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EXHIBIT 4.1
U.S. $700,000,000
CREDIT AGREEMENT
Dated as of July 25, 2000
Among
THE WILLIAMS COMPANIES, INC.
NORTHWEST PIPELINE CORPORATION
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
TEXAS GAS TRANSMISSION CORPORATION
as Borrowers
THE BANKS NAMED HEREIN
as Banks
THE CHASE MANHATTAN BANK
and
COMMERZBANK AG
as Co-Syndication Agents
and
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent
and
CITIBANK, N.A.
as Agent
and
SALOMON SMITH BARNEY,
as Arranger
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...........................................................1
Section 1.01 Certain Defined Terms.............................................................1
Section 1.02 Computation of Time Periods......................................................14
Section 1.03 Accounting Terms.................................................................14
Section 1.04 Miscellaneous....................................................................14
Section 1.05 Ratings..........................................................................14
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES.........................................................15
Section 2.01 The A Advances...................................................................15
Section 2.02 Making the A Advances............................................................15
Section 2.03 Fees.............................................................................18
Section 2.04 Reduction of the Commitments.....................................................18
Section 2.05 Repayment of A Advances..........................................................19
Section 2.06 Interest on A Advances...........................................................19
Section 2.07 Additional Interest on Eurodollar Rate Advances..................................19
Section 2.08 Interest Rate Determination......................................................20
Section 2.09 Evidence of Debt.................................................................20
Section 2.10 Prepayments......................................................................21
Section 2.11 Increased Costs..................................................................21
Section 2.12 Illegality.......................................................................23
Section 2.13 Payments and Computations........................................................23
Section 2.14 Taxes............................................................................24
Section 2.15 Sharing of Payments, Etc.........................................................27
Section 2.16 The B Advances...................................................................27
Section 2.17 Optional Termination.............................................................31
Section 2.18 Extension of Termination Date....................................................32
Section 2.19 Voluntary Conversion of Advances.................................................32
Section 2.20 Automatic Provisions.............................................................32
ARTICLE III CONDITIONS................................................................................33
Section 3.01 Conditions Precedent to Initial Advances.........................................33
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Section 3.02 Additional Conditions Precedent to Each A Borrowing..............................33
Section 3.03 Conditions Precedent to Each B Borrowing.........................................34
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................35
Section 4.01 Representations and Warranties of the Borrowers..................................35
ARTICLE V COVENANTS OF THE BORROWERS................................................................39
Section 5.01 Affirmative Covenants............................................................39
Section 5.02 Negative Covenants...............................................................43
ARTICLE VI EVENTS OF DEFAULT.........................................................................47
Section 6.01 Events of Default................................................................47
ARTICLE VII THE AGENT.................................................................................50
Section 7.01 Authorization and Action.........................................................50
Section 7.02 Agent's Reliance, Etc............................................................50
Section 7.03 Citibank, Chase, Commerzbank, Credit Lyonnais and Affiliates.....................51
Section 7.04 Bank Credit Decision.............................................................51
Section 7.05 Indemnification..................................................................52
Section 7.06 Successor Agent..................................................................52
Section 7.07 Co-Syndication Agents; Documentation Agent.......................................52
ARTICLE VIII MISCELLANEOUS.............................................................................53
Section 8.01 Amendments, Etc..................................................................53
Section 8.02 Notices, Etc.....................................................................53
Section 8.03 No Waiver; Remedies..............................................................54
Section 8.04 Costs and Expenses...............................................................54
Section 8.05 Right of Set-off.................................................................55
Section 8.06 Binding Effect; Transfers........................................................55
Section 8.07 Governing Law....................................................................59
Section 8.08 Interest.........................................................................59
Section 8.09 Execution in Counterparts........................................................59
Section 8.10 Survival of Agreements, Representations and Warranties, Etc......................59
Section 8.11 Borrowers' Right to Apply Deposits...............................................60
Section 8.12 Confidentiality..................................................................60
Section 8.13 WAIVER OF JURY TRIAL.............................................................61
Section 8.14 Miscellaneous....................................................................61
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Schedule I - Bank Information
Schedule II - Borrower Information
Schedule III - Permitted NWP Liens
Schedule IV - Permitted TGPL Liens
Schedule V - Permitted TGT Liens
Schedule VI - Permitted TWC Liens
Schedule VII - [Reserved]
Schedule VIII - [Reserved]
Schedule IX - [Reserved]
Schedule X - Commitments
Schedule XI - Rating Categories
Exhibit A - 1 - Form of A Note
Exhibit A - 2 - Form of B Note
Exhibit B - 1 - Notice of A Borrowing
Exhibit B - 2 - Notice of B Borrowing
Exhibit C - Opinion of William G. von Glahn
Exhibit D - Opinion of Special Counsel to Agent
Exhibit E - Existing Loans and Investments in WCG Subsidiaries
Exhibit F - Form of Transfer Agreement
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CREDIT AGREEMENT
This Credit Agreement dated as of July 25, 2000, is by and among the
Borrowers, the Co-Syndication Agents, the Documentation Agent, the Agent and the
Banks. In consideration of the mutual covenants and agreements contained herein,
the Borrowers, the Agent and the Banks hereby agree as set forth herein.
PRELIMINARY STATEMENTS
WHEREAS, the Borrowers desire to obtain Commitments from the Banks
pursuant to which A Advances, on the terms and conditions and in the amounts set
forth herein, will be made to the Borrowers from time to time prior to the
Termination Date; and
WHEREAS, the Banks are willing, on the terms and subject to the
conditions hereinafter set forth (including Article III), to extend such
Commitments and make such A Advances to the Borrowers; and
WHEREAS, the Borrowers may from time to time request B Advances
pursuant to the terms and conditions and in the amounts set forth herein, and
one or more Banks may (but are not obligated to) make such B Advances;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 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):
"A Advance" means an advance by a Bank to a Borrower as part
of an A Borrowing and refers to a Base Rate Advance or a Eurodollar
Rate Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type to the same Borrower made by each of the
Banks pursuant to Section 2.01.
"A Note" means a promissory note of a Borrower payable to the
order of any Bank, in substantially the form of Exhibit A-1 hereto (as
such note may be amended, endorsed or otherwise modified from time to
time), delivered at the request of such Bank pursuant to Section 2.09
or 8.06, together with any other note accepted from time to time in
substitution or replacement therefor.
"Advance" means an A Advance or a B Advance.
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"Agent" means Citibank, N.A. in its capacity as agent pursuant
to Article VII hereof and any successor Agent pursuant to Section 7.06.
"Agreement" means this Credit Agreement dated as of July 25,
2000, among the Borrowers, the Agent and the Banks, as amended,
extended, supplemented, restated or modified from time to time.
"American Soda" means American Soda, L.L.P., a Colorado
limited liability partnership.
"Applicable Commitment Fee Rate" means the rate per annum set
forth on Schedule XI under the heading "Applicable Commitment Fee Rate"
for the relevant Rating Category applicable to TWC from time to time.
The Applicable Commitment Fee Rate shall change when and as the
relevant Rating Category applicable to TWC changes.
"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of a Base Rate Advance
and such Bank's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance and, in the case of a B Advance, the office of such Bank
notified by such Bank to the Agent as its Applicable Lending Office
with respect to such B Advance.
"Applicable Margin" means as to any Eurodollar Rate Advance to
any Borrower, the rate per annum set forth in Schedule XI under the
heading "Applicable Margin" for the relevant Rating Category applicable
to such Borrower from time to time. The Applicable Margin determined
pursuant to this definition for any Eurodollar Rate Advance to any
Borrower shall change when and as the relevant Rating Category
applicable to such Borrower changes.
"Arranger" means Salomon Smith Barney.
"B Advance" means an advance by a Bank to a Borrower as part
of a B Borrowing resulting from the auction bidding procedure described
in Section 2.16.
