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EXHIBIT 4(gg)
WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT (herein called this
"Amendment"), dated as of January 31, 2001 is entered into by and among the
Borrowers party to the Credit Agreement (as hereinafter defined), the Banks from
time to time party to the Credit Agreement, the Co-Syndication Agents as named
therein, the Documentation Agent as named therein and Citibank, N.A., as agent
for the Banks (in such capacity, the "Agent"). Except as otherwise defined or as
the context requires, terms defined in the Credit Agreement are used herein as
therein defined.
WITNESSETH:
WHEREAS, The Xxxxxxxx Companies, Inc., a Delaware Corporation ("TWC"),
Northwest Pipeline Corporation, a Delaware corporation ("NWP"), Transcontinental
Gas Pipe Line Corporation, a Delaware corporation ("TGPL"), Texas Gas
Transmission Corporation, a Delaware corporation ("TGT"; TWC, NWP, TGPL and TGT
each a "Borrower" and collectively, the "Borrowers") have entered into a certain
Credit Agreement dated as of July 25, 2000 with the financial institutions from
time to time party thereto (the "Banks"), The Chase Manhattan Bank and
Commerzbank AG, as Co-Syndication Agents, Credit Lyonnais New York Branch, as
Documentation Agent, and Citibank, N.A., as Agent (the "Credit Agreement"),
which Credit Agreement has been amended by a letter agreement dated as of
October 10, 2000 (the "Letter Agreement");
WHEREAS, the Borrowers and the Banks now desire to amend the Credit
Agreement in certain respects, as hereinafter provided, and to terminate the
Letter Agreement; and
WHEREAS, the Borrowers have requested waivers of certain provisions of
the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrowers and the Banks hereby agree as
follows:
SECTION 1. Amendment of Section 1.01 of the Credit Agreement. Section
1.01 of the Credit Agreement is hereby amended as follows:
(a) The definition of "Consolidated Net Worth" in such Section
1.01 is hereby amended and restated to read in its entirety as follows:
" "Consolidated Net Worth" of any Person means the Net Worth of
such Person and its Subsidiaries on a Consolidated basis plus, in the
case of TWC, the Designated
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Minority Interests to the extent not otherwise included; provided that,
in no event shall the value ascribed to Designated Minority Interests
for the Subsidiaries of TWC described in clauses (i) through (v) and
(vii) of the definition of "Designated Minority Interests" exceed
$136,892,000 in the aggregate."
(b) The definition of "Debt" is hereby amended and restated to
read in its entirety as follows:
" "Debt" means, in the case of any Person, (i) indebtedness of
such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures or notes, (iii) obligations of such
Person to pay the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of business), (iv) monetary obligations of such
Person as lessee under leases that are, in accordance with generally
accepted accounting principles, recorded as capital leases, (v)
obligations of such Person under guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (iv) of this definition and (vi) indebtedness or
obligations of others of the kinds referred to in clauses (i) through
(v) of this definition secured by any Lien on or in respect of any
property of such Person; provided, however, that (x) Debt shall not
include any obligation under or resulting from any agreement referred
to in paragraph (y) of Schedule III, paragraph (y) of Schedule IV,
paragraph (y) of Schedule V, or paragraph (y) of Schedule VI; (y) in
the case of TWC, Debt shall not include any contingent obligation of
TWC relating to indebtedness incurred by any SPV, WCG or a WCG
Subsidiary pursuant to the WCG Structured Financing; and (z) it is the
understanding of the parties hereto that Debt shall not include any
monetary obligations or guaranties of monetary obligations of Persons
as lessee under leases that are, in accordance with generally accepted
accounting principles, recorded as operating leases."
(c) The definition of "Designated Minority Interests" is
hereby amended and restated to read in its entirety as follows:
" "Designated Minority Interests" of TWC means, as of any date
of determination, the total of the minority interests in the following
Subsidiaries of TWC: (i) El Furrial, (ii) PIGAP II, (iii) Nebraska
Energy, (iv) Seminole, (v) American Soda, (vi) the Midstream Asset MLP,
and (vii) other Subsidiaries, as presented in the Consolidating balance
sheet of TWC, in an amount not to exceed in the aggregate $9,000,000
for such other Subsidiaries not referred to in items (i) through (vi);
provided that minority interests which provide for a stated preferred
cumulative return shall not be included in "Designated Minority
Interests."
