Exhibit 10.3
EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 31, 2002
among
THE XXXXXXXX COMPANIES, INC.
as Borrower
CITICORP USA, INC.
as Agent and Collateral Agent
BANK OF AMERICA N.A.
as Syndication Agent
CITIBANK, N.A.
BANK OF AMERICA N.A.
THE BANK OF NOVA SCOTIA
as Issuing Banks
THE BANKS NAMED HEREIN
as Banks
Arranger:
XXXXXXX XXXXX BARNEY INC.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Certain Defined Terms.............................................1
SECTION 1.2. Computation of Time Periods......................................26
SECTION 1.3. Accounting Terms.................................................26
SECTION 1.4. Miscellaneous....................................................26
SECTION 1.5. Ratings..........................................................27
ARTICLE II
AMOUNTS AND TERMS OF THE LETTERS OF CREDIT
SECTION 2.1. Fees.............................................................27
SECTION 2.2. Reduction of the Commitments.....................................28
SECTION 2.3. Prepayments......................................................28
SECTION 2.4. Increased Costs..................................................31
SECTION 2.5. Payments and Computations........................................32
SECTION 2.6. Taxes............................................................33
SECTION 2.7. Sharing of Payments, Etc.........................................36
SECTION 2.8. Optional Termination.............................................36
SECTION 2.9. Extension of Termination Date....................................37
SECTION 2.10. Letter of Credit Facility.......................................37
ARTICLE III
CONDITIONS
SECTION 3.1. Conditions Precedent to Effectiveness of Agreement...............41
SECTION 3.2. Conditions Precedent to an Issuance of a Letter of Credit........42
SECTION 3.3. Special Condition to Effectiveness of Certain Provisions.........43
i
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the Borrower...................43
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.1. Affirmative Covenants............................................48
SECTION 5.2. Negative Covenants...............................................54
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Events of Default................................................64
SECTION 6.2. XX Xxxx Collateral Accounts......................................67
ARTICLE VII
[Intentionally Omitted]
ARTICLE VIII
THE AGENT; ISSUING BANKS; The collateral Agent; OTHERS
SECTION 8.1. Agent's Authorization and Action.................................67
SECTION 8.2. Agent's Reliance, Etc............................................68
SECTION 8.3. Issuing Banks' Reliance, Etc.....................................68
SECTION 8.4. Rights...........................................................69
SECTION 8.5. [Intentionally Omitted]..........................................69
SECTION 8.6. Indemnification..................................................69
SECTION 8.7. Successor Agent..................................................70
SECTION 8.8. Collateral Agent's Authorization and Action......................70
SECTION 8.9. Collateral Agent's Reliance, Etc.................................70
SECTION 8.10. Collateral Agent and Its Affiliates.............................71
SECTION 8.11. Bank Credit Decision............................................71
SECTION 8.12. Certain Rights of the Collateral Agent..........................71
ii
SECTION 8.13. Collateral Agent Indemnification................................72
SECTION 8.14. Successor Collateral Agent......................................72
SECTION 8.15. Other Agents; the Arranger......................................73
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Amendments, Etc..................................................73
SECTION 9.2. Notices, Etc.....................................................73
SECTION 9.3. No Waiver; Remedies..............................................74
SECTION 9.4. Costs and Expenses...............................................74
SECTION 9.5. Right of Set-off.................................................75
SECTION 9.6. Binding Effect; Transfers........................................75
SECTION 9.7. Judgment Currency................................................79
SECTION 9.8. Governing Law....................................................79
SECTION 9.9. Interest.........................................................79
SECTION 9.10. Execution in Counterparts.......................................80
SECTION 9.11. Survival of Agreements, Representations and Warranties, Etc.....80
SECTION 9.12. [INTENTIONALLY OMITTED.]........................................80
SECTION 9.13. Confidentiality.................................................80
SECTION 9.14. Waiver of Jury Trial............................................81
SECTION 9.15. Forum Selection and Consent to Jurisdiction.....................81
SECTION 9.16. Existing Defaults of No Effect..................................82
iii
Schedules and Exhibits
Schedule I - Bank Information
Schedule II - Notice Information for Borrower
Schedule III - Permitted Liens
Schedule IV - Commitments
Schedule V - Rating Categories
Schedule VI - Existing Projects
Schedule VII - [Intentionally Omitted]
Schedule VIII - [Intentionally Omitted]
Schedule IX - Liens Securing Existing Debt/Obligations
Schedule X - Midstream Subsidiaries
Schedule XI - Progeny Facilities
Schedule XII - Post-Closing Items
Schedule XIII - Outstanding Letters of Credit
Schedule XIV - Permitted Dispositions
Schedule XV - Additional Public Filing
Schedule XVI - Storage Lease
Exhibit A - Opinion of Xxxxxxx X. xxx Xxxxx
Exhibit B-1 - Opinion of New York Counsel (Enforceability)
Exhibit B-2 - Opinion of New York Counsel (Perfection)
Exhibit C - Existing Loans and Investments in WCG Subsidiaries
Exhibit D - Form of Transfer Agreement
Exhibit E - Notice of Letter of Credit
Exhibit F - Form of Security Agreement
Exhibit G - Form of LLC Guaranty
Exhibit H - Form of Midstream Guaranty
Exhibit I - Form of Pledge Agreement
Exhibit J - Form of Holdings Guaranty
iv
AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated as of October 31,
2002 (amending and restating the Credit Agreement dated as of July 31, 2002 (the
"Existing Credit Agreement") and 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., the various lenders
as are or may become parties hereto; the Issuing Banks, and Citicorp USA, Inc.,
as Agent and Collateral Agent. In consideration of the mutual covenants and
agreements contained herein, the Borrower, the Agent, the Collateral Agent, the
Issuing Banks and the Banks hereby agree as set forth herein.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower, the Banks, the U.S. Issuing Banks, the
Collateral Agent and the Agent have entered into the Existing Credit Agreement
whereby the Borrower has been entitled from time to time to request that an
Issuing Bank issue Letters of Credit pursuant to the terms and conditions and in
the amounts set forth therein.
WHEREAS, each Issuing Bank is willing, on the terms and subject to the
conditions hereinafter set forth (including Article III), to issue Letters of
Credit and each Bank is willing to hold a participation interest in such Letters
of Credit on the terms and subject to the conditions hereinafter set forth
(including Article III).
NOW, THEREFORE, the parties hereto have agreed to amend and restate
the Existing Credit Agreement, and the Existing Credit Agreement is hereby
amended and restated in its entirety 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):
"Acceptable Security Interest" in any property shall mean a Lien
granted pursuant to a Credit Document (a) which exists in favor of the
Collateral Trustee for the benefit of itself and other parties, as more
fully described in the Collateral Trust Agreement, (b) which is superior to
all other Liens, except Permitted Liens, (c) which secures (i) the "Secured
Obligations" as defined in the Security Agreement (d) which is perfected
and is enforceable the Collateral Trustee for the benefit of itself and
other parties, as more fully described in the Collateral Trust Agreement,
against all other Persons in preference to any rights of any such other
Person therein (other than Permitted Liens); provided that such Lien may be
subject to the Agreed Exceptions.
"Additional Mortgage" has the meaning specified in Section 5.1(f).
"Agent" means Citicorp USA, Inc. in its capacity as agent pursuant to
Article VIII hereof and any successor Agent pursuant to Section 8.7.
"Agreed Exceptions" means exceptions to title to be set forth in the
Mortgage that are customary in similar mortgages, do not materially detract
from the value of the assets covered thereby, do not secure Debt and arise
in the ordinary course of business.
"Agreement" has the meaning specified in the first paragraph of this
Agreement.
"American Soda" means American Soda, L.L.P., a Colorado limited
liability partnership.
"Applicable Issued LC Margin" means, for purposes of Section
2.1(b)(ii), the rate per annum set forth in Schedule V under the heading
"Applicable Issued LC Margin" for the relevant Rating Category applicable
to the Borrower from time to time, and the Applicable Issued LC Margin for
purposes of Section 2.1(b)(ii) shall change when and as the relevant
applicable Rating Category changes, provided that for each day on which the
aggregate stated amount of the Letters of Credit issued and outstanding
hereunder is equal to or greater than 25% of the aggregate amount of the
total Letter of Credit Commitments hereunder, the Applicable Issued LC
Margin for the Borrower shall be increased by 0.250% for such day.
"Applicable LC Commitment Margin" means, for purposes of Section
2.1(b)(ii), the rate per annum set forth in Schedule V under the heading
"Applicable LC Commitment Margin" for the relevant Rating Category
applicable to the Borrower from time to time, and the Applicable LC
Commitment Margin for purposes of Section 2.1(b)(ii) shall change when and
as the relevant applicable Rating Category changes.
"Arctic Fox Capital Contribution" means the transfer of the Equity
Interests of Xxxxxxxx Energy (Canada), Inc. from Xxxxxxxx GmbH, in the form
of a dividend, up through certain other Subsidiaries, to the Borrower, and
by the Borrower in the form of a capital contribution to Arctic Fox Assets,
L.L.C. ("Arctic Fox") as required by, and in accordance with, Amendment No.
3 to Certain Operative Documents and Consents dated as of October 31, 2002,
among, inter alia, the Borrower and Arctic Fox.
"Arranger" means Xxxxxxx Xxxxx Xxxxxx Inc.
"Asset" or "property" (in each case, whether or not capitalized) means
any right, title or interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Attributable Obligation" of any Person means, with respect to any
Sale and Lease-Back Transaction of such Person as of any particular time,
the present value at such time discounted at the rate of interest implicit
in the terms of the lease of the obligations of the lessee under such lease
for net rental payments during the remaining term of the lease (including
any period for which such lease has been extended or may, at the option of
such Person, be extended).
2
"Banks" means the lenders listed on the signature pages hereof and
each other Person that becomes a Bank pursuant to the last sentence of
Section 9.6(a).
"Xxxxxxx" means, collectively, RMT and its Subsidiaries.
"Xxxxxxx Loan" means the loans made pursuant to the Xxxxxxx Loan
Agreement.
"Xxxxxxx Loan Agreement" means the Credit Agreement, dated as of July
31, 2002, among the Borrower, RMT LLC, RMT, the Lenders party thereto from
time to time, Xxxxxx Brothers Inc., as Arranger, and Xxxxxx Commercial
Paper Inc., as Syndication Agent and as Administrative Agent and the Loan
Documents (as defined therein).
"Base Rate" means a fluctuating interest rate per annum as shall be in
effect from time to time which rate per annum shall at all times be equal
to the highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1
percent per annum plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three week period by the Federal Reserve Board for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including (among
other liabilities) three-month Dollar non-personal time deposits in
the United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits of Citibank in the United States; and
(c) the sum of 1/2 of one percent per annum plus the Federal
Funds Rate in effect from time to time.
"Borrower" means TWC.
3
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City or Toronto, Canada.
"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.
"California Proceedings" means the proceedings with or in the State of
California, as described in more detail on the Form 10-Q for the quarterly
period ended June 30, 2002, filed by the Borrower with the Securities and
Exchange Commission on August 14, 2002.
"Canadian Dollar L/C Commitment" of any Issuing Bank means, at any
time, the amount set opposite such Bank's name on Schedule IV under the
heading "Canadian Dollar L/C 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 2.2, Section 2.8,
Section 6.1 or Section 9.6(a).
"Canadian Dollars" and "C$" means the lawful money of Canada.
"Canadian Issuing Bank" means The Bank of Nova Scotia.
"Canadian Letter of Credit" means any Letter of Credit payable in
Canadian Dollars.
"Capital Lease" means a lease that in accordance with generally
acceptable accounting principles must be reflected on a company's balance
sheet as an asset and corresponding liability.
"Cardinal Pipeline System" means that intrastate natural gas pipeline
system doing business under that name located in the State of North
Carolina, in which the Borrower indirectly owned a 45% interest on July 31,
2002.
"Cash Collateralize" means, with respect to a Letter of Credit, the
deposit in Dollars of immediately available funds into an XX Xxxx
Collateral Account in an amount equal to the stated amount of (or the U.S.
Dollar Equivalent thereof, in the case of Canadian Letters of Credit), and
all Letter of Credit fees related to, such Letter of Credit.
"Cash Flow" means, for any period, the Consolidated cash flow from
operations of the Borrower and its Consolidated Subsidiaries for such
period determined in accordance with generally accepted accounting
principles; provided that in determining such Consolidated cash flow from
operations, there shall be excluded therefrom (to the extent otherwise
included therein) (a) any positive cash flow from operations of any Person
(including Project Financing Subsidiaries) subject to any restriction
prohibiting the distribution of cash to the Borrower or any of its
Consolidated Subsidiaries, except and then only to the extent of the amount
thereof that the Borrower or any of its Consolidated Subsidiaries actually
receives or has the right to receive (within the limits
4
of such restrictions) during such period, (b) proceeds resulting from the
sale, transfer or other disposition of any property by the Borrower or its
Consolidated Subsidiaries (other than sales, transfers and other
dispositions in the ordinary course of business), (c) all other
extraordinary items, (d) any item constituting the cumulative effect of a
change in accounting principles, prior to applicable income taxes, (e)
repayment of the WCG Synthetic Lease and (f) for the third Fiscal Quarter
of 2002 only, margin and capital or adequate assurances relating to its
refining and marketing and EMT.
"Cash Equivalents" means any of the following, to the extent owned by
the Borrower or any of its Subsidiaries free and clear of all Liens other
than Permitted Liens and having a maturity of not greater than 270 days
from the date of acquisition thereof: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the Government of the United States, (b) insured
certificates of deposit of or time deposits with any commercial bank that
is a Bank or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause (c) below,
is organized under the laws of the United States or any State thereof and
has combined capital and surplus of at least $1 billion or (c) commercial
paper in an aggregate amount of no more than $500,000,000, per issuer
outstanding at any time, issued by any corporation organized under the laws
of any State of the United States and rated at least "Prime-1" (or the then
equivalent grade) by Xxxxx'x or "A-1" (or the then equivalent grade) by
S&P.
"Castle Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of Castle Associates L.P., dated as of
December 23, 1998, by and among Xxxxxxxx, L.L.C., a Delaware limited
liability company, Xxxxxxxx, L.L.C., a Delaware limited liability company,
and Colchester LLC, a Delaware limited liability company, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Castle Transaction" means the purchase by TWC of the limited
partnership interest in Castle Associates, L.P. ("Castle"), a Delaware
partnership held by Colchester LLC, a Delaware limited liability company.
"Citibank" means Citibank, N.A.
"Citicorp" means Citicorp USA, Inc.
"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.
"Collateral" means all personal and real property comprising the
Midstream Assets of the Borrower, each Guarantor and each of the Midstream
Subsidiaries (but excluding agreements that make up the Trading Book to the
extent relating to contracts to which EMT is a party) whether now owned or
hereafter acquired and all other property subject to a Lien for the benefit
of the Banks in accordance with the terms of any Credit
5
Document; provided that no real or personal property of RMT LLC or its
Subsidiaries (including, without limitation, the RMT Equity Interests) or
real or personal property of WGPC shall be included as "Collateral";
provided with respect to oil of Xxxxxxxx Alaska Petroleum, Inc. ("WAPI")
that is transported through the Trans-Alaska Pipeline System, the security
interest in such oil shall attach only at the time such oil is delivered to
WAPI through the Trans-Alaska Pipeline System at the outlet flange
measuring device located at North Pole, Alaska.
"Collateral Account" means a deposit account of the Borrower which
meets each of the following requirements: (i) with a commercial banking
institution that is a member of the Federal Reserve System, has its
short-term deposits rated A- or higher by Xxxxx'x or S&P and has a combined
capital, surplus and undivided profits of not less than $1,000,000,000,
(ii) over which the Borrower has no control, (iii) in which an Acceptable
Security Interest exists, (iv) as to which (if not held with the Collateral
Agent) Borrower has complied with Sections 3.1 and 3.6 of the Security
Agreement, and (v) deposits in which, if invested, may be invested only in
those investments permitted under Sections 5.2(h) and (o).
"Collateral Agent" means Citicorp in its capacity as Collateral Agent
pursuant to Article VIII and any successor in such capacity pursuant to
Section 8.14.
"Collateral Trust Agreement" means the Collateral Trust Agreement
dated as of July 31, 2002 by and among the Company, several of its
Subsidiaries and Citibank N.A., as Collateral Trustee, which Collateral
Trust Agreement provides for certain collateral to be held by such
Collateral Trustee for the benefit of the Banks, Issuing Banks and agents
under this Agreement, the lenders, issuing banks and agents under the
Multiyear Xxxxxxxx Credit Agreement and the holders of certain public debt
of TWC issued pursuant to that certain (i) Indenture between MAPCO Inc., as
Issuer, and Bankers Trust Company, as Trustee dated March 31, 1990 and (ii)
Indenture between Transco Energy Company, as Issuer, and Bankers Trust
Company, as Trustee dated May 1, 1990.
"Collateral Trustee" means Citibank, N.A., in its capacity as
Collateral Trustee under the terms of the Collateral Trust Agreement and
its successors or assigns appointed pursuant to Article 5 of the Collateral
Trust Agreement.
"Consolidated" refers to the consolidation of the accounts of any
Person and its consolidated subsidiaries in accordance with generally
accepted accounting principles.
"Consolidated Net Worth" of any Person means the Net Worth of such
Person and its Consolidated Subsidiaries on a Consolidated basis plus, in
the case of the Borrower, 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 Consolidated Subsidiaries of the
Borrower described in clauses (i) through (v), (vii) and (viii) of the
definition of "Designated Minority Interests" below exceed $136,892,000 in
the aggregate for the purposes of this definition. As used in this
definition, "Designated Minority Interests" means, as of any date of
determination, the total value, determined in accordance with generally
accepted accounting principles, of the minority interests of
6
Persons other than the Borrower and Consolidated Subsidiaries of the
Borrower in the following Subsidiaries of the Borrower: (i) El Furrial,
(ii) PIGAP II, (iii) Nebraska Energy, (iv) Seminole, (v) American Soda,
(vi) the Midstream Asset MLP, (vii) Apco Argentina, Inc. and (viii) other
Subsidiaries with a value not to exceed in the aggregate $9,000,000 for
such other Subsidiaries not referred to in items (i) through (vii);
provided that minority interests which provide for a stated preferred
cumulative return shall not be included in "Designated Minority Interests".
"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. For the avoidance
of doubt, as of the date of this Agreement, the MLP and its Subsidiaries
shall be "Consolidated Subsidiaries" of the Borrower.
"Consolidated Tangible Net Worth" of any Person means the Tangible Net
Worth of such Person and its Consolidated Subsidiaries on a Consolidated
basis.
"Credit Documents" means this Agreement, the Security Documents, the
Letter of Credit Documents, each Letter of Credit, all documents,
instruments, agreements, certificates and notices at any time executed
and/or delivered to the Agent, the Collateral Agent, the Collateral
Trustee, the Surety Administrative Agent, any Issuing Bank, or any Bank in
connection therewith.
"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, notes or similar instruments, (iii) obligations of such Person
to pay the deferred purchase price of property or services (other than
trade payables not overdue by more than 60 days incurred in the ordinary
course of business), (iv) obligations of such Person as lessee under leases
that are, in accordance with generally accepted accounting principles,
recorded as capital leases, (v) payments necessary to exercise a purchase
option with respect to the property used by such Person and encumbered by a
Synthetic Lease with such Person as lessee, excluding any portion of such
amount representing accrued interest, transfer taxes or other ancillary
items, (vi) obligations of such Person under any Financing Transaction,
(vii) indebtedness incurred after July 31, 2002 of the Subsidiaries of such
Person, and indebtedness incurred after the date of this Agreement of any
other entity that has been created or utilized, directly or indirectly, for
financing purposes of such Person or any of its Subsidiaries, (viii)
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 (vii) of this
definition, (ix) indebtedness or obligations of others of the kinds
referred to in clauses (i) through (viii) of this definition secured by any
Lien on or in respect of any property of such Person and (x) any
Attributable Obligations of such Person; provided, however, that Debt shall
not include (w) any obligations of the Borrower in respect of the FELINE
PACS; (x) any obligations of the Borrower or its Subsidiaries in respect of
the WCG Note Trust Bonds; (y) Non-Recourse Debt; (z) Performance
Guaranties, (aa) monetary obligations or guaranties of
7
monetary obligations of Persons as lessee under leases (other than, to the
extent provided herein above, Synthetic Leases) that are, in accordance
with generally accepted accounting principles, recorded as operating leases
and (bb) guarantees by such Person of obligations of others which are not
obligations described in clauses (i) through (x) of this definition, and
provided further that where any such indebtedness or obligation of such
Person is made jointly, or jointly and severally, with any third party or
parties other than any Subsidiary of such Person, the amount thereof for
the purpose of this definition only shall be the pro rata portion thereof
payable by such Person, so long as such third party or parties have not
defaulted on its or their joint and several portions thereof and can
reasonably be expected to perform its or their obligations thereunder. For
the avoidance of doubt, "Debt" shall include, without duplication, the
principal amount of the obligations of the Borrower hereunder in respect of
the Letters of Credit that have been drawn upon by the beneficiaries to the
extent of the amount drawn.
"Deepwater Assets" shall have the meaning given such term in Item 8 of
Schedule XIV hereto.
"Deepwater JV" means any Person to whom any Deepwater Assets have been
transferred in connection with the formation of such Person and in which
the Borrower or any of its Subsidiaries has retained an Equity Interest.
"Deepwater Transactions" means, collectively, the transactions
consummated in connection with (i) that certain Second Amended and Restated
Participation Agreement dated January 28, 2002 by and among Xxxxxxxx Field
Services - Gulf Coast Company, L.P., as Lessee, Xxxxxxxx Field Services
Company, as Construction Agent, TWC, as Guarantor, Xxxxx Fargo Bank
Northwest, National Association, (f/k/a First Security Bank, National
Association), as Certificate Trustee, Xxxxx Fargo Bank Nevada, N.A.,
(successor to First Security Trust Company of Nevada), as Collateral Agent,
the Certificate Holders, Hatteras Funding Corporation, as CP Lender, the
Facility Lenders, Bank of America, National Association, as Administrative
Agent and Administrator, Banc of America Facilities Leasing, L.L.C., as
Arranger, Bank of Nova Scotia, as Syndication Agent, and Credit Agricole
Indosuez, as Documentation Agent and/or (ii) that certain Second Amended
and Restated Participation Agreement dated January 28, 2002 by and among
Xxxxxxxx Oil Gathering, L.L.C., as Lessee, Xxxxxxxx Field Services Company,
as Construction Agent, TWC, as Guarantor, Xxxxx Fargo Bank Northwest,
National Association, (f/k/a First Security Bank, National Association), as
Certificate Trustee, Xxxxx Fargo Bank Nevada, N.A., (successor to First
Security Trust Company of Nevada), as Collateral Agent, the Certificate
Holders, Hatteras Funding Corporation, as CP Lender, the Facility Lenders,
Bank of America, National Association, as Administrative Agent and
Administrator, Banc of America Facilities Leasing, L.L.C., as Arranger,
Bank of Nova Scotia, as Syndication Agent, and Credit Agricole Indosuez, as
Documentation Agent.
"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.
8
"Designated Midstream Subsidiaries" means Nebraska Energy; Rio Grande
Pipeline Company; Baton Rouge Fractionators, L.L.C.; Xxxxxxxx Lynxs Alaska
CargoPort, L.L.C.; Tri-States NGL Pipeline, L.L.C; WILPRISE Pipeline
Company, L.L.C.; Xxxxxxxx Alaska Air Cargo Properties, L.L.C.; NewGP;
WilJet, L.L.C.; Longhorn Partners GP, L.L.C.; Longhorn Partners Pipeline,
L.P.; Mapletree, LLC; E-Birchtree, LLC; and E-Oaktree, LLC.
"Designated Minority Interests" has the meaning specified in the
definition of "Consolidated Net Worth".
"Designating Bank" has the meaning specified in Section 9.6(g).
"Dollars" and "$" means lawful money of the United States of America.
"XXXXX" means "Electronic Data Gathering, Analysis and Retrieval"
system, a database maintained by the Securities and Exchange Commission
containing electronic filings of issuers of certain securities.
"El Furrial" means WilPro Energy Services (El Furrial) Limited, a
Cayman Islands corporation.
"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 Borrower, the Agent and the Issuing
Banks (which consents shall not be unreasonably withheld); provided that if
any Default or Event of Default has occurred and is continuing, no consent
of the Borrower shall be required; provided further that neither the
Borrower nor any affiliate of the Borrower shall be an Eligible Assignee.
"EMT" means Xxxxxxxx Energy Marketing & Trading Company.
"Environment" shall have the meaning set forth in 42 U.S.C. ss.
9601(8) or any successor statute and "Environmental" shall mean pertaining
or relating to the Environment.
"Environmental Permits" mean any and all material permits, licenses,
registrations, exemptions and any other authorization required under any
Environmental Protection Statutes.
"Environmental Protection Statute" shall mean any United States local,
state or federal, or any foreign, law, statute, regulation, order, consent
decree or other agreement or Governmental Requirement arising from or in
connection with or relating to the protection or regulation of the
Environment, including those laws, statutes, regulations, orders, decrees,
agreements and other Governmental Requirements relating to the disposal,
cleanup, production, storing, refining, handling, transferring, processing
or transporting of Hazardous Waste, Hazardous Substances or any pollutant
or contaminant, wherever located.
9
"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 Borrower is a
member 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.
"Events of Default" has the meaning specified in Section 6.1.
"Excluded Collateral" means (i) all property owned by RMT LLC or its
Subsidiaries (including, without limitation, the RMT Equity Interests),
WGPC and the Designated Midstream Subsidiaries, (ii) subject to Section
5.1(f), all personal and real property owned by the Restricted Midstream
Subsidiaries, (iii) the Excluded Equity Interests, (iv) except to the
extent currently subject to an Acceptable Security Interest, the Refineries
(subject to the requirements set forth in Section 5.1(e)), (v) the Mapco
Office Building, (vi) the agreements that make up the Trading Book but only
to the extent relating to contracts to which EMT is a party and (vii) any
property of Xxxxxxxx Field Services Company to the extent that such
property constitutes "Leased Property" (as such term is defined on even
date herewith in the Deepwater Transactions).
"Excluded Equity Interests" means (i) the Equity Interests in each of
the Designated Midstream Subsidiaries (other than the Equity Interests of
Xxxxxxxx Energy Services, LLC and Xxxxxxxx Natural Gas Liquids, Inc.);
provided, however, as to each Designated Midstream Subsidiary, at such time
as the Borrower or any of its Subsidiaries obtain the consents provided for
in Paragraph 13 of Schedule XII the Equity Interest of such Designated
Midstream Subsidiary shall cease to be an "Excluded Equity Interest" and
(ii) subject to Section 5.1(f), the Equity Interest in each of the
Restricted Midstream Subsidiaries.
"Existing Credit Agreement" has the meaning specified in the recitals
to this Agreement.
"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
10
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.
"FELINE PACS" means those certain units, as described in the
Borrower's prospectus supplement dated January 7, 2002, issued by the
Borrower in January, 2002 in an aggregate face amount of $1,100,000,000.
"Financing Transaction" means, with respect to any Person, any
individual or group of related Persons (i) prepaid forward sales of oil,
gas, minerals or other assets by such Person, (ii) interest rate, currency,
commodity or other swaps, collars, caps, options or other derivatives or
(iii) sales or transfers of assets, the primary effect of which or an
important purpose of which is to receive money or credit in advance coupled
with an obligation to repay or perform in the future to effect repayment
thereof, including any contract monetization or production payment.
Notwithstanding the foregoing, the following transactions, if entered into
in the ordinary course of business by the Borrower or any of its affiliates
and otherwise permitted hereunder, shall be deemed not to be Financing
Transactions: (a) sales or exchanges of property fully delivered within 90
days of receipt of the first payment by a counterparty therefor, (b)
interest rate, currency, commodity or other swaps, collars, caps, options
or other derivatives (including prepayment of forward sales of property to
a counterparty of the Borrower or any of its affiliates to hedge against
risks in the ordinary course of business, provided that the forward
delivery obligation with respect to the property sold must be fully
performed within 120 days), and (c) "riskless" forward sales or exchanges
of property whereby a third party guarantees the performance obligations of
the Borrower or any of its affiliates to deliver such property without
subrogation or other recourse against the Borrower or any of its affiliates
by any party to the transaction. The term "contract monetization" as used
in this definition means the acceleration of cash flows a contract party
expects to receive from such contract pursuant to which the contract party
retains a significant ongoing obligation to perform, but shall in any event
exclude transactions commonly referred to as securitizations. The term
"production payment" as used in this definition means a limited-term
non-cost bearing right to receive produced hydrocarbons or the proceeds
therefrom satisfiable in cash or in kind up to an aggregate defined amount
of cash and/or hydrocarbons.
"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 year (e.g., the "2002 Fiscal Year") refer to
the Fiscal Year ending on December 31 of such calendar year.
"Fitch" means Fitch, Inc.
11
"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.
"Guaranties" means, collectively, the LLC Guaranty, the Midstream
Guaranty and the Holdings Guaranty.
"Guarantor" and "Guarantors" means, individually and collectively, as
applicable, RMT LLC, WGPC, EMT and each of the Midstream Subsidiaries.
"Hazardous Substance" shall have the meaning set forth in 42 U.S.C.
ss. 9601(14) and shall also include each other substance considered to be a
hazardous substance under any Environmental Protection Statute.
"Hazardous Waste" shall have the meaning set forth in 42 U.S.C. ss.
6903(5) and shall also include each other substance considered to be a
hazardous waste under any Environmental Protection Statute (including 40
C.F.R. ss. 261.3).
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging obligations.