"B Borrowing" means a borrowing consisting of simultaneous B
Advances to the same Borrower from each of the Banks whose offer to
make one or more B Advances as part of such borrowing has been accepted
by such Borrower under the auction bidding procedure described in
Section 2.16.
"B Note" means a promissory note of a Borrower payable to the
order of any Bank, in substantially the form of Exhibit A-2 hereto,
delivered at the request of such Bank pursuant to Sections 2.09, 2.16
or 8.06.
"B Reduction" has the meaning specified in Section 2.01.
"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 8.06(a).
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"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 higher of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate; or
(b) 1/2 of one percent per annum above the Federal Funds Rate
in effect from time to time.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.06(a).
"Borrowers" means TWC, NWP, TGPL and TGT.
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances or relates to any
B Advance as to which the related Notice of B Borrowing is delivered
pursuant to clause (B) of Section 2.16(a)(i), on which dealings are
carried on in the London interbank market.
"Cash Holdings" of any Person means the total investment of
such Person at the time of determination in:
(a) demand deposits and time deposits maturing within one
year with a Bank (or other commercial banking institution of the
stature referred to in clause (d)(i));
(b) any note or other evidence of indebtedness, maturing not
more than one year after such time, issued or guaranteed by the United
States Government or by a government of another country which carries a
long-term rating of Aaa by Moody's or AAA by S&P;
(c) commercial paper, maturing not more than nine months from
the date of issue, which is issued by
(i) a corporation (other than an affiliate of a
Borrower) rated (x) A-1 by S&P, P-1 by Moody's or F-1 by Fitch
or (y) lower than set forth in clause (x) above, provided that
the value of all such commercial paper shall not exceed 10% of
the total value of all commercial paper comprising "Cash
Holdings," or
(ii) any Bank (or its holding company) with a rating
on its long-term unsecured debt of at least AA from S&P or Aa
from Moody's;
(d) any certificate of deposit or bankers acceptance,
maturing not more than three years after such time, which is issued by
either
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(i) a commercial banking institution that is a
member of the Federal Reserve System and has a combined
capital and surplus and undivided profits of not less than
$1,000,000,000, or
(ii) any Bank with a rating on its long-term
unsecured debt of at least AA by S&P or Aa by Moody's;
(e) notes or other evidences of indebtedness, maturing not
more than three years after such time, issued by
(i) a corporation (other than an affiliate of a
Borrower) rated AA by S&P or Aa by Moody's, or
(ii) any Bank (or its holding company) with a rating
on its long-term unsecured debt of at least AA by S&P or Aa by
Moody's;
(f) any repurchase agreement entered into with any Bank (or
other commercial banking institution of the stature referred to in
clause (d)(i)) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in any of
clauses (a) through (d), and
(ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation of such Bank (or other commercial
banking institution) thereunder; and
(g) money market preferred instruments by participation in a
Dutch auction (or the equivalent) where the investment is rated no
lower than Aa by Moody's or AA by S&P.
"Chase" means The Chase Manhattan Bank.
"Citibank" means Citibank, N.A.
"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.
"Commerzbank" means Commerzbank AG.
"Commitment" of any Bank to any Borrower means at any time the
amount set opposite or deemed (pursuant to clause (vii) of the last
sentence of Section 8.06(a) and as reflected in the relevant Transfer
Agreement referred to in such sentence) to be set opposite such Bank's
name for such Borrower on Schedule X as such amount may be terminated,
reduced or increased, pursuant to Section 2.04, Section 2.17, Section
6.01 or Section 8.06(a); provided that, at no time shall the amount of
the Commitment of a Bank
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to any of NWP, TGPL or TGT exceed the amount of the Commitment of such
Bank to TWC at such time.
"Consolidated" refers to the consolidation of the accounts of
any Person and its subsidiaries in accordance with generally accepted
accounting principles; provided that, unless otherwise provided, in the
case of TWC, "Consolidated" shall mean the consolidation of the
accounts of TWC and its Subsidiaries and shall not include any accounts
of the WCG Subsidiaries; provided that for purposes of the Consolidated
financial statements required to be delivered pursuant to Sections
4.01(e), 5.01(b)(ii) and 5.01(b)(iii) and where otherwise provided, the
consolidation of the accounts of TWC and its subsidiaries shall include
the WCG Subsidiaries.
"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 Minority Interests to the extent not
otherwise included; provided that, in no event shall the value ascribed
to Designated Minority Interests exceed $136,892,000 in the aggregate.
"Consolidated Tangible Net Worth" of any Person means the
Tangible Net Worth of such Person and its Subsidiaries on a
Consolidated basis.
"Consolidating" refers to, with respect to the balance sheets
and statements of income and cash flows required by Sections 4.01(e),
5.01(b)(ii) and 5.01(b)(iii), the consolidation of the accounts of TWC
and its subsidiaries in accordance with the following format: (i) the
WCG Subsidiaries, (ii) TWC and its subsidiaries (which term does not
include the WCG Subsidiaries), (iii) consolidation adjustments, and
(iv) Consolidated financial statements of TWC and each of its
subsidiaries, including the WCG Subsidiaries.
"Convert," "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.02, Section 2.19 or Section 2.20.
"Co-Syndication Agent" means either of Chase or Commerzbank,
together with the successor and assigns of each in such capacity.
"Credit Lyonnais" means Credit Lyonnais New York Branch.
"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
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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 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; and provided further, 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.
"Designating Bank" has the meaning specified in Section
8.6(d).
"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, and (vi) other Subsidiaries of
TWC, as presented in its Consolidating balance sheet, in an amount not
to exceed in the aggregate $9,000,000 for such other Subsidiaries not
referred to in clauses (i) through (v); provided that minority
interests which provide for a stated preferred cumulative return shall
not be included in "Designated Minority Interests."
"Documentation Agent" means Credit Lyonnais, together with its
successors and assigns in such capacity.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or pursuant to Section 8.06(a), or such
other office of such Bank as such Bank may from time to time specify to
the Borrowers and the Agent.
"EDGAR" 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.
"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 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, without
limitation, those laws, statutes, regulations, orders, decrees,
agreements and other Governmental Requirements relating to the
disposal, cleanup, production, storing, refining, handling,
transferring,
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processing or transporting of Hazardous Waste, Hazardous Substances or
any pollutant or contaminant, wherever located.
"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" of any Borrower means any trade or business
(whether or not incorporated) which is a member of a group of which
such 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 Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or pursuant to Section 8.06(a)
(or, if no such office is specified, its Domestic Lending Office) or
such other office of such Bank as such Bank may from time to time
specify to the Borrowers and the Agent.
"Eurodollar Rate" means, for any Eurodollar Rate Advance
comprising part of the same A Borrowing for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period. If for any reason such rate is not available, the
term "Eurodollar Rate" shall mean, for any Eurodollar Rate Advance
comprising part of the same A Borrowing for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Eurodollar Rate Advance" means an A Advance that bears
interest as provided in Section 2.06(b).
"Eurodollar Rate Reserve Percentage" of any Bank for any
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board of
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Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
For purposes of clause (iv) of the definition herein of "Interest
Period", Section 2.19 and Section 6.01, an Event of Default exists as
to a particular Borrower if such Event of Default exists wholly or in
part as a result of any event, condition, action, inaction,
representation or other matter of, by or otherwise directly or
indirectly pertaining to such Borrower or any Subsidiary of such
Borrower. Without limiting the foregoing and for purposes of further
clarification, it is agreed that inasmuch as each of TGPL, NWP and TGT
is a Subsidiary of TWC, any Event of Default that exists as to any of
TGPL, NWP or TGT also exists as to TWC.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period 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 such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Fitch" means Fitch, Inc.
"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.
"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, without limitation 40 C.F.R. ss.261.3).
"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.