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(d) The following definitions are added to Section 1.01 of the
Credit Agreement in appropriate alphabetical order:
" "Midstream Asset MLP" means one or more master limited
partnerships included in the Consolidated financial statements of TWC
to which TWC has transferred or shall transfer certain assets relating
to the distribution, storage and transportation of petroleum products
and ammonia, including without limitation marine and inland terminals
and related pipeline systems, including, without limitation, Xxxxxxxx
Energy Partners L.P."
" "SPV" is used as defined in the definition of "WCG Structured
Financing."
" "WCG Structured Financing" means a certain series of related
transactions in anticipation of the spin-off of WCG pursuant to which
WCG or a WCG Subsidiary shall obtain loans or equity contributions,
either directly from investors in the marketplace or through one or
more special purpose vehicles (each, an "SPV"), which SPV or SPVs may
be Subsidiaries of TWC. Principal of such loans and such equity
contributions shall be in a cumulative amount after January 31, 2001
which does not exceed in the aggregate $1.5 billion. TWC shall have a
contingent obligation with respect to repayment of indebtedness or
return on and of equity of the SPV (or SPVs) or WCG or a WCG Subsidiary
in regard to such transaction, which contingent obligation shall
terminate in each case no later than four (4) years after the effective
date of such transaction and shall be satisfied only through the
issuance of equity securities unless further sales of equity securities
of TWC are not possible or will not result in additional proceeds."
(e) Section 1.03 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
" Section 1.03 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 generally accepted accounting
principles in effect, consistently applied."
SECTION 2. Waivers. The Borrowers have requested the waiver of, and
each Bank hereby agrees to waive, certain provisions of the Credit Agreement for
and in connection with the transactions described below:
(a) TWC or certain of its Subsidiaries are currently the
owners of certain assets described on Schedule A-1 hereto which TWC or such
certain Subsidiaries wish to transfer to WCG and/or certain WCG Subsidiaries. In
exchange for the transfer to WCG and/or certain WCG Subsidiaries of the assets
listed on Schedule A-1 and the assumption by TWC and/or its Subsidiaries of
those certain liabilities of WCG or WCG Subsidiaries listed on Schedule A-2, WCG
and/or certain WCG Subsidiaries will transfer to TWC and/or its Subsidiaries,
the assets listed on Schedule B-1 and will assume those certain liabilities of
TWC and/or its Subsidiaries listed on Schedule B-2.
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TWC hereby represents and warrants that such transaction is being entered into
on terms and conditions reasonably fair in all material respects to TWC and its
Subsidiaries.
TWC anticipates that it or one of its Subsidiaries may purchase certain
assets of WCG or a WCG Subsidiary listed on Schedule A-1 and enter into a Sale
Lease-Back Transaction in which TWC or one of its Subsidiaries will lease such
assets to WCG or a WCG Subsidiary. TWC hereby covenants that such transaction
shall be entered into on terms and conditions reasonably fair in all material
respects to TWC and its Subsidiaries. To the extent that such Sale Lease-Back
Transaction may be, or may be deemed to be, an investment in WCG or a WCG
Subsidiary, such transaction is prohibited by Section 5.02(e) of the Credit
Agreement.
In connection with such asset exchange and the Sale Lease-Back
Transaction, and only for purposes of such transactions, TWC requests that the
Banks waive the provisions of Section 5.02(e) to allow TWC and/or its
Subsidiaries to effect the Sale Lease-Back Transaction, described in the
preceding paragraph, and to acquire the equity interests and stock in WCG and
certain WCG Subsidiaries, as described on Schedule B-1, and to transfer assets
to WCG and/or WCG Subsidiaries on the terms set forth above. Nothing herein
shall be construed or deemed to permit TWC or its Subsidiaries to invest in or
acquire stock or equity interests in WCG or any WCG Subsidiaries except to the
extent described above. Nothing herein shall, or shall be deemed to, waive the
provisions of Section 5.02(j) or any other provisions of the Credit Agreement
applicable to the Sale Lease-Back Transaction, except as expressly set forth
above with respect to Section 5.02(e).
(b) In connection with the WCG Structured Financing, and only
with respect to such WCG Structured Financing, TWC requests that the Banks
waive:
(i) the provisions of Section 5.02(d) to allow consensual
encumbrances and restrictions on the ability of any SPV (as defined
above) to make or pay any distributions, dividends, loans or advances
to TWC or its Subsidiaries; provided, that, such consensual
encumbrances or restrictions (x) are pursuant to the documents
governing the WCG Structured Financing and (y) restrict making or
paying distributions, dividends, loans or advances of or on only those
assets held by an SPV directly relating to the WCG Structured
Financing; and
(ii) the provisions of Section 5.02(i) to allow TWC or a
Subsidiary of TWC to be contingently liable for the obligations of any
SPV, WCG or WCG Subsidiaries for payments relating to indebtedness or
return on and of equity incurred by such entity pursuant to the WCG
Structured Financing.