"Holdings Guaranty" means a Guaranty executed by RMT LLC in
substantially the form of Exhibit J, as amended, supplemented or modified
from time to time.
"Hydrocarbons" (whether or not capitalized) means oil, gas, casinghead
gas, condensate, distillate, and liquid hydrocarbons.
"Indemnified Parties" has the meaning assigned to such term in Section
9.4(b).
"Insufficiency" means, with respect to any Plan, the amount, if any,
by which the present value of the vested benefits under such Plan exceeds
the fair market value of the assets of such Plan allocable to such
benefits.
"Interest Expense" means, for any period, the gross interest expense
(determined in accordance with generally accepted accounting principles) of
the Borrower and its Consolidated Subsidiaries accrued for such period,
including that attributable to the capitalized amount of obligations owing
under Capital Leases, all debt discount amortized in such period and all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, net of interest income
12
(determined in accordance with generally accepted accounting principles) of
the Borrower and its Consolidated Subsidiaries, but excluding such interest
expense, debt discount, commissions, discounts and other fees and charges
and interest income to the extent attributable to the Non-Recourse Debt of
Project Financing Subsidiaries; provided that interest expense incurred in
connection with the WCG Note Trust Bonds shall be excluded from this
definition.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
of the business of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger or consolidation and any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (viii) or (ix) of the definition of "Debt" in respect
of such Person.
"Issuing Banks" means the U.S. Issuing Banks and the Canadian Issuing
Bank, in their capacity as issuers of Letters of Credit.
"XX Xxxx Collateral Accounts" has the meaning assigned to such term in
Section 6.2.
"LC Participation Percentage" of any Bank means, at any time, the
percentage set opposite such Bank's name on Schedule IV 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
9.6(a).
"Legacy L/Cs" means those outstanding letters of credit as of July 31,
2002 as set forth on Schedule XI, to the extent such letters of credit have
not been fully cash collateralized.
"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
9.6(a), or such other office of such Bank as such Bank may from time to
time specify to the Borrower 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 IV under the heading
"U.S. Dollar L/C Commitments" or "Canadian Dollar L/C 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 2.2, Section 2.8, Section 6.1 or Section 9.6(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 (a)
the rights and obligations of the parties concerned or at risk with respect
to such Letter of Credit or (b) any collateral security for any of
13
such obligations, each as the same may be modified and supplemented and in
effect from time to time.
"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.
"Letter of Credit Liability" means at any time and in respect of any
Letter of Credit, the sum (without duplication) of (a) the maximum possible
undrawn 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; provided that, with respect to any Canadian Letter
of Credit, all amounts included in clause (a) or (b) hereof shall be
calculated at the U.S. Dollar Equivalent thereof. 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
2.10 and, for greater certainty, shall include all Canadian Letters of
Credit.
"Lien" means any mortgage, lien, pledge, charge, deed of trust,
security interest, encumbrance or other analogous type of preferential
arrangement to secure or provide for the payment of any Debt, trade
payable, obligation or other liability of any Person, whether arising by
contract, operation of law or otherwise (including the interest of a vendor
or lessor under any conditional sale agreement, capital lease or other
title retention agreement).
"LLC Guaranty" means a Guaranty executed by WGPC in substantially the
form of Exhibit G, as amended, supplemented or modified from time to time.
"Major Subsidiary" means any Subsidiary of the Borrower with assets
having a book value of $1,000,000,000 or more.
"Majority Banks" means at any time (i) Banks having more than 50% of
the LC Participation Percentages, or (ii) if the Letter of Credit
Commitments have terminated and any Letter of Credit or any Letter of
Credit Interest is outstanding, then Banks having more than 50% of the sum
of the aggregate unpaid principal amount of the outstanding Letter of
Credit Interests (provided that for purposes of this definition and
Sections 2.8, 6.1 and 7.1 neither the Borrower nor any Subsidiary or
Related Party of the Borrower, if a Bank, shall be included in (i) the
Banks owed or holding Letter of Credit Interests or (ii) determining the
aggregate amount of the Letter of Credit Interests).
"Mapco Office Building" means the real property, improvements and
related office equipment located at 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx.
14
"MAPL" means Mid-America Pipeline Company, LLC, a Delaware limited
liability company.
"MAPL Asset Disposition" means the sale, transfer or other
distribution of the Equity Interests in or assets of MAPL and Mapletree,
LLC.
"Material Subsidiary" means (i) each Major Subsidiary and each other
Subsidiary of the Borrower (other than a Project Financing Subsidiary) that
itself (on an unconsolidated, stand alone basis) owns in excess of 5% of
the book value of the Consolidated assets of the Borrower and its
Consolidated Subsidiaries, (ii) each of TGPL, TGT and NWP and (iii) each
Subsidiary that owns any direct or indirect interest in TGPL, TGT and NWP.
"Midstream Asset MLP" means one or more master limited partnerships
included in the Consolidated financial statements of the Borrower to which
the Borrower has transferred or shall transfer certain assets relating to
the Midstream Business as well as certain marine and inland terminals and
related pipeline systems, including MLP.
"Midstream Assets" means all assets now owned or hereafter acquired by
the Borrower or any of its Subsidiaries, which are either individually, or
in conjunction with other Midstream Assets, necessary for the conduct of
the Midstream Business by Borrower and its Subsidiaries, including the
Refineries in Alaska and Tennessee, except that "Midstream Assets" shall
not include (a) the assets being part of either of the MAPL Asset
Disposition or Seminole Asset Disposition unless the MAPL Asset Disposition
or Seminole Asset Disposition, as applicable, shall not have occurred on or
prior to the date that is 60 days from July 31, 2002 and (b) any assets of
NewGP or its Subsidiaries.
"Midstream Business" means the gathering, marketing, dehydrating,
treating, processing, fractionating, refining, storing, selling and
transporting of Hydrocarbons and Refined Hydrocarbons in the United States,
and any business relating thereto; provided that "Midstream Business" shall
not include (i) operations that are directly related to the exploration and
production of Hydrocarbons, (ii) the interstate transportation and storage
of natural gas and associated liquid hydrocarbons under the jurisdiction of
the Natural Gas Act, and (iii) the transportation and storage of natural
gas and associated liquid hydrocarbons through the Cardinal Pipeline
System.
"Midstream Guaranty" means a Guaranty executed by certain Guarantors
in substantially the form of Exhibit H, as amended, supplemented or
modified from time to time.
"Midstream Subsidiaries" means each Subsidiary of the Borrower
(excluding Xxxxxxxx Mobile Bay Producer Services, L.L.C., NewGP and each of
their Subsidiaries, if any) engaged either in whole or in part of the
Midstream Business that either (1) owns, leases or has possession of
Midstream Assets that have an aggregate fair market value of $1,000,000 or
more, or (2) owns, leases or has possession of any Midstream Asset or right
that is material to the ownership, leasing or operation of the Midstream
Assets taken as a whole.
15
"MLP" means Xxxxxxxx Energy Partners L.P., a Delaware limited
partnership.
"Moody's" means Xxxxx'x Investors Service, Inc. or its successor.
"Mortgage" means each mortgage, deed of trust or comparable real
property Lien document executed by any Guarantor from time to time, in such
form as necessary to grant an Acceptable Security Interest in favor of the
Collateral Trustee for the benefit of itself and other parties, as more
fully described in the Collateral Trust Agreement.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate of
the Borrower is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means an employee benefit plan as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, subject to Title IV
of ERISA to which the Borrower or any ERISA Affiliate of the Borrower, and
one or more employers other than the Borrower or an ERISA Affiliate of the
Borrower, is making or accruing an obligation to make contributions or, in
the event that any such plan has been terminated, to which the Borrower or
any ERISA Affiliate of the Borrower made or accrued an obligation to make
contributions during any of the five plan years preceding the date of
termination of such plan.
"Multiyear Xxxxxxxx Credit Agreement" means that certain First Amended
and Restated Credit Agreement dated as of October 31, 2002 among the
Borrower, NWP, TGPL and TGT, as Borrowers; the financial institutions party
thereto, as "Banks" thereunder; JPMorgan Chase Bank (formerly known as 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 (as the same may from time to time be further amended, supplemented,
restated or otherwise modified).
"Natural Gas Act" shall mean the Natural Gas Act, 15
U.S.C.ss.ss.717(a)-717(w).
"Nebraska Energy" means Nebraska Energy, L.L.C., a Kansas limited
liability company.
"Net Cash Proceeds" means, with respect to any sale, transfer or other
disposition of any asset or the sale or issuance of any equity interests
(including, without limitation, any capital contribution) by any Person,
the gross cash proceeds received (including any cash received by way of
deferred payment pursuant to a promissory note, receivable or otherwise,
but only as and when such cash is received) by or on behalf of such Person
in connection with such transaction net of only (a) reasonable transaction
costs, including customary and reasonable brokerage commissions,
underwriting fees and discounts, legal fees, fees paid to accountants and
financial advisors, finder's fees and other similar fees and commissions,
(b) the amount of taxes payable in connection with or as a result of such
transaction, (c) the amount of any Debt by the terms of the agreement or
instrument governing such Debt (including, without limitation, the Xxxxxxx
Loan Agreement and the WECI Note), that is required to be repaid or cash
collateralized in the case of letters of
16
credit, upon such disposition, including any premium, make-whole or
breakage amount related thereto, (d) payments of unassumed liabilities
relating to the assets sold at the time of, or within 60 days after, the
date of such sale, and provided that such gross proceeds shall not include
any portion of such gross cash proceeds which the Borrower determines in
good faith should be reserved for post-closing adjustments (including
indemnification payments, tax expenses and purchase price adjustments, to
the extent the Person delivers to the Agent a certificate signed by an
officer of such Person as to such determination), it being understood and
agreed that on the day that all such post-closing adjustments have been
determined (which shall not be later than 120 days following the date of
the respective disposition; provided, further that such 120-day period
shall be extended to the extent any amount of such proceeds is subject to a
good faith dispute or claim), the amount (if any) by which the reserved
amount in respect of such sale or disposition exceeds the actual
post-closing adjustments payable by such Person shall constitute Net Cash
Proceeds on such date received by such Person from such sale, lease,
transfer or other disposition.
"Net Worth" of any Person means, as of any date of determination, the
excess of total assets of such Person plus all non-cash losses resulting
from the write-down or disposition of the Trading Book over total
liabilities of such Person, total assets and total liabilities each to be
determined in accordance with generally accepted accounting principles;
provided, however, that for purposes of calculating Net Worth, total
liabilities shall not include any obligations of the Borrower in respect of
the FELINE PACS.
"NewGP" means a business entity organized under Delaware law, which
may be formed before, on or after the date hereof, and which (i) will be at
the time of formation a Wholly-Owned Subsidiary of the Borrower, and (ii)
will be formed for the sole purpose of acquiring certain Equity Interests
in MLP currently held by Xxxxxxxx XX, LLC and acting as the general partner
of MLP.
"Non-Recourse Debt" means (i) any Debt incurred by any Project
Financing Subsidiary to finance the acquisition (other than the acquisition
from the Borrower or any Subsidiary of the Borrower that is not a Project
Financing Subsidiary), improvement, installation, design, engineering,
construction, development, completion, maintenance or operation of, or
otherwise to pay costs and expenses relating to or providing financing for,
a project listed on Schedule VI or any new project commenced or acquired
after July 31, 2002, which Debt does not provide for recourse against the
Borrower or any Subsidiary of the Borrower (other than a Project Financing
Subsidiary and such recourse as exists under a Performance Guaranty) or any
property or asset of the Borrower or any Subsidiary of the Borrower (other
than Equity Interests in, or the property or assets of, a Project Financing
Subsidiary) and (ii) any refinancing of such Debt that does not increase
the outstanding principal amount thereof at the time of the refinancing or
increase the property subject to any Lien securing such Debt or otherwise
add additional security or support for such Debt.
"Notice of Letter of Credit" has the meaning specified in Section
2.10(a).
"NWP" means Northwest Pipeline Corporation, a Delaware corporation.
17
"Obligations" means all Reimbursement Obligations and all other Debt,
advances, debts, liabilities, obligations, indemnities, covenants and
duties owing by the Borrower or any Guarantor to any Bank, the Agent, the
Collateral Agent, the Collateral Trustee, the Surety Administrative 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
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 the Borrower under this Agreement or any other
Credit Document.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Performance Guaranty" means any guaranty issued in connection with
any Non-Recourse Debt that (i) if secured, is secured only by assets of or
Equity Interests in a Project Financing Subsidiary, and (ii) guarantees to
the provider of such Non-Recourse Debt or any other Person (a) performance
of the improvement, installation, design, engineering, construction,
acquisition, development, completion, maintenance or operation of, or
otherwise affects any such act in respect of, all or any portion of the
project that is financed by such Non-Recourse Debt, (b) completion of the
minimum agreed equity contributions to the relevant Project Finance
Subsidiary, or (c) performance by a Project Financing Subsidiary of
obligations to Persons other than the provider of such Non-Recourse Debt.
"Permitted Dispositions" means (a) the disposition of the assets or
Persons set forth in Schedule XIV or the assets currently owned by such
Persons and (b) the TWC Asset Dispositions.
"Permitted Liens" means Liens specifically described on Schedule III.
"Permitted Refinancing Debt" has the meaning assigned thereto on
Schedule III.
"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.
"PIGAP II" means WilPro Energy Services (PIGAP II) Limited, a Cayman
Islands corporation.
"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 Borrower or any ERISA Affiliate of the
Borrower for
18
employees of the Borrower 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.
"Pledge Agreement" means a Pledge Agreement executed by the Borrower
and certain Guarantors in substantially the form of Exhibit I.
"Plowshare Transaction" means the retirement of the Interests of the
Class B Preferred Member in PPH (each as defined in the PPH Sponsor
Agreement), held by Plowshare Investors LLC, a Delaware limited liability
company, by PPH.
"PPH Company Agreement" means the Amended and Restated Limited
Liability Company Agreement of Piceance Production Holdings LLC, dated as
of December 31, 2001, by and among Williams Production RMT Company, a
Delaware corporation, Bison Royalty LLC, a Delaware limited liability
company, Plowshare Investors LLC, a Delaware limited liability company, and
Piceance Production Holdings LLC, a Delaware limited liability company.
"PPH Sponsor Agreement" means the PPH Sponsor Agreement, dated as of
December 31, 2001, by TWC in favor of Piceance Production Holdings LLC,
Plowshare Investors LLC and the other indemnified parties named therein (as
the same may from time to time be amended, modified or supplemented).
"Prairie Wolf Facility" means the financing provided in connection
with that certain $611,788,868 Joint Venture Sponsor Agreement dated as of
December 28, 2000 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "Sponsor Agreement"), among TWC,
as Sponsor, and Williams Field Services Company, in favor of Prairie Wolf
Investors, Arctic Fox Assets, L.L.C., Xxxxxxxx Energy (Canada), Inc. and
the other Indemnified Persons (as defined in the Sponsor Agreement) listed
therein.
"Prairie Wolf Purchase Option Agreement" means the Purchase Option
Agreement, dated as of December 28, 2000, among TWC, Prairie Wolf
Investors, L.L.C., Citicorp North America, Inc., Ambac Private Holdings,
L.L.C., Westboro Properties L.L.C., Stonehurst Capital L.L.C., BSCS XXXIX,
Inc., Snow Goose Associates, L.L.C. and Arctic Fox Assets, L.L.C.
"Prairie Wolf Transaction" means the purchase of the Investor
Membership Interest (as defined in the Prairie Wolf Purchase Option
Agreement) pursuant to the Prairie Wolf Purchase Option Agreement
"Progeny Facilities" means the financing facilities specifically
described on Schedule XI.
"Project Financing Subsidiaries" means any non-material Subsidiary of
the Borrower whose principal purpose is to incur Non-Recourse Debt and/or
construct, lease, own or operate the assets financed thereby, or to become
a direct or indirect partner, member or other equity participant or owner
in a Business Entity created for such purpose, and substantially all the
assets of which Subsidiary or Business Entity are
19
limited to (x) those assets being financed (or to be financed), or the
operation of which is being financed (or to be financed), in whole or in
part by Non-Recourse Debt, or (y) Equity Interests in, or Debt or other
obligations of, one or more other such Subsidiaries or Business Entities,
or (z) Debt or other obligations of the Borrower or its Subsidiaries or
other Persons. For purposes of this definition, a "non-material Subsidiary"
shall mean any Consolidated Subsidiary of the Borrower which, as of the
date of the most recent Consolidated balance sheet of the Borrower
delivered pursuant to Section 4.1(e) or 5.1, has total assets which account
for less than five percent (5%) of the total Consolidated assets of the
Borrower and its Consolidated Subsidiaries, as shown on such Consolidated
balance sheet; provided, that the aggregate assets of the non-material
Subsidiaries shall not comprise more than ten percent (10%) of the total
Consolidated assets of the Borrower and its Consolidated Subsidiaries, as
shown on such Consolidated balance sheet.
"Property" has the meaning specified in the definition of "assets".
"Public Filings" means the Borrower's, NWP's, TGPL's and TGT's (i)
annual report on Form 10-K/A for the year ended December 31, 2001, (ii)
quarterly report on Form 10-Q for the quarter ended Xxxxx 00, 0000, (xxx)
quarterly report on Form 10-Q for the quarter ended June 30, 2002 and (iv)
each other quarterly and annual and other reports filed from time to time.
"Purchase Card Agreement" means that certain Purchase Card Agreement
among the Borrower and Citibank USA, N.A. dated January 29, 2002.
"Rating Category" means, as to the Borrower, the relevant category
applicable to the Borrower from time to time as set forth on Schedule V,
which is based on the ratings (or lack thereof) of the Borrower's senior
unsecured long-term debt by S&P or Xxxxx'x. In the event there is a split
between the ratings of the Borrower's senior unsecured long-term debt by
S&P and Xxxxx, "Rating Category" shall be determined based on the lowest
rating of the Borrower's senior unsecured long-term debt by S&P or Xxxxx'x.
"Refined Hydrocarbons" means all products refined, separated,
fractionated, settled, and dehydrated from Hydrocarbons and all products
derived therefrom, including, without limitation, kerosene, liquefied
petroleum gas, refined lubricating oils, diesel fuels, drip gasoline,
natural gasoline, helium, sulfur and all other minerals.
"Refineries" means the equity interest in and assets owned by the
Midstream Business of the Borrower which produces Refined Hydrocarbons and
is owned collectively by the following Subsidiaries: Williams Express,
Inc., a Delaware corporation, Williams Alaska Pipeline Company, LLC, a
Delaware limited liability company, Williams Alaska Petroleum, Inc., an
Alaska corporation, Williams Alaska Air Cargo Properties, LLC, an Alaska
limited liability company, Xxxxxxxx Lynx Alaska CargoPort, LLC, an Alaska
limited liability company, Williams Express, Inc., an Alaska corporation,
Williams Petroleum Pipeline Systems, Inc., a Delaware corporation, Williams
Refining & Marketing, LLC, a Delaware limited liability company, Williams
Olefins, LLC, a Delaware limited liability company, Xxxxxxxx Olefins
Feedstock
20
Pipelines, LLC, a Delaware limited liability company, Williams Memphis
Terminal, Inc., a Delaware corporation, Williams Generating Memphis, LLC, a
Delaware limited liability company, EMT (only with respect to its interest
in a gas turbine, electric generating facility located in Memphis,
Tennessee) and Memphis Generation, L.L.C., a Delaware limited liability
company.
"Reg U Limited Assets" means assets that are subject to any
arrangement (as contemplated by Regulation U) with any Bank, the Agent, the
Collateral Agent, the Collateral Trustee, or any Issuing Bank (i) that
restricts the right or ability of the Borrower or its Subsidiaries to sell,
pledge or otherwise dispose of (within the meaning of Regulation U) such
assets or (ii) that provides that the exercise of such right is or may be
cause for accelerating the maturity of all or any portion of any amount
payable hereunder or under such arrangement.
"Register" shall mean the books and accounts maintained by the Agent
of the interests of each Bank under this Agreement and its Letter of Credit
Interest, including records of transfers of any interests in this Agreement
and the Letter of Credit Commitment of any Issuing Bank pursuant to Section
9.6.
"Reimbursement Obligations" means, at any time, the obligations of the
Borrower 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.
"Related Party" of any Person means any corporation, partnership,
joint venture or other entity of which more than 10% 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 or which owns at the time
directly or indirectly more than 10% of the Equity Interests having
ordinary voting power to elect a majority of the board of directors of such
Person 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); provided, however,
that (i) neither the Borrower nor any Subsidiary of the Borrower shall be
considered to be a Related Party of the Borrower or any Subsidiary of the
Borrower and (ii) neither NewGP nor any Subsidiary of NewGP shall be
considered to be a Related Party of NewGP or any Subsidiary of NewGP.
"Restricted Midstream Subsidiaries" means Williams Mobile Bay Producer
Services, L.L.C., Williams Field Services-Gulf Coast Company, L.P.,
Williams Oil Gathering L.L.C., Gulf Liquids Holdings, L.L.C. and Gulf
Liquids New River Project, LLC.
"RMT" means Williams Production RMT Company.
21
"RMT Asset Disposition" means the sale, transfer, lease, distribution
or other disposition of the RMT Equity Interests or the assets of RMT LLC,
RMT or its Subsidiaries in accordance with the provisions of the Xxxxxxx
Loan Agreement.
"RMT Equity Interests" means the Equity Interests in RMT and/or each
of its Subsidiaries.
"RMT LLC" means Williams Production Holdings LLC.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor.
"Sale Agreement" has the meaning specified in Section 5.1(e).
"Sale and Lease-Back Transaction" of any Person means any arrangement
entered into by such Person or any Subsidiary of such Person, directly or
indirectly, whereby such Person or any Subsidiary of such Person shall sell
or transfer any property, whether now owned or hereafter acquired to any
other person (a "Transferee"), and whereby such Person or any Subsidiary of
such Person shall then or thereafter rent or lease as lessee such property
or any part thereof or rent or lease as lessee from such Transferee or any
other Person other property which such Person or any Subsidiary of such
Person intends to use for substantially the same purpose or purposes as the
property sold or transferred.
"Security Agreement" means a Security Agreement executed by the
Borrower and certain of the Guarantors in substantially the form of Exhibit
F.
"Security Documents" means each Mortgage and Additional Mortgage, the
Security Agreement, the Pledge Agreement, the Collateral Trust Agreement
and the Guaranties.
"Seminole" means Seminole Pipeline Company, a Delaware corporation.
"Seminole Asset Disposition" means the sale, transfer or other
distribution of the Equity Interests in or assets of Seminole and
E-Oaktree, LLC.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
22
"SPC" has the meaning specified in Section 9.6(g).
"Specified Escrow Arrangements" means (a) encumbrances arising under
the Pledge and Assignment Agreement for the Purchase Card Agreement, dated
as of January 29, 2002, as amended, supplemented, amended and restated or
otherwise modified from time to time, whereby the Borrower has requested
that the banks party thereto continue to issue credit under the Purchase
Card Agreement; and (b) cash deposits at one or more financial institutions
for the purpose of funding any potential shortfall in the daily net cash
position of the Borrower or any of its Subsidiaries.
"Stated Termination Date" means July 30, 2003, or such later date, if
any as may be agreed to by the Borrower and the Banks pursuant to Section
2.9.
"Subordinated Debt" means any Debt of the Borrower which is
effectively subordinated to the obligations of the Borrower hereunder.
"Subject Subsidiaries" means all Subsidiaries of the Borrower other
than NewGP and its Subsidiaries.
"Subsidiary" of any Person means (i) 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, and (ii) any Person that is
under the direct or indirect control of such Person, by voting rights,
contract or otherwise, and in accordance with generally accepted accounting
principles, is Consolidated with the Borrower in its Consolidated financial
statements; provided that, for greater certainty, (x) MLP and its
Subsidiaries (A) shall be considered Subsidiaries of NewGP, but (B) shall
not otherwise be considered Subsidiaries of the Borrower, any Guarantor, or
their respective Subsidiaries and (y) NewGP shall be considered a
Subsidiary of the Borrower.
"Surety Administrative Agent" means Citibank, N.A., in its capacity as
surety administrative agent under the terms of the Midstream Guaranty and
its successors or assigns appointed pursuant to Section 7(e) of the
Midstream Guaranty.
"Synthetic Lease" means any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real,
personal or mixed) (i) that is not a capital lease in accordance with
generally accepted accounting principles and (ii) in respect of which the
lessee retains or obtains ownership of the property so leased for federal
income tax purposes, other than any such lease under which such Person is
the lessor.
"Tangible Net Worth" of any Person means, as of any date of
determination, the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to be
determined in accordance with generally accepted accounting
23
principles, excluding, however, from the determination of total assets (i)
patents, patent applications, trademarks, copyrights and trade names, (ii)
goodwill, organizational, experimental, research and development expense
and other like intangibles, (iii) treasury stock, (iv) monies set apart and
held in a sinking or other analogous fund established for the purchase,
redemption or other retirement of capital stock or Subordinated Debt, and
(v) unamortized debt discount and expense.
"Termination Date" means the earlier of (i) the Stated Termination
Date or (ii) the date of termination in whole of the Letter of Credit
Commitments pursuant to Section 2.2, 2.8 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 the
Borrower, 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 the Borrower or any ERISA Affiliate of
the 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 the Borrower or any ERISA
Affiliate of the 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" means Transcontinental Gas Pipe Line Corporation, a Delaware
corporation.
"TGPL Bond Offering" means the $325,000,000, 8.875% Senior Notes
issued on July 3, 2002, by TGPL.
"TGT" means Texas Gas Transmission Corporation, a Delaware
corporation.
"Trading Book" means all xxxx to market daily and forward traded
transactions inclusive of structured portfolio transactions consisting
primarily of tolling and full requirements transactions.
"Transfer Agreement" means an agreement executed pursuant to Section
9.6 by an assignor Bank and assignee Bank substantially in the form of
Exhibit D, which agreement shall be executed by the Borrower 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 9.6.
24
"TWC" means The Xxxxxxxx Companies, Inc., a Delaware corporation.
"TWC Asset Disposition" means the sale by TWC or by any of its
Subsidiaries of (a) WPC, (b) the MAPL Asset Disposition, (c) the Seminole
Asset Disposition, (d) the Refineries, (e) Williams Soda Products Company
and American Soda, L.L.P, (f) Williams TravelCenters, Inc., (g) Xxxxxxxx
Bio-Energy, LLC, (h) Xxxxxxxx Ethanol Services, Inc. and (i) Nebraska
Energy, L.L.C.
"TWC Preferred Stock" means the shares of preferred stock of TWC which
may be mandatorily convertible into shares of common stock of TWC.
"UBOC Turbine Financing" means the transaction contemplated by (a) the
Turbine Financing and Agency Agreement, dated as of April 16, 2002, between
Union Bank of California, N.A., each of the other financial institutions
party thereto as a Lender or a Certificate Holder, WEMT Equipment Statutory
Trust 2002 and EMT (the "TFA Agreement") and (b) the Operative Documents
and the Lease (as such terms are defined in the TFA Agreement).
"U.S. Dollar Equivalent" of any Canadian Dollar amount means, on any
date of determination, the Dollar equivalent of such Canadian Dollar amount
determined by the Agent by using the quoted spot rate at which Citibank's
principal office in Toronto offers to exchange Dollars for Canadian Dollars
in Toronto at 11:00 a.m. (New York City time) on such date, which
determination shall be conclusive in the absence of manifest error, or if
such principal office is not then quoting such a rate, then such rate as
shown on page BOFC of the Reuters screen at such time on such date.
"U.S. Dollar L/C Commitment" of any Issuing Bank means, at any time,
the amount set opposite such Bank's name on Schedule IV under the heading
"U.S. Dollar L/C 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 2.2, Section 2.8,
Section 6.1 or Section 9.6(a).
"U.S. Issuing Bank" means Citibank, N.A. and Bank of America N.A.,
each in its capacity as issuers of Letters of Credit.
"WCG" means Xxxxxxxx Communications Group, Inc., a Delaware
corporation.
"WCG Note Trust Bonds" means those certain debt securities issued by
WCG Note Trust and WCG Note Corp. on March 28, 2001.
"WCG Senior Notes Issuer" means, collectively, WCG Note Trust, a
Delaware business trust, and WCG Note Corp., Inc., a Delaware corporation.
"WCG Subsidiaries" means, collectively, WCG and any direct or indirect
Subsidiary of WCG.
"WCG Synthetic Lease" means that certain Amended and Restated Lease
between State Street Bank and Trust Company of Connecticut, National
Association, as
25
Lessor and Williams Communications, Inc., as Lessee, dated as of September
2, 1998, as amended, which has been terminated and was fully repaid on
March 29, 2002.
"WCG Unwind Transaction" means a transaction in which (i) the
Borrower's and/or its Subsidiaries' Sale Leaseback transactions, dated as
of September 13, 2001, with (x) WCG and its Subsidiary, Xxxxxxxx Technology
Center, LLC ("WTC"), involving the Xxxxxxxx Technology Center, and (y) WCG
and its Subsidiary, Xxxxxxxx Communications, LLC, involving corporate
aircraft (collectively, the "WCG Sale Leaseback") are terminated, (ii) in
exchange for such termination, the Borrower receives a promissory note or
notes payable by the reorganized WCG, WTC and/or the other WCG
Subsidiaries, individually or as co-makers, in an aggregate principal
amount of $175,000,000 or less, and (iii) consideration from the Borrower
and its Subsidiaries includes termination of the existing WCG Sale
Leaseback and transfer of the Equity Interests in Williams Aircraft
Leasing, LLC, but does not include any cash payment by the Borrower or any
of its Subsidiaries to WCG or WTC.
