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EXHIBIT (4)(ll)
FORM OF
WAIVER AND SECOND AMENDMENT TO TERM LOAN AGREEMENT
THIS WAIVER AND SECOND AMENDMENT TO TERM LOAN AGREEMENT (the
"AMENDMENT") is entered into effective as of January 31, 2001, among The
Xxxxxxxx Companies, Inc., a Delaware corporation (the "COMPANY"), Credit
Lyonnais New York Branch, as Administrative Agent (in such capacity,
"ADMINISTRATIVE AGENT"), and certain LENDERS (herein so called) named on
SCHEDULE 2.1 (as amended and supplemented from time to time) of the Term Loan
Agreement (as hereinafter defined).
RECITALS
A. The Company, Lenders, Commerzbank AG New York and Cayman Island
Branches, as Syndication Agent, The Bank of Nova Scotia, as Documentation Agent,
and Administrative Agent entered into that certain Term Loan Agreement dated as
of April 7, 2000, as modified and amended pursuant to that certain First
Amendment to Term Loan Agreement dated as of August 21, 2000 (such Term Loan
Agreement, as so modified and amended, herein referred to as the "TERM LOAN
AGREEMENT") which Term Loan Agreement has been further modified by that certain
letter agreement (the "PRIOR WAIVER LETTER") dated as of November 6, 2000.
Unless otherwise indicated herein, all terms used with their initial letter
capitalized are used herein with their meaning as defined in the Term Loan
Agreement, and all Section references are to Sections in the Term Loan
Agreement.
B. The Company has requested that the Lenders waive, modify and amend
certain terms and provisions of the Term Loan Agreement and to terminate the
Prior Waiver Letter.
C. The Lenders are willing to so waive, modify and amend the Term Loan
Agreement and to terminate the Prior Waiver Letter, as requested, in accordance
with the terms and provisions set forth herein and upon the condition that the
Company and the Determining Lenders shall have executed and delivered this
Amendment and that the Company shall have fully satisfied the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company, Administrative Agent and the Lenders hereby agree, as
follows:
PARAGRAPH 1. AMENDMENT OF SECTION 1.1 OF THE TERM LOAN AGREEMENT. SECTION 1.1 of
the Term Loan Agreement is hereby amended, as follows:
(a) The definition of "Consolidated Net Worth" in such SECTION
1.1 is hereby amended and restated to read in its entirety as follows:
" "Consolidated Net Worth" of any Person means the Net Worth
of such Person and its Subsidiaries on a Consolidated basis
plus, in the case of the Company, the Designated Minority
Interests to the extent not otherwise included; provided that,
in no event shall the value ascribed to Designated Minority
Interests for the Subsidiaries of the Company described in
clauses (i) through (v) and (vii) of the definition of
"Designated Minority Interests" exceed $136,892,000 in the
aggregate."
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(b) The definition of "DEBT" in SECTION 1.1 is hereby amended
and restated to read in its entirety as follows:
" "DEBT" means, in the case of any Person, (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 not overdue
by more than sixty (60) days incurred in the ordinary course
of business), (iv) monetary obligations of such Person as
lessee under leases that are, in accordance with generally
accepted accounting principles, recorded as capital leases,
(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 and (vi) indebtedness or obligations of others of
the kinds referred to in clauses (i) through (v) of this
definition secured by any Lien on or in respect of any
property of such Person; provided, however, that (x) Debt
shall not include any obligation under or resulting from any
agreement referred to in paragraph (y) of Schedule I; (y) in
the case of the Company, Debt shall not include any contingent
obligation of the Company relating to indebtedness incurred by
any SPV, WCG or a WCG Subsidiary pursuant to the WCG
Structured Financing; and (z) it is the understanding of the
parties hereto that Debt shall not include any monetary
obligations or guaranties of monetary obligations of Persons
as lessee under leases that are, in accordance with generally
accepted accounting principles, recorded as operating leases."
(c) The definition of "DESIGNATED MINORITY INTERESTS" in such
SECTION 1.1 is hereby amended and restated to read in its entirety as
follows:
" "DESIGNATED MINORITY INTERESTS" of the Company means, as of
any date of determination, the total of the minority interests
in the following Subsidiaries: (i) El Furrial, (ii) PIGAP II,
(iii) Nebraska Energy, (iv) Seminole, (v) American Soda, (vi)
the Midstream Asset MLP, and (vii) other Subsidiaries, as
presented in the Consolidating balance sheet of the Company,
in an amount not to exceed in the aggregate $9,000,000 for
such other Subsidiaries not referred to in items (i) through
(vi); provided that minority interests which provide for a
stated preferred cumulative return shall not be included in
"Designated Minority Interests."