By its signature hereto, each Bank agrees to waive and does hereby
waive (i) Section 5.02(e) to allow TWC and its Subsidiaries to acquire the
equity interests and stock in WCG and certain WCG Subsidiaries, to the extent
set forth above and to allow TWC and its Subsidiaries to act as lessor pursuant
to the Sale Lease-Back Transaction described above involving assets listed on
Schedule A-1; (ii) Section 5.02(d) to allow consensual encumbrances and
restrictions on the ability
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of any SPV to make or pay distributions, dividends, loans or advances to TWC or
its Subsidiaries if such encumbrances and restrictions are pursuant to documents
governing the WCG Structured Financing and apply only to assets of such SPV
which are directly related to the WCG Structured Financing and (iii) Section
5.02(i) to allow TWC or a Subsidiary to be contingently liable with respect to
the indebtedness or return on and of equity incurred pursuant to the WCG
Structured Financing. Nothing herein shall be deemed or construed to waive any
other breach of Sections 5.02(d), 5.02(e) or Section 5.02(i) of the Credit
Agreement or to waive a breach of any other provision of the Credit Agreement or
to require any similar or dissimilar waiver to be granted hereafter.
SECTION 3. To induce the Agent and the Banks to enter into this
Amendment, each of the Borrowers hereby reaffirms as to itself and its
Subsidiaries, as of the date hereof, its representations and warranties
contained in Article IV of the Credit Agreement (except to the extent such
representations and warranties relate solely to an earlier date) and
additionally represents and warrants as follows:
(a) Each Borrower is duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
corporate or limited liability company powers and all governmental
licenses, authorizations, certificates, consents and approvals required
to carry on its business as now conducted in all material respects,
except for those licenses, authorizations, certificates, consents and
approvals which the failure to have could not reasonably be expected to
have a material adverse effect on the business, assets, condition or
operation of the Borrower and its Subsidiaries taken as a whole. Each
material Subsidiary of each Borrower is duly organized or validly
formed, validly existing and (if applicable) in good standing under the
laws of its jurisdiction of incorporation or formation, except where
the failure to be so organized, existing and in good standing could not
reasonably be expected to have a material adverse effect on the
business, assets, condition or operations of such Borrower and its
Subsidiaries taken as a whole. Each material Subsidiary of a Borrower
has all corporate or limited liability company powers and all
governmental licenses, authorizations, certificates, consents and
approvals required to carry on its business as now conducted in all
material respects, except for those licenses, authorizations,
certificates, consents and approvals which the failure to have could
not reasonably be expected to have a material adverse effect on the
business, assets, condition or operation of such Borrower and its
Subsidiaries taken as a whole.
(b) The execution, delivery and performance by each Borrower
of this Amendment and the consummation of the transactions contemplated
by this Amendment are within such Borrower's corporate powers, have
been duly authorized by all necessary corporate action, do not
contravene (i) such Borrower's charter or by-laws or (ii) any law or
any contractual restriction binding on or affecting such Borrower and
will not result in or require the creation or imposition of any Lien.
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(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by any
Borrower of this Amendment or the consummation of the transactions
contemplated by this Amendment.
(d) This Amendment has been duly executed and delivered by
each Borrower. This Amendment and the Credit Agreement as amended by
this Amendment are the legal, valid and binding obligations of each
Borrower enforceable against each Borrower in accordance with its
terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and by general principles of
equity.
(e) Except as set forth in the Public Filings, there is, as to
each of the Borrowers, no pending or, to the knowledge of such
Borrower, threatened action or proceeding affecting such Borrower or
any material Subsidiary of such Borrower (or in the case of TWC, the
Borrowers, any Subsidiary of a Borrower or any WCG Subsidiary) before
any court, governmental agency or arbitrator, which could reasonably be
expected to materially and adversely affect the financial condition or
operations of such Borrower and its Subsidiaries taken as a whole or
which purports to affect the legality, validity, binding effect or
enforceability of this Amendment, the Credit Agreement or any Note. For
the purposes of this Section, "Public Filings" shall mean the
respective annual reports of TWC or any other Borrower on Form 10-K or
Form 10-K/A for the year ended December 31, 1999, and TWC's and the
Borrowers' respective quarterly reports on Form 10-Q for the quarter
ended September 30, 2000.