"WECI Note" means that certain promissory note, dated as of December
28, 2000, issued by Xxxxxxxx Energy (Canada), Inc. in favor of the
Registered Holders (as defined therein), as amended by Prairie Wolf
Investors, L.L.C. Amendment No. 1, dated as of August 29, 2001, by
Amendment No. 2 to Certain Prairie Wolf Operative Documents, dated as of
March 28, 2002, and by Amendment No. 3 to Certain Operative Documents and
Consents, dated as of October 31, 2002.
"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.
"WF Group" means Williams Field Services Group, Inc., a Delaware
corporation.
"WGPC" means Williams Gas Pipeline Company, LLC, a Delaware limited
liability company.
"Withdrawal Liability" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
"WPC" means Xxxxxxxx Gas Pipeline Central, Inc., a Delaware
corporation.
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
26
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.
SECTION 1.5. Ratings. A rating, whether public or private, by S&P or
Xxxxx'x shall be deemed to be in effect on the date of announcement or
publication by S&P or Xxxxx'x, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or in
the absence of such announcement or publication, the effective date of, any
change in, or withdrawal or termination of, such rating. In the event the
standards for any rating by Xxxxx'x or S&P are revised, or any such rating is
designated differently (such as by changing letter designations to different
letter designations or to numerical designations), the references herein to such
rating shall be deemed to refer to the revised or redesignated rating for which
the standards are closest to, but not lower than, the standards at the date
hereof for the rating which has been revised or redesignated, all as determined
by the Majority Banks in good faith. Long-term debt supported by a letter of
credit, guaranty, insurance or other similar credit enhancement mechanism shall
not be considered as senior unsecured long-term debt. If either Xxxxx'x or S&P
has at any time more than one rating applicable to senior unsecured long-term
debt of the Borrower, the lowest such rating shall be applicable for purposes
hereof. For example, if Xxxxx'x rates some senior unsecured long-term debt of
the Borrower Ba1 and other such debt of the Borrower Ba2, the senior unsecured
long-term debt of the Borrower shall be deemed to be rated Ba2 by Xxxxx'x.
ARTICLE II
AMOUNTS AND TERMS OF THE LETTERS OF CREDIT
SECTION 2.1. Fees.
(a) Agent's Fees. The Borrower agrees to pay to the Agent, for its
sole account, such fees as may be separately agreed to in writing by the
Borrower and the Agent.
(b) Letter of Credit Fees.
(i) Issuing Banks. The Borrower agrees to pay to the Agent for the
account of each Issuing Bank a fronting fee on the maximum possible 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 (1)
occurs automatically or (2) that is unilaterally exercisable by the
Borrower) issued by such Issuing Banks in an amount equal to 0.250% per
annum. All amounts payable pursuant to this clause (i) in respect of any
Letter of Credit shall be paid on the date such Letter of Credit is issued.
27
(ii) Participating Banks. The Borrower agrees to pay to the Agent for
the account of each Bank (in accordance with their respective LC
Participation Percentage) a letter of credit fee (1) on the sum of the
aggregate outstanding Letter of Credit Commitments of all Issuing Banks at
the time of determination less the aggregate outstanding stated amount of
the Letters of Credit issued by the Issuing Banks at such time in an amount
equal to the Applicable LC Commitment Margin in effect from time to time
per annum and (2) on the issued and outstanding stated amount of the
Letters of Credit at the time of determination issued by the Issuing Banks
in an amount equal to the Applicable Issued LC Margin in effect from time
to time per annum (for the stated duration thereof, and giving effect to
any step up provision or other mechanism for increase that (x) occurs
automatically or (y) is unilaterally exercisable by the Borrower). All
amounts payable pursuant to this clause (ii) shall be paid in arrears on
the last day of each March, June, September and December and on the
Termination Date.
The letter of credit fees referred to in this Section 2.1(b) not paid on
the date due shall accrue interest until such letter of credit fees are
paid in full, due and payable on demand, at a per annum rate equal at all
times to the sum of Base Rate plus 6.5% per annum.
SECTION 2.2. Reduction of the Commitments. The Borrower shall have the
right, upon at least five Business Days notice to the Agent, to terminate in
whole or reduce ratably in part the unused portions of the respective Letter of
Credit Commitments; provided that each partial reduction shall be in the
aggregate amount of at least $10,000,000; 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 2.3. Prepayments.
(a) The Borrower may, upon notice to the Agent before 10:00 A.M. (New
York City time) on the date of prepayment stating the proposed date (which shall
be a Business Day) and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, Cash Collateralize the outstanding Letter of
Credit Liabilities in whole or in part, together with accrued interest and fees
to the date of such Cash Collateralization on the Cash Collateralized Letter of
Credit Liabilities; provided, however, that each partial Cash Collateralization
pursuant to this Section 2.3(a) shall be in an aggregate principal amount not
less than the lesser of (1) $5,000,000 and (2) the aggregate outstanding Letter
of Credit Liabilities at the time of such Cash Collateralization.
(b) By no later than five Business Days from the date of receipt by
the Borrower or any of its Subject Subsidiaries of any Net Cash Proceeds from
(i) any asset disposition (other than the MAPL Asset Disposition, the Seminole
Asset Disposition, dispositions permitted in Section 5.2(e)(i) and (iii) and any
disposition of Collateral (other than the Refineries in Alaska and Memphis and
the assets related thereto)), (ii) an issuance of TWC Preferred Stock, (iii) any
disposition of Collateral permitted pursuant to Section 5.2(e) (other than the
Refineries in Alaska and Memphis and the assets related thereto and any
disposition permitted in Section 5.2(e)(i) and (iii)), or (iv) any issuance of
Equity Interests by the Borrower (other than TWC Preferred Stock), the Borrower
shall apply such Net Cash Proceeds as follows:
28
(A) So long as the aggregate Commitments (as defined in the Multiyear
Xxxxxxxx Credit Agreement each time used in this Section 2.3(b)) of the
lenders to TWC under the Multiyear Xxxxxxxx Credit Agreement are greater
than $400,000,000:
(1) in the case of any such Net Cash Proceeds arising from any
disposition referred to in clause (i) above which consists of the
Refinery in Alaska owned by certain Subsidiaries and the assets
related thereto, 50% of such Net Cash Proceeds shall be applied on a
pro-rata basis to the permanent ratable reduction of the respective
Commitments of the lenders to TWC under the Multiyear Xxxxxxxx Credit
Agreement;
(2) in the case of any such Net Cash Proceeds arising from any
asset disposition referred to in clause (i) above and not otherwise
applied pursuant to sub-clause (1) above (including any disposition of
the Refinery in Memphis, Tennessee owned by certain Subsidiaries and
the assets related thereto), 50% of such Net Cash Proceeds shall be
applied on a pro-rata basis, without duplication, to the permanent
ratable (x) reduction of the respective Commitments of the lenders to
TWC under the Multiyear Xxxxxxxx Credit Agreement, (y) reduction of
the outstanding amounts of the Progeny Facilities (excluding the
Prairie Wolf Facility) and (z) cash collateralization of the Legacy
L/Cs;
(3) in the case of any such Net Cash Proceeds arising from an
issuance of TWC Preferred Stock referred to in clause (ii) above, 100%
of such Net Cash Proceeds shall be applied on a pro-rata basis,
without duplication, to the permanent ratable (x) reduction of the
respective Commitments of the lenders to TWC under the Multiyear
Xxxxxxxx Credit Agreement, (y) reduction of the outstanding amounts of
the Progeny Facilities (excluding the Prairie Wolf Facility) and (z)
cash collateralization of the Legacy L/Cs;
(4) in the case of any such Net Cash Proceeds arising from any
disposition of Collateral referred to in clause (iii) above, 50% of
such Net Cash Proceeds shall be applied on a pro-rata basis, without
duplication, to the permanent ratable (x) reduction of the respective
Commitments of the lenders to TWC under the Multiyear Xxxxxxxx Credit
Agreement and (y) Cash Collateralization of the Letter of Credit
Commitments; and
(5) in the case of any such Net Cash Proceeds arising from any
issuance of Equity Interests referred to in clause (iv) above, 50% of
such Net Cash Proceeds shall be applied on a pro-rata basis, without
duplication, to the permanent ratable (w) reduction of the respective
Commitments of the lenders to TWC under the Multiyear Xxxxxxxx Credit
Agreement, (x) Cash Collateralization of the Letter of Credit
Commitments, (y) reduction of the outstanding amounts of the Progeny
Facilities (excluding the Prairie Wolf Facility) and (z) cash
collateralization of the Legacy L/Cs;
(B) From such time that the aggregate Commitments of the lenders to
TWC under the Multiyear Xxxxxxxx Credit Agreement are equal to or less than
$400,000,000:
29
(1) 50% of any Net Cash Proceeds arising from an asset
disposition referred to in clause (A)(1) or (A)(4) above shall be
applied, first, to fully Cash Collateralize the Letter of Credit
Commitments, second, upon the Letter of Credit Commitments being fully
Cash Collateralized, to a pro-rata and permanent ratable (without
duplication) (x) reduction of the outstanding amounts of the Progeny
Facilities (excluding the Prairie Wolf Facility) and (y) cash
collateralization of the Legacy L/Cs, and third, upon the full Cash
Collateralization of the Letter of Credit Commitments, the reduction
of the outstanding amounts of the Progeny Facilities (excluding the
Prairie Wolf Facility) to zero, and the full cash collateralization of
the Legacy L/Cs, to a pro-rata and permanent reduction of the
respective Commitments of the lenders under the Multiyear Xxxxxxxx
Credit Agreement;
(2) 50% of any Net Cash Proceeds arising from an asset
disposition referred to in clause (A)(2) above shall be applied,
first, on a pro-rata basis, without duplication, to the permanent
ratable (x) reduction of the outstanding amounts of the Progeny
Facilities (excluding the Prairie Wolf Facility) and (y) cash
collateralization of the Legacy L/Cs and, second, upon the reduction
of the outstanding amounts of the Progeny Facilities (excluding the
Prairie Wolf Facility) to zero and the full cash collateralization of
the Legacy L/Cs, to a pro-rata and permanent reduction of the
respective Commitments of the lenders under the Multiyear Xxxxxxxx
Credit Agreement;
(3) 100% of any Net Cash Proceeds arising from an issuance of TWC
Preferred Stock referred to in clause (A)(3) above shall be applied,
first, on a pro-rata basis, without duplication, to the permanent
ratable (x) reduction of the outstanding amounts of the Progeny
Facilities (excluding the Prairie Wolf Facility) and (y) cash
collateralization of the Legacy L/Cs and, second, upon the reduction
of the outstanding amounts of the Progeny Facilities (excluding the
Prairie Wolf Facility) to zero and the full cash collateralization of
the Legacy L/Cs, to a pro-rata and permanent reduction of the
respective Commitments of the lenders under the Multiyear Xxxxxxxx
Credit Agreement; and
(4) 50% of any Net Cash Proceeds arising from an issuance of
Equity Interests referred to in clause (A)(5) above shall be applied,
first, on a pro-rata basis, without duplication, to the permanent
ratable (x) Cash Collateralization of the Letter of Credit
Commitments, (x) reduction of the outstanding amounts of the Progeny
Facilities (excluding the Prairie Wolf Facility) and (y) cash
collateralization of the Legacy L/Cs, and second, upon the full Cash
Collateralization of the Letter of Credit Commitments, the reduction
of the outstanding amounts of the Progeny Facilities (excluding the
Prairie Wolf Facility) to zero, and the full cash collateralization of
the Legacy L/Cs, to a pro-rata and permanent reduction of the
respective Commitments of the lenders under the Multiyear Xxxxxxxx
Credit Agreement;
provided that no such mandatory (w) reduction of the Commitments of the lenders
under the Multiyear Xxxxxxxx Credit Agreement, (x) reduction of the outstanding
amounts of the Progeny
30
Facilities (excluding the Prairie Wolf Facility), (y) cash collateralization of
the Legacy L/Cs, or (z) Cash Collateralization of the Letter of Credit
Commitments shall be required pursuant to this Section 2.3(b) until the earlier
of (A) such time as the aggregate amount of Net Cash Proceeds from such asset
dispositions and equity issuances that have not previously been applied to a
mandatory reduction of the Commitments shall exceed $50,000,000 and (B) the end
of the Fiscal Quarter in which such Net Cash Proceeds are received by the
Borrower or any of its Subject Subsidiaries.
(c) All amounts received by the Agent from either the Collateral Agent
or the Collateral Trustee pursuant to any Security Document shall be applied
first, to reimburse the Collateral Agent for all costs and expenses incurred by
the Collateral Agent in connection with, and other amounts expended by the
Collateral Agent for which the Collateral Agent is entitled to reimbursement
under, any Credit Document, and second, as set forth in Section 6.2.
(d) In the event that on any Business Day the aggregate amount of all
Letter of Credit Liabilities exceeds the aggregate Letter of Credit Commitments
(the amount of such excess herein referred to as the "Excess Exposure"), the
Borrower will deliver to the Agent, at its address specified in Section 9.2, on
the next Business Day, for deposit into an XX Xxxx Collateral Account, an amount
at least equal to such Excess Exposure.
(e) In the event that the U.S. Dollar Equivalent of the outstanding
amount of all Canadian Letters of Credit exceeds $50,000,000 for any period of
three consecutive Business Days (the amount of such excess at the close of
business on the third Business Day of such period herein referred to as the
"Additional Excess Exposure"), TWC shall deliver to the Agent, at its address
specified in Section 9.2, on the next Business Day following such three
consecutive Business Day period for deposit into the XX Xxxx Collateral Account,
an amount in Dollars equal to the Additional Excess Exposure.
SECTION 2.4. 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 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 to the Agent), the Borrower shall immediately pay to the
Agent 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, 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 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 Borrower and the Agent by
such Bank or Issuing Bank, as the case
31
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 2.4(a) for any period more than 90 days prior to the date
such Bank or Issuing Bank, as the case may be, notifies the Borrower of any such
compliance.
(b) In the event that any Bank makes a demand for payment under
Section 2.6 or this Section 2.4, the Borrower may within ninety (90) days of
such demand, 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 9.6(a), and clauses (b) and (d) of Section
9.6 (including execution of an appropriate Transfer Agreement); provided that
(i) all obligations of such Bank to purchase participations in Letters of Credit
shall be terminated and the Letter of Credit Interests held by such Bank and all
other obligations owed to such Bank hereunder shall be purchased in full without
recourse at par plus accrued interest at or prior to such replacement, (ii) such
replacement bank shall be an Eligible Assignee, (iii) such replacement bank
shall, from and after such replacement, be deemed for all purposes to be a
"Bank" hereunder with Letter of Credit Liabilities in the amount of the Letter
of Credit Liabilities of such Bank immediately prior to such replacement (plus,
if such replacement bank is already a Bank prior to such replacement the
respective Letter of Credit Liabilities of such Bank 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 2.10, and (iv) such other actions shall be
taken by the Borrower, 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 2.4, 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 2.5. Payments and Computations.
(a) The 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 (i) in the
case of any payment in respect of Canadian Letters of Credit, in Canadian
Dollars to the Canadian Issuing Bank at its Toronto address referred to in
Section 9.2 and (ii) in the case of all other payments, in Dollars to the Agent
at its New York address referred to in Section 9.2, in each case in same day
funds, without deduction, counterclaim or offset of any kind. The Agent or
Canadian Issuing Bank, as the case may be, will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest or letter
of credit 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 2.1(a),
32
any other fee paid to the Agent, as such, or any fronting fee paid to an Issuing
Bank pursuant to Section 2.1(b).
(b) [Intentionally Omitted.]
(c) (i) All computations of interest based on clause (a) or clause (b)
of the definition herein of "Base Rate" 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 Federal Funds Rate or clause (c) of the definition herein
of Base Rate shall be made by the Agent, and all computations of letter of
credit fees shall be made by the Issuing Bank that issued the relevant Letter of
Credit, 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 or letter of credit 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.
(d) 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 or letter of credit fee, as the case may be.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due by the Borrower to any Bank
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the 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 the 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 2.6. Taxes.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.5, 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
income, 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 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 income, 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 the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any
33
Bank or the Agent, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.6) 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 been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the 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 the Borrower hereunder or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
(c) The 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 2.6)
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 the Borrower shall have no liability
pursuant to this clause (c) of this Section 2.6 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 the Borrower in writing and
provide the Borrower 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 the
Borrower shall not relieve the Borrower of any of its obligations hereunder.
(e) Within 30 days after the date of the payment of Taxes by or at the
direction of the Borrower, the Borrower will furnish to the Agent, at its
address referred to in Section 9.2, the original or a certified copy of a
receipt evidencing payment thereof. 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 the Borrower of Taxes as required by this
Section 2.6 (it 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 the 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.
34
(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 the 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
Internal Revenue Code, (ii) a ten-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower or (iii) a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue 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
the Borrower with the appropriate form, certificate or other document described
in subsection (f) of this Section 2.6 (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 2.6 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 Borrower shall take
such steps as such Bank shall reasonably request to assist such Bank in
recovering such Taxes.
(h) Any Bank claiming any additional amounts payable pursuant to this
Section 2.6 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.
(i) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.6 shall survive the payment in full of principal and interest
hereunder and the Termination Date.
(j) Notwithstanding any provision of this Agreement to the contrary,
this Section 2.6 shall be the sole provision governing indemnities and claims
for taxes under this Agreement.
35
SECTION 2.7. 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 its Letter of Credit Interest (other than
pursuant to Section 2.6 or 9.4(b)) in excess of its ratable share of payments on
account of all Letter of Credit Interests obtained by all the Banks, such Bank
shall forthwith purchase from the other Banks such participations in the 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. The Borrower agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.7 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 the Borrower in the amount of such participation.
SECTION 2.8. Optional Termination. Notwithstanding anything to the
contrary in this Agreement, if (i) any Person (other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Borrower or
of any Subsidiary of the Borrower) or two or more Persons acting in concert
(other than any group of employees of the Borrower 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 the Borrower (or
other securities convertible into such securities) representing 35% or more of
the combined voting power of all securities of the Borrower 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, before or after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of the
Borrower 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 the Borrower, or (iii) any Person (other than the Borrower or a
Wholly-Owned Subsidiary of the Borrower) or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall have entered into
a merger or purchase agreement with the Borrower pursuant to which such Person
or Persons shall have acquired the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower; then the
Agent shall at the request, or may with the consent, of the Majority Banks, by
notice to the Borrower, declare all of the obligations of the Banks with respect
to any Letter of Credit issued after the date of such termination and the
obligation of each Issuing Bank to issue Letters of Credit to be terminated,
whereupon all of the Letter of Credit Commitments and each such obligation of
the Banks (including the obligation to issue or participate in any new Letter
of Credit issued after such termination, but specifically excluding the
obligation of each Bank to participate in Letters
36
of Credit outstanding at the time of such termination) shall forthwith
terminate, and the Borrower shall not have any further right to obtain Letters
of Credit hereunder.
SECTION 2.9. Extension of Termination Date. By notice given to the
Agent and the Banks, at least thirty days but not more than forty-five days
before the Stated Termination Date then in effect, the Borrower may request the
Banks to extend the Stated Termination Date for an additional period to a date
which is 364 days after the then current Stated Termination Date. Within thirty
days after receipt of such request, each Bank that agrees, in its sole and
absolute discretion, to so extend the Stated Termination Date shall notify the
Borrower and the Agent in writing that it so agrees, and if all Banks so agree
the Stated Termination Date shall be so extended.
SECTION 2.10. Letter of Credit Facility. Subject to the terms and
conditions of this Agreement, the Letter of Credit Commitments may be utilized,
upon the request of the Borrower, by the issuance by any Issuing Bank (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 in this Section) of standby
letters of credit (collectively, the "Letters of Credit", and each a "Letter of
Credit") for the account of the Borrower or any of its Subsidiaries; provided
that in no event shall (i) the aggregate amount of all Letter of Credit
Liabilities exceed the aggregate Letter of Credit Commitments, (ii) at the time
of issuance, the U.S. Dollar Equivalent of the outstanding amount of all
Canadian Letters of Credit exceed $50,000,000, (iii) the aggregate amount of all
Letters of Credit issued by any Issuing Bank exceed the Letter of Credit
Commitment of such Issuing Bank, (v) the aggregate amount of all Letters of
Credit issued by the Issuing Banks hereunder exceed the aggregate U.S. Dollar
L/C Commitment, (v) the expiration date of any Letter of Credit extend beyond
the date that is ten Business Days prior to the Stated Termination Date then in
effect, (vi) any Canadian Letter of Credit be payable in any currency other than
Canadian Dollars, (vii) any U.S. Letter of Credit be payable in any currency
other than Dollars or (viii) any Letter of Credit be payable in more than one
currency. The following additional provisions shall apply to Letters of Credit:
(a) Notice of Issuance. The 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 E (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; provided that (i) Canadian Letters of
Credit shall be issued only by the Canadian Issuing Bank and (ii) the
Canadian Issuing Bank shall not be required to issue any Letter of Credit
other than Canadian Letters of Credit.
(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
stated 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
37
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 2.10.
(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 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 the Borrower) at
least one Business Day after the date on which the Agent shall deliver such
notice to the Borrower pursuant to this sentence. Notwithstanding the
identity of the account party of any Letter of Credit, the Borrower hereby
unconditionally agrees 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 plus 6.5% per annum for the period from the date of such demand
until the date of such reimbursement. The Borrower's 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 the 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 Borrower in respect of any Letter of
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 the
Borrower fails to make any payment to an Issuing Bank that the Borrower is
required to make pursuant to Section 2.10(c), each Bank (other than such
Issuing Bank) shall pay to the Agent, for the account of such Issuing Bank
in Dollars (or, in the case of Canadian Letters of Credit, in Canadian
Dollars) and in immediately available funds, the amount of
38
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 2.10(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 2.10(d), the financial condition of the 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, 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 2.10(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 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
Borrower hereunder and under such Letter of Credit Documents in respect of
such Reimbursement Obligation (other than the fronting fee contemplated by
Section 2.1(b)(i)). Upon receipt by any Issuing Bank from or for the
account of the 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), 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 Borrower in
writing of such issuance or amendment and such notice shall be accompanied
by a copy of such issuance or amendment. 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.
39
(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 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 modification or supplement to any Letter of Credit
hereunder shall be subject to the same conditions applicable under this
Section 2.10 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 Section
2.10(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
Borrower hereby indemnifies and holds 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 2.10(I), BE
INDEMNIFIED FOR ITS OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE; provided
that the Borrower 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 (x) in the case
of 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 (y) in the case
of any
40
Bank, such Bank's failure to pay its Letter of Credit Liabilities pursuant
to Sections 2.10(d), (e) and (h).
ARTICLE III
CONDITIONS
SECTION 3.1. Conditions Precedent to Effectiveness of Agreement.
Subject to Section 3.3 below, the amendment and restatement of the Existing
Credit Agreement and the obligation of each Issuing Bank to maintain existing
issued Letters of Credit as Letters of Credit under this Agreement and to issue
new Letters of Credit under this Agreement is subject to the condition precedent
that the Agent shall have received the following, in form and substance
satisfactory to the Agent (and the Banks, in the case of the Security Documents)
and in sufficient copies (if applicable) for each Bank:
(a) Certified copies of the resolutions of the Board of Directors, or
the Executive Committee thereof, of the Borrower and each of its
Subsidiaries being a party to any Security Document authorizing the
execution of this Agreement, the other Credit Documents to which the
Borrower or such Subsidiary is a party, and each Notice of Letter of
Credit, and all other documents, in each case evidencing any necessary
company action and governmental approvals, if any, with respect to each
such Credit Document.
(b) A certificate of the Secretary or an Assistant Secretary of the
Borrower and each of its Subsidiaries being a party to any Security
Document certifying (i) that attached thereto are true and correct copies
of the Certificate of Incorporation and Bylaws, or other applicable
formation documents, of the Borrower or such Subsidiary, together with any
amendments thereto, and (ii) the names and true signatures of the officers
of the Borrower or such Subsidiary authorized to sign each Credit Document.
(c) Opinions of each of (i) Xxxxxxx X. xxx Xxxxx, General Counsel of
the Borrower, substantially in the form of Exhibit A hereto and (ii) New
York counsel to the Borrower and Guarantors, substantially in the form of
Exhibits B-1 and B-2 hereto, and, in each case, as to such other matters as
any Bank through the Agent may reasonably request.
(d) A duly executed and effective amendment and restatement of the
Multiyear Xxxxxxxx Credit Agreement and amendment of each of the Progeny
Facility documents, other than those automatically amended by virtue of the
amendment to the Multiyear Xxxxxxxx Credit Agreement, each dated the date
of this Agreement.
(e) A certificate of an officer of the Borrower stating the respective
ratings by each of S&P and Xxxxx'x of the senior unsecured long-term debt
of the Borrower as in effect on the date of this Agreement.
41
(f) A duly executed and effective amendment to the Pledge Agreement,
Security Agreement, Collateral Trust Agreement, LLC Guaranty, and Midstream
Guaranty each dated the date of this Agreement.
(g) A duly executed and fully effective amendment and restatement of
the Holdings Guaranty.
(h) A certificate of an officer of the Borrower and each of its
Subsidiaries being a party to any Security Document, dated as of the date
of the execution and delivery of this Agreement (the statements made in
each such certificate shall be true on and as of such date), certifying as
to (i) the truth, in all material respects, of the representations and
warranties contained in this Agreement (in the case of the Borrower only)
and the Credit Documents as though made on and as of the date of the
execution and delivery of this Agreement other than any such
representations or warranties that, by their terms, refer to a specific
date other than such date, in which case as of such specific date and (ii)
the absence of any event (x) occurring and continuing after giving effect
to this Agreement, the Xxxxxxx Loan Agreement and the agreements referred
to in Section 3.1(d) hereof, and assuming the consummation of the
transactions contemplated thereby, or (y) resulting from the execution and
delivery of this Agreement and the Credit Documents and the performance of
the Borrower or such Subsidiary, as applicable, of its obligations
hereunder or under any other Credit Document, that constitutes an Event of
Default (other than any Event of Default which may arise as a result of a
draw or the probability of a draw under a letter of credit).
(i) The Borrower shall have paid in full all accrued fees and expenses
of the Agent (including the accrued fees and expenses of counsel to the
Agent and local counsel to the Agent).
(j) Counterparts of this Agreement, duly executed on behalf of the
Borrower and the Majority Banks.
For purposes of determining compliance with the conditions specified in this
Section 3.1, each Bank shall be deemed to have (i) consented to, approved,
authorized and accepted and to be satisfied with each document or other matter
required under this Section 3.1 (provided that each Bank has received access to
a copy of each document set forth in clauses (f) and (g) hereof and the
Multiyear Xxxxxxxx Credit Agreement) and (ii) authorized the Collateral Agent
and the Collateral Trustee to execute the documents set forth in clauses (f) and
(g) hereof, as applicable, unless both (x) an officer of the Agent responsible
for the transactions contemplated by this Agreement shall have received written
notice from such Bank prior to the issuance of the initial Letter of Credit
under this Agreement specifying its objection thereto and (y) such Bank shall
not have accepted any portion of the fees set forth in Section 2.1(b). The Agent
shall give the Borrower notice when all actions required by Section 3.1 have
been satisfied.
SECTION 3.2. Conditions Precedent to an Issuance of a Letter of
Credit. The obligation of each Issuing Bank to issue a Letter of Credit
(including the initial Letter of Credit) shall be subject to the further
conditions precedent that on the date of the requested issuance of such Letter
of Credit, the following statements shall be true (and each of the giving of the
42
applicable Notice of Letter of Credit and the issuance of such Letter of Credit
shall constitute a representation and warranty by the Borrower that on the date
such Letter of Credit is issued such statements are true):
(a) the representations and warranties contained in Section 4.1 and in
each of the Security Documents are correct on and as of the date of such
Letter of Credit, before and after issuance 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),
(b) no event has occurred and is continuing, or would result from the
issuance of such Letter of Credit, which constitutes a Default or Event of
Default, and
(c) after giving effect to such Letter of Credit and Letters of Credit
which have been requested by the 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 Letter of Credit Liabilities will not exceed the
aggregate of the Letter of Credit Commitments.
SECTION 3.3. Special Condition to Effectiveness of Certain Provisions.
Notwithstanding any contrary term or provision in Section 3.1 or elsewhere in
this Agreement, amendments relating to (x) the release of Collateral and (y)
Section 9.1, to the extent not permitted in the Existing Agreement without the
consent of all Banks, shall be of no force and effect until (a) the Agent shall
have received (i) a duly executed counterpart hereof from each Bank listed on
the signature pages hereof and (ii) a duly executed counterpart of the Multiyear
Xxxxxxxx Credit Agreement from each lender being a party thereto and (b) all
other conditions set forth in Section 3.1 are fully satisfied.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is duly organized or validly formed, validly existing
and (if applicable) 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 the failure to have which could not reasonably be expected to
have a material adverse effect on the business, assets, condition or
operation of the Borrower and its Material Subsidiaries taken as a whole.
Each Material Subsidiary (other than
43
NewGP, if applicable) 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
the Borrower and its Material Subsidiaries taken as a whole (other than
NewGP, if applicable). Each Material Subsidiary (other than NewGP, if
applicable) 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 the failure to have which could not reasonably be expected to
have a material adverse effect on the business, assets, condition or
operation of the Borrower and its Material Subsidiaries (other than NewGP,
if applicable) taken as a whole.
(b) After giving effect to this Agreement, the Multiyear Xxxxxxxx
Credit Agreement, the Xxxxxxx Loan Agreement and the Progeny Facilities and
assuming the consummation of the transactions contemplated thereby, the
execution, delivery and performance by each of the Borrower and the
Guarantors of the Credit Documents to which it is a party and the
consummation of the transactions contemplated thereby are within the
Borrower's or such Guarantor's, as the case may be, corporate or limited
liability company powers, have been duly authorized by all necessary
corporate or limited liability company action, do not contravene (i) the
Borrower's or such Guarantor's, as the case may be, charter, by-laws or
formation agreement or (ii) law or any restriction under any material
agreement binding on or affecting the Borrower or any Guarantor (other than
any default which may arise as a result of a draw or the probability of a
draw under a letter of credit) and will not result in or require the
creation or imposition of any Lien prohibited by this Agreement.