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"Interest Period" means, for each Eurodollar Rate Advance to a
Borrower comprising part of the same A Borrowing, the period commencing
on the date of such A Advance or the date of the Conversion of any Base
Rate Advance into a Eurodollar Rate Advance and ending on the last day
of the period selected by such Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last
day of the period selected by such Borrower pursuant to the provisions
below. The duration of each Interest Period shall be one, two, three or
six months, in each case as such Borrower may, upon notice received by
the Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select (it
being agreed that selection of a subsequent Interest Period for an
outstanding Eurodollar Rate Advance does not require that a Notice of A
Borrowing be given, inasmuch as no Advance is being requested or made
as a result of such selection); provided, however, that:
(i) Interest Periods commencing on the same date for
A Advances comprising part of the same A Borrowing shall be of
the same duration;
(ii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided that if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day;
(iii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month in which it would have
ended if there were a numerically corresponding day in such
calendar month; and
(iv) no Borrower may select any Interest Period that
ends after the Termination Date, and no Borrower may select
any Interest Period if any Event of Default exists as to such
Borrower.
"Lien" means any mortgage, lien, pledge, charge, deed of
trust, security interest, encumbrance or other type of preferential
arrangement to secure or provide for the payment of any obligation of
any Person, whether arising by contract, operation of law or otherwise
(including, without limitation, the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title
retention agreement).
"Majority Banks" means at any time Banks having more than 50%
of the then aggregate unpaid principal amount of the A Advances
outstanding to Banks, or, if no such principal amount is then
outstanding, Banks having more than 50% of the principal amount of the
Commitments or, if no such principal amount is then outstanding and all
Commitments have terminated, Banks having more than 50% of the then
aggregate
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unpaid principal amount of the B Advances outstanding to Banks
(provided that for purposes of this definition and Sections 2.17, 6.01
and 7.01 neither any Borrower nor any Subsidiary or Related Party of
any Borrower, if a Bank, shall be included in (i) the Banks to which A
Advances or B Advances are owed or (ii) determining the aggregate
unpaid principal amount of the A Advances or the B Advances or the
amount of the Commitments). For purposes hereof, Advances made by an
SPC shall be considered Advances of its Designating Bank.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which any Borrower or any ERISA
Affiliate of any 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 any Borrower or any ERISA
Affiliate of any Borrower, and one or more employers other than any
Borrower or an ERISA Affiliate of any Borrower, is making or accruing
an obligation to make contributions or, in the event that any such plan
has been terminated, to which any Borrower or any ERISA Affiliate of
any Borrower made or accrued an obligation to make contributions during
any of the five plan years preceding the date of termination of such
plan.
"Nebraska Energy" means Nebraska Energy, L.L.C., a Kansas
limited liability company.
"Net Debt" means for any Borrower, as of any date of
determination, the excess of (x) the aggregate amount of all Debt of
such Borrower and its Subsidiaries on a Consolidated basis, excluding
Non-Recourse Debt, over (y) the sum of the Cash Holdings of such
Borrower and its Subsidiaries on a Consolidated basis.
"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
principles.
"Non-Borrowing Subsidiary" of any Borrower means a Subsidiary
of such Borrower which Subsidiary is not itself a Borrower. In the case
of TWC, the term "Subsidiary" does not include any WCG Subsidiary.
"Non-Recourse Debt" means Debt incurred by any non-material,
Non-Borrowing Subsidiary to finance the acquisition (other than any
acquisition from TWC or any Subsidiary) or construction of a project,
which Debt does not permit or provide for recourse against TWC or any
Subsidiary of TWC (other than the Subsidiary that is to acquire or
construct such project) or any property or asset of TWC or any
Subsidiary of
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TWC (other than property or assets of the Subsidiary that is to acquire
or construct such project). For purposes of this definition, a
"non-material Subsidiary" shall mean any Subsidiary of TWC which, as of
the date of the most recent Consolidating balance sheet of TWC
delivered pursuant to Section 5.01 as described in clause (ii) of the
definition of "Consolidating," has total assets which account for less
than five percent (5%) of the total assets of TWC and its Subsidiaries,
as shown in the column described in clause (ii) of the definition of
"Consolidating" of such Consolidating balance sheet; provided that, the
total aggregate assets of non-material Subsidiaries shall not comprise
at any time more than ten percent (10%) of the total assets of TWC and
its Subsidiaries, as shown in such column of such Consolidating balance
sheet.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.16(a).
"NWP" means Northwest Pipeline Corporation, a Delaware
corporation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted NWP Liens" means Liens specifically described on
Schedule III.
"Permitted TGPL Liens" means Liens specifically described on
Schedule IV.
"Permitted TGT Liens" means Liens specifically described on
Schedule V.
"Permitted TWC Liens" means Liens specifically described on
Schedule VI.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other 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 contributions
has accrued, during any of the five plan years preceding the date of
termination of such plan by, any Borrower or any ERISA Affiliate of any
Borrower for employees of a 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.
"Public Filings" means TWC's, NWP's, TGPL's and TGT's
respective annual reports on Form 10-K or, in the case of TWC, Form
10-K/A for the year ended
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December 31, 1999, and TWC's, NWP's, TGPL's and TGT's respective
quarterly reports on Form 10-Q for the quarter ended March 31, 2000.
"Rating Category" means, as to any Borrower, the relevant
category applicable to such Borrower from time to time as set forth on
Schedule XI, which is based on the ratings (or lack thereof) of such
Borrower's senior unsecured long-term debt by S&P or Moody's.
"Related Party" of any Person means any corporation,
partnership, joint venture or other entity of which more than 10% of
the outstanding capital stock or other 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 capital stock or other 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
outstanding capital stock or other 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 capital stock or other 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 neither TWC nor any
Subsidiary of TWC shall be considered to be a Related Party of TWC or
any Subsidiary of TWC.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"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, 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 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.
"Seminole" means Seminole Pipeline Company, a Delaware
corporation.
"SPC" has the meaning specified in Section 8.06(d).
"Stated Termination Date" means July 25, 2005, or such later
date, if any, as may be agreed to by the Borrowers and the Banks
pursuant to Section 2.18.
"Subordinated Debt" means any Debt of any Borrower which is
effectively subordinated to the obligations of such Borrower hereunder
and under the Notes, if any.
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"Subsidiary" of any Person means any corporation, partnership,
joint venture or other entity of which more than 50% of the outstanding
capital stock or other 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 capital stock or
other 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. Notwithstanding the
above, in the case of TWC, "Subsidiary" shall not include the WCG
Subsidiaries, except that with respect to the Consolidated balance
sheet and related Consolidated statements of income and cash flows for
TWC referred to in Sections 4.01(e), 5.01(b)(ii) and 5.01(b)(iii) and
as otherwise specifically provided herein the term "Subsidiary" used
with respect to TWC shall include the WCG Subsidiaries.
"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
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
Commitments pursuant to Section 2.04, 2.17 or 6.01.
"Termination Event" means (i) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a "reportable
event" not subject to the provision for 30-day notice to the PBGC), or
(ii) the withdrawal of any Borrower or any ERISA Affiliate of any
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 any Borrower or
any ERISA Affiliate of any 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 constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.
"TGPL" means Transcontinental Gas Pipe Line Corporation, a
Delaware corporation.
"TGT" means Texas Gas Transmission Corporation, a Delaware
corporation.
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"Transfer Agreement" has the meaning specified in Section
8.06.
"TWC" means The Williams Companies, Inc., a Delaware
corporation.
"Type" has the meaning set forth in the definition herein of A
Advance.
"Unrated" means, as to any Borrower, that no senior unsecured
long-term debt of such Borrower is rated by S&P and no senior unsecured
long-term debt of such Borrower is rated by Moody's.
"WCG" means Williams Communications Group, Inc., a Delaware
corporation.