(f) Upon giving effect to this Amendment, no event has
occurred and is continuing which constitutes an Event of Default or
which would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
SECTION 4. The effectiveness of this Amendment is conditioned upon
receipt by the Agent of all the following documents, each in form and substance
satisfactory to the Agent:
(a) Counterparts of this Amendment executed by each of the
Borrowers, the Agent and the Majority Banks;
(b) A certificate of the Secretary or Assistant Secretary of
each of the Borrowers as to (i) any changes (or the absence of changes)
since July 25, 2000 to its certificate of incorporation and its by-laws
as of the date hereof, (ii) the resolutions of such Borrower
authorizing the execution of this Amendment and (iii) the names and
true signatures of the officers authorized to execute this Amendment;
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(c) A certificate in form and substance satisfactory to the
Agent dated the date hereof addressed to the Banks of a responsible
officer of WCG and/or each relevant WCG Subsidiary as to (i) its title
to those assets transferred to TWC or a Subsidiary of TWC pursuant to
the transactions described in Section 2 hereof, and (ii) the equity
interests and shares of stock issued to TWC or a Subsidiary of TWC;
(d) An opinion of Xxxxxxx X. xxx Xxxxx, General Counsel of the
Borrower, substantially in the form of Exhibit A hereto; and
(e) Such other documents as the Agent shall have reasonably
requested.
SECTION 5. This Amendment shall be deemed to be an amendment to the
Credit Agreement, and the Credit Agreement, as amended hereby, is hereby
ratified, approved and confirmed in each and every respect. All references to
the Credit Agreement in any other document, instrument, agreement or writing
shall hereafter be deemed to refer to the Credit Agreement as amended hereby.
SECTION 6. The Letter Agreement is hereby terminated.
SECTION 7. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. Whenever possible each provision
of this Amendment shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.
SECTION 8. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing one or
more counterparts.
SECTION 9. This Amendment shall be binding upon each of the Borrowers,
the Agent and the Banks and their respective successors and assigns, and shall
inure to the benefit of each of the Borrowers, the Agent and the Banks and the
successors and assigns of the Banks.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, to be effective
as of January 31, 2001.
BORROWERS:
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
TEXAS GAS TRANSMISSION CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
NORTHWEST PIPELINE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
Multiyear Credit Agreement
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AGENT:
CITIBANK, N.A., as Agent
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 12, 2001
CO-SYNDICATION AGENTS:
THE CHASE MANHATTAN BANK,
as Co-Syndication Agent
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 8, 2001
COMMERZBANK AG,
as Co-Syndication Agent
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Authorized Officer
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
X-0
00
XXXXXXXXXXXXX XXXXX:
CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent and as a Bank
By: /s/ Philippe Soustra
---------------------------------
Authorized Officer
Date: , 2001
----------------
Multiyear Credit Agreement
S-3
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BANKS:
CITIBANK, N.A.
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 12, 2001
Multiyear Credit Agreement
S-4
00
XXX XXXX XX XXXX XXXXXX
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 9, 2001
Multiyear Credit Agreement
S-5
13
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
S-6
14
BANK ONE, NA (CHICAGO)
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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THE CHASE MANHATTAN BANK
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Authorized Officer
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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CREDIT LYONNAIS NEW YORK BRANCH
By: [See Page S-3 for Signature]
---------------------------------
Authorized Officer
Date: , 2001
--------------
Multiyear Credit Agreement
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THE FUJI BANK, LIMITED
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Authorized Officer
Date: February 9, 2001
Multiyear Credit Agreement
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NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
Date: February 9, 2001
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
Date: February 9, 2001
Multiyear Credit Agreement
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ABN AMRO BANK, N.V.