(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 the Borrower or any
Guarantor 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 the Borrower or any Guarantor 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) (i) The Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at December 31, 2001, and the related
Consolidated statements of income and cash flows of the Borrower and its
Consolidated Subsidiaries for the fiscal year then ended, copies of which
have been furnished to each Bank, and the unaudited Consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as at March 31,
2002, and the related unaudited Consolidated statements of income and cash
flows of the Borrower and its Consolidated Subsidiaries for the three
months then ended, duly certified by an authorized financial officer of the
Borrower, copies of which have been furnished to each Bank, fairly present
(in the case of such balance sheet as at March 31, 2002, and such
statements of income and cash flows for the three months then ended,
subject to year-end audit adjustments and the lack of footnotes) the
Consolidated
44
financial condition of the Borrower and its Consolidated Subsidiaries as at
such dates and the Consolidated results of operations of the Borrower and
its Consolidated 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, from December 31, 2001 to the date of this
Agreement, there has been no material adverse change in the Consolidated
financial condition or Consolidated results of operations of the Borrower
and its Consolidated Subsidiaries.
(i) The unaudited Consolidated balance sheet of WGPC and its
Consolidated Subsidiaries as at December 31, 2001, and the related
unaudited Consolidated statements of income and cash flows of WGPC and its
Consolidated Subsidiaries for the fiscal year then ended, copies of which
have been furnished to each Bank, and the unaudited Consolidated balance
sheet of WGPC and its Consolidated Subsidiaries as at March 31, 2002, and
the unaudited related Consolidated statements of income and cash flows of
WGPC and its Consolidated Subsidiaries for the three months then ended,
duly certified by an authorized financial officer of WGPC, copies of which
have been furnished to each Bank, fairly present (in the case of such
balance sheet as at March 31, 2002, and such statements of income and cash
flows for the three months then ended, subject to year-end audit
adjustments and the lack of footnotes) the Consolidated financial condition
of WGPC and its Consolidated Subsidiaries, respectively, as at such dates
and the Consolidated results of operations of WGPC and its Consolidated
Subsidiaries, respectively, for the year and three month period,
respectively, ended on such dates, all in accordance with generally
accepted accounting principles consistently applied. From December 31, 2001
to the date of this Agreement, there has been no material adverse change in
the Consolidated financial condition or Consolidated results of operations
of WGPC and its Consolidated Subsidiaries.
(ii) The unaudited Consolidated balance sheet of WF Group and its
Consolidated Subsidiaries as at December 31, 2001, and the related
unaudited Consolidated statements of income and cash flows of WF Group and
its Consolidated Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, and the unaudited Consolidated
balance sheet of WF Group and its Consolidated Subsidiaries as at March 31,
2002, and the related unaudited Consolidated statements of income and cash
flows of WF Group and its Consolidated Subsidiaries for the three months
then ended, duly certified by an authorized financial officer of WF Group,
copies of which have been furnished to each Bank, fairly present (in the
case of such balance sheet as at March 31, 2002, and such statements of
income and cash flows for the three months then ended, subject to the lack
of footnotes) the Consolidated financial condition of WF Group and its
Consolidated Subsidiaries as at such dates and the Consolidated results of
operations of WF Group and its Consolidated 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 on Schedule XV or in the Public Filings or as
otherwise disclosed in writing by the Borrower to the Banks and the Agent
after the date hereof and approved by the Majority Banks, there is no
pending or, to the knowledge of the Borrower, threatened action or
proceeding affecting the Borrower, any Guarantor or any
45
Material Subsidiary (other than NewGP, if applicable) of the Borrower or
against any of its or their respective properties or revenues before any
court, governmental agency or arbitrator, which could reasonably be
expected to materially and adversely affect the financial condition or
operations of the Borrower and its Subsidiaries taken as a whole or which
purports to affect the legality, validity, binding effect or enforceability
of this Agreement or any other Credit Document.
(g) No Letter of Credit has been or will be used for any purpose or in
any manner contrary to the provisions of Section 5.2(m).
(h) The Borrower is not 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 will be used to purchase or carry any
such margin stock (other than purchases of common stock expressly permitted
by Section 5.2(m)) or to extend credit to others for the purpose of
purchasing or carrying any such margin stock. Following application of the
proceeds of each issuance of a Letter of Credit, no more than 25% of the
value of the Reg U Limited Assets of the Borrower will consist of margin
stock (as defined in Regulation U), and no more than 25% of the value of
the Reg U Limited Assets of the Borrower and its Subsidiaries on a
consolidated basis will consist of margin stock (as defined in Regulation
U).
(i) The Borrower is not 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 Borrower or any Material Subsidiary (other
than NewGP, if applicable) of the Borrower. The Borrower has not nor has
any ERISA Affiliate of the Borrower received any notification that any
Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA, and the Borrower is not 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 Borrower, any Material Subsidiary (other
than NewGP, if applicable) of the Borrower or any ERISA Affiliate of the
Borrower.
(k) As of the date of this Agreement, the United States federal income
tax returns of the Borrower and its Material Subsidiaries have been
examined through the fiscal year ended December 31, 1995. The Borrower and
its Subsidiaries have filed all United States Federal income tax returns
and all other material domestic tax returns which are required to be filed
by them and have paid, or provided for the payment before the same become
delinquent of, all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any such Subsidiary, other than
those taxes contested in good faith by appropriate proceedings. The
charges, accruals and reserves on the books of the Borrower and the
Material Subsidiaries of the Borrower in respect of taxes are adequate.
46
(l) The Borrower is not 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.
(m) Except as set forth in the Public Filings or as otherwise
disclosed in writing by the Borrower to the Banks and the Agent after the
date hereof and approved by the Majority Banks, the Borrower and its
respective Material Subsidiaries (other than NewGP, if applicable) are in
compliance in all material respects with all Environmental Protection
Statutes to the extent material to the operations or the consolidated
financial condition of the Borrower and its Consolidated Subsidiaries taken
as a whole. Except as set forth in the Public Filings or as otherwise
disclosed in writing by the Borrower to the Banks and the Agent after the
date hereof and approved by the Majority Banks, the aggregate contingent
and non-contingent liabilities of the Borrower and its Consolidated
Subsidiaries (other than those reserved for in accordance with generally
accepted accounting principles and set forth in the financial statements
regarding the Borrower referred to in Section 4.1(e) and delivered to each
Bank and excluding liabilities to the extent covered by insurance if the
insurer has confirmed that such insurance covers such liabilities or which
the Borrower reasonably expects to recover from ratepayers) which are
reasonably expected to arise in connection with (i) the requirements of
Environmental Protection Statutes or (ii) any obligation or liability to
any Person in connection with any Environmental matters (including any
release or threatened release (as such terms are defined in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980) of any Hazardous Waste, Hazardous Substance, other waste, petroleum
or petroleum products into the Environment) could not reasonably be
expected to have a material adverse effect on the business, assets,
conditions or operations of the Borrower and its Consolidated Subsidiaries,
taken as a whole. Each of the Borrower and its respective Material
Subsidiaries (other than NewGP, if applicable) holds, or has submitted a
good faith application for, all Environmental Permits (none of which has
been terminated or denied) required for any of its current operations or
for any property owned, leased, or otherwise operated by it; and is, and
within the period of all applicable statutes of limitation has been, in
compliance with all of its Environmental Permits.
(n) Other than the Permitted Liens, the Borrower and its Subject
Subsidiaries have good, valid and indefeasible title to, or a valid
leasehold interest in, its respective property and to all property
reflected by its respective balance sheet referenced in clause (e) above as
being owned by the Borrower (except property sold or otherwise disposed of
by the Borrower or its Subject Subsidiaries in conformity with the terms
and conditions of the Multiyear Xxxxxxxx Credit Agreement). Each of the
Borrower and the Midstream Subsidiaries have sufficient title to all
Midstream Assets they collectively own and operate as is necessary for the
conduct of the Midstream Business after the date hereof in accordance with
the ownership and operation of the Midstream Business in the twelve months
prior to the date hereof. There exists, or following completion of the
post-closing items more fully described in Schedule XII, there will exist
an Acceptable Security Interest in all Collateral other than the Excluded
Collateral.
47
(o) After giving effect to this Agreement and the concurrent
amendments to various financing arrangements and agreements of the Borrower
and its Subsidiaries, the Borrower and each Guarantor, individually and
together with its Subsidiaries, is Solvent.
(p) The Persons listed on Schedule X are all of the Midstream
Subsidiaries and own, lease or hold all Midstream Assets necessary and/or
appropriate for the operation and carrying on of the Midstream Business
associated with the Midstream Assets as conducted during the 12 months
preceding the date hereof.
(q) Neither the Borrower nor any Guarantor is in default under or with
respect to any of its margin requirements and capital assurance
requirements in any respect which could reasonably be expected to have a
material adverse effect on the Midstream Business of the Borrower or any
Guarantor. No Default or Event of Default has occurred and is continuing.
(r) Except as would not have a material adverse effect on the conduct
of the Midstream Business conducted by the Midstream Subsidiaries, the
various gathering systems which comprise part of the Midstream Assets are
covered by recorded fee deeds, right of ways, easements, leases,
servitudes, permits, licenses, or other instruments in favor of the
Midstream Subsidiaries (or their predecessors in title) and their
successors and assigns, which instruments establish a contiguous right of
way for the respective gathering systems and grant the right to construct,
operate, and maintain the respective gathering system in, over, under, and
across the land covered thereby; provided that certain licenses and permits
from railroads, utilities, owners of meter sites and various state and
local Governmental Authorities and rights granted by Hydrocarbon producers
on their respective properties may not be recorded. The pipelines
comprising the various gathering systems which are part of the Midstream
Assets of the Midstream Subsidiaries are located within the confines of
contiguous rights of way and do not encroach upon any adjoining property in
any material respects. The rights of ingress and egress held by the
Midstream Subsidiaries with respect to such gathering systems allow the
applicable Midstream Subsidiaries to inspect, operate, repair, and maintain
such gathering systems in a normal manner consistent with past practices.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.1. Affirmative Covenants. So long as any Letter of Credit
shall remain outstanding, any Letter of Credit Liability shall exist or any
Issuing Bank shall have any Letter of Credit Commitment hereunder, the Borrower
will, unless the Majority Banks shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subject
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (except where failure to comply could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subject
Subsidiaries taken as a whole), such compliance to include the payment
48
and discharge before the same become delinquent of all taxes, assessments
and governmental charges or levies imposed upon it or any of its Subject
Subsidiaries or upon any of its property or any property of any of its
Subject Subsidiaries, and all lawful claims which, if unpaid, might become
a Lien upon any property of it or any of its Subject Subsidiaries; provided
that neither the Borrower nor any Subject Subsidiary of the Borrower shall
be required to pay any such tax, assessment, charge, levy or claim which is
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 provided on the books of the
Borrower or such Subject Subsidiary, as the case may be.
(b) Reporting Requirements. Furnish to each of the Banks:
(i) as soon as possible and in any event within five days after
the occurrence of each Default or Event of Default, continuing on the
date of such statement, a statement of an authorized financial officer
of the Borrower setting forth the details of such Default or Event of
Default and the actions, if any, which the 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 the Borrower, (1) the unaudited Consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such
quarter and the unaudited Consolidated statements of income and cash
flows of the 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
year-end audit adjustments and the lack of footnotes) by an authorized
financial officer of the 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, the Borrower shall not be obligated to furnish copies of
such financial statement; and (2) a certificate of an authorized
financial officer of the Borrower (a) stating that he 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 the
Borrower proposes to take with respect thereto, and (b) showing in
detail the calculation supporting such statement in respect of
Sections 5.2(b) and 5.2(c);
(iii) as soon as available and in any event not later than 105
days after the end of each fiscal year of the Borrower, (1) a copy of
the annual audit report for such year for the Borrower and its
Consolidated Subsidiaries, including therein the Consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such fiscal year and Consolidated statements of income and cash
flows of the Borrower and its Consolidated Subsidiaries for such
fiscal year, in each case prepared in accordance with generally
accepted accounting principles and reported on by Ernst & Young, LLP
or other
49
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
Borrower shall not be obligated to furnish copies of such financial
statement; and (2) a letter of such accounting firm to the Banks (a)
stating that, in the course of the regular audit of the business of
the Borrower and its Consolidated Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no
knowledge that a Default or Event of Default has occurred and is
continuing, or if, in the opinion of such accounting firm, a Default
or Event of Default has occurred and is continuing, a statement as to
the nature thereof, and (b) showing in detail the calculations
supporting such statement in respect of Sections 5.2(b) and 5.2(c),
(which letter may nevertheless be limited in form, scope and substance
to the extent required by applicable accounting rules or guidelines in
effect from time to time);
(iv) such other information respecting the business or
properties, or the condition or operations, financial or otherwise, of
the Borrower or any of its Material Subsidiaries as any Bank through
the Agent may from time to time reasonably request;
(v) promptly after the sending or filing thereof, copies of all
proxy material, reports and other information which the Borrower sends
to any of its security holders, and copies of all final reports and
final registration statements which the Borrower or any Material
Subsidiary of the 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, the Borrower
or Material Subsidiary shall not be obligated to furnish copies
thereof;
(vi) as soon as possible and in any event within 30 Business Days
after the Borrower or any ERISA Affiliate of the Borrower knows or has
reason to know (A) that any Termination Event described in clause (i)
of the definition of Termination Event with respect to any Plan has
occurred that could have a material adverse effect on the Borrower or
any Material Subsidiary of the Borrower or (B) that any other
Termination Event with respect to any Plan has occurred or is
reasonably expected to occur that could have a material adverse effect
on the Borrower or any Material Subsidiary of the Borrower, a
statement of the chief financial officer or chief accounting officer
of the Borrower describing such Termination Event and the action, if
any, which the Borrower or such Subsidiary proposes to take with
respect thereto;
(vii) promptly and in any event within 25 Business Days after
receipt thereof by the Borrower or any ERISA Affiliate, copies of each
notice received by the Borrower or any ERISA Affiliate of the Borrower
from the PBGC stating its
50
intention to terminate any Plan or to have a trustee appointed to
administer any Plan;
(viii) within 30 days following request therefor by any Bank,
copies of each Schedule B (Actuarial Information) to each annual
report (Form 5500 Series) of the Borrower or any ERISA Affiliate of
the Borrower with respect to each Plan;
(ix) promptly and in any event within 25 Business Days after
receipt thereof by the Borrower or any ERISA Affiliate of the Borrower
from the sponsor of a Multiemployer Plan, a copy of each notice
received by the Borrower or any ERISA Affiliate of the Borrower
concerning (A) the imposition of a Withdrawal Liability by a
Multiemployer Plan, (B) the determination that a Multiemployer Plan
is, or is expected to be, in reorganization within the meaning of
Title IV of ERISA, (C) the termination of a Multiemployer Plan within
the meaning of Title IV of ERISA, or (D) the amount of liability
incurred, or expected to be incurred, by the Borrower or any ERISA
Affiliate of the Borrower in connection with any event described in
clause (A), (B) or (C) above that, in each case, could have a material
adverse effect on the Borrower or any ERISA Affiliate of the Borrower;
(x) not more than 60 days (or 105 days in the case of the last
fiscal quarter of a fiscal year of the Borrower) after the end of each
fiscal quarter of the Borrower, a certificate of an authorized
financial officer of the Borrower stating the respective ratings, if
any, by each of S&P and Xxxxx'x of the senior unsecured long-term debt
of the Borrower as of the last day of such quarter;
(xi) promptly after any withdrawal or termination of any letter
of credit, guaranty, insurance or other credit enhancement referred to
in the third to last sentence of Section 1.5 or any change in the
indicated rating set forth therein or any change in, or issuance,
withdrawal or termination of, the rating of any senior unsecured
long-term debt of the Borrower by S&P or Xxxxx'x, notice thereof; and
(xii) Promptly after any officer of the Borrower obtains
knowledge thereof, notice of (1) any material violation of,
noncompliance with, or remedial obligations under, any Environmental
Protection Statute, or notification of such violation or noncompliance
received from any Governmental Authority, and (2) any material release
or threatened material release of Hazardous Substance or Hazardous
Waste affecting any property owned, leased or operated by the Borrower
or any Subsidiary of the Borrower that the Borrower or such Subsidiary
is compelled by the requirements of any Environmental Protection
Statute to report to any governmental agency, department, board or
other instrumentality.
(c) Maintenance of Insurance. Maintain, and cause each of its Material
Subsidiaries (other than NewGP, if applicable) to maintain, insurance with
responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged
in similar businesses and owning similar
51
properties in the same general areas in which the Borrower or such Material
Subsidiaries operate, provided that the Borrower or any of its Subsidiaries
may self-insure to the extent and in the manner normal for companies of
like size, type and financial condition.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subject Subsidiaries (other than the WCG Senior Notes
Issuer) to preserve and maintain, its corporate existence, rights,
franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified, and cause each Subject Subsidiary to qualify
and remain qualified, as a foreign corporation in each jurisdiction in
which qualification is necessary or desirable in view of its business and
operations or the ownership of its properties, except (i) in the case of
any Subject Subsidiary of the Borrower, where the failure of such Subject
Subsidiary to so preserve, maintain, qualify and remain qualified could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subsidiaries taken
as a whole; (ii) in the case of the Borrower, where the failure of the
Borrower to preserve and maintain such rights, franchises and privileges
and to so qualify and remain qualified could not reasonably be expected to
have a material adverse effect on the business, assets, condition or
operations of the Borrower and its Subsidiaries taken as a whole, (iii) the
Borrower and its Subject Subsidiaries may consummate any merger or
consolidation permitted pursuant to Section 5.2(d), (iv) the Borrower and
any of its Subject Subsidiaries may be converted into a limited liability
company by statutory election; provided that any such conversion of the
Borrower shall not affect its liabilities and obligations to the Banks
pursuant to this Agreement, and (v) Permitted Dispositions and other
dispositions permitted hereunder.
(e) Acceptable Security Interest. Cause an Acceptable Security
Interest to exist at all times in all Collateral, except as to the Excluded
Collateral and as otherwise contemplated by Section 5.1(g). Notwithstanding
the foregoing, if the Borrower and its Subsidiaries, as applicable, have
not entered into and duly executed a purchase and sale agreement (the "Sale
Agreement") for the Refineries on or before December 31, 2002, with an
agreed closing date of no later than March 31, 2003, then the Borrower
shall grant an Acceptable Security Interest over any part of the Refineries
to the extent owned by the Borrower or any of its Subsidiaries within 15
Business Days of the earlier of (i) December 31, 2002, if the Sale
Agreement in connection with such part of the Refineries has not been
executed by December 31, 2002, and (ii) March 31, 2003, if the sale in
connection with such part of the Refineries has not been fully and duly
consummated and closed by March 31, 2003, and all filing fees, expenses,
mortgage taxes and any other costs and expenses of the Collateral Agent or
Collateral Trustee incurred in connection therewith shall be payable by the
Borrower on demand.
(f) Further Assurances. At any time and from time to time, the
Borrower shall, at its expense, promptly execute and deliver to the
Collateral Trustee and/or the Collateral Agent such further instruments and
documents, and take such further action (including, without limitation,
with respect to the granting of an Acceptable Security Interest, on any
personal or real property of the Borrower, any Restricted Midstream
Subsidiary which, on the date of this Agreement, is subject to any
contractual restriction prohibiting the granting of such a Lien on such
property, if such contractual restriction
52
shall terminate prior to the Termination Date), as the Majority Banks may
from time to time reasonably request, in order to further carry out the
intent and purpose of the Credit Documents and to establish and protect the
rights, interests and remedies created, or intended to be created, in favor
of the Collateral Trustee, Collateral Agent or any of the Banks, including
the execution, delivery, recordation and filing of security agreements,
financing statements and continuation statements under the law of any
applicable jurisdiction and mortgages and deeds of trust necessary to grant
an Acceptable Security Interest on all Collateral (other than any item of
Collateral included in the definition of "Excluded Collateral" and subject
to a contractual restriction prohibiting the granting of a Lien hereunder
which contractual restriction has not terminated) of the Borrower and its
Subsidiaries whether such Collateral is now owned, leased, possessed by
license or any other means of acquiring a possessory interest or hereafter
acquired or possessed (each such mortgage or deed of trust being an
"Additional Mortgage"); provided, however, that neither NewGP, nor MLP, nor
their respective Subsidiaries shall be required to xxxxx x Xxxx on any of
their property.
(g) Post-Closing Requirements. On or before the dates more fully set
forth in Schedule XII hereto, the Borrower shall satisfy, or shall cause
the satisfaction, of the items more fully set forth in such Schedule XII.
(h) Subsidiaries. (i) Give the Agent thirty days prior written notice
of the creation or acquisition of any Subsidiary, other than (w) a Project
Financing Subsidiary, (x) NewGP, (y) any Subsidiary of NewGP or Apco
Argentina, Inc. or (z) the WCG Senior Notes Issuer and (ii) concurrently
with the creation or acquisition of any such Subsidiary, cause such
Subsidiary, other than (w) a Project Financing Subsidiary, (x) NewGP, (y)
any Subsidiary of either MLP or NewGP or (z) the WCG Senior Notes Issuer,
to provide to the Collateral Agent a Security Agreement granting an
Acceptable Security Interest in the Equity Interests of such Subsidiary for
the benefit of the Collateral Trustee, appropriate legal opinions and, if
such Subsidiary owns any real property, a Mortgage covering such real
property, all of which shall be in the form and substance satisfactory to
the Collateral Agent; provided, however, that the requirements set forth in
this clause (ii) shall not apply to any Subsidiary of the Borrower newly
created solely in connection with Permitted Dispositions or any sales and
dispositions permitted by Section 5.2(e) so long as the Permitted
Disposition or other sale or disposition is consummated within sixty (60)
days after the creation of such Subsidiary; provided, further, that if such
Permitted Disposition or other sale or disposition is not consummated
within such sixty (60) day period, the requirements set forth in clause
(ii) above shall apply with respect to such Subsidiary on the Business Day
immediately following the end of such sixty (60) day period.
(i) Bond Proceeds. Cause the net proceeds from the TGPL Bond Offerings
to be maintained in a separate, segregated account in the name of TGPL to
be used solely as set forth in the offering documents for the TGPL Bond
Offering.
(j) Midstream Subsidiaries. Cause the representation set forth in
Section 4.1(p) to be true at all times; provided that, for purposes of this
clause (j), Schedule X shall be deemed to be modified from time to time to
reflect the (x) divestiture of
53
Midstream Subsidiaries and (y) formation of new Midstream Subsidiaries, in
each case to the extent such divestiture or formation has been made in
accordance with the terms of this Agreement.
(k) Cash Deposits. Maintain all or substantially all of its and its
Subject Subsidiaries' cash deposits with one or more of the lenders under
the Multiyear Xxxxxxxx Credit Agreement, other than any cash deposits held
in local operational accounts or any international accounts.
(l) Xxxxxxx Liquidity Reserve. Cause RMT to at all times maintain the
"Borrower Liquidity Reserve" (as defined in the Xxxxxxx Loan Agreement).
(m) Replacement of Legacy L/C with Letter of Credit. Cause the
issuance of a letter of credit to replace a Legacy L/C to the extent the
replacement of such Legacy L/C shall be necessary to prevent the occurrence
of a default in relation to, and draw on, such Legacy L/C.
SECTION 5.2. Negative Covenants. So long as any Letter of Credit
Liability shall exist or any Issuing Bank shall have any Letter of Credit
Commitment hereunder, the Borrower will not, without the written consent of the
Majority Banks:
(a) Liens, Etc. Create, assume, incur or suffer to exist, or permit
any of its Subject Subsidiaries to create, assume, incur or suffer to
exist, any Lien on or in respect of any of its property, whether now owned
or hereafter acquired, or assign or otherwise convey, or permit any such
Subject Subsidiary to assign or otherwise convey, any right to receive
income, in each case to secure or provide for the payment of any Debt,
trade payable or other obligation or liability of any Person (other than
obligations or liabilities that are (i) neither Debt nor trade payables,
(ii) incurred, and are owed to trading counterparties, in the ordinary
course of the trading business of the Borrower or any Subject Subsidiary,
and (iii) secured only by cash, short-term investments or a Letter of
Credit and (iv) permitted by Section 5.2(o)); provided, however, that
notwithstanding the foregoing (1) the Borrower or any of its Subject
Subsidiaries may create, incur, assume or suffer to exist Permitted Liens
and (2) RMT and RMT LLC may create, incur, assume or suffer to exist any
Lien created pursuant to the Xxxxxxx Loan Agreement.
(b) Debt.
(i) In the case of the Borrower, permit the ratio of (A) the
aggregate amount of Consolidated Debt of the Borrower and its
Consolidated Subsidiaries to (B) the sum of the Consolidated Net Worth
of the Borrower plus the aggregate amount of Consolidated Debt of the
Borrower and its Consolidated Subsidiaries to exceed at any time (i)
on or before December 30, 2002, 0.70 to 1.00, (ii) after December 30,
2002 and on or before March 30, 2003, 0.68 to 1.00 and (iii) after
March 30, 2003, 0.65 to 1.00.
(ii) With respect to each of TGPL, TGT and NWP, permit the ratio
of (A) the aggregate amount of Consolidated Debt of such Subsidiary
and its Consolidated Subsidiaries to (B) the sum of the Consolidated
Net Worth of such
54
Subsidiary plus the aggregate amount of Consolidated Debt of such
Subsidiary and its Consolidated Subsidiaries to exceed at any time
0.55 to 1.00.
(c) Cash Flow to Interest Expense Ratio. Permit, for any period of
four consecutive quarters, the ratio of (A) the sum of Cash Flow plus
Interest Expense to (B) Interest Expense to be less than 1.5 to 1.0.
(d) Merger and Sale of Assets. Merge or consolidate with or into any
other Person, or sell, lease or otherwise transfer a material part of its
assets, or permit any of its Major Subsidiaries (other than Apco Argentina,
Inc. and its Subsidiaries and NewGP, if applicable) to merge or consolidate
with or into any other Person, or sell, lease or otherwise transfer a
material part of such Major Subsidiary's assets, except that this Section
5.2(d) shall not prohibit any sale or transfer permitted by Section 5.2(e),
(f) or (o) or any Permitted Disposition.
(e) Asset Disposition. Sell, lease, transfer or otherwise dispose of,
or permit any of its Material Subsidiaries or the Guarantors to sell,
lease, transfer or otherwise dispose of, any property of the Borrower or
any Guarantor or Material Subsidiary of the Borrower, except:
(i) sales of inventory in the ordinary course of business and on
reasonable terms;
(ii) sales of worn out, surplus, or obsolete equipment in the
ordinary course of business, if no Event of Default exists at the time
of such sale;
(iii) replacement of equipment in the ordinary course of business
with other equipment at least as useful and beneficial to the Borrower
or its Material Subsidiaries and their respective businesses as the
equipment replaced if no Event of Default exists at the time of such
replacement and an Acceptable Security Interest exists in such other
equipment at the time of such replacement;
(iv) sales of other immaterial Property (other than Equity
Interests, Debt or other obligations of any Subsidiary) in the
ordinary course of business and on reasonable terms, if no Event of
Default exists at the time of such sale; provided that Property may
not be sold pursuant to this clause (iv) if the aggregate fair market
value of all Property sold pursuant to this clause (iv) exceeds
$250,000 in any year;
(v) sales or other dispositions of assets which are not
Collateral for cash in arm's length transactions;
(vi) sales, leases, transfers or other dispositions of the
Refineries (in whole or in part, including to each other);
(vii) the MAPL Asset Disposition and Seminole Asset Disposition;
55
(viii) sales or other dispositions of assets of NewGP or its
Subsidiaries and the transfer by Xxxxxxxx XX LLC to NewGP of the general
partnership interests and incentive distribution rights in MLP;
(ix) Permitted Dispositions;
(x) sale of Equity Interests in NewGP;
(xi) transfers by the Guarantors to other Guarantors and transfers by
non-Guarantor Subsidiaries to any other Subsidiary, in each case in the
ordinary course of business;
(xii) transfers to the State of California of up to 6 turbines in
connection with the settlement of the California Proceedings,
(xiii) the Arctic Fox Capital Contribution; and
(xiv) transfers of Assets and Property by Subsidiaries of TGT which
may not be restricted pursuant to that certain Indenture, dated as of April
11, 1994, between TGT and The Chase Manhattan Bank, as Trustee;
provided that, (A) 50% of the gross cash proceeds resulting from any
disposition of Collateral permitted pursuant to clauses (ii), (iv) through
(vii), (ix) and (x), shall be deposited immediately upon receipt to the
Collateral Account to be maintained with, and under the control of, the
Collateral Trustee pursuant to the Collateral Trust Agreement and applied
in accordance with the terms and conditions of this Agreement and the
Multiyear Xxxxxxxx Credit Agreement and (B) assets disposed of pursuant to
clauses (i) through (v) shall not constitute a material part of the assets
of TGPL, TGT or NWP and (C) with respect to any Collateral replaced,
exchanged or transferred (in the case of clause (xi) only), or any non-cash
proceeds received from the sale, transfer or other disposition of
Collateral, in each case pursuant to this Section 5.2(e), the Borrower
shall undertake all actions as more fully set forth in, and subject to,
Section 5.1(f) to (1) grant an Acceptable Security Interest in favor of the
Collateral Trustee on any new Collateral resulting from any such
replacement or exchange or on the non-cash proceeds received from the sale
or other disposition of Collateral and (2) in the case of Collateral
transferred pursuant to clause (xi), to maintain an Acceptable Security
Interest on such transferred Collateral.