"WCG Subsidiaries" means, collectively, WCG and any direct or
indirect Subsidiary of WCG.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary
of such Person all of the capital stock and other equity interests of
which is owned by such Person or any Wholly-Owned Subsidiary of such
Person.
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
"WPC" means Williams Gas Pipelines Central, Inc., a Delaware
corporation, formerly Williams Natural Gas Company.
Section 1.02 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 1.03 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles, and each reference herein to "generally accepted
accounting principles" shall mean generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(e)(i).
Section 1.04 Miscellaneous. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a 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.
Section 1.05 Ratings. A rating, whether public or private, by
S&P or Moody's shall be deemed to be in effect on the date of announcement or
publication by S&P or Moody's, 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
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19
withdrawal or termination of, such rating. In the event the standards for any
rating by Moody's 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 Moody's or S&P has at
any time more than one rating applicable to senior unsecured long-term debt of a
Borrower, the lowest such rating shall be applicable for purposes hereof. For
example, if Moody's rates some senior unsecured long-term debt of a Borrower Ba1
and other such debt of such Borrower Ba2, the senior unsecured long-term debt of
such Borrower shall be deemed to be rated Ba2 by Moody's.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The A Advances. Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to each
Borrower from time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate amount outstanding not to
exceed at any time such Bank's Commitment to such Borrower, provided that the
aggregate amount of the Commitments of the Banks to any Borrower shall, except
for purposes of Section 2.03(a), be deemed used from time to time to the extent
of the aggregate amount of the B Advances then outstanding to such Borrower and
such deemed use of the aggregate amount of such Commitments shall be applied to
the Banks ratably according to their respective Commitments to such Borrower
(such deemed use of the aggregate amount of the Commitments of any Borrower
being a "B Reduction"), and provided further that the aggregate amount of all A
Advances to all Borrowers by any Bank shall not exceed at any time outstanding
such Bank's Commitment to TWC (determined after giving effect to such Bank's
ratable share of all B Reductions). Each A Borrowing shall be in an aggregate
amount not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and shall consist of A Advances of the same Type made to the same
Borrower on the same day by the Banks ratably according to their respective
Commitments. Within the limits of each Bank's Commitment to a Borrower, such
Borrower may borrow, prepay pursuant to Section 2.10 and reborrow under this
Section 2.01.
Section 2.02 Making the A Advances.
(a) Each A Borrowing shall be made on notice, given not later
than (1) in the case of a proposed Borrowing comprised of Eurodollar
Rate Advances, 11:00 A.M. (New York City time) at least three Business
Days prior to the date of the proposed Borrowing, and (2) in the case
of a proposed Borrowing comprised of Base Rate Advances, 10:00 A.M.
(New York City time) on the date of the proposed Borrowing, by the
Borrower requesting such A Borrowing to the Agent, which shall give to
each Bank prompt notice
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20
thereof by telecopy, telex or cable. Each such notice of an A Borrowing
(a "Notice of A Borrowing") shall be by telephone, confirmed
immediately in writing, or by telecopy, telex or cable in substantially
the form of Exhibit B-1 hereto, executed by the Borrower requesting
such A Borrowing and specifying therein the requested (i) date of such
A Borrowing (which shall be a Business Day), (ii) initial Type of A
Advances comprising such A Borrowing, (iii) aggregate amount of such A
Borrowing, and (iv) in the case of an A Borrowing comprised of
Eurodollar Rate Advances, initial Interest Period for each such A
Advance. Each Bank shall, before 11:00 A.M. (New York City time) on the
date of such A Borrowing, make available for the account of its
Applicable Lending Office to the Agent at its New York address referred
to in Section 8.02, in same day funds, such Bank's ratable portion of
such A Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the Borrower requesting such A
Borrowing at the Agent's aforesaid address.
(b) Anything herein to the contrary notwithstanding:
(i) at no time shall there be outstanding to any one
Borrower more than ten A Borrowings comprised of Eurodollar
Rate Advances;
(ii) no Borrower may select Eurodollar Rate Advances
for any Borrowing if the aggregate amount of such Borrowing is
less than $10,000,000;
(iii) if the Majority Banks shall notify the Agent
that either (A) the Eurodollar Rate for any Interest Period
for any Eurodollar Rate Advances will not adequately reflect
the cost to such Banks of making or funding their respective
Eurodollar Rate Advances for such Interest Period, or (B) that
U.S. dollar deposits for the relevant amounts and Interest
Period for their respective Advances are not available to them
in the London interbank market, or it is otherwise impossible
to have Eurodollar Rate Advances, the Agent shall forthwith so
notify the Borrowers and the Banks, whereupon (I) each
Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a
Base Rate Advance, and (II) the obligations of the Banks to
make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended until the Agent, at the request of the
Majority Banks, shall notify the Borrowers and the Banks that
the circumstances causing such suspension no longer exist,
and, except as provided in Section 2.02(b)(v), each Advance
comprising any requested A Borrowing shall be a Base Rate
Advance;
(iv) if the Agent is unable to determine the
Eurodollar Rate for Eurodollar Rate Advances, the obligation
of the Banks to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Agent shall notify
the Borrowers and the Banks that the circumstances causing
such suspension no longer exist, and, except as provided in
Section 2.02(b)(v), each
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Advance comprising any requested A Borrowing shall be a Base
Rate Advance; and
(v) if a Borrower has requested a proposed A
Borrowing consisting of Eurodollar Rate Advances and as a
result of circumstances referred to in Section 2.02(b)(iii) or
(iv) such A Borrowing would not consist of Eurodollar Rate
Advances, such Borrower may, by notice given not later than
3:00 P.M. (New York City time) at least one Business Day prior
to the date such proposed A Borrowing would otherwise be made,
cancel such A Borrowing, in which case such A Borrowing shall
be cancelled and no Advances shall be made as a result of such
requested A Borrowing, but such Borrower shall indemnify the
Banks in connection with such cancellation as contemplated by
Section 2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrowers, except as set forth in Section 2.02(b)(v). In
the case of any A Borrowing requested by a Borrower which the related
Notice of A Borrowing specifies is to be comprised of Eurodollar Rate
Advances, such Borrower shall indemnify each Bank against any loss,
cost or expense incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of A Borrowing
for such A Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Bank to fund the A Advance to be made by such Bank as part of such A
Borrowing when such A Advance, as a result of such failure, is not made
on such date. A certificate in reasonable detail as to the basis for
and the amount of such loss, cost or expense submitted to such Borrower
and the Agent by such Bank shall be prima facie evidence of the amount
of such loss, cost or expense. If an A Borrowing requested by a
Borrower which the related Notice of A Borrowing specifies is to be
comprised of Eurodollar Rate Advances is not made as an A Borrowing
comprised of Eurodollar Rate Advances as a result of Section 2.02(b),
such Borrower shall indemnify each Bank against any loss (excluding
loss of profits), cost or expense incurred by such Bank by reason of
the liquidation or reemployment of deposits or other funds acquired by
such Bank prior to the time such Bank is actually aware that such A
Borrowing will not be so made to fund the A Advance to be made by such
Bank as part of such A Borrowing. A certificate in reasonable detail as
to the basis for and the amount of such loss, cost or expense submitted
to such Borrower and the Agent by such Bank shall be prima facie
evidence of the amount of such loss, cost or expense.
(d) Unless the Agent shall have received notice from a Bank
prior to the date of any A Borrowing to a Borrower that such Bank will
not make available to the Agent such Bank's ratable portion of such A
Borrowing, the Agent may assume that such Bank has made such portion
available to the Agent on the date of such A Borrowing in accordance
with subsection (a) of this Section 2.02 and the Agent may, in reliance
upon such assumption, make available to such Borrower requesting such A
Borrowing on such date a corresponding amount. If and to the extent
that such Bank shall not have so made such ratable portion available to
the Agent, such Bank and such Borrower severally agree
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to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Agent, at (i) in
the case of such Borrower, the interest rate applicable at the time to A
Advances comprising such A Borrowing and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Bank's A Advance as part of
such A Borrowing for purposes of this Agreement.