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------
Authorized Officer
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Authorized Officer
Date: February 9, 2001
Multiyear Credit Agreement
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BANK OF MONTREAL
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 6, 2001
Multiyear Credit Agreement
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00
XXX XXXX XX XXX XXXX
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
X-00
00
XXXXXXXX XXXX PLC
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Authorized Officer
Date: February 9, 2001
Multiyear Credit Agreement
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CIBC INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Authorized Officer
Date: February 9, 2001
Multiyear Credit Agreement
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CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx Xxxxx
---------------------------------
Authorized Officer
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Authorized Officer
Date: February 9, 2001
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ROYAL BANK OF CANADA
By:
---------------------------------
Authorized Officer
Date: , 2001
----------------
Multiyear Credit Agreement
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ X. Xxxxxxxxx
---------------------------------
Authorized Officer
Date: January 29, 2001
Multiyear Credit Agreement
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FLEET NATIONAL BANK
f/k/a Bank Boston, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
---------------------------------
Authorized Officer
Date: February 9, 2001
Multiyear Credit Agreement
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SOCIETE GENERALE, Southwest Agency
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
X-00
00
XXX XX, XXXXXXXX BRANCH
By: /s/ Xxxxxxx X. Saint
---------------------------------
Authorized Officer
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Authorized Officer
Date: , 2001
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Multiyear Credit Agreement
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XXXXX FARGO BANK TEXAS, N.A.
By: /s/ J. Xxxx Xxxxxxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
X-00
00
XXXXXXXXXXXX XXXXXXXXXX
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Authorized Officer
By: /s/ Xxxxxx Xxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Authorized Officer
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Authorized Officer
Date: February 14, 2001
Multiyear Credit Agreement
X-00
00
XXXXXXXX XXXX
By: /s/ Xxxxx X. Edge
---------------------------------
Authorized Officer
Date: February 9, 2001
Multiyear Credit Agreement
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THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 7, 2001
Multiyear Credit Agreement
X-00
00
XXXX XXXXXXX CORPORATION (B.S.C.)
By:
---------------------------------
Authorized Officer
Date: , 2001
-------------------
Multiyear Credit Agreement
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XXXX XX XXXXX, XXX XXXX BRANCH
By:
---------------------------------
Authorized Officer
Date: , 2001
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Multiyear Credit Agreement
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BANK OF OKLAHOMA, N.A.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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BNP PARIBAS, HOUSTON AGENCY
By: /s/ (illegible)
---------------------------------
Authorized Officer
By: /s/ Xxxxx Jocker
---------------------------------
Authorized Officer
Date: February 12, 2001
Multiyear Credit Agreement
X-00
00
XX XXXX XXXXXXXX
GENNOSSENSCHAFTSBANK AG
By: /s/ (illegible)
---------------------------------
Authorized Officer
By: /s/ (illegible)
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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KBC BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Authorized Officer
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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THE SUMITOMO BANK, LIMITED
By: /s/ C. Xxxxxxx Xxxxxxx
---------------------------------
Authorized Officer
Date: , 2001
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Multiyear Credit Agreement
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COMMERCE BANK, N.A.
By: /s/ Xxxxxx X. Block
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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RZB FINANCE LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Authorized Officer
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Authorized Officer
Date: February 8, 2001
Multiyear Credit Agreement
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FIRST UNION NATIONAL BANK
By:
---------------------------------
Authorized Officer
Date: , 2001
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S-40
Multiyear Credit Agreement
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SCHEDULE A-1
ASSETS TO BE TRANSFERRED FROM TWC AND/OR ITS SUBSIDIARIES
TO WCG AND/OR WCG SUBSIDIARIES
1. Those certain three aircraft owned by Xxxxxxxx Aviation, Inc., or under
contract for purchase by Xxxxxxxx Aviation, Inc, more specifically
identified as follows:
Citation V - located in Chesterfield, Missouri, Tail Number
N352WC
Citation X - located in Tulsa, Oklahoma, Tail Number N358WC
Citation Excel - scheduled for delivery by April 1, 2001, Tail
Number N359WC
The aggregate value of the three aircraft is $32,000,000.
2. That certain Xxxxxxxx Technology Center located in Tulsa, Oklahoma, and
owned by the Xxxxxxxx Headquarters Building Company. The Xxxxxxxx
Technology Center is constructing a fifteen story office building that
will house various Xxxxxxxx energy and communications employees. It
will be attached to the east-end of the existing Bank of Oklahoma Tower
at the Plaza, Ground and Service levels. The building is bounded on the
north by First Street, east by Cincinnati Avenue, south by Second
Street, and west by the podium of the Bank of Oklahoma Tower. The
building will contain 733,391 net rentable square feet and accommodate
up to 4,000 employees.
3. That certain Parking Garage being constructed on the northeast corner
of First Street and Cincinnati Avenue, directly south of the LaPetite
Academy daycare center. The parking garage will be six levels tall and
contain 1,029 parking spaces. It will be connected to the Xxxxxxxx
Technology Center by pedestrian bridges west across Cincinnati and
south across First Street.
The aggregate value of the Xxxxxxxx Technology Center and the Parking
Garage (items 2 and 3) is $85,000,000.