In connection with a requested release of Collateral pursuant to this
Section 5.2, the Borrower shall deliver a Release Notice (as defined in the
Collateral Trust Agreement) to the Collateral Trustee and the Collateral
Trustee shall be required to forward such notice to the designated group
pursuant to the terms of Section 2.5 of the Collateral Trust Agreement. If
the notice period specified in the Collateral Trust Agreement expires prior
to the Collateral Trustee receiving any objection to the specified release,
then (x) the Collateral Trustee will execute and deliver all documents as
may reasonably be requested to effect a release of the Liens on any such
Collateral held by the Collateral Trustee pursuant to the Collateral Trust
Agreement and the other Security Documents, (y) any Guarantor that is the
owner of the assets subject to a disposition
56
permitted pursuant to this Section 5.2(e) and whose entire Equity
Interests are being conveyed in connection with such disposition,
together with the Subsidiary or Subsidiaries that own such Equity
Interests with respect to such ownership, shall be automatically
released as a Guarantor under the Midstream Guaranty and as a party,
or parties if applicable, to the Collateral Trust Agreement, Pledge
Agreement and Security Agreement and (z) each Bank shall be deemed to
have affirmatively approved the release of such Collateral and to the
extent applicable, the release of such Guarantor, and its owners to
the extent applicable, from the terms and conditions of the Midstream
Guaranty, Collateral Trust Agreement, Pledge Agreement and Security
Agreement.
Notwithstanding anything in this Section 5.2(e) to the contrary,
and for greater certainty, nothing in this Agreement shall prohibit
(1) the transfer of Equity Interests of RMT from TWC to RMT LLC or any
RMT Asset Disposition or (2) TWC or any of its Subsidiaries (including
RMT LLC, RMT and their respective Subsidiaries) from selling, leasing,
transferring or otherwise disposing of any property of the Borrower or
any Subsidiaries of the Borrower in accordance with the provisions of
the Xxxxxxx Loan Agreement. For the avoidance of doubt, the
modification or limitation of voting rights with respect to any Equity
Interests shall not constitute a disposition of property.
The Banks hereby acknowledge that Xxxxxxxx Midstream Natural Gas,
Inc. has entered into a storage lease more fully described on Schedule
XVI attached hereto. The property subject to the lease is encumbered
by Liens granted pursuant to the Security Documents. The Banks hereby
authorize and instruct the Collateral Trustee to execute the
Non-Disturbance and Attornment Agreement substantially in the form
attached hereto as part of Schedule XVI.
(f) Maintenance of Ownership of Certain Subsidiaries. Sell, issue
or otherwise dispose of, or create, assume, incur or suffer to exist
any Lien on or in respect of, or permit any of its Subsidiaries to
sell, issue or otherwise dispose of or create, assume, incur or suffer
to exist any Lien on or in respect of, any Equity Interests or any
direct or indirect interest in any Equity Interests in any Material
Subsidiary (other than NewGP, if applicable, the Refineries, MAPL,
Seminole and their respective Subsidiaries and the Persons or assets
referenced on Schedule XIV); provided, however, that this Section
5.2(f) shall not prohibit (i) Permitted Liens, (ii) the sale or other
disposition of the Equity Interests in any Subsidiary of the Borrower
to the Borrower or any Wholly-Owned Subsidiary of the Borrower if, but
only if, (x) there shall not exist or result a Default or Event of
Default and (y) in the case of each sale or other disposition referred
to in this proviso involving the Borrower or any of its Subsidiaries,
such sale or other disposition could not reasonably be expected to
impair materially the ability of the Borrower to perform its
obligations hereunder and under any other Credit Document and the
Borrower shall continue to exist, (iii) any Subsidiary from selling or
otherwise disposing of any direct or indirect Equity Interests in any
Subsidiary of the Borrower (other than TGPL, TGT or NWP), (iv) any RMT
Asset Disposition, (v) the sale or other disposition of the Equity
Interests in any Subsidiary of the Borrower pursuant to, and in
accordance with, the Xxxxxxx Loan Agreement, or (vi) any Permitted
Disposition; provided that, except with respect to any Permitted
Disposition or any RMT Asset Disposition, after giving effect to any
sale or other disposition of any Equity Interests
57
owned directly or indirectly by a Major Subsidiary, such Subsidiary
continues to be a Major Subsidiary. Nothing herein shall be construed
to permit the Borrower or any of its Subject Subsidiaries to purchase
shares, any interest in shares or any ownership interest in a WCG
Subsidiary except as permitted by Section 5.2(h).
(g) Agreements to Restrict Certain Transfers. Enter into or
suffer to exist, or permit any of its Subject Subsidiaries to enter
into or suffer to exist, any consensual encumbrance or consensual
restriction (except under governmental regulations) on its ability or
the ability of any of its Subject Subsidiaries (i) to pay, directly or
indirectly, dividends or make any other distributions in respect of
its capital stock or pay any Debt or other obligation owed to the
Borrower or to any of its Subject Subsidiaries; or (ii) to make loans
or advances to the Borrower or any Subject Subsidiary thereof, except,
as to (i) and (ii) above, (1) encumbrances and restrictions on any
Subsidiary that is not a Material Subsidiary, (2) those encumbrances
and restrictions existing on July 31, 2002, (3) other customary
encumbrances and restrictions now or hereafter existing of the
Borrower or any Subsidiary thereof entered into in the ordinary course
of business that are not more restrictive in any material respect than
the encumbrances and restrictions with respect to the Borrower or its
Subsidiaries existing on July 31, 2002, (4) encumbrances or
restrictions on any Subsidiary that is obligated to pay Non-Recourse
Debt arising in connection with such Non-Recourse Debt, (5)
encumbrances and restrictions on Apco Argentina, Inc. or its
Subsidiaries and (6) encumbrances and restrictions on any Subsidiary
pursuant to the Xxxxxxx Loan Agreement.
(h) Loans and Advances; Investments. (i) Make or permit to remain
outstanding, or allow any of its Subject Subsidiaries to make or
permit to remain outstanding, any loan or advance to, or own, purchase
or acquire any obligations or debt or Equity Interests of, any WCG
Subsidiary, except that the Borrower and its Subject Subsidiaries may
(1) permit to remain outstanding, and to replace or refinance, loans
and advances and other financing arrangements to, or Equity Interest
in, a WCG Subsidiary existing or owned (in the case of such Equity
Interests) as of July 31, 2002 and listed on Exhibit C hereof, but no
such replacement or refinancing shall exceed the amount of such loans,
advances or other amounts outstanding immediately prior to such
replacement or refinancing, (2) pursuant to the WCG Unwind
Transaction, acquire and own the promissory notes referred to in
clause (ii) of the definition herein of WCG Unwind Transaction, (3)
receive any distribution from WCG or any Subsidiary thereof in
connection with the bankruptcy proceedings of WCG or any Subsidiary
thereof and (4) purchase WCG Note Trust Bonds in accordance with
Section 5.2(o). Except for those investments permitted in subsections
(1), (2) and (3) above, the Borrower shall not, and the Borrower shall
not permit any of its Subject Subsidiaries to, acquire or otherwise
invest in Equity Interests in, or make any loan or advance to, a WCG
Subsidiary; and
(ii) to the extent not expressly permitted by the terms of
this Agreement, (x) amend or modify in any manner the Xxxxxxx
Loans or the Xxxxxxx Loan Agreement on terms or conditions which
would (1) increase the collateral therefor to include assets not
owned by Xxxxxxx on the date hereof except for assets acquired
hereafter by Xxxxxxx in the ordinary course of business as
presently conducted by Xxxxxxx, (2) shorten the maturity of the
Xxxxxxx Loans or (3) add any
58
additional obligors with respect thereto or (y) replace or
refinance the Xxxxxxx Loans unless the Board of Directors of TWC
shall determine by resolution that such replacement or
refinancing is on the best terms reasonably available to TWC or
Xxxxxxx at such time.
(i) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate of the Borrower to terminate, any Plan so as to result in
any material liability of the Borrower or any Material Subsidiary
(other than NewGP, if applicable) of the Borrower or any ERISA
Affiliate to the PBGC, if such material liability of such ERISA
Affiliate could reasonably be expected to have a material adverse
effect on the Borrower or any Material Subsidiary (other than NewGP,
if applicable) of the Borrower, or (ii) permit to occur any
Termination Event with respect to a Plan which would have a material
adverse effect on the Borrower or any Subject Subsidiary of the
Borrower.
(j) Transactions with Related Parties. Make any sale to, make any
purchase from, extend credit to, make payment for services rendered
by, or enter into any other transaction with, or permit any Material
Subsidiary of the Borrower to make any sale to, make any purchase
from, extend credit to, make payment for services rendered by, or
enter into any other transaction with, any Related Party of the
Borrower or of such Material Subsidiary unless as a whole such sales,
purchases, extensions of credit, rendition of services and other
transactions are (at the time such sale, purchase, extension of
credit, rendition of services or other transaction is entered into) on
terms and conditions reasonably fair in all material respects to the
Borrower or such Material Subsidiary in the good faith judgment of the
Borrower.
(k) Guarantees. After July 31, 2002, enter into any agreement to
guarantee or otherwise become contingently liable for, or permit any
of its Subject Subsidiaries to guarantee or otherwise become
contingently liable for, Debt or any other obligation of any WCG
Subsidiary or to otherwise assure a WCG Subsidiary, or any creditor of
a WCG Subsidiary, against loss, except as set forth in Exhibit C.
(l) Sale and Lease-Back Transactions. Enter into, or permit any
of its Subject Subsidiaries (other than Apco Argentina, Inc.) to enter
into, any Sale and Lease-Back Transaction, if after giving effect
thereto the Borrower would not be permitted to incur at least $1.00 of
additional Debt secured by a Lien permitted by paragraph (y) of
Schedule III.
(m) Use of Proceeds. Use any Letter of Credit for any purpose
other than general corporate purposes relating to the business of the
Borrower and its Subsidiaries, (including working capital and capital
expenditures), or use any Letter of Credit in any manner which
violates or results in a violation of law; provided, however, that no
Letter of Credit will be used to acquire any equity security of a
class which is registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (other than any purchase of common
stock of any corporation, if such purchase is not subject to Sections
13 and 14 of the Securities Exchange Act of 1934 and is not opposed,
resisted or recommended against by such corporation or its management
or directors, provided that the aggregate amount of common stock of
any corporation (other than Apco Argentina
59
Inc., a Cayman Islands corporation) purchased during any calendar year
shall not exceed 1% of the common stock of such corporation issued and
outstanding at the time of such purchase) or in any manner which
contravenes law, and no Letter of Credit will be used to purchase or
carry any margin stock (within the meaning of Regulation U issued by
the Federal Reserve Board). Notwithstanding anything to the contrary
contained herein, if any, (i) with respect to EMT, Letters of Credit
shall only be used, directly or indirectly, as necessary for the
orderly disposition of the Trading Book and (ii) no Letter of Credit
shall be used to pay any principal amounts outstanding, interest, fees
or other costs with respect to the Xxxxxxx Loan, it being understood
that Letters of Credit may be used to support margin requirements with
regard to Hedge Agreements on oil and gas.
(n) Restricted Payments. (i) Other than in connection with the
Castle Transaction, the Arctic Fox Capital Contribution and the
Plowshare Transaction, declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof)
as such, make any distribution of assets, Equity Interests,
obligations or securities to its stockholders, partners or members (or
the equivalent Person thereof) as such, or permit any of its Subject
Subsidiaries (other than Apco Argentina, Inc., TGT (to the extent
there exists any contractual restriction prohibiting the Subsidiaries
of TGT from restricting their ability to pay dividends) and their
respective Subsidiaries) to do any of the foregoing, (ii) permit any
of its Subject Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any Equity Interests in the Borrower or
(iii) permit its Subject Subsidiaries to make any prepayment with
respect to any Debt (other than Debt issued or incurred in connection
with the Progeny Facilities and related documents, Debt issued or
incurred in accordance with the terms of Section 2.3(b), Debt issued
prior to July 31, 2002 pursuant to the certain Indenture dated May 1,
1990 with Transco Energy Company as issuer and Bank of New York as
trustee, as supplemented from time to time, the WCG Note Trust Bonds,
Debt under the Xxxxxxx Loan Agreement, Debt of Subsidiaries of TGT and
Debt incurred in connection with the UBOC Turbine Financing) or
repurchase any Debt securities except any repurchase or prepayment
required by the terms thereof in effect on July 31, 2002, except that,
so long as no Default shall have occurred and be continuing at the
time of any action described in clauses (i), (ii) (other than with
respect to RMT LLC and its Subsidiaries) and (iv) below or would
result therefrom:
(i) the Borrower may (A) declare and pay cash dividends and
distributions on its (1) 9 7/8ths% Cumulative Convertible
Preferred Stock, (2) December 2000 Cumulative Convertible
Preferred Stock and (3) March 2001 Mandatorily Convertible Single
Reset Preferred Stock, (B) declare and pay cash dividends and
distributions on TWC Preferred Stock issued on or after July 30,
2002 in form and substance satisfactory to the Agent and (C) in
any Fiscal Quarter, declare and pay cash dividends to its holders
of common stock and purchase, redeem, retire or otherwise acquire
shares of its own outstanding common stock for cash if after
giving effect thereto the aggregate amount of such dividends,
purchases, redemptions, retirements and acquisitions paid or made
in any such Fiscal Quarter would be not greater than the sum of
$6,250,000;
60
(ii) the Borrower or any Subsidiary of the Borrower may (A)
declare and pay cash dividends or pay subordinated loans owed to
the Borrower and (B) declare and pay cash dividends or pay
subordinated loans, in each case in the ordinary course of
business consistent with past practice, owed to any other
Subsidiary of the Borrower (and payments to the holders of the
Designated Minority Interests made concurrently with and in the
same form as the payments to Subsidiaries of the Borrower);
(iii) the Borrower or any Subsidiary of the Borrower may
make payments to non-Subsidiaries to the extent required under
Financing Transactions or other agreements in effect as of July
31, 2002, including, without limitation, payments made in
connection with a downgrade by S&P and Xxxxx'x of the Borrower's
senior unsecured long-term debt rating; and
(iv) the Borrower or any Subsidiary of the Borrower may make
payments to non-Subsidiaries to the extent required under the
organizational documents of the Deepwater JV.
(o) Investments in Other Persons. Make or hold, or permit any of
its Subject Subsidiaries to make or hold, any Investment in any
Person, except:
(i) equity Investments by the Borrower and its Subsidiaries
in their Subsidiaries outstanding on July 31, 2002 and additional
Investments in Subsidiaries engaged in businesses reasonably
related to the businesses carried on by the Borrower and its
Subsidiaries on July 31, 2002 (including, without limitation, the
Arctic Fox Capital Contribution); provided, that any such
additional cash Investments shall not exceed $75,000,000
annually, except to the extent such cash Investments are
immediately returned to the Person making such Investment as a
dividend, distribution or repayment of Debt;
(ii) loans and advances to employees in the ordinary course
of the business of the Borrower and its Subsidiaries as presently
conducted;
(iii) Investments of the Borrower and its Subsidiaries in
Cash Equivalents;
(iv) Investments existing on July 31, 2002 or commitments
for such Investments existing on July 31, 2002 and Investments
made pursuant to such commitments after July 31, 2002;
(v) Investments by the Borrower and its Subsidiaries in
Hedge Agreements entered into in the ordinary course of business
and not for speculative purposes;
(vi) Investments consisting of intercompany debt;
61
(vii) Investments consisting of (A) the purchase of WCG Note
Trust Bonds in an aggregate principal amount not to exceed
$75,000 or (B) the Equity Interests in the WCG Senior Notes
Issuer;
(viii) Investments by Apco Argentina, Inc. or its
Subsidiaries in accordance with applicable laws and their
governing documents; provided that such Investments shall only be
made using cash generated solely by their business, operations
and financings;
(ix) Investments not exceeding $12,000,000 in Xxxxxxxx Coal
Seam Gas Royalty Trust units pursuant to agreements in place on
the date hereof; provided that the purchase price of such units
shall not exceed the then existing market price for such units;
(x) Investments consisting of the acquisition of Equity
Interests of the Deepwater JV in exchange for the contribution of
Deepwater Assets to the Deepwater JV and Investments made to
maintain such Equity Interests;
(xi) Investments in Persons that are not Subsidiaries
required to be made by the Borrower or any of its Subsidiaries in
order to avoid default pursuant to agreements in existence on
July 31, 2002;
(xii) any Investments necessary to maintain, in accordance
with the partnership agreement, the 2% general partnership
interest of NewGP in the MLP; provided, that the aggregate annual
amount of such Investments under this clause (xii) shall not
exceed $10,000,000;
(xiii) Investments permitted by Section 5.2(h);
(xiv) the Investment in the 0.2% general partnership
interest in West Texas LPG Pipelines;
(xv) Investments by EMT contemplated by the UBOC Turbine
Financing; and
(xvi) other Investments in an aggregate amount invested not
to exceed $50,000,000 annually; provided that, with respect to
Investments made under this clause (xvi), (1) any newly acquired
or organized Subsidiary of the Borrower or any of its
Subsidiaries shall be a Wholly-Owned Subsidiary thereof; (2)
immediately before and after giving effect thereto, no Default
shall have occurred and be continuing or would result therefrom;
and (3) any company or business acquired or invested in pursuant
to this clause (xv) shall be in the same line of business as the
business of the Borrower or any of its Subsidiaries.
(p) Subsidiary Debt. Permit any of its Subject Subsidiaries to
create, incur, assume or suffer to exist Debt, other than (except as
set forth in either Section 6(f) of the LLC Guaranty or Section 6(e)
of the Holdings Guaranty) (i) Debt incurred, assumed or suffered to
exist by TGPL, TGT, NWP or Apco Argentina, Inc. or their Subsidiaries,
(ii)
62
Debt incurred, assumed or suffered to exist by Subsidiaries (other
than those referred to in clause (i) and Subsidiaries the stock of
which is pledged under the Pledge Agreement) in an aggregate amount
not to exceed $50,000,000 at any one time outstanding, (iii) Debt in
existence on July 31, 2002, (iv) Debt under the Guaranties, (v) Debt
of the Project Financing Subsidiaries, (vi) Debt under the Xxxxxxx
Loan Agreement, (vii) Debt consisting of intercompany debt so long as
the obligations of the debtors thereunder are subordinated to their
obligations under the Credit Documents and are incurred in the
ordinary course of the cash management system of the Borrower and its
Subsidiaries, (viii) any Permitted Refinancing Debt incurred in
exchange for, or the net proceeds of which are used to refund,
refinance or replace Debt permitted to be incurred under this clause
(p), and (ix) Debt incurred in connection with the Deepwater
Transactions and the UBOC Turbine Financing.
(q) Agreement to Restrict Transfers to NewGP. Transfer, or permit
any of its Subject Subsidiaries to transfer, any property to NewGP,
except (x) a transfer to NewGP of the Equity Interest in MLP held by
Xxxxxxxx XX LLC or (y) any other transfer necessary to maintain the 2%
general partnership interest of NewGP in the MLP; provided, that the
aggregate annual amount of such Investments under clause (y) shall not
exceed $10,000,000.
(r) (R)Prepayments of Progeny Facilities and Legacy L/Cs. From
July 31, 2002, prepay any Progeny Facility or reduce the commitment of
any lender under any Progeny Facility, or cash collateralize any
Legacy L/C; provided, that the Borrower may (i) prepay any Progeny
Facility, (ii) reduce the commitment of any lender under any Progeny
Facility and (iii) cash collateralize any Legacy L/C under any of the
following circumstances:
(1) the Borrower may apply Net Cash Proceeds as required by
Section 2.3(b);
(2) the Borrower may pay principal of a Progeny Facility as
such principal matures and make any required prepayment or
reduction of the commitments of any lender thereunder, in each
case in accordance with the terms of such Progeny Facility in
effect on July 31, 2002, and may prepay any such Progeny Facility
simultaneously with the disposition of the assets associated with
such Progeny Facility;
(3) the Borrower may make prepayments, reductions of
commitments and cash collateralizations on a pro-rata basis to
(x) the permanent ratable reduction of the outstanding amounts of
the Progeny Facilities and (y) cash collateralize the Legacy
L/Cs, until and unless the Legacy L/Cs are fully cash
collateralized, in which case such prepayments, reductions of
commitments or cash collateralizations may be made on a pro-rata
basis to the permanent ratable reduction of the outstanding
amounts of the Progeny Facilities;
(4) the Borrower may, in its sole absolute discretion, make
any prepayment, commitment reduction or cash collaterallization
of the type set forth
63
in clauses (i) through (iii) above in an aggregate amount not to
exceed $65,000,000 per annum; and
(5) the Borrower may prepay, defease or otherwise satisfy in
whole or in part all of its obligations arising under the Letter
of Credit and Reimbursement Agreement dated as of May 15, 1994,
among Tulsa Parking Authority, The Xxxxxxxx Companies, Inc., Bank
of Oklahoma, National Association, and Bank of America, N.A.
(formerly NationsBank of Texas, N.A.), relative to Tulsa Parking
Authority First Mortgage Revenue Bonds, as amended, and all
documents, instruments, agreements, certificates and notices at
any time executed and/or delivered in connection therewith.
For the avoidance of doubt, nothing in this subsection (R) shall limit
or restrict the Borrower from any payment or taking any action that is
required by the terms of any Progeny Facility or Legacy L/C in effect
on the date hereof.
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) The Borrower (i) shall fail to pay any Reimbursement Obligation
when the same becomes due and payable, or (ii) shall fail to pay any
interest on any Reimbursement Obligation within three days after the same
becomes due and payable or (iii) 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 the Borrower
or any Guarantor herein or in any other Credit Document or by the Borrower
or any Guarantor (or any officer of the Borrower or any Guarantor) 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 incorrect in any material respect when made or deemed
made; or
(c) The Borrower or any Guarantor shall fail to perform or observe (i)
any term, covenant or agreement contained in Section 5.1(b) 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
the Borrower by the Agent or any Bank or the date the Borrower shall have
knowledge of such failure, or (ii) any term, covenant or agreement
contained in this Agreement (other than a term, covenant or agreement
contained in Section 5.1(b) or Section 5.2) or any other Credit Document 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 the Borrower by the Agent or
64
any Bank or the date the Borrower or Guarantor, as applicable, shall have
knowledge of such failure; or (iii) any term, covenant or agreement
contained in Section 5.2; or
(d) The Borrower or any Subsidiary of the Borrower shall fail to pay
any principal of or premium or interest on any Debt which is outstanding in
a principal amount of at least $60,000,000 in the aggregate (excluding Debt
incurred pursuant to any Letter of Credit) of the Borrower and/or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment, as required in
connection with any permitted sale of assets or as required in connection
with any casualty or condemnation), prior to the stated maturity thereof;
provided, however, that the provisions of this Section 6.1(d) shall not
apply to any Non-Recourse Debt of any non-material Subsidiary of the
Borrower which is a Non-Borrowing Subsidiary as defined in the Multiyear
Xxxxxxxx Credit Agreement; or
(e) The Borrower or any Material Subsidiary of the 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 or any Material Subsidiary of 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 the Borrower or any Material Subsidiary of the
Borrower shall take any action to authorize any of the actions set forth
above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$60,000,000 shall be rendered against the Borrower or any Material
Subsidiary of the Borrower and remain unsatisfied and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) Any Termination Event with respect to a Plan shall have occurred
and, 30 days after notice thereof shall have been given to the Borrower by
the Agent, (i) such Termination Event shall still exist and (ii) the sum
(determined as of the date of occurrence of such Termination Event) of the
Insufficiency of such Plan and the
65
Insufficiency of any and all other Plans with respect to which a
Termination Event shall have occurred and then exist (or in the case of a
Plan with respect to which a Termination Event described in clause (ii) of
the definition of Termination Event shall have occurred and then exist, the
liability related thereto) is equal to or greater than $75,000,000; or
(h) The Borrower or any ERISA Affiliate of the Borrower shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer
Plans in connection with Withdrawal Liabilities (determined as of the date
of such notification), exceeds $75,000,000 in the aggregate or requires
payments exceeding $50,000,000 per annum; or
(i) The Borrower or any ERISA Affiliate of the Borrower shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and its
ERISA Affiliates to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan
years which include July 31, 2002 by an amount exceeding $75,000,000;
(j) Any provision (other than any provision excepted from, or subject
to a qualification in, the opinion delivered pursuant to Section 3.1(C),
but only to the extent of such exception or qualification) of any Security
Document for any reason is not a legal, valid, binding and enforceable
obligation of the Borrower or any Guarantor party thereto or the Borrower
or any Guarantor party thereto shall so state in writing;
(k) Any material portion of the Collateral that is not covered by
adequate insurance shall be destroyed or any material portion of the
Collateral shall otherwise become unavailable for use by its owner for a
period in excess of 30 days (or 90 days if such owner has business
interruption insurance adequate to cover the loss to it resulting from such
Collateral being unavailable for use) or title to any material portion of
the Collateral shall be successfully challenged; or
(l) Any "Default" or "Event of Default" as defined in any Security
Document shall occur;
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 Borrower, declare, the
obligation of each Issuing Bank to issue any Letter of Credit 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
Borrower, declare the principal of the Reimbursement Obligations, all interest
thereon and all other amounts payable by the Borrower 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
Borrower;
66
provided, however, that in the event of any Event of Default described
in Section 6.1(e)(ii), (A) the obligation of each Issuing Bank to issue a Letter
of Credit shall automatically be terminated and (B) the principal of the
Reimbursement Obligations, 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 Borrower.
For purposes of this Section 6.1, any Reimbursement Obligation owed to an SPC
shall be deemed to be owed to its Designating Bank.
SECTION 6.2. XX Xxxx Collateral Accounts. Upon the occurrence and during
the continuance of any Event of Default (if the Agent has declared all amounts
owed hereunder to be due and payable), the Borrower agrees that it shall
forthwith, without any demand or the taking of any other action by any Issuing
Bank, the Agent, or any of the Banks, provide cover for the outstanding Letter
of Credit Liabilities by paying to the Agent immediately available funds in an
amount equal to the then aggregate undrawn face amount of all outstanding
Letters of Credit, which funds shall be deposited into a blocked deposit account
or accounts to be established and maintained at the office of Citibank (or an
affiliate thereof) in the name of the Agent as collateral security for any
outstanding Letter of Credit Liabilities (the "XX Xxxx Collateral Accounts").
The Borrower hereby pledges, and grants to the Agent for the ratable benefit of
each Issuing Bank and the Banks, a security interest in all funds held in the XX
Xxxx Collateral Accounts from time to time and all proceeds thereof, as security
for the payment of the outstanding Letter of Credit Liabilities. The Agent shall
from time to time withdraw funds then held in the XX Xxxx Collateral Accounts to
satisfy the payment of any Reimbursement Obligations owing to any Issuing Bank
as shall have become or shall become due and payable by the Borrower to such
Issuing Bank under this Agreement in connection with the Letters of Credit. The
Agent shall exercise reasonable care in the custody and preservation of any
funds held in the XX Xxxx Collateral Accounts and shall be deemed to have
exercised such care if such funds are accorded treatment substantially
equivalent to that which the Agent accords its own property, it being understood
that the Agent shall not have any responsibility for taking any necessary steps
to preserve rights against any parties with respect to any such funds. If at any
time (a) no Event of Default exists and (b) the funds in the XX Xxxx Collateral
Accounts (excluding, for purposes of this clause (b) only, an amount equal to
the aggregate cash proceeds deposited thereto in accordance with Section 2.3(b))
exceed the aggregate amount of all Letter of Credit Liabilities, the Agent
shall, upon request of the Borrower, return such excess to the Borrower or to
any Person designated by the Borrower.
ARTICLE VII
[INTENTIONALLY OMITTED]
ARTICLE VIII
THE AGENT; ISSUING BANKS; THE COLLATERAL AGENT; OTHERS
SECTION 8.1. Agent's Authorization and Action. Each Bank hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto. As
to any matters not expressly provided for by this
67
Agreement (including enforcement of the terms of this Agreement or collection of
the Reimbursement Obligations, fees and any other amounts due and payable
pursuant to this Agreement), the Agent shall not 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; provided, however, that the Agent shall not be required
to take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law. The Agent agrees to give to each
Bank prompt notice of each notice given to it by the Borrower pursuant to the
terms of this Agreement.
SECTION 8.2. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them 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: (i) may consult with
legal counsel (including counsel for the 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) makes 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 the Borrower or any Guarantor or to inspect the property
(including the books and records) of the Borrower or any Guarantor; (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
instrument or document furnished pursuant hereto or thereto; (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 to be
genuine and signed or sent by the proper party or parties; and (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.
SECTION 8.3. 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 the 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 the Borrower or any Guarantor or to
68
inspect the property (including the books and records) of the Borrower or any
Guarantor; (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 to be genuine and signed or sent by the
proper party or parties.
SECTION 8.4. Rights. With respect to any Letter of Credit Interest held by
it, Citicorp shall have the same rights and powers under 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.
Citicorp, 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, the Borrower, any Subsidiary of the
Borrower, any Person who may do business with or own, directly or indirectly,
securities of the Borrower or any such Subsidiary and any other Person, all as
if Citicorp 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.
SECTION 8.5. [Intentionally Omitted].