(e) The failure of any Bank to make the A Advance to be made
by it as part of any A Borrowing shall not relieve any other Bank of
its obligation, if any, hereunder to make its A Advance on the date of
such A Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the A Advance to be made by such other Bank on
the date of any A Borrowing.
Section 2.03 Fees.
(a) Commitment Fee. TWC agrees to pay to the Agent for the
account of each Bank a commitment fee on the average daily unused (for
the purposes of this Section 2.03(a), A Advances made to any Borrower
shall be considered to have been made to TWC, but B Advances to any
Borrower shall not, for purposes of this Section 2.03(a), be considered
to be usage of any Commitment) portion of such Bank's Commitment to TWC
from the date hereof until the Termination Date at a rate per annum
from time to time equal to the Applicable Commitment Fee Rate from time
to time, payable in arrears on the last day of each March, June,
September and December during the term such Bank has any Commitment to
any Borrower and on the Termination Date.
(b) Agent's Fees. TWC agrees to pay to the Agent, for its sole
account, such fees as may be separately agreed to in writing by TWC and
the Agent.
Section 2.04 Reduction of the Commitments.
(a) Optional. Each Borrower shall have the right, upon at
least three Business Days notice to the Agent, to terminate in whole or
reduce ratably in part the unused portions of the respective
Commitments of the Banks to such Borrower, 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 Commitments of the
Banks to any Borrower shall not be reduced to an amount which is less
than the aggregate principal amount of the Advances then outstanding to
such Borrower, and provided further, that the aggregate amount of the
Commitments of the Banks to TWC shall not be reduced to an amount which
is less than the aggregate principal amount of the Advances then
outstanding to the Borrower as to which the aggregate outstanding
principal amount of Advances is then the largest.
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(b) Termination. If all of the Commitments of the Banks to a
Borrower (other than TWC) are terminated pursuant to Section 2.04(a)
and such Borrower has paid all principal, interest, fees, costs and
other amounts owed by it hereunder, such Borrower shall have the right,
upon at least three Business Days notice to the Agent, to elect to
cease to be a Borrower hereunder, except for purposes of the definition
herein of Majority Banks and for purposes of Sections 2.11, 2.14 and
8.04.
Section 2.05 Repayment of A Advances. Each Borrower shall
repay, on the Stated Termination Date or such earlier date as the NoteS may be
declared due pursuant to Article VI, the unpaid principal amount of each A
Advance made by each Bank to such Borrower.
Section 2.06 Interest on A Advances. Each Borrower shall pay
interest on the unpaid principal amount of each A Advance made by each Bank to
such Borrower from the date of such A Advance until such principal amount shall
be paid in full, at the following rates per annum:
(a) Base Rate Advances. At such times as such A Advance is a
Base Rate Advance, a rate per annum equal at all times to the Base Rate
in effect from time to time, payable quarterly in arrears on the last
day of each March, June, September and December and on the date such
Advance shall be Converted or paid in full; provided that any amount of
principal of any Base Rate Advance, interest, fees and other amounts
payable hereunder (other than principal of any Eurodollar Rate Advance)
which is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest, from the date on which such amount
is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to the sum of the Base Rate in effect from
time to time plus 2% per annum.
(b) Eurodollar Rate Advances. At such times as such A Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times
during each Interest Period for such A Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin in
effect from time to time for such A Advance, payable on the last day of
such Interest Period and, if such Interest Period has a duration of
more than three months, on each day which occurs during such Interest
Period every three months from the first day of such Interest Period;
provided that any amount of principal of any Eurodollar Rate Advance
which is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest, from the date on which such amount
is due until such amount is paid in full, payable on demand, at a rate
per annum equal at all times to the sum of the rate per annum required
to be paid on such A Advance at such time plus 2% per annum.
Section 2.07 Additional Interest on Eurodollar Rate Advances.
Each Borrower shall pay to each Bank, so long as such Bank shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
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amount of each Eurodollar Rate Advance of such Bank to such Borrower, from the
date of such Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the Eurodollar Rate for the Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period,
payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Bank and notified to such
Borrower through the Agent. A certificate as to the amount of such additional
interest submitted to such Borrower and the Agent by such Bank shall be
conclusive and binding for all purposes, absent manifest error. No Bank shall
have the right to recover any additional interest pursuant to this Section 2.07
for any period more than 90 days prior to the date such Bank notifies the
Borrowers that additional interest may be charged pursuant to this Section 2.07.
Section 2.08 Interest Rate Determination. The Agent shall give
prompt notice to the Borrower to which an A Advance is made and the Banks of the
applicable interest rate for each Eurodollar Rate Advance determined by the
Agent for purposes of Section 2.06(b).
Section 2.09 Evidence of Debt.
(a) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of each
Borrower to such Bank resulting from each A Advance and B Advance made
by such Bank, including the amounts of principal and interest payable
and paid to such Bank from time to time hereunder.
(b) The Agent shall maintain accounts in which it shall record
(i) the Borrower and the amount of each Advance made hereunder, the
Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due
and payable from each Borrower to each Bank hereunder and (iii) the
amount of any sum received by the Agent hereunder for the account of
the Banks and each Bank"s share thereof.
(c) The entries made in good faith in the accounts maintained
pursuant to paragraph (a) or (b) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded
therein absent manifest error; provided that the failure of any Bank or
the Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrowers to repay the Advances
in accordance with the terms of this Agreement.
(d) Any Bank may request that the A Advances or any B Advance
made by it be evidenced by a Note. In such event, the Borrowers (or, in
the case of a B Advance, the relevant Borrower) shall prepare, execute
and deliver to such Bank a Note or Notes payable to the order of such
Bank. Thereafter, the Advances evidenced by such Note and interest
thereon shall at all times (including after assignment pursuant to
Section 8.06) be represented by one or more Notes payable to the order
of the payee named therein.
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Section 2.10 Prepayments.
(a) No Borrower shall have any right to prepay any principal
amount of any A Advance except as provided in this Section 2.10.
(b) Any Borrower may, in respect of Base Rate Advances upon
notice to the Agent before 10:00 A.M. (New York City time) on the date
of prepayment, and in respect of Eurodollar Rate Advances upon at least
three Business Days' notice to the Agent, in each case stating the
proposed date (which shall be a Business Day) and aggregate principal
amount of the prepayment, and if such notice is given such Borrower
shall, prepay the outstanding principal amounts of the A Advances
comprising part of the same A Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the
principal amount prepaid and amounts, if any, required to be paid
pursuant to Section 8.04(b) as a result of such prepayment; provided,
however, that each partial prepayment pursuant to this Section 2.10(b)
shall be in an aggregate principal amount not less than $5,000,000 and
in an aggregate principal amount such that after giving effect thereto
no A Borrowing comprised of Base Rate Advances shall have a principal
amount outstanding of less than $5,000,000 and no A Borrowing comprised
of Eurodollar Rate Advances shall have a principal amount outstanding
of less than $10,000,000.
(c) Each Borrower will give notice to the Agent at or before
the time of each prepayment by such Borrower of Advances pursuant to
this Section 2.10 specifying the Advances which are to be prepaid and
the amount of such prepayment to be applied to such Advances, and each
payment of any Advance pursuant to this Section 2.10 or any other
provision of this Agreement shall be made in a manner such that all
Advances comprising part of the same Borrowing are paid in whole or
ratably in part.