4. That certain Intercompany Note executed between TWC and Xxxxxxxx
Communications, Inc., on September 8, 1999. The note is for seven years
and has approximately $975 million outstanding, bears interest at rates
equal to LIBOR, or an alternate base rate, plus a margin based on the
debt rating of WCG's credit facility by Standard & Poor's and Xxxxx'x,
plus 0.25% based on WCG's ratio of total debt to EBITDA greater than or
equal to 6.0 to 1.0. Principle is paid quarterly beginning July 1,
2000.
The value of the Intercompany Note is $630,000,000.
A-1
49
SCHEDULE A-2
LIABILITIES OF WCG AND/OR WCG SUBSIDIARIES
TO BE ASSUMED BY TWC AND/OR ITS SUBSIDIARIES
1. Payment obligations with respect to those certain building
improvements, fixtures and equipment including all construction,
design, flooring, food service equipment, security, audio equipment,
video equipment, telecommunication equipment, furniture and fixtures,
and related costs, including but not limited to material, labor,
installation and taxes, as set forth in the Authorization for
Expenditure(s) dated September 18, 2000.
The aggregate value of the building improvements, fixtures and
equipment is $160,000,000.
X-0
00
XXXXXXXX X-0
ASSETS TO BE TRANSFERRED FROM WCG AND/OR WCG SUBSIDIARIES
TO TWC AND/OR ITS SUBSIDIARIES
1. All losses or credit carryovers or other similar attributes of WCG not
in existence on September 30, 1999, but arising thereafter, and
utilized by Xxxxxxxx as part of its consolidated tax return for any
consolidated returns filed following September 30, 1999, as described
in the Tax Sharing Agreement dated September 30, 1999.
The aggregate value is $317,000,000.
2. That certain Telecommunications Services Agreement dated January 5,
1995, between The Xxxxxxxx Companies, Inc. and Wiltel, Inc., and
subsequently amended. WorldCom, as the successor to Wiltel, provides
WCG a specific amount of long distance, frame relay and private line
services free of costs other than its out of pocket expenses payable to
third parties. WCG resells these services to Xxxxxxxx, its subsidiaries
and affiliates at market rates. The term of the agreement is 35 years
beginning January 1995.
The value is $65,000,000.
3. Those certain two dark fibers capable of providing a minimum capacity
up to an OC-12 along the entire length of the fiber optic facilities
along Transco's main line pipelines from Houston, Texas to Manassas,
Virginia and Washington, D.C. to Station 200 outside Philadelphia,
Pennsylvania which include property in the states of Texas, Louisiana,
Mississippi, Alabama, Georgia, South Carolina, North Carolina,
Virginia, the District of Columbia, Maryland and Pennsylvania,
including the dark fiber needed to connect the non-contiguous points
along the Transco right of way (the "Transco Fiber"). The general
description of this service is provided in that certain Construction,
Operating, Maintenance Agreement dated January 1, 1997. The Transco
Fiber excludes any incidental services required to support the dark
fiber pair, such as collocation, power, and maintenance fees.
The aggregate value is $15,000,000.
4 That number of shares of WCG Class A stock to be issued to TWC having
an aggregate value equal to approximately $470 million, to be priced
based upon the average of the high and low for each of the five
business days beginning January 17, 2001 and ending January 23, 2001.
B-1
51
SCHEDULE B-2
LIABILITIES OF TWC AND/OR ITS SUBSIDIARIES
TO BE ASSUMED BY WCG AND/OR WCG SUBSIDIARIES
1 All incremental costs to be incurred by WCG in connection with the
replacement of certain shared hardware, systems and applications that
will need to be replicated upon the separation of the two companies. In
addition, WCG will need to procure it own unique software licenses on
everything from Microsoft products to the PeopleSoft applications. Also
included in this category are those miscellaneous costs incurred to
effect the spin-off of WCG from Xxxxxxxx.
The aggregate value is $40,000,000.
B-2
52
Exhibit A
Form of Opinion
_____________, 2001
To each of the Banks parties to the Credit Agreement
dated as of July 25, 2000, as amended, by and among
the Borrowers, the Banks parties thereto and
Citibank, N.A., as Agent for the Banks
Ladies and Gentlemen:
I am General Counsel of The Xxxxxxxx Companies, Inc. ("TWC") and have
acted as counsel to the Borrowers in connection with the U.S. $700,000,000
Credit Agreement dated July 25, 2000, by and among the Borrowers, the Banks
parties thereto, and Citibank, N.A., as Agent for the Banks, as amended by a
certain letter agreement dated October 10, 2000 (the "Original Agreement") and a
certain Waiver and First Amendment to Credit Agreement dated as of January 31,
2001 (the "Amendment"). This opinion is furnished to you at the request of the
Borrower pursuant to Section 4(d) of the Amendment. Terms defined in the
Amendment not otherwise defined herein are used herein as therein defined.