SECTION 8.6. Indemnification. The Banks agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably according to the respective
Letter of Credit Interests then held by each of them (or if no Letter of Credit
Interests are at the time outstanding, ratably according to their respective LC
Participation Percentage), 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 the 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 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). IT IS THE INTENT OF THE PARTIES HERETO THAT
THE AGENT SHALL, TO THE EXTENT PROVIDED IN THIS SECTION 8.6, BE INDEMNIFIED FOR
ITS OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE. Without limitation of the
foregoing, each Bank agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
the 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 to the extent that the Agent is
not reimbursed for such expenses by the Borrower.
69
SECTION 8.7. Successor Agent. The Agent may resign at any time as Agent
under this Agreement by giving written notice thereof to the Banks and the
Borrower and may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks shall have the
right to appoint, with the consent the Borrower (which consent shall not be
unreasonably withheld and shall not be required if an Event of Default exists),
a successor Agent from among the Banks. If no successor Agent shall have been so
appointed by the Majority Banks with such consent, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor 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 under this Agreement by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent and shall function as the Agent under this
Agreement, and the retiring Agent shall be discharged from its duties and
obligations as Agent under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
SECTION 8.8. Collateral Agent's Authorization and Action. Each Bank hereby
appoints and authorizes the Collateral Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Collateral Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including enforcement of the terms of this Agreement or
collection of the Reimbursement Obligations, fees and any other amounts due and
payable pursuant to this Agreement), the Collateral Agent shall not 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; provided, however, that the Collateral Agent
shall not be required to take any action which exposes the Collateral Agent to
personal liability or which is contrary to this Agreement or applicable law. The
Collateral Agent agrees to give to each Bank prompt notice of each notice given
to it by the Borrower pursuant to the terms of this Agreement.
SECTION 8.9. Collateral Agent's Reliance, Etc. Neither the Collateral Agent
nor any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them 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
Collateral Agent: (i) may consult with legal counsel (including counsel for the
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)
makes 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
70
of the Borrower or any Guarantor or to inspect the property (including the books
and records) of the Borrower or any Guarantor; (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 instrument or document
furnished pursuant hereto or thereto; (v) shall incur no liability under or in
respect of any Note, 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 to be genuine and signed or
sent by the proper party or parties; and (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.
SECTION 8.10. Collateral Agent and Its Affiliates. With respect to any
Letter of Credit Interest held by it, each Bank which is also the Collateral
Agent shall have the same rights and powers under the Credit Documents as any
other Bank and may exercise the same as though it were not the Collateral Agent;
and the term "Bank" or "Banks" shall, unless otherwise expressly indicated,
include any Bank serving as the Collateral Agent in its individual capacity. Any
Bank serving as the Collateral Agent and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with, the
Borrower, any of the Subsidiaries and any Person who may do business with or own
securities of the Borrower or any Subsidiary, all as if such Bank were not the
Collateral Agent and without any duty to account therefor to the Banks.
SECTION 8.11. Bank Credit Decision. Each of the Banks and the other
beneficiaries of any Security Document parties hereto (both on its own behalf
and on behalf of any of its affiliates that is a beneficiary of any Security
Document) acknowledges that it has, independently and without reliance upon the
Collateral Trustee, Collateral Agent, Agent, the Arranger, 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 Document parties hereto
(both on its own behalf and on behalf of any of its Affiliates that is a
beneficiary of any Security Document) also acknowledges that it will,
independently and without reliance upon the Collateral Trustee, Collateral
Agent, Agent, the Arranger, 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. Neither the Collateral Trustee
nor the Collateral Agent shall have any duty or responsibility, either initially
or on a continuing basis, to provide any Person with any 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 8.12. 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 Document 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
71
Loan 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 8.13. Collateral Agent Indemnification. The Banks agree to
indemnify the Collateral Agent (to the extent not reimbursed by the Borrower),
including to the extent the Collateral Agent is acting in its capacity as
"Collateral Trustee" under the Collateral Trust Agreement or as "Surety
Administrative Agent" under the Midstream Guaranty, ratably according to the
respective principal amounts of the Letter of Credit Interests then held by each
of them (or if no Letter of Credit Interests are at the time outstanding,
ratably according to their LC Participation Percentage), 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 the Collateral Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
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 COLLATERAL
AGENT, BUT EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE
ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL
AGENT). IT IS THE INTENT OF THE PARTIES HERETO THAT THE COLLATERAL AGENT SHALL,
TO THE EXTENT PROVIDED IN THIS SECTION 8.13, BE INDEMNIFIED FOR ITS OWN
ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE. Without limitation of the foregoing,
each Bank agrees to reimburse the Collateral Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
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 to the extent that the
Collateral Agent is not reimbursed for such expenses by the Borrower.
SECTION 8.14. Successor Collateral Agent. The Collateral Agent may resign
at any time as Collateral Agent under this Agreement by giving written notice
thereof to the Banks and the Borrower and may be removed at any time with or
without cause by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint, with the consent of the Borrower
(which consent shall not be unreasonably withheld and shall not be required if
an Event of Default exists), a successor Collateral Agent from among the Banks.
If no successor 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 retiring Collateral Agent's giving of notice of resignation or
the Majority Banks' removal of the retiring Collateral Agent, then the retiring
Collateral Agent may, on behalf of the Banks, appoint a successor 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 Collateral Agent under this Agreement by a successor Collateral
Agent, such successor Collateral Agent shall thereupon
72
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent and shall function as the Collateral Agent
under this Agreement, and the retiring Collateral Agent shall be discharged from
its duties and obligations as Collateral Agent under this Agreement. After any
retiring Collateral Agent's resignation or removal hereunder as Collateral
Agent, the provisions of this Article VIII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent under
this Agreement.
SECTION 8.15. Other Agents; the Arranger. The other agents, the Collateral
Trustee, and the Arranger have no duties or obligations under this Agreement.
None of the other agents, the Collateral Trustee, nor the Arranger 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 or the Arranger any obligation in respect of
this Agreement or other Credit Documents.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by the 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) waive any of the
conditions specified in Article III, (b) increase the Letter of Credit
Commitments of the Issuing Banks or subject any Bank to any additional
obligation, (c) reduce the Reimbursement Obligations or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of the
Reimbursement Obligations or any fees or other amounts payable hereunder, (e)
take any action which requires the signing of all the Banks pursuant to the
terms of this Agreement, (f) change the definition of Majority Banks or
otherwise change the LC Participation Percentages or of the aggregate unpaid
principal amount of the 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 contemplated by the terms of Section 5.2(e) and Schedule
XIV on the date hereof), or (h) amend, waive any provision of, or consent to any
departure by the Borrower from, Section 2.3(b) or this Section 9.1; 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 9.2. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopy communication) and mailed,
telecopied or
73
delivered, 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 9.6(a); if to the 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 Citicorp, as Agent or Collateral Agent, to its address
at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000 (telecopier number: (302)
894-6120), Attention: Xxxxxxxx Account Officer, with a copy to Citicorp North
America, Inc., 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (telecopier
number: (000) 000-0000), Attention: The Xxxxxxxx Companies, Inc. Account
Officer, or, as to the 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 the Borrower, each
Issuing Bank, the Collateral Agent and the Agent. All such notices and
communications shall, when mailed or telecopied, 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 9.6(a) (or other telecopy number
specified by such party in a written notice to the other parties hereto),
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 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.
SECTION 9.3. No Waiver; Remedies. No failure on the part of any Bank, the
Collateral Agent, the Collateral Trustee, any Issuing Bank, the Agent, the
Collateral Trustee, the Surety Administrative Agent, 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.
SECTION 9.4. Costs and Expenses.
(a) (i) the Borrower agrees to pay on demand all reasonable out-of-pocket
costs and expenses of the Arranger and the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the other Credit Documents 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
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
any Security Document, and (ii) the Borrower 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 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
74
(including formal workouts or restructurings), legal proceedings or otherwise)
against the Borrower or any Guarantor of any Credit Document.
(b) The Borrower agrees, to the fullest extent permitted by law, to
indemnify and hold harmless the Agent, the Collateral Agent, the Issuing Banks,
other agents, the Arranger 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 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 this Agreement or any transaction in which any proceeds of all
or any part of Letters of Credit 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). IT IS THE INTENT OF THE PARTIES
HERETO THAT EACH INDEMNIFIED PARTY SHALL, TO THE EXTENT PROVIDED IN THIS SECTION
9.4(b), BE INDEMNIFIED FOR ITS OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE.
SECTION 9.5. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.1 to authorize the Agent to
declare the Reimbursement Obligations due and payable pursuant to the provisions
of Section 6.1, each Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank to or for the credit
or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement and the other Credit
Documents, if any, held by such Bank, irrespective of whether or not such Bank
shall have made any demand under this Agreement or the other Credit Documents
and although such obligations may be unmatured. Each Bank agrees promptly to
notify the Borrower after such set-off and application made by such Bank,
provided, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this Section are in
addition to other rights and remedies (including other rights of set-off) which
such Bank may have.
SECTION 9.6. Binding Effect; Transfers.
(a) This Agreement shall become effective when it shall have been executed
by the Borrower, 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
Borrower, the Agent, the Collateral Agent, the Issuing Banks and each Bank and
their
75
respective successors and assigns; provided, that the Borrower shall not have
the right to assign any of its 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 Letter
of Credit Commitments or its Letter of Credit Interest); 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, (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 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 $5,000,000 in
the aggregate or such lesser amount as may be consented to by the Agent and the
Borrower, (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 pursuant to
Section 8.6 and to the Collateral Agent pursuant to Section 8.13) 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 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, guaranty or insurance 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 the Borrower or any other Person or the performance or observance by the
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
76
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 the Register for the recordation of the
names and addresses of the Banks and the Letter of Credit Commitment, LC
Participation Percentage and Letter of Credit Interest of each Bank from time to
time.
(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 the Agent and, if required, by the 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 the Borrower.
(e) Each Bank may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including all or a
portion of 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) the Borrower, 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, (iv) all amounts payable under this Agreement shall be calculated as
if such Bank had not sold such participation, and (v) the terms of any such
participation shall not restrict such Bank's ability to consent to any departure
by the 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 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 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) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Federal
Reserve Board without notice to or consent of the Borrower 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)
77
under this Agreement or any of its Letter of Credit Interest to any Federal
Reserve Bank without notice to or consent of the Borrower 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 Borrower) 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 Borrower, the option to fund all or
any part of any payment to any Issuing Bank 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 Borrower, 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, 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 the Borrower under this Agreement
(including its obligations under Section 2.6). The issuance of a Letter of
Credit by an SPC hereunder shall utilize the Letter of Credit Commitment of the
Designating Bank to the same extent, and as if, 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
9.6, an SPC may not assign its interest in any Letter of Credit Interests except
that, with notice to, but without the prior written consent of, the Borrower 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 to the
Designating Bank or to any financial institutions (consented to by the Borrower
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.
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 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 Borrower, 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 Borrower or the SPC. This Section 9.6(g) may not be amended
without the written consent of any SPC, which shall have been identified to the
Agent and the Borrower.
78
SECTION 9.7. Judgment Currency. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due from the Borrower
hereunder in Canadian Dollars into Dollars, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase the Canadian Dollars with Dollars at the Agent's main New York
office on the Business Day preceding that on which final, non-appealable
judgment is given. The obligations of the Borrower in respect of any sum due in
Canadian Dollars to any Bank, any Issuing Bank, the Collateral Agent or the
Agent hereunder shall, notwithstanding any judgment in Dollars, be discharged
only to the extent that on the Business Day following receipt by such Bank, such
Issuing Bank, the Collateral Agent or the Agent (as the case may be) of any sum
adjudged to be so due in Dollars, such Bank, Issuing Bank, the Collateral Agent
or the Agent (as the case may be) may in accordance with normal, reasonable
banking procedures purchase the Canadian Dollars with Dollars. If the amount of
the Canadian Dollars so purchased is less than the sum originally due to such
Bank, Issuing Bank, the Collateral Agent or the Agent, as the case may be, in
the Canadian Dollars, the Borrower agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Bank, such Issuing Bank, the Collateral Agent or the
Agent, as the case may be, against such loss, and if the amount of Canadian
Dollars so purchased exceeds the sum originally due to such Bank, such Issuing
Bank, the Collateral Agent or the Agent, as the case may be, in Canadian
Dollars, such Bank, such Issuing Bank, the Collateral Agent or the Agent, as the
case may be, agrees to remit such excess to the Borrower.
SECTION 9.8. Governing Law. This Agreement and the other Credit
Documents shall be governed by, and construed in accordance with, the laws of
the State of New York, except that Mortgages and Additional Mortgages may, to
the extent provided therein, be governed by and construed in accordance with the
laws of the respective states in which the real property covered thereby is
located.
SECTION 9.9. 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, any other Credit Document or under any
other agreement entered into in connection with or as security for this
Agreement 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
Borrower or refunded by the Agent, such Issuing Bank, the Collateral Agent or
such Bank, as the case may be, to the 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
79
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 Borrower or refunded
by the Agent, such Issuing Bank, the Collateral Agent or such Bank, as the case
may be, to the Borrower.
SECTION 9.10. 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 9.11. Survival of Agreements, Representations and Warranties,
Etc. All warranties, representations and covenants made by the Borrower or any
officer of the 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 regardless
of any investigation. The indemnities and other payment obligations of the
Borrower set forth in Sections 2.4, 2.6 and 9.4, the indemnities set forth in
Section 2.10 and the indemnities by the Banks in favor of the Agent, the
Collateral Agent and their respective officers, directors, employees and agents,
will survive the repayment of the Reimbursement Obligations and the termination
of this Agreement.
SECTION 9.12. [INTENTIONALLY OMITTED.]
SECTION 9.13. Confidentiality. Each Bank agrees that it will not
disclose without the prior consent of the Borrower (other than to employees,
auditors, accountants, counsel or other professional advisors of the Agent or
any Bank) any information with respect to the Borrower or its Subsidiaries
(which term shall be deemed to include the WCG Subsidiaries for purposes of this
Section 9.13), which is furnished pursuant to this Agreement and which (i) the
Borrower in good faith considers to be confidential and (ii) is either clearly
marked confidential or is designated by the Borrower to the Agent and the Banks
in writing as confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the public, (b) 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,
(c) as may be required or appropriate in response to any summons or subpoena in
connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to such Bank, (e) to the prospective transferee
or grantee in connection with any contemplated transfer of any of the Letter of
Credit Commitments or Letter of Credit Interests 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, provided that such prospective transferee
80
executes an agreement with or for the benefit of the Borrower containing
provisions substantially identical to those contained in this Section 9.13, and
provided further that if the contemplated transfer is a grant of an option to
fund a drawing under a Letter of Credit to an SPC pursuant to Section 9.6(g),
such SPC may disclose (i) 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 (ii) if prior notice of the delivery thereof is given to the
Borrower, such information as may be required by law or regulation to be
delivered, (f) in connection with the exercise of any remedy by such Bank
following an Event of Default pertaining to this Agreement, any of the other
Credit Documents or any other document delivered in connection herewith, (g) in
connection with any litigation involving such Bank pertaining to this Agreement,
any of the other Credit Documents or any other document delivered in connection
herewith, (h) to any Bank, any Issuing Bank, the Collateral Agent or the Agent,
or (i) to any affiliate of any Bank, provided that such affiliate executes an
agreement with or for the benefit of the Borrower containing provisions
substantially identical to those contained in this Section 9.13.
SECTION 9.14. Waiver of Jury Trial. THE BORROWER, 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 OTHER CREDIT DOCUMENT, ANY LETTER OF CREDIT OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.15. 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 BORROWER 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 OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. THE BORROWER IRREVOCABLY CONSENTS 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 SECTION 9.2. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT 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 THE 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, THE
81
BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE CREDIT DOCUMENTS.
SECTION 9.16. Existing Defaults of No Effect. Any default which has
occurred and is continuing under the Existing Agreement, if any, shall, upon the
satisfaction of the conditions set forth in Section 3.1, be deemed to be fully
and completely remedied and of no further force and effect, except to the extent
that the event or condition causing such default shall constitute a Default or
an Event of Default under this Agreement.
82
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.
BORROWER:
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Treasurer
CITICORP USA, INC., as Agent and Collateral
Agent
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
CITIBANK, N.A. as Issuing Bank
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
BANKS:
CITICORP USA, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA N.A., as Issuing Bank and
Bank
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Managing Director
JPMORGAN CHASE BANK
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
XXXXXXX XXXXX CAPITAL CORP.
By: /s/ Xxxxx X.X. Xxxxxx
Name: Xxxxx X.X. Xxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
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
Citicorp USA, Inc. Citicorp USA, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notices:
Citicorp USA, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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
The Bank of Nova Scotia The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx Xxxxxxx
83
Name of Bank Lending Office
------------ --------------
with copies to:
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxx Xxxxxxx
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.
Three Xxxxx Center, Suite 4550
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx Xxx
JPMorgan Chase Bank JPMorgan Chase Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx Xxxx
Credit Lyonnais Credit Lyonnais
New York Branch 0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx Xxxxxxx
Toronto Dominion Toronto Dominion (Texas), Inc.
(Texas), Inc. 000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Swift Address: TDOMU S4H
Telecopier: (000) 000-0000
Attn: Xxx Xxxxxx
Xxxxxxx Xxxxx Capital Corp. Xxxxxxx Xxxxx Capital Corp.
4 World Financial Center, 7th Floor
84
Name of Bank Lending Office
------------ --------------
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx Xxxxx (Notices)
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxx Xxxxxxxx (Operations)
Xxxxxx Commercial Xxxxxx Commercial Paper Inc.
Paper Inc. 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000/7691
Telephone: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx (Credit)
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxx Xxxxxx (Operations)
85
SCHEDULE II
BORROWER INFORMATION
Name of Borrower 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
SCHEDULE III
PERMITTED BORROWER LIENS
(a) (i) Any Lien existing on any property at the time of the acquisition thereof
and not created in contemplation of such acquisition by the Borrower or any of
its Subsidiaries, whether or not assumed by the Borrower or any of its
Subsidiaries, (ii) purchase money, construction or analogous Liens securing
obligations incurred in connection with or financing the direct or indirect
costs of or relating to the acquisition, construction (including design,
engineering, installation, testing and other related activities), development
(including drilling), improvement, repair or replacement of property (including
such Liens securing Debt or other obligations incurred in connection with the
foregoing or within 30 days of the later of (x) the date on which such Property
was acquired or construction, development, improvement, repair or replacement
thereof was complete or (y) if applicable, the final "in service" date for
commencement of full operations of such property), provided that all such Liens
attach only to the property acquired, constructed, developed, improved or
repaired or constituting replacement property, and the principal amount of the
Debt or other obligations secured by such Lien, together with the principal
amount of all other Debt secured by a Lien on such property, shall not exceed
the gross acquisition, construction, replacement and other costs specified above
of or for the property, (iii) Liens on receivables created pursuant to a sale,
securitization or monetization of such receivables, and Liens on rights of the
Borrower or any Subsidiary related to such receivables which are transferred to
the purchaser of such receivables in connection with such sale, securitization
or monetization; provided that the Liens secure only the obligations of the
Borrower or any of its Subsidiaries in connection with such sale, securitization
or monetization, (iv) Liens created by or reserved in any operating lease
(whether for real or personal property) entered into in the ordinary course of
business (excluding Synthetic Leases) provided that the Liens created thereby
(1) attach only to the Property leased to the Borrower or one of its
Subsidiaries, pursuant to such operating lease and (2) secure only the
obligations under such lease and supporting documents that do not create
obligations other than with respect to the leased property (including for rent
and for compliance with the terms of the lease), (v) Liens on property subject
to a Capital Lease created by such Capital Lease and securing only obligations
under such Capital Lease and supporting documents that do not create obligations
other than with respect to the leased property, (vi) any interest or title of a
lessor in the property subject to any Capital Lease, Synthetic Lease or
operating lease, (vii) Liens in the form of filed Uniform Commercial Code or
personal property security statements (or similar filings outside Canada and the
United States) to perfect any Permitted Lien, and (viii) Liens on up to four
aircraft owned or leased by the Borrower or any Subsidiary of the Borrower.
(b) Any Lien existing on any property of a Subsidiary of the Borrower at the
time it becomes a Subsidiary of the Borrower and not created in contemplation
thereof and any Lien existing on any property of any Person at the time such
Person is merged or liquidated into or consolidated with the Borrower or any
Subsidiary thereof and not created in contemplation thereof.
(c) Mechanics', materialmen's, workmen's, warehousemen's, carrier's, landlord's
or other similar Liens arising in the ordinary course of business securing
amounts incurred in the ordinary
course of business which are not more than 90 days past due or are being
contested in good faith by appropriate proceedings.
(d) Liens arising by reason of pledges, deposits or other security to secure
payment of workmen's compensation insurance or unemployment insurance, pension
plans or systems and other types of social security, and good faith deposits or
other security to secure tenders or leases of property or bids, in each case to
secure obligations of the Borrower or any of its Subsidiaries under such
insurance, tender, lease, bid or contract, as the case may be; provided,
however, that the only Liens permitted by this paragraph (d) shall be Liens
incurred in the ordinary course of business that do not secure any Debt or
accounts payable (other than accounts payable to the counterparties or obligees
applicable to the foregoing).
(e) Liens on deposits or other security given to secure public or statutory
obligations, or to secure or in lieu of surety bonds (other than appeal bonds)
and deposits as security for the payment of taxes or assessments or other
similar charges, in each case to secure obligations of the Borrower or any of
its Subsidiaries arising in the ordinary course of business; provided, however,
that the aggregate amount of obligations secured by Liens permitted by this
paragraph (e) shall not exceed 10% of Consolidated Tangible Net Worth of the
Borrower.
(f) Any Lien arising by reason of deposits with or the giving of any form of
security to any governmental agency or any body created or approved by law or
governmental regulation for any purpose at any time as required by law or
governmental regulation (i) as a condition to the transaction by the Borrower or
any of its Subsidiaries of any business or the exercise by the Borrower or any
of its Subsidiaries of any privilege or license, (ii) to enable the Borrower or
any of its Subsidiaries to maintain self-insurance or to participate in any fund
for liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to the Borrower or any of its Subsidiaries to share in the
privileges or benefits required for companies participating in such
arrangements.
(g) Liens incurred in the ordinary course of business upon rights-of-way
securing obligations (other than Debt and trade payables) of the Borrower or any
of its Subsidiaries.
(h) Undetermined mortgages and charges incidental to construction or maintenance
arising in the ordinary course of business which are not more than 90 days past
due or are being contested in good faith by appropriate proceedings.
(i) The right reserved to, or vested in, any municipality or governmental or
other public authority or railroad by the terms of any right, power, franchise,
grant, license, permit or by any provision of law, to terminate or to require
annual or other periodic payments as a condition to the continuance of such
right, power, franchise, grant, license or permit.
(j) The Lien of taxes, customs duties or other governmental charges or
assessments that are not at the time determined (or, if determined, are not at
the time delinquent), or that are delinquent but the validity of which is being
contested in good faith by the Borrower or any of its Subsidiaries by
appropriate proceedings and with respect to which reserves in conformity with
generally accepted accounting principles, if required by such principles, have
been provided on the books of the Borrower or the relevant Subsidiary of the
Borrower, as the case may be.
2
(k) The Lien reserved in (i) leases entered into in the ordinary course of
business for rent and for compliance with the terms of the lease in the case of
real or personal property leasehold estates or (ii) leases and sub-leases
granted to others that do not materially interfere with the ordinary course of
business of the Borrower and its Subsidiaries, taken as a whole.
(l) Defects and irregularities in the titles to any property (including
rights-of-way and easements) which are not material to the business, assets,
operations or financial condition of the Borrower and its Subsidiaries, taken as
a whole.
(m) Easements, exceptions or reservations in any property of the Borrower or any
of its Subsidiaries granted or reserved in the ordinary course of business for
the purpose of pipelines, roads, equipment, streets, alleys, highways,
railroads, the removal of oil, gas, coal or other minerals or timber, and other
like purposes, or for the joint or common use of real property, facilities and
equipment, or in favor of governmental authorities or public utilities, in each
case above which do not materially impair the use of such property for the
purposes for which it is held by the Borrower or such Subsidiary.
(n) Rights reserved to or vested in any municipality or public authority to
control or regulate any property of the Borrower or any of its Subsidiaries, or
to use such property in any manner which does not materially impair the use of
such property for the purposes for which it is held by the Borrower or such
Subsidiary.
(o) Any obligations or duties, affecting the property of the Borrower or any of
its Subsidiaries, to any municipality or public authority with respect to any
franchise, grant, license or permit.
(p) The Liens of any judgments in an aggregate amount for the Borrower and all
of its Subsidiaries (i) not in excess of $8,500,000, the execution of which has
not been stayed and (ii) not in excess of $40,000,000, the execution of which
has been stayed and which have been appealed and secured, if necessary, by a
stay or appeal bond or other security of similar effect and stay or appeal bonds
in respect of the judgments permitted in clause (ii).
(q) Zoning laws and ordinances.
(r) Liens existing on July 1, 2002, that secure only Debt and other obligations
incurred or committed and available for draw down on or prior to or outstanding
on July 1, 2002 and listed on Schedule IX as secured by such Liens.
(s) Liens existing on July 1, 2002 (i) that cover only immaterial assets and
(ii) that secure only Debt and other obligations incurred or committed and
available for draw down on or prior to or outstanding on July 1, 2002.
(t) Liens reserved in customary oil, gas and/or mineral leases for bonus or
rental payments and for compliance with the terms of such leases and Liens
reserved in customary operating agreements, farm-out and farm-in agreements,
exploration agreements, development agreements and other similar agreements for
compliance with the terms of such agreements; provided that (i) such Liens do
not secure Debt or accounts payable (other than obligations under such lease or
3
agreement, as the case may be) and (ii) such leases and agreements are entered
into in the ordinary course of business.
(u) Liens arising in the ordinary course of business out of all presently
existing and future division and transfer orders, advance payment agreements,
processing contracts, gas processing plant agreements, operating agreements, gas
balancing or deferred production agreements, participation, joint venture, joint
operating, pooling, unitization or communitization agreements, pipeline,
gathering or transportation agreements, tariffs, platform agreements, drilling
contracts, injection or repressuring agreements, cycling agreements,
construction agreements, salt water or other disposal agreements, leases,
sub-leases or rental agreements, royalty interests, overriding royalty
interests, farm-out and farm-in agreements, exploration and development
agreements, and any and all other contracts or agreements covering, arising out
of, used or useful in connection with or pertaining to the exploration,
development, operation, production, sale, use, purchase, exchange, storage,
separation, dehydration, treatment, compression, gathering, transportation,
processing, improvement, marketing, disposal or handling of any property of a
Person (each such order, agreement or contract being a "Subject Document"),
provided that and to the extent that (i) such Subject Documents are entered into
the ordinary course of business and contain terms customary for such documents
in the industry, (ii) such permitted Liens shall not include any security
interests in accounts receivable or other receivables and do not secure Debt or
accounts payable (other than accounts payable arising under the particular
Subject Document that creates the Lien), and (iii) such Subject Documents do not
create nor do such Liens secure Financing Transactions.
(v) Liens arising by law under Section 9.343 of the Texas Uniform Commercial
Code or similar statutes of states other than Texas.
(w) Liens arising pursuant to the Security Documents which secure the
obligations of TWC and its Subsidiaries under this Agreement and the Multiyear
Xxxxxxxx Credit Agreement and certain public debt of TWC, including Liens
securing Letters of Credit resulting from the Cash Collateralization thereof in
accordance with Section 6.2 hereof.
(x) Liens (i) in existence prior to the date hereof in the nature of a right of
offset or netting of cash amounts owed arising in the ordinary course of
business (and Liens on the trading receivables owed by any trading counterparty
and/or affiliate thereof to the Borrower or any affiliate thereof granted by the
Borrower or any such affiliate thereof under agreements commonly in use in the
industry of the Borrower or such affiliate, but solely to secure the offset or
netting rights of such trading counterparty and/or affiliates thereof to the
payment of such trading receivables arising from and to the extent of the
trading obligations of the Borrower or any affiliate thereof to such trading
counterparty or its affiliates) and (ii) Liens in the nature of a right of
offset or netting of cash amounts owed arising in the ordinary course of
business granted by EMT to any of EMT's trading counterparties and/or affiliates
thereof solely to secure the obligations of EMT to such trading counterparty
and/or affiliates thereof (and the offset or netting rights of such trading
counterparty and/or affiliates thereof related thereto), including, with respect
to EMT only, Liens for such purposes on the trading receivables of EMT arising
from amounts owed by such trading counterparty and/or affiliates thereof to EMT;
provided, however that no such Liens granted by EMT shall in any way create
rights of offset or netting or Liens against the Borrower or any Subject
Subsidiary or their respective Assets.
4
(y) Any Lien not permitted by paragraphs (a) through (x) above or (z) through
(ii) below securing Debt or Specified Escrow Arrangements of the Borrower or any
of its Subsidiaries if at the time of, and after giving effect to, the creation
or assumption of any such Lien, the aggregate (without duplication) of the
principal or equivalent amount of all Debt of the Borrower and its Subsidiaries
secured by all such Liens not so permitted by paragraphs (a) through (x) above
or (z) through (ii) below plus the amount of Attributable Obligations (other
than those relating to Liens described in clause (a)(viii)) of the Borrower and
its Subsidiaries in respect of Sale and Lease-Back Transactions permitted by
Section 5.2(l) does not exceed $100,000,000.
(z) Any overriding royalties or other rights of Pacific Northwest Pipeline
Corporation, a Delaware corporation ("Pacific") and Xxxxxxxx Petroleum Company
("Xxxxxxxx") or their respective successors in interest under a contract dated
January 9, 1953, as amended, between Xxxxxxxx and Pacific, to which the Borrower
is successor in interest; and the obligations of the Borrower to surrender,
transfer, release or reassign the leases or interests or rights to which said
instruments relate under the conditions and upon the occurrence of the events
specified in said instruments.