Section 2.11 Increased Costs.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve
requirements included in the Eurodollar Rate Reserve Percentage) in or
in the interpretation, application or applicability of any law or
regulation or (ii) the compliance with any guideline or request from
any central bank or other governmental or monetary authority (whether
or not having the force of law), there shall be any increase in the
cost to any Bank of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances to any Borrower, then such Borrower shall from
time to time, upon demand by such Bank (with a copy of such demand to
the Agent), pay to the Agent for the account of such Bank additional
amounts sufficient to compensate such Bank for such increased cost. A
certificate as to the amount of such increased cost, submitted to such
Borrower and the Agent by such Bank, shall be prima facie evidence of
the amount of such increased cost. No Bank shall have the right to
recover any such increased costs for any period more than 90 days prior
to the date such Bank notifies the Borrowers of any such introduction,
change, compliance or proposed compliance.
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26
(b) If any 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 any corporation controlling such Bank
and that the amount of such capital is increased by or based upon the
existence of such Bank's commitment to lend to any Borrower hereunder
and other commitments of this type, then, upon demand by such Bank
(with a copy of such demand to the Agent), such Borrower shall
immediately pay to the Agent for the account of such Bank, from time to
time as specified by such Bank, additional amounts sufficient to
compensate such Bank or such corporation in the light of such
circumstances, to the extent that such Bank reasonably determines such
increase in capital to be allocable to the existence of such Bank's
commitment to lend hereunder. A certificate as to the amount of such
additional amounts, submitted to such Borrower and the Agent by such
Bank, shall be prima facie evidence of the amount of such additional
amounts. No Bank shall have any right to recover any additional amounts
under this Section 2.11(b) for any period more than 90 days prior to
the date such Bank notifies the Borrowers of any such compliance.
(c) In the event that any Bank makes a demand for payment
under Section 2.07, Section 2.14 or this Section 2.11, TWC may within
ninety days of such demand, if no Event of Default or event which, with
the giving of notice or lapse of time or both, would constitute an
Event of Default then exists, replace such Bank with another commercial
bank in accordance with all of the provisions of the last sentence of
Section 8.06(a) (including execution of an appropriate Transfer
Agreement) provided that (i) all obligations of such Bank to lend
hereunder shall be terminated and the NoteS payable to 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 (unless such replacement bank
is already a Bank prior to the effectiveness of such replacement) shall
be reasonably satisfactory to the Agent, (iii) such replacement bank
shall, from and after such replacement, be deemed for all purposes to
be a "Bank" hereunder with a Commitment to each Borrower in the amount
of the respective Commitment of such Bank to such Borrower immediately
prior to such replacement (plus, if such replacement bank is already a
Bank prior to such replacement the respective Commitment of such Bank
to such Borrower 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,
and (iv) such other actions shall be taken by the Borrowers, 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, without limitation, execution and
delivery of new Note(s) of each Borrower to such replacement bank if
requested by such replacement bank or if required pursuant to Section
2.09, redelivery to each Borrower in due course of the Note(s) of such
Borrower payable to such Bank and specification of the information
contemplated by Schedule I as to such replacement bank).
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27
(d) Before making any demand under this Section 2.11, each
Bank agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable 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 2.12 Illegality.
(a) Notwithstanding any other provision of this Agreement, if
any Bank shall notify the Agent that the introduction of or any change
in or in the interpretation of any law or regulation shall make it
unlawful, or that any central bank or other governmental or monetary
authority shall assert that it is unlawful, for any Bank or its
Eurodollar Lending Office to perform its obligations hereunder to make,
or Convert a Base Rate Advance into, a Eurodollar Rate Advance or to
continue to fund or maintain any Eurodollar Rate Advance, then, on
notice thereof to the Borrowers by the Agent, (i) the obligation of
each of the Banks to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Agent, at the request of the
Majority Banks, shall notify the Borrowers and the Banks that the
circumstances causing such suspension no longer exist, and (ii) the
Borrowers shall forthwith prepay in full all Eurodollar Rate Advances
of all Banks then outstanding together with all accrued interest
thereon and all amounts payable pursuant to Section 8.04(b), unless
each Bank shall determine in good faith in its sole opinion that it is
lawful to maintain the Eurodollar Rate Advances made by such Bank to
the end of the respective Interest Periods then applicable thereto or
unless the Borrowers, within five Business Days of notice from the
Agent, Convert all Eurodollar Rate Advances of all Banks then
outstanding into Base Rate Advances in accordance with Section 2.19.
(b) If legally permissible, before delivering any notice to
the Agent under this Section 2.12 regarding illegality of Eurodollar
Rate Advances, each Bank agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar 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 2.13 Payments and Computations.
(a) Each 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 in U.S. dollars to the Agent at its New York address referred to in
Section 8.02 in same day funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of
principal, interest or commitment fees ratably (other than amounts
payable pursuant to Sections 2.02(c), 2.07, 2.11, 2.14, 2.16 or
8.04(b)) to the Banks for the account of their respective Applicable
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
Applicable Lending
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28
Office, in each case to be applied in accordance with the terms of this
Agreement. In no event shall any Bank be entitled to share any fee paid
to the Agent pursuant to Section 2.03(b), any auction fee paid to the
Agent pursuant to Section 2.16(a)(i) or any other fee paid to the
Agent, as such.
(b) [Intentionally Blank]
(c) (i) All computations of interest based on clause (a) of
the definition herein of Base Rate and of commitment fees 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 Eurodollar Rate,
the Federal Funds Rate or clause (b) of the definition herein of Base
Rate shall be made by the Agent, and all computations of interest
pursuant to Section 2.07 shall be made by a Bank, 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 commitment fees are payable. Each determination
by the Agent (or, in the case of Section 2.07, by a Bank) of an
interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the NoteS 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 commitment fee, as the case may be; provided, however, if
such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from a
Borrower prior to the date on which any payment is due by such Borrower
to any Bank hereunder that such Borrower will not make such payment in
full, the Agent may assume that such 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 such 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 2.14 Taxes.
(a) Any and all payments by any Borrower hereunder shall be
made, in accordance with Section 2.13, 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
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29
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 Applicable 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 any Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any 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 2.14) 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) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each 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
such Borrower hereunder or under any NoteS executed by it or from the
execution, delivery or registration of, or otherwise with respect to,
this Agreement or such NoteS (hereinafter referred to as "Other
Taxes").
(c) Each Borrower will indemnify each Bank and the Agent for
the full amount of Taxes or Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable
under this Section 2.14) owed and paid by such 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 or
the Agent (as the case may be) makes written demand therefor, provided
that, such Borrower shall have no liability pursuant to this clause (c)
of this Section 2.14 to indemnify a Bank or the Agent for Taxes or
Other Taxes which were paid by such Bank or the Agent more than ninety
days prior to such written demand for indemnification
(d) In the event that a 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 or Agent
shall promptly notify TWC in writing and provide TWC with a copy of
such communication. The Agent or a Bank's failure to provide a copy of
such communication to TWC shall not relieve any Borrower of any of its
obligations under Section 2.14(c).
(e) Within 30 days after the date of the payment of Taxes by
or at the direction of any Borrower, such Borrower will furnish to the
Agent, at its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment
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30
thereof. Should any Bank or the Agent ever receive any refund, credit
or deduction from any taxing authority to which such Bank or the Agent
would not be entitled but for the payment by a Borrower of Taxes as
required by this Section 2.14 (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 or the
Agent, as the case may be, in its reasonable judgment), such Bank or
the Agent, as the case may be, thereupon shall repay to such Borrower
an amount with respect to such refund, credit or deduction equal to any
net reduction in taxes actually obtained by such Bank or the Agent, as
the case may be, and determined by such Bank or the Agent, as the case
may be, to be attributable to such refund, credit or deduction.
(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 of 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 the Agent and each 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 such Borrower or (iii) a controlled
foreign corporation related to such 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 Loan 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 any Borrower with the appropriate form, certificate or other
document described in subsection(f) of this Section 2.14 (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 2.14 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 Borrowers
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Multi-Year Credit Agreement
31
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 2.14 agrees to use reasonable efforts to change the
jurisdiction of its Applicable 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 Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 2.14 shall survive the payment in
full of principal and interest hereunder and the termination of the
Commitments.