In connection with the opinions expressed herein, I, or attorneys
reporting to me, have examined and relied upon copies of the following
documents:
(a) the Amendment, including all exhibits, schedules, and
attachments thereto;
(b) the Original Agreement, including all exhibits, schedules and
attachments thereto;
(c) the Certificates of Incorporation and By-Laws of the
Borrowers, and all amendments thereto; and
(d) Certificates of the Secretary of State of the State of
Delaware dated February 9, 2001 attesting to the continued
corporate existence and good standing of each Borrower in that
state.
53
___________, 2001
Page 4
Those documents identified in items (a) and (b) above are collectively
referred to herein as the "Transaction Documents." In connection with this
opinion, I or other attorneys acting under my supervision have (i) investigated
such questions of law, (ii) examined such corporate documents and records of the
Borrowers and certificates of public officials, and (iii) received such
information from officers and representatives of the Borrowers and made such
investigations as I or other attorneys under my supervision have deemed
necessary or appropriate for the purposes of this opinion. I have not, nor have
other attorneys under my supervision, conducted independent investigations or
inquiries to determine the existence of matters, actions, proceedings, items,
documents, facts, judgments, decrees, franchises, certificates, permits, or the
like and have made no independent search of the records of any court,
arbitrator, or governmental authority affecting any Person, and no inference as
to my knowledge thereof shall be drawn from the fact of my representation of any
party or otherwise.
In rendering the opinions herein, I have assumed without independent
verification (i) the genuineness of all signatures of the Banks and the Agent,
(ii) the capacity of the signing officers of each of the Banks and the Agent,
(iii) the authenticity of all documents submitted to me as originals and the
conformity with the authentic originals of all documents submitted to me as
copies, and (iv) the due execution and delivery, pursuant to due authorization,
of the Transaction Documents by the necessary Banks and the Agent and the
enforceability of the Transaction Documents against the necessary Banks and the
Agent.
Based upon and subject to the foregoing and the other qualifications,
limitations, and assumptions set forth below and upon such other matters as I
have deemed appropriate, I am of the opinion that:
(1) Each of the Borrowers is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Delaware.
(2) The execution, delivery, and performance by each Borrower of
the Amendment and the consummation of the transactions
contemplated by the Amendment are (a) within each Borrower's
corporate powers, (b) will not contravene (i) the respective
Certificates of Incorporation or By-Laws of each Borrower,
(ii) any law, rule, or regulation applicable to each Borrower
(including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), or (iii) any
contractual or legal restriction, and (c) will not result in
or require the creation or imposition of any Lien prohibited
by the Original Agreement, as amended by the Amendment.
(3) The Amendment has been duly authorized, executed, and
delivered to the Agent by each Borrower.
(4) No authorization, 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,
54
___________, 2001
Page 5
and performance by any Borrower of the Amendment or the
consummation of the transactions contemplated by the
Amendment, except, in the case of such performance, for such
authorizations, approvals, actions, notices, and filings which
have been made or obtained.
55
___________, 2001
Page 6
(5) The Amendment, when executed and delivered, will constitute
legal, valid and binding obligations of the Borrowers
enforceable against each Borrower in accordance with its
terms.
(6) Except as set forth in the Public Filings, to my knowledge
there are no pending or overtly threatened actions or
proceedings against any Borrower or any of its Subsidiaries
before any court, governmental agency, or arbitrator that
purport to affect the legality, validity, binding effect, or
enforceability of the Original Agreement, as amended by the
Amendment, or that would reasonably be expected to have a
materially adverse effect upon the financial condition or
operations of the Borrowers and their Subsidiaries, taken as a
whole.
