EXHIBIT 10.29
AMENDMENT AGREEMENT
This Amendment Agreement dated as of October 19, 2004 (this "Amendment") is
among (i) The Xxxxxxxx Companies, Inc., a Delaware corporation, Northwest
Pipeline Corporation, a Delaware corporation, and Transcontinental Gas Pipe Line
Corporation, a Delaware corporation (collectively, the "Borrowers"), (ii) the
banks, financial institutions and other institutional lenders ("Banks") that are
parties to the Credit Agreement dated as of May 3, 2004 (the "Credit Agreement")
among the Borrowers, the Banks, Citicorp USA, Inc., as agent (the "Agent") under
the Credit Agreement, and Citibank, N.A. and Bank of America, N.A., as issuers
of letters of credit under the Credit Agreement (the "Issuing Banks"), (iii) the
Agent, and (iv) the Issuing Banks. In consideration of the mutual promises
contained herein, the Borrowers, the Banks, the Agent and the Issuing Banks
agree as set forth herein.
Section 1. Amendments to Credit Agreement. The Credit Agreement is hereby
amended as follows:
Section 1.1. Section 1.01. Section 1.01 of the Credit Agreement is hereby
amended (i) by deleting therefrom the definition of "Existing Letters of
Credit", (ii) by adding thereto new definitions of "Additional Letter of Credit"
and "Amendment Date" reading as follows, and (iii) by amending the definitions
of "BofA", "Credit Documents" and "Letters of Credit" to read as follows:
"Additional Letter of Credit" means the letter of credit listed on
Schedule VII.
"Amendment Date" means October 19, 2004.
"BofA" means Bank of America, N.A.
"Credit Documents" means (i) this Agreement, the Guaranties, the
Security Documents, 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 document at any time executed that amends, waives or
otherwise modifies any Credit Document, and (ii) for purposes of the
definition herein of "Acceptable Security Interest", Sections 2.8 and 2.18,
Articles VII and VIII, any Transfer Agreement, any Revolving Credit
Commitment Increase Agreement or any Letter of Credit Commitment Increase
Agreement only, any security agreement or pledge delivered in order to
comply with Section 5.2(m).
"Letters of Credit" means any letter of credit issued pursuant to this
Agreement and the Additional Letter of Credit, each as amended, extended or
otherwise modified from time to time.
Section 1.2. Section 2.2. Section 2.2(j) of the Credit Agreement is hereby
amended to read as follows:
(j) Additional Letter of Credit. The Additional Letter of Credit
shall be deemed to be issued under this Agreement as of the Amendment Date
at the request of TWC and shall constitute a Letter of Credit hereunder for
all purposes (including Section 2.2(b) and Section 2.2(d)), and no notice
requesting issuance thereof shall be required hereunder. Each reference
herein to the issuance of a Letter of Credit shall include any such deemed
issuance. BofA shall be the Issuing Bank for purposes of the Additional
Letter of Credit.
All fees accrued on the Additional Letter of Credit to but excluding the
Amendment Date shall be for the account of BofA, and all fees accruing on
the Additional Letter of Credit on and after the Amendment Date shall be
for the account of BofA, as Issuing Bank hereunder, and the Banks as
provided herein.
Section 2.2(l) of the Credit Agreement is hereby amended by replacing the
words "an Existing Letter of Credit" therein with the words "the Additional
Letter of Credit".
Section 1.3. Schedule VII. Schedule VII hereto is hereby added to the
Credit Agreement as Schedule VII, and the title of Schedule VII referred to in
the table of contents of the Credit Agreement is hereby changed from "Existing
Letters of Credit" to "Additional Letter of Credit".
Section 2. Miscellaneous.
Section 2.1. Amendments, Etc. No amendment or waiver of any provision of
this Amendment, nor consent to any departure by any Borrower therefrom, shall in
any event be effective unless effected in accordance with Section 8.1 of the
Credit Agreement.
Section 2.2. Governing Law. This Amendment and the Credit Agreement as
amended hereby shall be governed by, and construed in accordance with, the laws
of the State of New York.
Section 2.3. Preservation. Except as specifically modified by the terms of
this Amendment, all of the terms, provisions, covenants, warranties and
agreements contained in the Credit Agreement, any Credit Document or any other
document executed in connection with or pursuant to the Credit Agreement remain
in full force and effect. Capitalized terms used herein that are not defined
herein and are defined in the Credit Agreement as amended hereby are used herein
as defined in the Credit Agreement as amended hereby. Each reference to the
Credit Agreement in any Credit Document or other document executed in connection
with or pursuant to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended hereby.