(d) The following definitions are added to SECTION 1.1 of the
Term Loan Agreement in appropriate alphabetical order:
" "MIDSTREAM ASSET MLP" means one or more master limited
partnerships included in the Consolidated financial statements
of the Company to which the Company has transferred or shall
transfer certain assets relating to the distribution, storage
and transportation of petroleum products and ammonia,
including without limitation marine and inland terminals and
related pipeline systems, including, without limitation,
Xxxxxxxx Energy Partners L.P."
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" "SPV" is used as defined in the definition of "WCG
STRUCTURED FINANCING."
" "WCG STRUCTURED FINANCING" means a certain series of related
transactions in anticipation of the spin-off of WCG pursuant
to which WCG or a WCG Subsidiary shall obtain loans or equity
contributions either directly from investors in the
marketplace or through one or more special purpose vehicles
(each, an "SPV"), which SPV or SPVs may be Subsidiaries of the
Company. Principal of such loans and such equity contributions
shall be in a cumulative amount after January 31, 2001 which
does not exceed in the aggregate $1.5 billion. The Company may
have a contingent obligation with respect to repayment of
indebtedness or return on and of equity of the SPV (or SPVs),
WCG or a WCG Subsidiary in regard to such transaction, which
contingent obligation shall terminate in each case no later
than four (4) years after the effective date of such
transaction and shall be satisfied solely through the issuance
of equity securities unless further sales of equity securities
of the Company are not possible or will not result in
additional net proceeds."
PARAGRAPH 2. WAIVERS. The Company has requested the waiver of, and each Lender
hereby agrees to waive, certain provisions of the Term Loan Agreement for and in
connection with the transactions described below:
(a) The Company or certain of its Subsidiaries are currently
the owners of certain assets described on SCHEDULE A-1 hereto which the
Company or such certain Subsidiaries wish to transfer to WCG and/or
certain WCG Subsidiaries. In exchange for the transfer to WCG and/or
certain WCG Subsidiaries of the assets listed on SCHEDULE A-1 and the
assumption by the Company and/or its Subsidiaries of those certain
liabilities of WCG or WCG Subsidiaries listed on SCHEDULE A-2, WCG
and/or certain WCG Subsidiaries will transfer to the Company and/or its
Subsidiaries the assets listed on SCHEDULE B-1 and will assume those
certain liabilities of the Company and/or its Subsidiaries listed on
SCHEDULE B-2. The Company hereby represents and warrants that such
transaction is being entered into on terms and conditions reasonably
fair in all material respects to the Company and its Subsidiaries.
The Company anticipates that it or one of its Subsidiaries may
purchase certain assets of WCG or a WCG Subsidiary listed on SCHEDULE
A-1 and enter into a Sale Lease-Back Transaction in which the Company
or one of its Subsidiaries will lease such assets to WCG or a WCG
Subsidiary. The Company hereby covenants that such transaction shall be
entered into on terms and conditions reasonably fair in all material
respects to the Company and its Subsidiaries. To the extent that such
Sale Lease-Back Transaction may be, or may be deemed to be, an
investment in WCG or a WCG Subsidiary, such transaction is prohibited
by SECTION 8.9 of the Term Loan Agreement.
In connection with such asset exchange and the Sale Lease-Back
Transaction, and only for purposes of such transactions, the Company
requests that the Lenders waive the provisions of SECTION 8.9 to allow
the Company and/or its Subsidiaries to effect the Sale Lease-Back
Transaction, described in the preceding paragraph, and to acquire the
equity interests and stock in WCG and certain WCG Subsidiaries, as
described on SCHEDULE B-1, and to transfer assets to WCG and/or WCG
Subsidiaries on the terms set forth above. Nothing herein shall be
construed or deemed to permit the Company or its Subsidiaries to invest
in or acquire stock or equity
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interests in WCG or any of its Subsidiaries except to the extent
described above. Nothing herein shall, or shall be deemed to, waive the
provisions of SECTION 8.14 or any other provisions of the Term Loan
Agreement applicable to the Sale Lease-Back Transaction, except as
expressly set forth above with respect to SECTION 8.9.