(7) No Borrower is an "investment company" or a company
"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended. No Borrower is
a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," or a "public
utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(8) In any action or proceeding arising out of or relating to the
Amendment in any court of the State of Oklahoma or in any
Federal court sitting in the State of Oklahoma, assuming (i)
proper venue, jurisdiction, and a full and proper presentation
of the issues and the law to the court, (ii) such action or
proceeding is not dismissed on the basis of an inconvenient
forum, and (iii) that the court properly applies Oklahoma law,
such court would (a) recognize and give effect to the
provisions of the Amendment that set forth the governing law,
and (b) construe the Amendment in accordance with the internal
laws of the State of New York. However, if a court were to
hold that the Amendment is governed by or to be construed in
accordance with the laws of the State of Oklahoma, the
Amendment when executed and delivered, would be, under the
laws of the State of Oklahoma, legal, valid, and binding
obligations of each Borrower signatory thereto and enforceable
against each Borrower in accordance with its terms.
56
___________, 2001
Page 7
The opinions expressed in this letter are subject to the following
additional qualifications and limitations.
1. My opinion in paragraph 1 with respect to the incorporation
and good standing of the Borrowers is based solely on a
Certificates, dated as of February 9, 2001, from the Secretary
of State of the State of Delaware, certifying as to such
matters.
2. My opinions in paragraph 5 and my opinion in the last sentence
of paragraph 8 above are subject, insofar as enforceability is
concerned, to the effect of any applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium,
or similar law affecting creditors' rights and remedies
generally.
3. My opinion in paragraph 5 and my opinion in the last sentence
of paragraph 8 above are subject, insofar as enforceability is
concerned, to the effect of general principles of equity
including principles of commercial reasonableness, good faith,
and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
4. I express no opinion with respect to the enforceability of any
of the following: (i) indemnification provisions to the extent
the same are violative of federal or state securities laws,
rules, or regulations, or of public policy, (ii) clauses
waiving right to trial by jury, exculpation clauses, or
clauses granting offset rights to the Banks or against any
deposits or in respect of matured claims, (iii) clauses
relating to recovery of attorneys' fees in connection with the
enforcement of obligations, (iv) clauses relating to release
of unmatured claims and integration clauses to the effect that
no representation was made other than as appears in a
Transaction Document, (v) clauses purporting to waive
unmatured rights, representations, warranties, or affirmative
or negative covenants to the extent such representations,
warranties, or covenants can be construed to be independent
clauses which purport to be legal, valid, binding, and
enforceable by themselves, as distinguished from being clauses
that trigger an event of default, and severability and similar
clauses, and (vi) clauses that incorporate by reference a
document or instrument or agreement not in existence on the
date hereof to the extent that any such document, instrument,
or agreement is the basis of an effort to enforce a
Transaction Document, insofar as any of the foregoing are
contained in a Transaction Document.
5. I express no opinion as to the effect on the opinions herein
stated of compliance or non-compliance by any Bank with any
applicable state, federal, or other laws or regulations
applying only to banks, or the legal or regulatory status of
any Bank.
57
___________, 2001
Page 8
6. My opinion in paragraph 5 and my opinion in paragraph 8 above
assumes (i) application of New York law would not be found to
be contrary to a fundamental policy of a state with a
materially greater interest in determining the question
presented and the laws of which would govern in absence of an
effective choice of law, (ii) Citibank, N.A. has a place of
business located in the State of New York, and (iii) the
Borrowers are required to perform a part of their respective
obligations under the Original Agreement or Amendment, such as
delivery of payment, in the State of New York.
7. Qualification of any statement or opinion herein by the use of
the words "to my knowledge" means that during the course of
representation in connection with the transactions
contemplated by the Original Agreement or the Amendment, no
information has come to the attention of me or attorneys
reporting to me that would give me or such attorneys current
actual knowledge of the existence of facts or matters so
qualified. I have not undertaken any investigation to
determine the existence of facts, and no inference as to my
knowledge thereof shall be drawn from the fact of the
representation by me or attorneys reporting to me of any party
or otherwise.
I am admitted to practice law in the States of Oklahoma and New York,
and, accordingly, the opinions expressed herein are based upon and limited
exclusively to the laws of the States of Oklahoma and New York, the General
Corporation Law of the State of Delaware and the laws of the United States of
America insofar as any of such laws are applicable. I render no opinion with
respect to any other laws.
This opinion letter is solely for the benefit of the Banks and the
Agent, their respective successors, assigns, participants, and other transferees
and counsel for the Persons referred to in this sentence, in consummating the
transaction contemplated by the Amendment, and may not be used or relied upon
by, quoted, transmitted to, or filed with any other Person or for any other
purpose whatsoever without in each instance my prior written consent. This
opinion speaks as of its date, and I undertake no, and hereby expressly disclaim
any, duty to advise you as to any changes of fact or law coming to my attention
after the date hereof.
Very truly yours,
Xxxxxxx X. xxx Xxxxx