Section 2.4. Execution in Counterparts. This Amendment 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 2.5. Representations and Warranties. Each of the Borrowers hereby
represents and warrants to the Agent, the Issuing Banks and the Banks that (i)
the execution, delivery and performance by such Borrower of this Amendment, the
performance of the Credit Agreement as amended hereby by such Borrower and the
consummation of the transactions contemplated hereby or thereby are within such
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, require no material authorization, approval or other action
by, or notice to or filing with, any governmental authority or regulatory body,
do not contravene (A) such Borrower's certificate of incorporation or by-laws,
or (B) law or any restriction under any material agreement binding on or
affecting such Borrower, and will not result in or require the creation or
imposition of any Lien prohibited by the Credit Agreement on or in respect of
any property of such Borrower or of any Subsidiary of such Borrower, (ii) this
Amendment has been duly executed and delivered by such Borrower, (iii) this
Amendment and the Credit Agreement, as amended hereby, constitute legal, valid
and binding obligations of such Borrower enforceable against such Borrower in
accordance with their respective terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and by general principles of
equity, (iv) the representations and warranties contained in Section 4.1 of the
Credit Agreement as amended hereby and each of the representations and
warranties
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contained in any other Credit Document are correct in all material respects on
and as of the date hereof as though made on and as of the date hereof (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), (v) no
event has occurred and is continuing or would result from the transactions
contemplated hereby, which constitutes a Default or an Event of Default, and
(vi) after giving effect to this Amendment and the establishment of the
Additional Letter of Credit as a Letter of Credit as contemplated by this
Amendment, the Borrowers will be in compliance with each proviso set forth in
Section 2.1(a) of the Credit Agreement and the proviso set forth in Section
2.1(b) of the Credit Agreement.
Section 2.6. Bank Credit Decision. Each of the Banks and Issuing Banks
acknowledges that it has, independently and without reliance upon the Agent, any
Issuing Bank or any other Bank and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Amendment and to agree to the various matters set forth herein. Each of the
Banks and Issuing Banks also acknowledges that it will, independently and
without reliance upon the Agent, any Issuing Bank 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 any action
under the Credit Agreement as amended hereby.
Section 2.7. Effectiveness. Following the execution of this Amendment by
the Banks, the Agent, the Issuing Banks and the Borrowers, this Amendment will
be effective as of the date first above written. Delivery of an executed
signature page to this Amendment by telecopier shall be as effective as delivery
of a manually executed counterpart of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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. Xxxxxxxx
-----------------------------------------
Authorized Officer
NORTHWEST PIPELINE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Authorized Officer
TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Authorized Officer
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AGENT:
CITICORP USA, INC., as Agent
By: /s/ Illegible
-----------------------------------------
Authorized Officer
ISSUING BANKS:
CITIBANK, N.A., as Issuing Bank
By: /s/ Illegible
-----------------------------------------
Authorized Officer
BANK OF AMERICA, N.A., as Issuing Bank
By: /s/ Xxxxx X. Xxx
-----------------------------------------
Authorized Officer
Managing Director
BANKS:
CITICORP USA, INC.
By: /s/ Illegible
-----------------------------------------
Authorized Officer
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxx
-----------------------------------------
Authorized Officer
Managing Director
BANC OF AMERICA FUNDING LLC
By: /s/ Illegible
-----------------------------------------
Authorized Officer
Managing Director
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JPMORGAN CHASE BANK
By: /s/ Illegible
-----------------------------------------
Authorized Officer
THE BANK OF NOVA SCOTIA
By:
-----------------------------------------
Authorized Officer
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxxxxx X. Dundee
-----------------------------------------
Authorized Officer
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------------
Authorized Officer
Director
Loan Transaction Management
XXXXXX COMMERICAL PAPER INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Authorized Officer, Authorized Signatory
TORONTO DOMINION (TEXAS), INC.
By: /s/ Illegible
-----------------------------------------
Authorized Officer
CALYON NEW YORK BRANCH
(Formerly known as Credit Lyonnais New York
Branch)
By: /s/ Xxxxxx XxXxxx By: /s/ Xxxxxx Xxxxxxxx
---------------------------- -----------------------------------------
Authorized Officer Authorized Officer
Managing Director Managing Director
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XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ Xxxxx X.X. Xxxxxx
-----------------------------------------
Authorized Officer
Vice President
Xxxxxxx Xxxxx Capital Corp.
WESTLB AG, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxx III
-----------------------------------------
Director
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Associate Director
BANK OF OKLAHOMA N.A.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Authorized Officer
BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxx XxXxxxx
-----------------------------------------
Authorized Officer
1st V.P.
BNP PARIBAS
By: /s/ Illegible
-----------------------------------------
Authorized Officer
By: /s/ Illegible
-----------------------------------------
Authorized Officer
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Authorized Officer
Vice President
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NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Vice President
By: /s/ Xxxxx X. Xxxxxxx, III
-----------------------------------------
Vice President & Manager
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ACKNOWLEDGMENT AND CONSENT
To induce the Agent, the Issuing Banks and the Banks to execute the
foregoing Amendment Agreement, each of the undersigned Credit Parties hereby (a)
consents to the execution, delivery and performance of such Amendment Agreement,
(b) agrees that (1) neither any Credit Document executed by it nor any
obligation of any of the undersigned nor any right or remedy of the Agent, the
Collateral Agent, any Issuing Bank or any Bank with respect to any undersigned
Credit Party is released or impaired by such Amendment Agreement, and (2) this
acknowledgment and consent shall not be construed as requiring the consent or
agreement of any undersigned Credit Party in any circumstance, and (c) ratifies
and confirms all provisions of the Credit Documents executed by it.
XXXXXXXX GAS PIPELINE COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Authorized Officer
XXXXXXXX FIELD SERVICES COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Authorized Officer
XXXXXXXX GAS PROCESSING COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Authorized Officer
XXXXXXXX GAS PROCESSING-WAMSUTTER COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Authorized Officer
XXXXXXXX FIELD SERVICES GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Authorized Officer
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