(b) In connection with the WCG Structured Financing, and only
with respect to such WCG Structured Financing, the Company requests
that the Lenders waive:
(i) the provisions of SECTION 8.8 to allow consensual
encumbrances and restrictions on the ability of any
SPV (as defined above) to make or pay any
distributions, dividends, loans or advances to the
Company or its Subsidiaries; provided that such
consensual encumbrances or restrictions (x) are
pursuant to the documents governing the WCG
Structured Financing and (y) restrict making or
paying distributions, dividends, loans or advances of
or on only those assets held by an SPV directly
relating to the WCG Structured Financing; and
(ii) the provisions of SECTION 8.13 to allow the
Company to be contingently liable for the obligations
of any SPV, WCG or WCG Subsidiaries for payments
relating to indebtedness or return on and of equity
incurred by such entity pursuant to the WCG
Structured Financing.
By its signature hereto, each Lender agrees to waive and does
hereby waive (i) SECTION 8.9 to allow the Company and its Subsidiaries
to acquire the equity interests and stock in WCG and certain WCG
Subsidiaries, to the extent set forth above and to allow the Company
and its Subsidiaries to act as lessor pursuant to the Sale Lease-Back
Transaction described above involving assets listed on SCHEDULE A-1;
(ii) SECTION 8.8 to allow consensual encumbrances and restrictions on
the ability of any SPV to make or pay distributions, dividends, loans
or advances to the Company or its Subsidiaries if such encumbrances and
restrictions are pursuant to documents governing the WCG Structured
Financing and apply only to assets of such SPV which are directly
related to the WCG Structured Financing, and (iii) SECTION 8.13 to
allow the Company or a Subsidiary to be contingently liable with
respect to the indebtedness or return on and of equity incurred
pursuant to the WCG Structured Financing. Nothing herein shall be
deemed or construed to waive any other breach of SECTIONS 8.8, 8.9 or
SECTION 8.13 of the Term Loan Agreement or to waive a breach of any
other provision of the Term Loan Agreement or to require any similar or
dissimilar waiver to be granted hereafter.
PARAGRAPH 3. AMENDMENT EFFECTIVE DATE. This Amendment shall be binding upon all
parties to the Loan Papers on the last day upon which the following has
occurred:
(a) Administrative Agent shall have received a certificate, in
form and substance satisfactory to Administrative Agent, addressed to
the Lenders, of a responsible officer of WCG and/or each relevant WCG
Subsidiary as to (i) its title to those assets transferred to the
Company pursuant to the transactions described in Paragraph 2 hereof,
and (ii) the equity interests and shares of stock issued or to be
issued to the Company pursuant to the transactions described in
Paragraph 2 hereof; and
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(b) Counterparts of this Amendment shall have been executed
and delivered to Administrative Agent by the Company, Administrative
Agent, and the Determining Lenders or when Administrative Agent shall
have received telecopied, telexed, or other evidence satisfactory to it
that all such parties have executed and are delivering to
Administrative Agent counterparts thereof.
Upon satisfaction of the foregoing conditions, (i) this Amendment shall be
deemed effective on and as of January 31, 2001 (the "AMENDMENT EFFECTIVE DATE"),
and (ii) the Prior Waiver Letter shall be and be deemed to be terminated and of
no further force and effect.
PARAGRAPH 4. REPRESENTATIONS AND WARRANTIES. As a material inducement to Lenders
to execute and deliver this Amendment, the Company hereby represents and
warrants to Lenders (with the knowledge and intent that Lenders are relying upon
the same in entering into this Amendment) the following: (a) the representations
and warranties in the Term Loan Agreement and in all other Loan Papers are true
and correct on the date hereof in all material respects, as though made on the
date hereof; (b) no Default or Potential Default exists under the Loan Papers;
and (c) the terms and provisions of the transactions described in Paragraph 2
hereof have been accurately and completely described herein and in the other
documents provided to the Administrative Agent and the Lenders in connection
herewith.
PARAGRAPH 5. MISCELLANEOUS.