(aa) Any option or other agreement to purchase any property of the Borrower or
any Subsidiary the purchase, sale or other disposition of which is not
prohibited by any other provision of this Agreement.
(bb) Liens securing reimbursement obligations with respect to letters of credit
that encumber documents and other property relating to such letters of credit
and the proceeds and products thereof.
(cc) Liens on the products and proceeds (including insurance, condemnation and
eminent domain proceeds) of and accessions to, and contract or other rights
(including rights under insurance policies and product warranties) derivative of
or relating to, property permitted to be subject to Liens under this Agreement
but subject to the same restrictions and limitations herein set forth as to
Liens on such property (including the requirement that such Liens on products,
proceeds, accessions and rights secure only obligations that such property is
permitted to secure).
(dd) Liens on the Property of a Project Finance Subsidiary or the Equity
Interests in such Project Finance Subsidiary securing the Non-Recourse Debt of
such Project Finance Subsidiary.
(ee) Liens on cash and short-term investments incurred in the ordinary course of
business, consistent with past practice and not for the purpose of securing Debt
(i) deposited by the Borrower or any of its Subsidiaries in margin accounts with
or on behalf of futures contract brokers or other counterparties or (ii) pledged
by the Borrower or any of its Subsidiaries, in the case of each of clauses (i)
and (ii) above, to secure its obligations with respect to (x) contracts
(including without limitation, physical delivery, option (whether cash or
financial), exchange, swap and futures contracts) for the purchase or sale of
any energy-related commodity or (y) interest rate or currency rate management
contracts.
(ff) Liens securing Debt of Apco Argentina, Inc. and/or its Subsidiaries;
provided that such Liens shall only apply to assets owned directly by Apco
Argentina, Inc. or its Subsidiaries.
(gg) Liens securing the Xxxxxxx Loan.
5
(hh) Liens securing Permitted Refinancing Debt (as defined below) (and related
obligations) covering substantially the same collateral securing (immediately
prior to such refinancing) the Debt Refinanced (as defined below) by such
Permitted Refinancing Debt; provided that: (i) the principal amount of such
Permitted Refinancing Debt does not exceed the principal amount of the Debt
Refinanced (plus the amount of penalties, premiums (including required premiums
and the amount of any premiums reasonably determined by the Borrower being in
its best economic interest and as necessary to accomplish such Refinancing by
means of a tender offer or privately negotiated repurchase), fees, accrued
interest and reasonable expenses and other obligations incurred in connection
therewith) at the time of refinancing; and (ii) such Debt is incurred either by
the Borrower or by such Subsidiary that is the obligor of the Debt being
Refinanced. "Permitted Refinancing Debt" means any Debt of the Borrower or any
of its Subsidiaries issued to Refinance other Debt of the Borrower or any such
Subsidiaries. "Refinance" means, in respect of any Debt, to refinance, extend,
renew, refund, repay, prepay, replace, acquire, redeem, defease or retire, or to
issue other Debt in exchange or replacement, directly or indirectly for, such
Debt in whole or in part.
(ii) Liens extending, renewing or replacing any of the foregoing Liens provided
that the principal amount of the Debt or other obligation secured by such Lien
is not increased or the maturity thereof shortened and such Lien is not extended
to cover any additional Debt, obligations or property, other than like
obligations of no greater principal amount and the substitution of like property
(or specific categories of property of the same grantor to the extent the terms
of the Lien being extended, renewed or replaced, extended to or covered such
categories of property) of no greater value.
(jj) Liens securing the obligations under that certain Master Agreement dated as
of March 6, 2000 among The Xxxxxxxx Companies, Inc., as Guarantor, Xxxxxxxx
TravelCenters, Inc. and certain other subsidiaries of The Xxxxxxxx Companies,
Inc., as Lessees, Atlantic Financial Group, Ltd., as Lessor, the Lenders party
thereto, SunTrust Bank, as Agent, Societe Generale, Southwest Agency, as
Documentation Agent, and KBC Bank, N.V., as Syndication Agent, as amended,
supplemented or otherwise modified.
(kk) Liens on cash deposits in the nature of a right of setoff, banker's lien,
counterclaim or netting of cash amounts owed arising in the ordinary course of
business on deposit accounts permitted pursuant to Section 5.1(k) of this
Agreement.
(ll) Liens securing the letters of credit outstanding as of July 31, 2002, as
set forth on Schedule XI, resulting from the cash collateralization thereof in
accordance with Section 2.04(c) of the Multiyear Xxxxxxxx Credit Agreement.
(mm) Liens occurring in, arising from, or associated with Specified Escrow
Arrangements.
(nn) Liens granted in connection with (i) Second Amended and Restated
Participation Agreement dated as of January 28, 2002 among Xxxxxxxx Oil
Gathering, L.L.C., a Delaware limited liability company, as Lessee, Xxxxxxxx
Field Services Company, Inc., a Delaware corporation, as Construction Agent, The
Xxxxxxxx Companies, Inc., a Delaware corporation, as Guarantor, Xxxxx Fargo Bank
Northwest, National Association, (formerly known as First Security Bank,
National Association), as Certificate Trustee, Xxxxx Fargo Bank Nevada, N.A.,
6
(successor by merger to First Security Trust Company of Nevada), as Collateral
Agent, the financial institutions named therein as Certificate Holders, Hatteras
Funding Corporation, a Delaware corporation, as CP Lender, the financial
institutions named therein as the Facility Lenders and Purchasers, Bank of
America, National Association, as Administrative Agent and Administrator for the
CP Lender, Banc of America Facilities Leasing, L.L.C., as Arranger, Bank of Nova
Scotia, as Syndication Agent, and Credit Agricole Indosuez, as Documentation
Agent, as amended, and related transaction documents and (ii) Second Amended and
Restated Participation Agreement dated as of January 28, 2002 among Xxxxxxxx
Field Services - Gulf Coast Company, L.P., a Delaware limited partnership, as
Lessee, Xxxxxxxx Field Services Company, a Delaware corporation, as Construction
Agent, The Xxxxxxxx Companies, Inc., a Delaware corporation, as Guarantor, Xxxxx
Fargo Bank Northwest, National Association, (formerly known as First Security
Bank, National Association), as Certificate Trustee, Xxxxx Fargo Bank Nevada,
N.A., (successor by merger to First Security Trust Company of Nevada), as
Collateral Agent, the financial institution named therein as Certificate
Holders, Hatteras Funding Corporation, a Delaware corporation, as CP Lender, the
financial institutions named therein as the Facility Lenders and Purchasers,
Bank of America, National Association, as Administrative Agent and Administrator
for the CP Lender, Banc of America Facilities Leasing, L.L.C., as Arranger, Bank
of Nova Scotia, as Syndication Agent, and Credit Agricole Indosuez, as
Documentation Agent, as amended, related transaction documents.
7
SCHEDULE IV
COMMITMENTS
AS OF OCTOBER 31, 2002
U.S. DOLLAR L/C CANADIAN DOLLAR LC PARTICIPATION
BANKS COMMITMENTS L/C COMMITMENTS PERCENTAGE
----- --------------- --------------- ----------------
CITIBANK, N.A. $200,000,000 0 0
BANK OF AMERICA N.A. $200,000,000 0 20.625%
CITICORP USA, INC. 0 0 20.625%
JPMORGAN CHASE BANK 0 0 16.25%
TORONTO DOMINION 0 0 12.5%
(TEXAS), INC.
CREDIT LYONNAIS NEW 0 0 12.5%
YORK BRANCH
THE BANK OF NOVA 0 $50,000,000 12.5%
SCOTIA
XXXXXXX XXXXX CAPITAL 0 0 2.5%
CORP.
XXXXXX COMMERCIAL 0 0 2.5%
PAPER INC.
------------ ----------- ---
TOTAL: $400,000,000 $50,000,000 100%
============ =========== ===
SCHEDULE V
RATING CATEGORIES
Applicable Applicable LC
Rating S&P or Moody's ratings of the senior unsecured Issued LC Commitment
Category long-term debt of the Borrower* Margin Margin
-------- ---------------------------------------------- ---------- -------------
One BB+ or better by S&P and Ba1 or better by Moody's 3.00% 0.75%
Two BB by S&P and Ba2 by Moody's 3.50% 0.875%
Three BB- by S&P and Ba3 by Moody's 4.00% 1.00%
Four B+ by S&P and B1 by Moody's 4.25% 1.25%
Five Below B+ by S&P or below B1 by Moody's 4.50% 1.50%
*If split-rated, the lower rating will apply. At all times when no senior
unsecured long-term debt of the Borrower is rated by Moody's or when no senior
unsecured long-term debt of the Borrower is rated by S&P, Rating Category five
shall apply.
SCHEDULE VI
EXISTING PROJECTS
1. Gulfstream
2. Gulf Liquids
3. Devil's Tower
4. PIGAP II Project
SCHEDULE VII
[INTENTIONALLY OMITTED.]
SCHEDULE VIII
[INTENTIONALLY OMITTED.]
SCHEDULE IX
LIENS SECURING EXISTING DEBT/OBLIGATIONS
Liens existing on July 1, 2002, that secure only Debt and other
obligations incurred or committed and available for draw down on or prior to or
outstanding on July 1, 2002 and listed on Schedule IX as secured by such Liens.
See clause (r) on Schedule III. Inclusion of the items on this Schedule shall
not be deemed an admission or representation that such items are properly
categorized as Debt or that they are secured.
1. Liens granted in connection with the Master Agreement dated as of March 6,
2000, among TWC, as Guarantor, Xxxxxxxx TravelCenters, Inc. and certain other
subsidiaries of TWC, as Lessees, Atlantic Financial Group, Ltd., as Lessor,
SunTrust Bank, as Agent, Societe Generale, Southwest Agency, as Documentation
Agent, and KBC Bank, N.V., as Syndication Agent and the Lenders party thereto,
as amended, and related transaction documents.
2. Liens granted in connection with the Joint Venture Sponsor Agreement dated as
of December 28, 2000, among TWC, as Sponsor and Xxxxxxxx Field Services Company,
in favor of Prairie Wolf Investors, L.L.C. ("Investor"), Arctic Fox Assets,
L.L.C., Xxxxxxxx Energy (Canada), Inc. and the other Indemnified Persons listed
therein, as amended, and related transaction documents.
3. Liens granted in connection with the PPH Sponsor Agreement dated as of
December 31, 2001, by TWC, as Sponsor, in favor of Piceance Production Holdings
LLC, Plowshare Investors LLC ("Investor"), and other Indemnified Persons listed
in the agreement, as amended, and related transaction documents.
4. Liens granted in connection with the Parent Support Agreement dated as of
December 23, 1998, made by TWC in favor of Castle Associates L.P. ("Castle") and
Colchester LLC ("Investor") and the other Indemnified Persons and Guaranteed
Parties listed therein, as amended, and related transaction documents.
5. Liens granted in connection with the Loan Agreement dated as of March 17,
1998 Pine Needle LNG Company, LLC among Pine Needle LNG Company, LLC and Central
Commercial Lending Institutions as the Lenders and Bank of Montreal as the agent
for the Lenders, and related transaction documents.
6. Liens granted in connection with the Finance Agreement among WilPro Energy
Services (El Furrial) Limited, Overseas Private Investment Corporation dated as
of January 31, 1999, and related transaction documents.
7. Liens granted in connection with the Letter of Credit and Reimbursement
Agreement dated as of May 15, 1994, among Tulsa Parking Authority, The Xxxxxxxx
Companies, Inc., Bank of Oklahoma, National Association and Bank of America
(f/k/a NationsBank of Texas, N.A.), as amended, and related transaction
documents.
8. Liens granted in connection with the Loan Agreement dated as of March 31,
1988 between Pan-Alberta Resources Inc. and Canadian Imperial Bank of Commerce,
as amended, and related transaction documents.
9. Liens granted in connection with the Turbine Financing and Agency Agreement,
dated as of April 16, 2002, among Union Bank of California, N.A., WEMT Equipment
Statutory Trust 2002, Union Bank of California, N.A., as administrative agent,
and Xxxxxxxx Energy Marketing & Trading Company, and related transaction
documents.
10. Liens granted in connection with the Amended and Restated LLC Loan
Agreement, dated as of June 9, 2000, among Millennium Energy Fund, L.L.C. and
MEF Production Payment Trust, as amended, the Amended and Restated Notes Credit
Agreement dated as of June 9, 2000 among MEF Production Payment Trust as the
Borrower, certain financial institutions, Credit Lyonnais as Syndication Agent,
and Bank of Montreal, as Agent, and the Transaction Documents (as defined
therein) related thereto.
SCHEDULE X
MIDSTREAM SUBSIDIARIES
Delaware
--------
Xxxxxxxx Energy Services, LLC
Xxxxxxxx Natural Gas Liquids, Inc.
Xxxxxxxx Midstream Natural Gas Liquids, Inc.
Xxxxxxxx Express, Inc. (a Delaware corporation)
Xxxxxxxx Field Services Group, Inc.
Xxxxxxxx Alaska Pipeline Company, L.L.C.
Xxxxxxxx Bio-Energy, L.L.C.
Xxxxxxxx Merchant Services Company, Inc.
MAPCO Inc.
WFS Enterprises, Inc.
WFS-Liquids Company
Xxxxxxxx Field Services Company
Xxxxxxxx Gas Processing Company
Xxxxxxxx Gas Processing - Wamsutter Company
North Padre Island Spindown, Inc.
Xxxxxxxx Ethanol Services, Inc.
Xxxxxxxx Energy Marketing & Trading Company
Worthington Generation, L.L.C.
Memphis Generation, L.L.C.
Gas Supply, L.L.C.
Xxxxxxxx Generation Company - Xxxxxxxx
Xxxxxx Pipeline Company
MAPL Investments, Inc.
Xxxxxxxx Refining & Marketing, L.L.C.
Xxxxxxxx Memphis Terminal, Inc.
Xxxxxxxx Mid-South Pipelines, L.L.C.
Xxxxxxxx Olefins, L.L.C.
Xxxxxxxx Olefins Feedstock Pipelines, L.L.C.
Xxxxxxxx Generating Memphis, LLC
WFS - NGL Pipeline Company Inc.
WFS - Offshore Gathering Company
Baton Rouge Fractionators, L.L.C.
Tri-States NGL Pipeline, L.L.C.
WILPRISE Pipeline Company, L.L.C.
Xxxxxxxx Gulf Coast Gathering Company, LLC
WFS Gathering Company, L.L.C.
Xxxxxxxx Field Services - Matagorda Offshore Company, LLC
Xxxxxxxx Gas Processing - Mid-Continent Region Company
WFS - OCS Gathering Co.
WFS - Pipeline Company
HI-BOL Pipeline Company
Xxxxxx Gathering Company, L.L.C.
Xxxxxxxx Petroleum Pipeline Systems, Inc.
Xxxxxxxx XX LLC*
Xxxxxxxx Oil Gathering, L.L.C
Xxxxxxxx Field Services - Gulf Coast Company, L.P.
Gulf Liquids Holdings, L.L.C.**
Gulf Liquids New River Project, LLC**
Xxxxxxxx Petroleum Services, LLC
Longhorn Enterprises of Texas, Inc.
E-Birchtree, LLC
Alaska
------
Xxxxxxxx Express, Inc. (an Alaska corporation)
Xxxxxxxx Alaska Petroleum, Inc.
Xxxxxxxx Alaska Air Cargo Properties, L.L.C.
Xxxxxxxx Lynxs Alaska CargoPort, L.L.C.
Texas
-----
Black Marlin Pipeline Company
Rio Grande Pipeline Company
Kansas
------
Nebraska Energy, L.L.C.
* Xxxxxxxx XX LLC shall not be deemed a Midstream Subsidiary until
Xxxxxxxx XX LLC has transferred the general partnership interests and
incentive distribution rights in MLP to New GP.
** These entities shall be Midstream Subsidiaries to the extent that such
entities are Subsidiaries.
SCHEDULE XI
PROGENY FACILITIES
Parent Support Agreement dated as of December 23, 1998, made by The Xxxxxxxx
Companies, Inc. in favor of Castle Associates L.P., Colchester LLC and the other
Indemnified Persons and Guaranteed Parties listed therein, as amended.
Notwithstanding anything herein to the contrary, for purposes of Section 2.3(b)
of this Agreement, the outstanding amount of this Progeny Facility shall equal
the outstanding Unrecovered Capital (as defined in the Castle Partnership
Agreement) of the Limited Partner (as defined in the Castle Partnership
Agreement) plus accrued and undistributed First Priority Return (as defined in
the Castle Partnership Agreement) to be distributed to the Limited Partner in
accordance with Section 4.01(a) of the Castle Partnership Agreement plus all
other amounts then due and payable to the Limited Partner.
First Amended and Restated Term Loan Agreement dated as of October 31, 2002,
among The Xxxxxxxx Companies, Inc., as Borrower, and Credit Lyonnais New York
Branch, as Administrative Agent, and the Lenders named therein, as amended.
Second Amended and Restated Participation Agreement dated as of January 28, 2002
among Xxxxxxxx Oil Gathering, L.L.C., a Delaware limited liability company, as
Lessee, Xxxxxxxx Field Services Company, a Delaware corporation, as Construction
Agent, The Xxxxxxxx Companies, Inc., a Delaware corporation, as Guarantor, Xxxxx
Fargo Bank Northwest, National Association (formerly known as First Security
Bank, National Association), as Certificate Trustee, Xxxxx Fargo Bank Nevada,
N.A. (successor by merger to First Security Trust Company of Nevada), as
Collateral Agent, the financial institutions named therein as Certificate
Holders, Hatteras Funding Corporation, a Delaware corporation, as CP Lender, the
financial institutions named therein as the Facility Lenders and Purchasers,
Bank of America, National Association, as Administrative Agent and Administrator
for the CP Lender, Banc of America Facilities Leasing, L.L.C., as Arranger, Bank
of Nova Scotia, as Syndication Agent, and Credit Agricole Indosuez, as
Documentation Agent, as amended.
Second Amended and Restated Participation Agreement dated as of January 28, 2002
among Xxxxxxxx Field Services - Gulf Coast Company, L.P., a Delaware limited
partnership, as Lessee, Xxxxxxxx Field Services Company, a Delaware corporation,
as Construction Agent, The Xxxxxxxx Companies, Inc., a Delaware corporation, as
Guarantor, Xxxxx Fargo Bank Northwest, National Association (formerly known as
First Security Bank, National Association), as Certificate Trustee, Xxxxx Fargo
Bank Nevada, N.A. (successor by merger to First Security Trust Company of
Nevada), as Collateral Agent, the financial institutions named therein as
Certificate Holders, Hatteras Funding Corporation, a Delaware corporation, as CP
Lender, the financial institutions named therein as the Facility Lenders and
Purchasers, Bank of America, National Association, as Administrative Agent and
Administrator for the CP Lender, Banc of America Facilities Leasing, L.L.C., as
Arranger, Bank of Nova Scotia, as Syndication Agent, and Credit Agricole
Indosuez, as Documentation Agent, as amended.
Term Loan Agreement dated as of January 29, 1999, among The Xxxxxxxx Companies,
Inc., as Borrower, and The Fuji Bank, Limited, as Administrative Agent, and the
Banks named therein, as amended.
Joint Venture Sponsor Agreement dated as of December 28, 2000, among The
Xxxxxxxx Companies, Inc., as Sponsor and Xxxxxxxx Field Services Company, in
favor of Prairie Wolf Investors, L.L.C., Arctic Fox Assets, L.L.C., Xxxxxxxx
Energy (Canada), Inc. and the other Indemnified Persons listed therein, as
amended.
Letter of Credit and Reimbursement Agreement dated as of May 15, 1994, among
Tulsa Parking Authority, The Xxxxxxxx Companies, Inc., Bank of Oklahoma,
National Association, and Bank of America, N.A. (formerly NationsBank of Texas,
N.A.), relative to Tulsa Parking Authority First Mortgage Revenue Bonds, as
amended.
Master Agreement dated as of March 6, 2000, among The Xxxxxxxx Companies, Inc.,
as Guarantor, Xxxxxxxx TravelCenters, Inc. and certain other subsidiaries of
TWC, as Lessees, Atlantic Financial Group, Ltd., as Lessor, SunTrust Bank, as
Agent, Societe Generale, Southwest Agency, as Documentation Agent, and KBC Bank,
N.V., as Syndication Agent and the Lenders party thereto, as amended.
PPH Sponsor Agreement dated as of December 31, 2001, by The Xxxxxxxx Companies,
Inc., as Sponsor, in favor of Piceance Production Holdings LLC, Plowshare
Investors LLC, and other Indemnified Persons listed in the agreement, as
amended. Notwithstanding anything herein to the contrary, for purposes of
Section 2.3(b) of this Agreement, the outstanding amount of this Progeny
Facility shall equal the outstanding Contributed Capital of the Class B
Preferred Member (each as defined in the PPH Company Agreement) plus the accrued
and unpaid Class B Priority Return (as defined in the PPH Company Agreement)
plus all other amounts then due and payable to the Class B Preferred Member.
Amended and Restated LLC Loan Agreement, dated as of June 9, 2000, among
Millennium Energy Fund, L.L.C. and MEF Production Payment Trust, as amended, the
Amended and Restated Notes Credit Agreement dated as of June 9, 2000 among MEF
Production Payment Trust as the Borrower, certain financial institutions, Credit
Lyonnais as Syndication Agent, and Bank of Montreal, as Agent, and the
Transaction Documents (as defined therein) related thereto.
Outstanding letters of credit as of July 31, 2002 (as set forth on Schedule
XIII) to the extent they have not been fully cash collateralized.
All documents, instruments, agreements, certificates and notices at any time
executed and/or delivered in connection with any of the foregoing.
SCHEDULE XII
POST-CLOSING ITEMS
1. Consents. The Borrower shall use its best efforts to obtain those
third party consents that have been identified by the Borrower (pursuant to a
written schedule delivered in connection with the execution of this Agreement)
as necessary in connection with the execution, delivery, filing and performance
of certain Mortgages.
2. Legal Opinions. The Agent shall have received, with a counterpart
for each Issuing Bank, the executed legal opinions of local counsel to the
Agents in such states as requested by Agent which such legal opinions shall
cover such matters incident to the perfection of the Liens and the other
transactions contemplated by this Agreement as the Agent may reasonably require.
TO BE DELIVERED 30 DAYS AFTER THE REQUEST THEREFOR BY THE AGENT.
3. Actions to Perfect Liens. The Agent shall have received properly
completed and executed financing statements (or other similar documents),
including, without limitation, duly executed financing statements on form UCC-1,
necessary or, in the opinion of the Collateral Agent, desirable to perfect the
Liens created by the Security Documents, and the Collateral Agent shall be
reasonably satisfied that, other than filing such financing statements and other
similar documents and the Mortgages, no other filings, recordings, registrations
or other actions are necessary or, in the opinion of the Collateral Agent,
desirable to perfect the Liens created by the Security Documents. TO BE
COMPLETED 15 DAYS AFTER THE REQUEST THEREFOR BY THE AGENT.
4. Surveys. At the request of the Agent, the Agent shall have received
boundary line surveys of (i) the property leased by the Borrower and the
Midstream Subsidiaries located in the States of Alaska, Arkansas, Colorado, New
Mexico, Tennessee and Wyoming, and (ii) the real property owned by Borrower and
the Midstream Subsidiaries located in the States of Alaska, Arkansas, Colorado,
New Mexico, Tennessee and Wyoming, other than the Gathering Systems which
boundary line surveys shall in each case be (A) dated a date reasonably close to
the date of this Agreement (as determined by the Agent), (B) prepared by an
independent professional licensed land surveyor reasonably satisfactory to the
Agent, (C) prepared in a manner reasonably acceptable to the Agent and (D) shall
reflect that the buildings, structures and other improvements necessary for the
ownership and operation of the processing plants purported to be located on the
property surveyed do not protrude on any adjoining property nor do any
improvements located on land adjacent to the property surveyed encroach upon the
property surveyed, which encroachments or protrusions in either case could
reasonably be expected to adversely affect the ability of the Borrower or the
Midstream Subsidiaries to own, maintain, operate or sell the property surveyed
and/or the improvements located thereon. The Agent shall have received a
certificate of an authorized officer of the Borrower certifying said
boundary line surveys are true and correct as of the date of this Agreement. TO
BE COMPLETED 60 DAYS AFTER REQUEST BY THE AGENT THEREFOR.
5. Flood Insurance. If requested by the Agent, the Agent shall have
received a policy of flood insurance in form and substance satisfactory to the
Agent. TO BE COMPLETED 60 DAYS AFTER REQUEST BY THE AGENT THEREFOR.
6. Copies of Documents. If requested by the Agent, the Agent shall
have received a copy, certified by such parties as the Agent may deem
appropriate, of any document burdening the property covered by any Mortgage. TO
BE COMPLETED 30 DAYS AFTER REQUEST BY THE AGENT THEREFOR.
7. Lien Searches. The Agent shall have received the results of recent
lien searches by Persons reasonably satisfactory to the Agent, in each of the
jurisdictions and offices where assets of the Borrower or any of the Midstream
Subsidiaries are located or recorded, and such searches shall reveal no Liens on
any assets of the Borrower or any such Subsidiary, except for (i) Liens
permitted by this Agreement and (ii) Liens to be released or assigned to the
Agent, for the ratable benefit of the Banks, on the date of this Agreement in
connection with the execution, delivery and performance of the Credit Documents.
TO BE COMPLETED ON OR BEFORE NOVEMBER 15, 2002.
8. Insurance. The Agent shall have received (i) copies of, or an
insurance broker's or agent's certificate as to coverage under, the insurance
policies required by this Agreement and the applicable provisions of the
Security Documents, each of which policies shall be endorsed or otherwise
amended to include a "standard" or "New York" lender's loss payable endorsement
and to name the Collateral Agent as additional insured, in form and substance
satisfactory to the Collateral Agent and (ii) confirmation from such insurance
broker that the scope and amount of coverage maintained by the Borrower and its
Subsidiaries are comparable to the scope and amount of the insurance maintained
by other companies of similar size in the same industry and general location. TO
BE COMPLETED ON OR BEFORE NOVEMBER 15, 2002.
9. Environmental Reports. If requested by the Agent, the Agent shall
have received environmental assessment reports from E.vironment, Inc. with
respect to processing, refining and other facilities and other parcels of real
property owned or leased by the Borrower and the Midstream Subsidiaries, and the
Issuing Banks shall be reasonably satisfied with the potential environmental
liabilities to which the Borrower and its Subsidiaries may be subject based on
such reports. TO BE COMPLETED 60 DAYS AFTER THE REQUEST THEREFOR BY THE AGENT.
10. Title Vested in Borrower. The Agent and the Issuing Banks shall be
reasonably satisfied that all filings and other actions required to be taken or
made in order to vest title to all of the Properties of the Borrower and the
Midstream Subsidiaries shall have been
taken or made and are in full force and effect. TO BE COMPLETED 60 DAYS AFTER
THE REQUEST THEREFOR BY THE AGENT.
11. Mortgages. The Borrower shall deliver to the Collateral Agent,
within fifteen Business Days of the delivery of any Mortgage to the Borrower
(or, with respect to Mortgages to be filed in Kansas, as promptly as possible
using its best efforts), evidence of such recordings and filings as may be
necessary, in the opinion of the Collateral Agent, to perfect the Liens created
by such Mortgage. Upon the request of Collateral Agent, the Borrower shall
provide all assistance as may be necessary in connection with the preparation of
the Mortgages.
12. Consents to the Pledging of Excluded Equity Interest. The Borrower
shall use its best efforts to obtain all third party consents necessary to
pledge the Excluded Equity Interests (other than the Equity Interest in the
Restricted Midstream Subsidiaries and the Equity Interest of MLP held by NewGP)
pursuant to the Pledge Agreement. TO BE REQUESTED WITHIN 30 DAYS AFTER THE DATE
OF THIS AGREEMENT AND TO BE PURSUED DILIGENTLY THEREAFTER.
13. Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be satisfactory in form and substance to the Agent, and the Agent shall have
received such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
14. Additional Legal Opinions. The Agent shall have received, with a
counterpart for each Issuing Bank under the L/C Agreement, executed legal
opinions which confirm that the Mortgages and deeds of trust filed with respect
to the Collateral shall continue to constitute valid, enforceable, and duly
recorded liens on the real property following the amendment and restatement of
the Existing Credit Agreement and of the Multiyear Xxxxxxxx Agreement, securing
the obligations of such agreements as amended. To the extent that any
supplemental deed of trust or mortgage filings are required in connection with
the above described legal opinions, the Agent shall have received evidence of
such recordings and filings as may be necessary, in the opinion of the
Collateral Agent, to ensure the continued perfection of the Liens created by any
such Mortgage. IN EACH CASE, TO BE COMPLETED 30 DAYS AFTER THE DATE OF THIS
AGREEMENT.
15. Approvals of and Consents to Assignments. In connection with the
termination of (a) the Amended and Restated Guarantee, dated as of July 25,
2000, issued by TWC for the benefit of The Commonwealth Plan, Inc. and CBL
Capital Corporation, as amended, (b) the Lease Agreement, dated as of December
29, 1995, between The Commonwealth Plan, Inc., as Lessor, and WFS - Pipeline
Company, as Lessee, and (c) the Lease Agreement, dated as of December 29, 1995,
between CBL Capital Corporation, as Lessor, and WFS - Offshore Gathering
Company, as Lessee, TWC and either WFS - Offshore
Gathering Company or WFS - Pipeline Company, as applicable, shall use their best
efforts to obtain (i) the approval of the United States Department of the
Interior, Minerals Management Service to the assignment of certain easements to
WFS - Offshore Gathering Company by CBL Capital Corporation and (ii) the
consents of third parties necessary to the assignments of any leases and/or
easements by CBL Capital Corporation to WFS - Offshore Gathering Company or by
The Commonwealth Plan, Inc. to WFS - Pipeline Company. TO BE COMPLETED ONE YEAR
AFTER THE DATE OF THIS AGREEMENT.
