TRANSMISSION CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & CFO
TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & CFO
NORTHWEST PIPELINE CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & CFO
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AGENT:
CITIBANK, N.A., as Agent
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Attorney-in-Fact
Authorized Officer
Date: March 21, 2002
-------------------------------
CO-SYNDICATION AGENTS:
JPMORGAN CHASE BANK
(formerly known as
THE CHASE MANHATTAN BANK),
as Co-Syndication Agent
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
COMMERZBANK AG,
as Co-Syndication Agent
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Senior Vice President & Manager
Authorized Officer
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Senior Vice President
Authorized Officer
Date: March 20, 2002
-------------------------------
S-2
DOCUMENTATION AGENT:
CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Senior Vice President
Authorized Officer
Date: March 21, 2002
-------------------------------
S-3
BANKS:
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Attorney-in-fact, Authorized
Officer
Date March 21, 2002
--------------------------------
S-4
THE BANK OF NOVA SCOTIA
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-5
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxx
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-6
BANK ONE, N.A. (MAIN OFFICE -
CHICAGO)
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: March 21, 2002
-------------------------------
S-7
JPMORGAN CHASE BANK
(formerly known as
THE CHASE MANHATTAN BANK),
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-8
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-9
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Authorized Officer
Date: March 21, 2002
-------------------------------
S-10
THE FUJI BANK, LIMITED
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Authorized Officer
Date: March 15, 2002
-------------------------------
X-00
XXXXXXXX XXXXXXXXXXX XXXX XXX
XXX XXXX BRANCH
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Managing Director
---------------------------
Date: , 2002
-------------------------
NATIONAL WESTMINSTER BANK PLC
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
Date: , 2002
-------------------------
S-12
ABN AMRO BANK, N.V.
By: /s/ Signature not legible
---------------------------------
Authorized Officer
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: March 21, 2002
-------------------------------
S-13
BANK OF MONTREAL
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: March 22, 2002
-------------------------------
X-00
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Vice President, Authorized
Officer
Date: March 22, 2002
-------------------------------
S-15
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Director, Loan Transaction
Management, Authorized Officer
Date: , 2002
-------------------------
S-16
CIBC INC.
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: March 20, 2002
-------------------------------
S-17
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx X. Xxxxx,
---------------------------------
Director
Authorized Officer
By: /s/ Xxxxx X. Xxxxxx,
---------------------------------
Associate
Authorized Officer
Date: March 19, 2002
-------------------------------
X-00
XXXXX XXXX XX XXXXXX
By: /s/ Xxx X. Xxxxxxxxxx,
---------------------------------
Senior Manager
Authorized Officer
Date: March 21, 2002
-------------------------------
S-19
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-20
FLEET NATIONAL BANK
f/k/a Bank Boston, N.A.
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: March 22, 2002
-------------------------------
S-21
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: March 21, 2002
-------------------------------
S-22
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxx,
---------------------------------
Senior Vice President
Authorized Officer, Houston
Office
Date: March 21, 2002
-------------------------------
X-00
XXXXXXX XXXXXXXX (XXXXX), INC.
By: /s/ Xxxx Xxxx
---------------------------------
Authorized Officer
Date: March 21, 2002
-------------------------------
S-24
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxxx X'Xxxxx,
---------------------------------
Director Banking Produces
Authorized Officer
By: /s/ Xxxxxxx X. Saint,
---------------------------------
Assoc. Director Banking Prod.
Authorized Officer
Date: March 20, 2002
-------------------------------
S-25
XXXXX FARGO BANK TEXAS, N.A.
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
X-00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXX XXXX BRANCH
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-27
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxx Xxxxx,
---------------------------------
First Vice President, Head of
Energy Platform, Authorized
Officer
By: /s/ Xxxxx Xxxxxxx,
---------------------------------
First Vice President
Authorized Officer
Date: March 22, 2002
-------------------------------
S-28
SUNTRUST BANK
By: /s/ Signature not legible
---------------------------------
Authorized Officer
Date: March 12, 2002
-------------------------------
S-29
THE DAI-ICHI KANGYO BANK, LTD.
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-30
ARAB BANKING CORPORATION (B.S.C.)
By: /s/ Xxxxxx X. Xxxxxxxxx,
---------------------------------
Deputy General Manager
Authorized Officer
Date: March 22, 2002
-------------------------------
X-00
XXXX XX XXXXX, XXX XXXX BRANCH
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-32
BANK OF OKLAHOMA, N.A.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
SVP
Authorized Officer
Date: March 15, 2002
-------------------------------
S-33
BNP PARIBAS, HOUSTON AGENCY
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-34
DG BANK DEUTSCHE
GENNOSSENSCHAFTSBANK AG
By: /s/ Xxxx X. Xxxxxxxx,
---------------------------------
Vice President
Authorized Officer
By: /s/ Xxxxxxx X. Xxxxxxx,
---------------------------------
Vice President
Authorized Officer
Date: March 21, 2002
-------------------------------
S-35
KBC BANK N.V.
By: /s/ Xxxx-Xxxxxx Diels,
---------------------------------
First Vice President
Authorized Officer
By: /s/ Xxxx Xxxxxx,
---------------------------------
Vice President
Authorized Officer
Date: , 2002
-------------------------
S-36
SUMITOMO MITSUI BANKING CORPORATION
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-37
COMMERCE BANK, N.A.
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-38
RZB FINANCE LLC
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
Date: , 2002
-------------------------
S-39
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxxx,
---------------------------------
SVP
Authorized Officer
Date: March 13, 2002
-------------------------------
S-40