5.1 EFFECT ON LOAN DOCUMENTS. The Term Loan Agreement and all related
Loan Papers shall remain unchanged and in full force and effect, except as
provided in this Amendment, and are hereby ratified and confirmed. On and after
the Amendment Effective Date, all references to the "TERM LOAN AGREEMENT" shall
be to the Term Loan Agreement as herein amended. The execution, delivery, and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any Rights of the Lenders under the Term Loan Agreement
or any Loan Papers, nor constitute a waiver under the Term Loan Agreement or any
other provision of the Loan Papers.
5.2 REFERENCE TO MISCELLANEOUS PROVISIONS. This Amendment and the other
documents delivered pursuant to this Amendment are part of the Loan Papers
referred to in the Term Loan Agreement, and the provisions relating to Loan
Papers set forth in SECTION 12 are incorporated herein by reference the same as
if set forth herein verbatim.
5.3 COSTS AND EXPENSES. The Company agrees to pay promptly the
reasonable fees and expenses of counsel to Administrative Agent for services
rendered in connection with the preparation, negotiation, reproduction,
execution, and delivery of this Amendment.
5.4 COUNTERPARTS. This Amendment may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes, and all of which constitute, collectively, one agreement; but, in
making proof of this Amendment, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that all parties execute
the same counterpart so long as identical counterparts are executed by the
Company, each Determining Lender, and Administrative Agent.
5.5 THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
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CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
Executed as of the date first above written, but effective as of the
Amendment Effective Date.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
Address for notices
One Xxxxxxxx Center, Suite 5000 THE XXXXXXXX COMPANIES, INC.,
Xxxxx, Xxxxxxxx 00000 a Delaware corporation
Attention: Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 By:
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Name: Xxxxx X. Xxxx
Title: Treasurer
With a copy to:
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000
Attention: Associate General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
1301 Avenue of the Americas CREDIT LYONNAIS XXX XXXX XXXXXX,
Xxx Xxxx, Xxx Xxxx 00000 as Administrative Agent and as a Lender
By:
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Name:
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Title:
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With a copy to:
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx XxXxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 XXXXXXXXXXX AG NEW YORK AND
Xxxxxxx, Xxxxxxx 00000 GRAND CAYMAN BRANCHES, as
Telephone: (000) 000-0000 Syndication Agent, as a
Facsimile: (000) 000-0000 Lender and as a
Designating Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
FOUR WINDS FUNDING CORPORATION,
as a Designated Lender
By COMMERZBANK AKTIENGESELLCHAFT, as
Administrator and Attorney-in-Fact
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 THE BANK OF NOVA SCOTIA,
Xxxxxxx, Xxxxx 00000 as Documentation Agent and as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
0000 00xx Xxxxxx, XX, Xxxxx 000 XXX XXXXX INTERNATIONAL BANK INC.,
Xxxxxxxxxx, XX 00000 as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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By:
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Name:
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Title:
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With a copy to:
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Attention:
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Telephone No.:
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Facsimile No.:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
000 Xxxx Xxxxxx Xxxxx XXXX POLSKA KASA OPIEKI S.A.,
00xx Xxxxxx, 00xx Xxxxx as a Lender
New York, New York
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000 BANQUE WORMS CAPITAL CORP.,
New York, New York 100168 as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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By:
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Name:
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Title:
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With a copy to:
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Attention:
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Telephone No.:
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Facsimile No.:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
1 World Trade Center, Suite 3211 XXXXX XXX COMMERCIAL BANK,
New York, New York 10048 LTD., NEW YORK BRANCH, as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
1 World Trade Center, 48th Floor THE DAI-ICHI KANGYO BANK, LTD., as a
Xxx Xxxx, Xxx Xxxx 00000 Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