(j) Notwithstanding any provision of this Agreement or the
NoteS to the contrary, this Section 2.14 shall be the sole provision
governing indemnities and claims for taxes under this Agreement and the
NoteS, if any.
Section 2.15 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 the A Advances made by it
(other than pursuant to Section 2.02(c), 2.07, 2.11, 2.14 or 8.04(b)) in excess
of its ratable share of payments on account of the A Advances obtained by all
the Banks, such Bank shall forthwith purchase from the other Banks such
participations in the A Advances owed to them 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. Each Borrower agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.15 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 such Borrower in the amount of such participation.
Section 2.16 The B Advances.
(a) Each Bank severally agrees that each Borrower may make B
Borrowings under this Section 2.16 from time to time on any Business
Day during the period from the date hereof until the earlier of (I) the
Termination Date or (II) the date occurring 30 days prior to the Stated
Termination Date in the manner set forth below; provided that,
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Multi-Year Credit Agreement
32
following the making of each B Borrowing, the aggregate amount of the
Advances then outstanding to such Borrower shall not exceed the
aggregate amount of the Commitments of the Banks to such Borrower
(computed without regard to any B Reduction) and the aggregate amount
of all Advances then outstanding shall not exceed the aggregate amount
of the Commitments of the Banks to TWC (computed without regard to any
B Reduction).
(i) A Borrower may request a B Borrowing under this
Section 2.16 by delivering to the Agent, by telecopier, telex
or cable, confirmed immediately in writing, a notice of a B
Borrowing (a "Notice of B Borrowing"), in substantially the
form of Exhibit B-2 hereto, specifying the date and aggregate
amount of the proposed B Borrowing, the maturity date for
repayment of each B Advance to be made as part of such B
Borrowing (which maturity date may not be earlier than the
date occurring 7 days after the date of such B Borrowing or
later than the earlier of (x) 6 months after the date of such
B Borrowing or (y) the Stated Termination Date), the interest
payment date or dates relating thereto, and any other terms to
be applicable to such B Borrowing (including, without
limitation, the basis to be used by the Banks in determining
the rate or rates of interest to be offered by them as
provided in paragraph (ii) below and prepayment terms, if any,
but excluding any waiver or other modification to any of the
conditions set forth in Article III), not later than 10:00
A.M. (New York City time) (A) at least one Business Day prior
to the date of the proposed B Borrowing, if such Borrower
shall specify in the Notice of B Borrowing that the rates of
interest to be offered by the Banks shall be fixed rates per
annum and (B) at least five Business Days prior to the date of
the proposed B Borrowing, if such Borrower shall instead
specify in the Notice of B Borrowing the basis to be used by
the Banks in determining the rates of interest to be offered
by them. The Agent shall in turn promptly notify each Bank of
each request for a B Borrowing received by it from a Borrower
by sending such Bank a copy of the related Notice of B
Borrowing. Each time that a Borrower gives a Notice of B
Borrowing, such Borrower shall pay to the Agent an auction fee
equal to $2000.
(ii) Each Bank may, if in its sole discretion it
elects to do so, irrevocably offer to make one or more B
Advances to a Borrower as part of such proposed B Borrowing at
a rate or rates of interest specified by such Bank in its sole
discretion, by notifying the Agent (which shall give prompt
notice thereof to such Borrower), before 10:00 A.M. (New York
City time) (x) on the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to
clause (A) of paragraph (i) above, and (y) three Business Days
before the date of such proposed B Borrowing in the case of a
Notice of B Borrowing delivered pursuant to clause (B) of
paragraph (i) above, of the minimum amount and maximum amount
of each B Advance which such Bank would be willing to make as
part of such proposed B Borrowing (which amounts may, subject
to the proviso to the first sentence of this Section 2.16(a),
exceed such Bank's Commitment to such Borrower), the rate or
rates of interest therefor, and such Bank's Applicable
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Multi-Year Credit Agreement
33
Lending Office with respect to such B Advance; provided that
if the Agent in its capacity as a Bank shall, in its sole
discretion, elect to make any such offer, it shall notify such
Borrower of such offer before 9:45 A.M. (New York City time)
on the date on which notice of such election is to be given to
the Agent by the other Banks. If any Bank wishes to request a
B Note in respect to its B Advance, such request shall be
delivered with the notice referred to in the preceding
sentence. If any Bank shall elect not to make such an offer,
such Bank shall so notify the Agent, before 10:00 A.M. (New
York City time) on the date on which notice of such election
is to be given to the Agent by the other Banks, and such Bank
shall not be obligated to, and shall not, make any B Advance
as part of such B Borrowing; provided that the failure by any
Bank to give such notice shall not cause such Bank to be
obligated to make any B Advance as part of such proposed B
Borrowing.
(iii) The Borrower requesting such proposed B
Borrowing shall, in turn, before 11:00 A.M. (New York City
time) (x) on the date of such proposed B Borrowing in the case
of a Notice of B Borrowing delivered pursuant to clause (A) of
paragraph (i) above and (y) three Business Days before the
date of such proposed B Borrowing in the case of a Notice of B
Borrowing delivered pursuant to clause (B) of paragraph (i)
above, either
(A) cancel such B Borrowing by giving the
Agent notice to that effect, or
(B) accept one or more of the offers made by
any Bank or Banks pursuant to paragraph (ii) above,
in order of the lowest to highest rates of interest
or margins (or, if two or more Banks bid at the same
rates of interest, and the amount of accepted offers
is less than the aggregate amount of such offers, the
amount to be borrowed from such Banks as part of such
B Borrowing shall be allocated among such Banks pro
rata on the basis of the maximum amount offered by
such Banks at such rates or margin in connection with
such B Borrowing), in any aggregate amount up to the
aggregate amount initially requested by such Borrower
in the relevant Notice of B Borrowing, by giving
notice to the Agent of the amount of each B Advance
(which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum
amount, notified to such Borrower by the Agent on
behalf of such Bank for such B Advance pursuant to
paragraph (ii) above) to be made by each Bank as part
of such B Borrowing, and reject any remaining offers
made by Banks pursuant to paragraph (ii) above by
giving the Agent notice to that effect.
(iv) If the Borrower requesting such B Borrowing
notifies the Agent that such B Borrowing is cancelled pursuant
to paragraph (iii)(A) above, the
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34
Agent shall give prompt notice thereof to the Banks and such B
Borrowing shall not be made.
(v) If the Borrower requesting such B Borrowing
accepts one or more of the offers made by any Bank or Banks
pursuant to paragraph (iii)(B) above, the Agent shall in turn
promptly notify (A) each Bank that has made an offer as
described in paragraph (ii) above, of the date and aggregate
amount of such B Borrowing and whether or not any offer or
offers made by such Bank pursuant to paragraph (ii) above have
been accepted by such Borrower, (B) each Bank that is to make
a B Advance as part of such B Borrowing, of the amount of each
B Advance to be made by such Bank as part of such B Borrowing,
and (C) each Bank that is to make a B Advance as part of such
B Borrowing, upon receipt, that the Agent has received forms
of documents appearing to fulfill the applicable conditions
set forth in Article III. Each Bank that is to make a B
Advance as part of such B Borrowing shall, before 12:00 noon
(New York City time) on the date of such B Borrowing specified
in the notice received from the Agent pursuant to clause (A)
of the preceding sentence or any later time when such Bank
shall have received notice from the Agent pursuant to clause
(C) of the preceding sentence, make available for the account
of its Applicable Lending Office to the Agent at its New York
address referred to in Section 8.02 such Bank's portion of
such B Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article III and after
receipt by the Agent of such funds, the Agent will make such
funds available to such Borrower at the Agent's aforesaid
address. Promptly after each B Borrowing the Agent will notify
each Bank of the amount of the B Borrowing, the Borrower to
which such B Borrowing was made, the consequent B Reduction
and the dates upon which such B Reduction commenced and will
terminate.