SCHEDULE XIII
OUTSTANDING LETTERS OF CREDIT
SCHEDULE XIV
PERMITTED DISPOSITIONS
1. Apco Argentina
o Apco Argentina, Inc.
o Apco Properties Ltd. (100%)
o Petrolera Xxxxx Companc S.A. (33.6%- Currently in process of
purchasing an additional 5.5%)
2. Energy International
o Energy International Corporation (owns "Gas to Liquids" technology).
3. Discovery
x Xxxxxxxx Energy, L.L.C. owns a 50% interest in Discovery Producer
Services LLC (unregulated) which in turn is the sole member of
Discovery Gas Transmission LLC (regulated).
4. Southern Ute (Collateral)
x Xxxxxxxx Field Services Company's interest in natural gas pipeline
gathering systems totaling approximately 91 miles of pipeline in La
Plata County, Colorado, together with all associated real property
interests, shipper contracts, and governmental permits, licenses,
orders, approvals, certificates of occupancy and other authorizations.
5. Dry Trail CO2 Recovery Plant (Collateral)
x Xxxxxxxx Field Services Company owns and operates a 50 MMcfd CO2
recovery plant in Texas County, Oklahoma located on 26 acres near the
town of Hough, Oklahoma to remove and recycle CO2 at ExxonMobil's
Xxxxxx field enhanced oil recovery project.
6. Aux Sable and Alliance Canada Marketing X.X.
x Xxxxxxxx Alliance Canada Marketing Inc. has a 14.604% interest in
Alliance Canada Marketing Ltd. which owns a 1% interest in and is the
general partner of Alliance Canada Marketing L.P. (the "Alliance LP").
Xxxxxxxx Alliance Canada Marketing Inc. also owns a 14.604% limited
partnership interest in the remaining 99% of the Alliance LP.
x Xxxxxxxx Natural Gas Liquids Canada, Inc. has a 14.604% interest in
Aux Sable Canada Ltd. which owns a 1% interest in and is the general
partner of Aux Sable Canada LP (the "Canada LP"). Xxxxxxxx Natural Gas
Liquids Canada, Inc. also owns a 14.604% limited partnership interest
in the remaining 99% of the Canada LP.
x Xxxxxxxx Natural Gas Liquids, Inc. has a 14.604% interest in Aux Sable
Liquid Products Inc. which owns a 1% interest in and is the managing
general partner of Aux Sable Liquid Products LP (the "Liquid LP").
Xxxxxxxx Natural Gas Liquids, Inc. also owns a 14.604% limited
partnership interest in the remaining 99% of the Liquid LP.
7. Deepwater
o Devil's Tower
The Devil's Tower floating production facility currently under
construction that will be located on block 773 of Mississippi Canyon.
The oil and gas export pipelines attached to the Devil's Tower Spar
known as Canyon Chief and Mountaineer and associated pumps,
compressors, platforms and other equipment.
o Gunnison
The oil pipeline known as the Alpine Pipeline that begins at the
Gunnison discovery and terminates at the platform located at GA 244.
o Canyon Station
The Canyon Station fixed leg platform located at Main Pass block 261
which processes oil and gas production from deepwater xxxxx located in
Mississippi Canyon.
o Equity of the Deepwater JV.
o Collectively, the property referred to in this Item 8; shall be
referred to as the "Deepwater Assets"; provided that, for
clarification, such assets are not subject to the Deepwater
Transactions so long as such Deepwater Transactions are in full force
and effect.
8. Gulf Liquids
o Gulf Liquids New River Project, LLC and its assets. Gulf Liquids New
River Project, LLC is 90% owned by Gulf Liquids Holdings, LLC, which
is 100% owned by EM&T.
9. EM&T (Collateral)
o Equity Interest in Xxxxxxxx Energy Marketing & Trading Company.
10. Worthington Generation, L.L.C. (Collateral)
o Equity Interests and assets of Worthington Generation, L.L.C.
11. Xxxxxxxx Generation Company-Xxxxxxxx (Collateral)
o Equity Interests and assets of Xxxxxxxx Generation Company-Hazelton.
12. Xxxxxxxx Energy (Canada), Inc. and its Subsidiaries
o Equity Interests and assets of Xxxxxxx Energy (Canada), Inc. and its
Subsidiaries.
13. Those certain gathering and related assets owned by Xxxxxx Gathering
Company, L.L.C. and WFS Gathering Company, L.L.C. subject to purchase and
sale agreements with Enbridge Pipelines (Texas Gathering) Inc. dated
October 10, 2001 for a purchase price of approximately $9,000,000.
(Collateral)
14. Property received from any sale, transfer or other disposition of
Collateral made pursuant to Section 5.2(e). (Collateral)
15. Mapco Office Building. (Collateral)
16. For the avoidance of doubt, the disposition or redemption of the Class B
Units in MLP shall not be a Permitted Disposition.
17. Interests in joint development arrangements existing on July 31, 2002 by
Xxxxxxxx Energy Marketing & Trading Company, which are transferred as a
result of Xxxxxxxx Energy Marketing & Trading Company's decision not to
continue funding.
SCHEDULE XV
ADDITIONAL PUBLIC FILING
1. Consolidated Amended Complaint, In Re Xxxxxxxx Securities Litigation, Case
No. 02-CV-72-H(M) in the United States District Court for the Northern
District of Oklahoma.
SCHEDULE XVI
STORAGE LEASE
On July 18, 2001 Xxxxxxxx Midstream Natural Gas Liquids, Inc. ("WMNGL"), as
sublessor, and Liberty Gas Storage LLC ("Liberty"), as sublessee, entered into a
sublease agreement whereby, upon satisfaction of certain conditions precedent by
the sublessee, WMNGL would sublease certain sulphur mines located in Calcasieu,
Louisiana to Liberty for the development of natural gas storage facilities.
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (this
"Agreement"), is dated as of ____________ , 2002, by and between LIBERTY GAS
STORAGE PARTNERS, L.P., a Delaware limited partnership ("Liberty"), and
CITIBANK, N.A., as collateral agent (the "Agent") for certain lenders (the
"Lenders") described below.
RECITALS
A. WHEREAS, Liberty is the sublessee (by assignment from Liberty Gas
Storage LLC, a Delaware limited liability company) under the Sublease Agreement
dated July 18, 2001 (the "Sublease"), with XXXXXXXX MIDSTREAM NATURAL GAS
LIQUIDS, INC., a Delaware corporation ("Xxxxxxxx"), as sublessor. The Sublease
covers a portion of certain lands, including pipeline corridors and access
rights of way, as well as certain salt caverns located thereon and associated
equipment, insofar and only insofar as same affect the following described
property situated in the Parish of Calcasieu, Louisiana:
[Part of Sections 17, 20, 29, 32, Township 9 South, Range 10
West, and more particularly described on Exhibit A-1, and
shown on Exhibit A-5 attached hereto and made a part hereof.]
[verify]
The term "Liberty Leased Assets" shall mean such property subleased by Xxxxxxxx
to Liberty, as described and defined in the Sublease.
B. The subleasehold estate created by the Sublease is a portion of the
leasehold estate created by the Lease Agreement dated January 1, 1991 (the
"Burlington Lease") between Union Texas Petroleum Corporation and Union Texas
Products Corporation, recorded in Conveyance Book 2235, page 260, under Clerk's
File Xx. 0000000, xx Xxxxxxxxx Xxxxxx, Xxxxxxxxx. By various intermediate
conveyances, the current lessor under the Burlington Lease is Burlington
Resources Corporation [verify] and the current lessee under the Burlington Lease
is Xxxxxxxx.
X. Xxxxxxxx has granted a mortgage dated __________, 2002 (the
"Mortgage") recorded in Mortgage Book ___ , Page ___ , under Clerk File No. ___
, in Calcasieu Parish, Louisiana, encumbering the leasehold estate and other
rights of Xxxxxxxx under the Burlington Lease to the Agent, for the benefit of
the Lenders from time to time parties ______________________ [INSERT description
of loan].
D. WHEREAS, Liberty has requested that the Agent agree not to disturb
Liberty's possessory rights in the Liberty Leased Assets in the event the Agent
should foreclose on the Mortgage, provided the Sublease is then in full force
and effect and provided further that Liberty attorns to the Agent or the
purchaser at any foreclosure sale of the leasehold estate under the Burlington
Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, Liberty and Agent
hereby agree as follows:
Section 1. Subordination. Subject to the express terms of this
Agreement, Liberty agrees that the Sublease, as the same may be modified,
amended or extended, and the subleasehold estate created thereby, and all of the
rights, remedies and options of Liberty thereunder, are and shall at all times
continue to be subject and subordinate in all respects to the Mortgage and the
lien thereof, and to all rights of Agent thereunder, including, without
limitation, all renewals, increases, modifications, consolidations and
extensions thereof.
Section 2. Non-Disturbance. Agent agrees that if any action or
proceeding is commenced by Agent for the foreclosure of the Mortgage and the
seizure and sale of the Liberty Leased Assets as part of the leasehold estate
under the Burlington Lease, or if Agent acquires the Liberty Leased Assets,
whether through foreclosure or deed in lieu of foreclosure (or dation en
paiement), Agent shall maintain Liberty in possession under the terms of the
Sublease, provided that at such time the Sublease shall be in full force and
effect and shall not have expired or been terminated.
Section 3. Attornment. Liberty agrees that if the Agent, any of the
Lenders or a purchaser at a sheriff's sale (each a "Transferee") shall become
the owner of the Liberty Leased Assets by reason of the foreclosure of the
Mortgage or the acceptance of a deed in lieu of foreclosure (or dation en
paiement) (a "Transfer Event"), and provided that at such time the Sublease
shall be in full force and effect and shall not have expired or been terminated,
the Sublease shall not be terminated or affected thereby, but shall continue in
full force and effect as a direct sublease between Liberty and such Transferee
upon all the terms, covenants and conditions set forth in the Sublease. Upon
such a Transfer Event, Liberty agrees to attorn to such Transferee as sublessor
under the Sublease, and to be bound by and perform all of the obligations
imposed by the Sublease on the sublessee thereunder. Also, upon such a Transfer
Event, the Transferee will be bound by all of the obligations imposed by the
Sublease on the sublessor; provided, however, that such Transferee shall not be:
(i) liable for any act or omission of Xxxxxxxx, provided that the foregoing
shall not be deemed to relieve such Transferee from the obligation to perform
any obligation of the sublessor under the Sublease which obligation (a) remains
unperformed at the time that such Transferee succeeds to the interest of
sublessor under the Sublease and (b) is made known to Transferee and Transferee
is provided notice and given the same opportunity to cure as afforded Xxxxxxxx
under the Sublease; or (ii) bound by any rent which Liberty might have paid
under the Sublease for more than one month in advance, unless actually received
by such Transferee; or (iii) bound by any amendment or modification of the
Sublease that could have a material adverse affect on Agent's rights as a
secured party; or (iv) subject to any offsets or defenses that Liberty might
have against Xxxxxxxx (or any prior sublessor, if applicable) unless Transferee
has been given written notice thereof and the same opportunity to cure as
afforded Xxxxxxxx under the Sublease.
Section 4. Covenants of Liberty. Liberty covenants and agrees that
contemporaneously with any written notice sent by Liberty to Xxxxxxxx of a
default by Xxxxxxxx under the Sublease, Liberty shall contemporaneously send a
copy of such default notice to the Agent.
Section 5. Disclaimer by Agent. Notwithstanding any of the provisions
hereof, Agent shall have no obligation in favor of Liberty to perform any term,
covenant or condition contained in the Sublease, unless and until Agent acquires
ownership of the Liberty Leased Assets through foreclosure, deed in lieu of
foreclosure (or dation en paiement) or otherwise.
Section 6. New Lease. Upon the written request of either Liberty or a
Transferee to the other given within thirty (30) days after any Transfer Event,
Liberty and such Transferee shall execute a new sublease of the Liberty Leased
Assets upon the same terms and conditions as the Sublease, which new sublease
shall cover any unexpired term of the Sublease existing prior to such Transfer
Event.
Section 7. Notices. Any notice or other communication required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as properly dispatched if delivered in person, sent by a
nationally recognized overnight courier (fee prepaid), mailed by certified mail
(postage prepaid return receipt requested), or transmitted by telecopier to the
address as set forth below. The following are the addresses of the parties:
LIBERTY:
Liberty Gas Storage Partners, L.P.
0000 XxxxxXxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: ____________________
Facsimile: (000) 000-0000
AGENT:
Citibank, N. A.
Collateral Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
telecopier number: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
with a copy to:
Citicorp North America, Inc.,
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
telecopier number: (000) 000-0000)
Attention: The Xxxxxxxx Companies, Inc. Account Officer
Section 8. Amendment. Neither this Agreement nor any provisions hereof
may be changed, waived, discharged or terminated orally or in any manner other
than by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
SECTION 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF LOUISIANA, EXCLUDING THE
LOUISIANA LAW OF CONFLICTS.
Section 10. Successors. This Agreement shall inure to the benefit of
the parties hereto and their respective successors and assigns.
Section 11. Counterparts. This Agreement may be executed in two or
more counterparts, and it shall not be necessary that the signatures of all
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Executed by the duly authorized representatives of Liberty and the
Agent as of the date hereinabove first written.
LIBERTY GAS STORAGE
By:
-----------------------------------'
Its:
-------------------------------
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
CITIBANK, as Collateral Agent
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
STATE OF TEXAS
COUNTY OF __________
BEFORE ME, the undersigned Notary Public duly commissioned qualified
and sworn within and for the State and County written above, personally came and
appeared _________________________, to me personally known, and who being by me
duly sworn, did say that he is the authorized _____________________________ of
__________________________, the _____________________ of LIBERTY GAS STORAGE
______________________, whose name is subscribed to the foregoing Subordination,
Non-Disturbance and Attornment Agreement, and that he executed the foregoing
Subordination, Non-Disturbance and Attornment Agreement by authority of said
company's __________________ on behalf of said company as its free act and deed.
THUS DONE AND SIGNED before me and the two undersigned witnesses
in the County and State aforesaid, on this ___ day of [___________], 2002.
Witness my hand and official seal.
WITNESSES:
------------------------------------- -------------------------------------
Name: Name:
-------------------------------- --------------------------------
-------------------------------------
Name:
--------------------------------
-------------------------------------
NOTARY PUBLIC
Seal
My Commission expires:
STATE OF NEW YORK
COUNTY OF NEW YORK
BEFORE ME, the undersigned Notary Public duly commissioned qualified
and sworn within and for the State and County written above, personally came and
appeared _______________, to me personally known, and who being by me duly
sworn, did say that he is the authorized ____________ of CITIBANK, N.A., as
Collateral Agent, whose name is subscribed to the foregoing Subordination,
Non-Disturbance and Attornment Agreement, and that he executed the foregoing
Subordination, Non-Disturbance and Attornment Agreement by authority of said
company's __________________ on behalf of said company as its free act and deed.
THUS DONE AND SIGNED before me and the two undersigned witnesses in the County
and State aforesaid, on this ___ day of [___________], 2002. Witness my hand and
official seal.
WITNESSES:
------------------------------------- -------------------------------------
Name: Name:
-------------------------------- --------------------------------
-------------------------------------
Name:
--------------------------------
-------------------------------------
NOTARY PUBLIC
Seal
My Commission expires:
EXHIBIT A-1
[Attach legal description from Sublease]
EXHIBIT A
TO
CREDIT AGREEMENT
OPINION OF XXXXXXX X. XXX XXXXX
EXHIBIT B-1
TO
CREDIT AGREEMENT
OPINION OF NEW YORK COUNSEL
(ENFORCEABILITY)
EXHIBIT B-2
TO
CREDIT AGREEMENT
OPINION OF NEW YORK COUNSEL
(PERFECTION)
EXHIBIT C
TO
CREDIT AGREEMENT
EXISTING LOANS AND INVESTMENTS IN WCG SUBSIDIARIES
TWC CONTINUING CONTRACTS TO WHICH WCG IS A PARTY
AGREEMENT DATE PARTIES
--------- ---- -------
Amended and Restated Administrative Services Agreement
but excluding all Service Level Agreements included therein
other than those listed below
Amended and Restated Administrative Services Agreement
- Cafeteria Card (SLA No. ASF-11)
Amended and Restated Administrative Services Agreement
- Catering Services (SLA No. ASF-3) 23-Apr-01 TWC and WCG
Amended and Restated Administrative Services Agreement
- Data Center Floor Space (SLA No. IT-23)
Amended and Restated Administrative Services Agreement
- Security System Administration (SLA No. ASR-2)
Amended and Restated Administrative Services Agreement
- Telecommunications Support (PBX) (SLA No. IT-19)
Amended and Restated Administrative Services Agreement
- Xxxxxx Clinic (SLA No. HR-17)
Amended and Restated Administrative Services Agreement
- Records Management (Revised) (SLA No. ASF-9)
Amended and Restated Confidentiality and Nondisclosure
Agreement 1-Feb-02 TWC and WCG
Amended and Restated Cross-License Agreement 23-Apr-01 TWC and WCG
Amended and Restated Employee Benefits Agreement 23-Apr-01 TWC and WCG
Amended and Restated Separation Agreement 23-Apr-01 TWC and WCG
Amendment of State of Oklahoma OIC Agreement 23-Apr-01 TWC and WCG
ITWill Assignment and Assumption Agreement 23-Apr-01 TWC and WCG
Mutual Waiver, dated April 23, 2001 23-Apr-01 TWC and WCG
Professional Services Agreement 23-Apr-01 TWC, WCG, The Xxxxxxxx Group, LLP
Relocation Services Agreement 2-Jan-02 Xxxxxxxx Relocation Management, Inc.
(a TWC subsidiary) and WCG
Restructuring Support Agreement 23-Feb-02 TWC and WCG
Shareholder Agreement 23-Apr-01 TWC and WCG
Trademark License Agreement 23-Apr-01 TWC and WCG
Guaranty Indemnification 26-Jul-02 TWC and WCG Agreement
All agreements and exhibits related to or incorporated by the foregoing that were entered into to implement the transactions
contemplated thereby, e.g. Assignment and Assumption Agreements, Bills of Sale.
TWC CONTINUING CONTRACTS TO WHICH WCG IS A PARTY
AGREEMENT DATE PARTIES
--------- ---- -------
Agreement of Purchase and Sale and Construction 26-Feb-01 (as amended Xxxxxxxx Headquarters
Completion 13-Mar-01, 13-Apr-01, Building Company and WCL
13-Sep-01, 30-Apr-02)
Agreement to Terminate Aircraft Dry Lease - N352WC 27-Mar-02 Xxxxxxxx Aircraft Leasing, LLC
(a TWC subsidiary) and WCL
Aircraft Dry Lease - N358WC 13-Sep-01 Xxxxxxxx Communications Aircraft,
LLC (a TWC subsidiary) and WCL
Aircraft Dry Lease - N359WC 13-Sep-01 Xxxxxxxx Communications Aircraft,
LLC (a TWC subsidiary) and WCL
Bank of Oklahoma Tower Use Agreement 23-Apr-01 Xxxxxxxx Headquarters Building
Company and WCL
Central Plant Lease Agreement 23-Apr-01 (as amended Xxxxxxxx Headquarters Building
13-Sep-01) Company and Xxxxxxxx Technology
Center, LLC (a WCL subsidiary)
Construction, Operating and Maintenance Agreement 1-Jan-97 (as amended Transcontinental Gas Pipe Line
19-Feb-99) Corporation (a TWC subsidiary)
and WCL
Consulting Services Agreement 29-Oct-01 Xxxxxxxx Pipe Line Company
(a TWC subsidiary) and WCL
Co-Occupancy Agreement 18-Feb-99 Northwest Pipeline Corporation
(a TWC subsidiary) and WCL
Co-Occupancy Agreement 22-Feb-99 Xxxxxxxx Gas Pipelines Central, Inc.
(a TWC subsidiary) and WCL
Co-Occupancy Agreement 1-May-00 Xxxxxxxx Pipe Line Company
(a TWC subsidiary) and WCL
Co-Occupancy Agreement 5-Mar-99 (as amended Mid-America Pipeline Company
23-Apr-01) (a TWC subsidiary) and WCL
Co-Occupancy Agreement 5-Mar-99 (as amended Xxxxxxxx Field Services Company
23-Apr-01) (a TWC subsidiary) and WCL
Dark Fiber IRU Agreement 26-Feb-01 Transcontinental Gas Pipe Line
Corporation (a TWC Subsidiary)
and WCL
Fairfax Terminal Station Site Lease 26-Aug-96 Xxxxxxxx Pipe Line Company
(a TWC subsidiary) and WCL
First Amendment to Level 3 Sublease Agreement 1-Jan-99 (as amended TWC and WCL
31-Dec-00 and assigned
23-Apr-01)
2
AGREEMENT DATE PARTIES
--------- ---- -------
Lease Agreement 1-Jan-97 Xxxxxxxx Natural Gas Company (a TWC
subsidiary now known as Xxxxxxxx Gas
Pipelines Central, Inc.) and WCL
Lease Agreement 1-Sep-95 Transcontinental Gas Pipe Line
Corporation (a TWC subsidiary) and WCL
Lease Agreement 1-Mar-97 Texas Gas Transmission Corporation
and WCL
Management Services Agreement 23-Apr-01 (as amended Xxxxxxxx Headquarters Building Company
13-Sep-01) and Xxxxxxxx Technology Center, LLC
(a WCL subsidiary)
Master Agreement 23-Feb-99 (as amended Xxxxxxxx Pipe Line Company
23-Apr-01) (a TWC subsidiary) and WCL
Nondisclosure Agreement 29-Oct-01 TWC and WCL
Northwest Plaza Level Amended and Restated Lease 1-Jan-99 (as amended Original Amended and Restated Lease
Agreement 31-Dec-00) Agreement between Xxxxxxxx Headquarters
Building Company, Landlord, and WCL,
Tenant; amendment between TWC,
Sublessor, and WCG, Sublessee
Operation, Maintenance and Repair Agreement 19-Feb-99 (as amended Mid-America Pipeline Company, Northwest
31-Aug-99) Pipeline Corporation, Texas Gas
Transmission Corporation,
Transcontinental Gas Pipe Line
Corporation, Xxxxxxxx Field Services
Company, Xxxxxxxx Gas Pipelines Central,
Inc. and Xxxxxxxx Pipe Line Company and
WCL
Partial Assignment and Assumption Agreement 26-Feb-01 Xxxxxxxx Headquarters Building Company
and Xxxxxxxx Technology Center, LLC
(a WCL subsidiary)
Sale Agreement 14-Feb-97 Xxxxxxxx Pipe Line Company
(a TWC subsidiary) and WCL
Southwest Plaza Level Amended and Restated Lease 1-Jan-99 Xxxxxxxx Headquarters Building Company
Agreement and WCL
Sublease Agreement 1-May-00 Xxxxxxxx Pipe Line Company (a TWC
subsidiary) and WCG; WCG assigned its
rights to WCL on 2-Apr-02
Technical Services Agreement 1998 Spectrum Network Systems Limited (now
known as PowerTel Limited, a 45% WCG
subsidiary) and Xxxxxxxx International
Services Company (a TWC subsidiary)
Teleport Services Agreement 9-Oct-01 Xxxxxxxx Energy Marketing & Trading co.
(a TWC subsidiary) and WCL
The Depot Amended and Restated Lease Agreement 1-Jan-99 (as amended Xxxxxxxx Headquarters Building Company
31-Dec-00 and assigned and WCL
23-Apr-01)
TWC Corporate Guarantee 23-Apr-01 TWC guaranteed a TWC subsidiary in favor
of a WCL subsidiary
TWC Corporate Guarantee 23-Apr-01 TWC guaranteed a TWC subsidiary in favor
of a WCL subsidiary
3
AGREEMENT DATE PARTIES
--------- ---- -------
TWC Guaranty 23-Apr-01 TWC guaranteed a TWC subsidiary in favor
of a WCL subsidiary
User Agreement for Pipe 5-Mar-99 (as amended Xxxxxxxx Pipe Line Company
23-Apr-01) (a TWC subsidiary) and WCL
Utility Service Agreement 23-Apr-01 (as amended Xxxxxxxx Headquarters Building Company
13-Sep-01) and Xxxxxxxx Technology Center, LLC
(a WCL subsidiary)
Web Hosting and Streaming Services Agreement 2-Oct-00 Xxxxxxxx Energy Services, Inc.
(a TWC subsidiary) and WCL
Weld County Sublease Agreement 19-Apr-96 Xxxxxxxx Natural Gas Company
(a TWC subsidiary) and WCL
Declaration of Reciprocal Easements (as amended) 15-Oct-02 Xxxxxxxx Headquarters Building Company
and Xxxxxxxx Technology Center, LLC
Membership Unit Purchase Agreement 15-Oct-02 Xxxxxxxx Aircraft, Inc. and Xxxxxxxx
Communications, LLC
Real Estate Purchase Agreement 15-Jul-02 Xxxxxxxx Headquarters Building Company,
Xxxxxxxx Technology Center, LLC,
Xxxxxxxx Communications, LLC, Xxxxxxxx
Communications Group, Inc. and Xxxxxxxx
Aircraft Leasing, LLC
Reaffirmation and Cancellation Agreement 15-Oct-02 TWC, WCG and its Subsidiaries
All agreement and exhibits related to or incorporated by the foregoing that were entered into to implement the transactions
contemplated thereby, e.g. Assignment and Assumption Agreements, Bills of Sale.
4
EXHIBIT D
TO
CREDIT AGREEMENT
FORM OF TRANSFER AGREEMENT
Dated __________, 20__
Reference is made to the Amended and Restated Credit Agreement, dated
as of October 31, 2002 (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., as Borrower, Citicorp USA, Inc., as Agent and
Collateral Agent for the Banks, Bank of America N.A., as Syndication Agent, the
Banks and Issuing Banks parties thereto and Xxxxxxx Xxxxx Barney Inc., as
Arranger. 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 Borrower or any other Person or the performance or
observance by the Borrower or any other Person of any of its 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
5
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, the Collateral Agent, any Issuing Bank, the
Assignor, the Collateral Agent 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 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 and the Collateral 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.
6
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.
7
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.
---------
U.S. Dollar L/C Commitment interest assigned: $____________
Assignee's U.S. Dollar L/C Commitment before giving effect
to this Transfer Agreement: $____________
Assignee's U.S. Dollar L/C Commitment after giving effect to this
Transfer Agreement: $____________
Assignor's remaining U.S. Dollar L/C Commitment after
giving effect to this Transfer Agreement: $____________
Canadian Dollar L/C Commitment interest assigned: $____________
Assignee's Canadian Dollar L/C Commitment before giving effect
to this Transfer Agreement: $____________
Assignee's Canadian Dollar L/C Commitment after giving effect
to this Transfer Agreement: $____________
Assignor's remaining Canadian Dollar L/C 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 ______, _______
2
CITICORP USA, INC., as Agent
By:
-------------------------------------
Name:
Title:]
3
EXHIBIT E
TO
CREDIT AGREEMENT
FORM OF NOTICE OF LETTER OF CREDIT
[Date]
Citicorp USA, Inc., 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. (the "Borrower"), (a) refers to
that certain Credit Agreement, dated as of October 31, 2002 (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., as Borrower, Citicorp USA, Inc., as Agent and
Collateral Agent for the Banks, Bank of America N.A., as Syndication Agent, the
Banks and Issuing Banks parties thereto and Xxxxxxx Xxxxx Xxxxxx Inc., as
Arranger; (b) hereby gives you notice, irrevocably, pursuant to Section 2.10 of
the Credit Agreement that the undersigned hereby requests _____________ (the
"Issuing Bank") to issue an irrevocable standby 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 standby Letter of
Credit (the "Standby Letter of Credit") as required by Section 2.10 of the
Credit Agreement:
(i) The Business Day upon which the Standby Letter of Credit will be
issued is ______________, 20____ (the "Issuance Date").
(ii) The account party for the Standby Letter of Credit is the
_____________.
(iii) Attached hereto as Exhibit A are the proposed terms of the Standby
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 the following statements are
true on the date hereof, and will be true on the Issuance Date:
(a) the representations and warranties contained in Section 4.1 of the
Credit Agreement and in each of the Security Documents are correct on
and as of the
Issuance Date, before and after the issuance of the Standby Letter of
Credit, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the
issuance of the Standby Letter of Credit, which constitutes a Default
or Event of Default;
(c) after giving effect to the Standby Letter of Credit and all Letters of
Credit which have been requested on or prior to the date hereof but
which have not been made or issued prior to the date hereof, the sum
of the aggregate principal amount of all Letter of Credit Liabilities
will not exceed the aggregate of the Letter of Credit Commitments; and
(d) after giving effect to the Standby Letter of Credit and all Letters of
Credit issued on or prior to the date hereof, the sum of the aggregate
principal amount of all Letters of Credit issued by the Issuing Bank
to which this issuance request is being made will not exceed the
Letter of Credit Commitment of such Issuing Bank.
Very truly yours,
THE XXXXXXXX COMPANIES, INC.
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]
2
EXHIBIT F
TO
CREDIT AGREEMENT
FORM OF SECURITY AGREEMENT
EXHIBIT G
TO
CREDIT AGREEMENT
FORM OF LLC GUARANTY
EXHIBIT H
TO
CREDIT AGREEMENT
FORM OF MIDSTREAM GUARANTY
EXHIBIT I
TO
CREDIT AGREEMENT
FORM OF PLEDGE AGREEMENT
EXHIBIT J
TO
CREDIT AGREEMENT
FORM OF HOLDINGS GUARANTY