Two World Trade Center, Suite 7868 FIRST COMMERCIAL BANK - NEW YORK AGENCY,
Xxx Xxxx, Xxx Xxxx 00000 as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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With a copy to:
Attention: Xxxxxxx Xxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
000 Xxxxxxx Xxxxxx, 21st Floor GULF INTERNATIONAL BANK,
New York, New York 10017 as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
2 World Trade Center, Suite 2846 XXX XXX COMMERCIAL BANK, LTD.,
Xxx Xxxx, Xxx Xxxx 00000 as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
000 Xxxx 00xx Xxxxxx, 00xx Floor BAYERISCHE HYPO-UND
New York, New York 10017 VEREINSBANK AG, NEW YORK
Telephone: (000) 000-0000 BRANCH, as a Lender
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 0000 KBC BANK N.V., as a Lender
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
Xxxxxx Xxxxxxx 00-00 XXXXXXXXXX XXXXXXXXX-XXXXX,
Xxxxx, Xxxxxxx 00000 GIROZENTRALE,
Telephone: (000) 00-00-00-0000 as a Lender
Facsimile:
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
Xxxxxxxxxxxx. 0 XXXXXXXXXX XXXX XXXXXXXXXXXX,
00000 Saarbrucken, Germany as a Lender
Telephone: (000) 00-000-000-0000
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
Martensdamm 0 XXXXXXXXXX XXXXXXXXX-XXXXXXXX
Xxxx, Xxxxxxx 00000 GIROZENTRALE, as a Lender
Telephone: (000) 00-000-000-0000
Facsimile: (011) -49-431-900-2751
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
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Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000 LAND BANK OF TAIWAN, LOS ANGELES BRANCH,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
With a copy to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telephone No.:
----------------------
Facsimile No.:
----------------------
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
26
Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000 LOCAL OKLAHOMA BANK, N.A.,
Xxxxx, Xxxxxxxx 00000 as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
27
Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
000 Xxxx Xxxxxx, 00xx Xxxxx NATIONAL BANK OF KUWAIT, S.A.K.,,
Xxx Xxxx, Xxx Xxxx 00000 GRAND CAYMAN BRANCH as a
Telephone: (000) 000-0000 Lender
Facsimile: (000) 000-0000
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
28
Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
0000 Xxxxx Xxxxxx, Xxxxx 0000 XXXXXXX, as a Lender
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
With a copy to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telephone No.:
----------------------
Facsimile No.:
----------------------
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
29
Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
Wall Street Plaza THE ROYAL BANK OF SCOTLAND, PLC,
00 Xxxx Xxxxxx, 00xx Xxxxx as a Lender
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
30
Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
000 Xxxx Xxxxxx, 0xx Xxxxx THE SUMITOMO BANK, LIMITED,
Xxx Xxxx, Xxx Xxxx 00000 as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
31
Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
1251 Avenue of the Americas XXX XXXXXXXXXX XXXX XX XXXXX
Xxx Xxxx, Xxx Xxxx 00000 XXXXX COMPANY
Telephone: (000) 000-0000 as a Lender
Facsimile: (000) 000-0000
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
32
Signature Page to that certain Waiver and Second Amendment to Term Loan
Agreement dated effective as of January 31, 2001, among The Xxxxxxxx Companies,
Inc., as the Company, Credit Lyonnais New York Branch, as Administrative Agent
and as a Lender, and certain Lenders named therein.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx THE TOKAI BANK, LIMITED - XXX
Xxx Xxxx, Xxx Xxxx 00000 YORK BRANCH, as a Lender
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[SIGNATURE PAGE TO WAIVER AND SECOND AMENDMENT
TO TERM LOAN AGREEMENT]
33
SCHEDULE A - 1
ASSETS TO BE TRANSFERRED FROM TWC AND/OR ITS SUBSIDIARIES
TO WCG AND/OR WCG SUBSIDIARIES
1. Those certain three aircraft owned by Xxxxxxxx Aviation, Inc., or under
contract for purchase by Xxxxxxxx Aviation, Inc, more specifically
identified as follows:
Citation V - located in Chesterfield, Missouri, Tail
Number N352WC
Citation X - located in Tulsa, Oklahoma, Tail Number N358WC
Citation Excel - scheduled for delivery by April 1, 2001,
Tail Number N359WC
The aggregate value of the three aircraft is $32,000,000.
2. That certain Xxxxxxxx Technology Center located in Tulsa, Oklahoma, and
owned by the Xxxxxxxx Headquarters Building Company. The Xxxxxxxx
Technology Center is constructing a fifteen story office building that
will house various Xxxxxxxx energy and communications employees. It
will be attached to the east-end of the existing Bank of Oklahoma Tower
at the Plaza, Ground and Service levels. The building is bounded on the
north by First Street, east by Cincinnati Avenue, south by Second
Street, and west by the podium of the Bank of Oklahoma Tower. The
building will contain 733,391 net rentable square feet and accommodate
up to 4,000 employees.
3. That certain Parking Garage being constructed on the northeast corner
of First Street and Cincinnati Avenue, directly south of the LaPetite
Academy daycare center. The parking garage will be six levels tall and
contain 1,029 parking spaces. It will be connected to the Xxxxxxxx
Technology Center by pedestrian bridges west across Cincinnati and
south across First Street.
The aggregate value of the Xxxxxxxx Technology Center and the Parking
Garage (items 2 and 3) is $85,000,000.
4. That certain Intercompany Note executed between TWC and Xxxxxxxx
Communications, Inc., on September 8, 1999. The note is for seven years
and has approximately $975 million outstanding, bears interest at rates
equal to LIBOR, or an alternate base rate, plus a margin based on the
debt rating of WCG's credit facility by Standard & Poor's and Xxxxx'x,
plus 0.25% based on WCG's ratio of total debt to EBITDA greater than or
equal to 6.0 to 1.0. Principal is paid quarterly beginning July 1,
2000.
The value of the Intercompany Note is $630,000,000.
A-1
34
SCHEDULE A - 2
LIABILITIES OF WCG AND/OR WCG SUBSIDIARIES
TO BE ASSUMED BY TWC AND/OR ITS SUBSIDIARIES
1. Payment obligations with respect to those certain building
improvements, fixtures and equipment including all construction,
design, flooring, food service equipment, security, audio equipment,
video equipment, telecommunication equipment, furniture and fixtures,
and related costs, including but not limited to material, labor,
installation and taxes, as set forth in the Authorization for
Expenditure(s) dated September 18, 2000.
The aggregate value of the building improvements, fixtures and
equipment is $160,000,000.
A-2
35
SCHEDULE B - 1
ASSETS TO BE TRANSFERRED FROM WCG AND/OR WCG SUBSIDIARIES
TO TWC AND/OR ITS SUBSIDIARIES
1. All losses or credit carryovers or other similar attributes of WCG not
in existence on September 30, 1999, but arising thereafter, and
utilized by Xxxxxxxx as part of its consolidated tax return for any
consolidated returns filed following September 30, 1999, as described
in the Tax Sharing Agreement dated September 30, 1999.
The aggregate value is $317,000,000.
2. That certain Telecommunications Services Agreement dated January 5,
1995, between The Xxxxxxxx Companies, Inc. and Wiltel, Inc., and
subsequently amended. WorldCom, as the successor to Wiltel, provides
WCG a specific amount of long distance, frame relay and private line
services free of costs other than its out of pocket expenses payable to
third parties. WCG resells these services to Xxxxxxxx, its subsidiaries
and affiliates at market rates. The term of the agreement is 35 years
beginning January 1995.
The value is $65,000,000.
3. Those certain two dark fibers capable of providing a minimum capacity
up to an OC-12 along the entire length of the fiber optic facilities
along Transco's main line pipelines from Houston, Texas to Manassas,
Virginia and Washington, D.C. to Station 200 outside Philadelphia,
Pennsylvania which include property in the states of Texas, Louisiana,
Mississippi, Alabama, Georgia, South Carolina, North Carolina,
Virginia, the District of Columbia, Maryland and Pennsylvania,
including the dark fiber needed to connect the non-contiguous points
along the Transco right of way (the "Transco Fiber"). The general
description of this service is provided in that certain Construction,
Operating, Maintenance Agreement dated January 1, 1997. The Transco
Fiber excludes any incidental services required to support the dark
fiber pair, such as collocation, power, and maintenance fees.
The aggregate value is $15,000,000.
4. That number of shares of WCG Class A stock to be issued to TWC having
an aggregate value equal to approximately $470 million, to be priced
based upon the average of the high and low for each of the five
business days beginning January 17, 2001 and ending January 23, 2001.
B-1
36
SCHEDULE B - 2
LIABILITIES OF TWC AND/OR ITS SUBSIDIARIES
TO BE ASSUMED BY WCG AND/OR WCG SUBSIDIARIES
1. All incremental costs to be incurred by WCG in connection with the
replacement of certain shared hardware, systems and applications that
will need to be replicated upon the separation of the two companies. In
addition, WCG will need to procure it own unique software licenses on
everything from Microsoft products to the PeopleSoft applications. Also
included in this category are those miscellaneous costs incurred to
effect the spin-off of WCG from Xxxxxxxx.
The aggregate value is $40,000,000.
B-2