(b) Each B Borrowing shall be in an aggregate amount of not
less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof. Each Borrower agrees that it will not request a B Borrowing
unless, upon the making of such B Borrowing, the limitations set forth
in the proviso to the first sentence of Section 2.16(a) are complied
with.
(c) Within the limits and on the conditions set forth in this
Section 2.16, each Borrower may from time to time borrow under this
Section 2.16, repay or prepay pursuant to subsection (d) below, and
reborrow under this Section 2.16, provided that a B Borrowing shall not
be made by any Borrower within three Business Days of the date of
another B Borrowing to such Borrower.
(d) Each Borrower shall repay to the Agent for the account of
each Bank which has made a B Advance to such Borrower, or each other
holder of a B Note of such Borrower, on the maturity date of each B
Advance made to such Borrower (such maturity date being that specified
by such Borrower for repayment of such B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (a)(i) above and
provided
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35
in the B Note, if any, evidencing such B Advance) the then unpaid
principal amount of such B Advance. No Borrower shall have any right to
prepay any principal amount of any B Advance unless, and then only on
the terms, specified by such Borrower for such B Advance in the related
Notice of B Borrowing delivered pursuant to subsection (a)(i) above and
set forth in the B Note evidencing such B Advance.
(e) Each Borrower shall pay interest on the unpaid principal
amount of each B Advance made to such Borrower from the date of such B
Advance to the date the principal amount of such B Advance is repaid in
full, at the rate of interest for such B Advance specified by the Bank
making such B Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment
date or dates specified by such Borrower for such B Advance in the
related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the B Note evidencing such B Advance.
(f) The indebtedness of each Borrower resulting from each B
Advance made to such Borrower as part of a B Borrowing shall, if
requested by the Bank making such B Advance, be evidenced by a separate
B Note of such Borrower payable to the order of the Bank making such B
Advance.
(g) The failure of any Bank to make the B Advance to be made
by it as part of any B Borrowing shall not relieve any other Bank of
its obligation, if any, hereunder to make its B Advance on the date of
such B Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the B Advance to be made by such other Bank on
the date of any B Borrowing.
Section 2.17 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 TWC or of any
Subsidiary of TWC) or two or more Persons acting in concert (other than any
group of employees of TWC or of any of its Subsidiaries) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of securities of TWC (or other securities convertible into such
securities) representing 35% or more of the combined voting power of all
securities of TWC 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 before or
after the date of this Agreement, individuals who at the beginning of such
24-month period were directors of TWC or who were elected 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 TWC, or (iii) any Person (other than TWC or a
Wholly-Owned Subsidiary of TWC) 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 a 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 any Borrower; then the Agent shall
at the request, or may
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36
with the consent, of the Majority Banks, by notice to the Borrowers, declare all
of the Commitments and the obligation of each Bank to make Advances to be
terminated, whereupon all of the Commitments and each such obligation shall
forthwith terminate, and no Borrower shall have any further right to borrow
hereunder.
Section 2.18 Extension of Termination Date. By notice given to
the Agent and the Banks, at least thirty days but not more than sixty days
before July 1 of any year after 2003, the Borrowers may request the Banks to
extend the Stated Termination Date for an additional year to a date which is an
anniversary date of the 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 Borrowers
and the Agent in writing that it so agrees, and if all Banks so agree the Stated
Termination Date shall be so extended.
Section 2.19 Voluntary Conversion of Advances. Any Borrower
may on any Business Day, if no Event of Default then exists as to such Borrower,
upon notice (which shall be irrevocable) given to the Agent not later than 11:00
A.M. (x) in the case of a proposed Conversion into Eurodollar Rate Advances, on
the third Business Day prior to the date of the proposed conversion, and (y) in
the case of a proposed Conversion into Base Rate Advances, on the date of the
proposed Conversion, and subject to the provisions of Sections 2.02 and 2.12,
Convert all Advances of one Type comprising the same A Borrowing into Advances
of the other Type; provided that (i) no Conversion of any Eurodollar Rate
Advances shall occur on a day other than the last day of an Interest Period for
such Eurodollar Rate Advances, except as contemplated by Section 2.12, and (ii)
Advances may not be Converted into Eurodollar Rate Advances if the aggregate
unpaid principal amount of the Advances is less than $10,000,000. Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the A Advances to be Converted, and (iii)
if such Conversion is into Eurodollar Rate Advances, the duration of the
Interest Period for each such Advance.
Section 2.20 Automatic Provisions.
(a) If any Borrower shall fail to select the duration of any
Interest Period for Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section
1.01 and no Event of Default shall exist, the Agent will forthwith so
notify such Borrower and the Banks, and such Advances will
automatically, on the last day of the then existing Interest Period
therefor, continue as Eurodollar Rate Advances with an Interest Period
of one month. If any Event of Default shall exist, such Advances shall
convert into Base Rate Advances on the last day of the then existing
Interest Period.
(b) On the date on which the aggregate unpaid principal amount
of the Eurodollar Rate Advances of any Borrower shall be reduced to
less than $10,000,000, all of such Eurodollar Rate Advances shall
automatically Convert into Base Rate Advances.
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ARTICLE III
CONDITIONS
Section 3.01 Conditions Precedent to Initial Advances. The
obligation of each Bank to make its initial Advance on or after the date hereof
is subject to the condition precedent that the Agent shall have received on or
before the date hereof, each dated on or before such date, in form and substance
satisfactory to the Agent and (except for the NoteS, if any) in sufficient
copies for each Bank:
(a) The A Notes executed severally by each of the respective
Borrowers to the order of each of the respective Banks which has
requested an A Note prior to the date hereof and this Agreement
executed by the Borrowers.
(b) Certified copies of the resolutions of the Board of
Directors, or the Executive Committee thereof, of each Borrower
authorizing the execution of this Agreement and NoteS, to the extent
such Notes may be requested by the Banks.
(c) A certificate of the Secretary or an Assistant Secretary
of each Borrower certifying (i) that attached thereto is a complete and
correct copy of the Certificate of Incorporation and Bylaws of such
Borrower together with any amendments thereto, and (ii) the names and
true signatures of the officers of such Borrower authorized to sign
this Agreement, Notices of A Borrowing, Notices of B Borrowing and any
NoteS to be executed by such Borrower and any other documents to be
delivered hereunder by such Borrower.
(d) An opinion of William G. von Glahn, General Counsel of
TWC, substantially in the form of Exhibit C hereto and as to such other
matters as any Bank through the Agent may reasonably request.
(e) An opinion of Mayer, Brown & Platt, special counsel to the
Agent, substantially in the form of Exhibit D hereto.
(f) Evidence that principal and interest on all loans and
advances outstanding and all accrued fees and other obligations owed by
any borrower pursuant to that certain Second Amended and Restated
Credit Agreement dated as of July 23, 1997, as amended, among the
Borrowers (as defined therein), the financial institutions parties
thereto (the "Prior Banks"), and Citibank, N.A., as agent for the Prior
Banks, have been paid in full, which payments may be made with the
proceeds of the initial Borrowing.
(g) A certificate of an officer of each Borrower stating the
respective ratings by each of S&P and Moody's of the senior unsecured
long-term debt of such Borrower as in effect on the date of this
Agreement.
Section 3.02 Additional Conditions Precedent to Each A
Borrowing. The obligation of each Bank to make an A Advance to a Borrower on the
occasion of any
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A Borrowing (including the initial A Borrowing) shall be subject to the further
conditions precedent that on the date of such A Borrowing the following
statements shall be true (and each of the giving of the applicable Notice of A
Borrowing and the acceptance by such Borrower of the proceeds of such A
Borrowing shall constitute a representation and warranty by such Borrower that
on the date of such A Borrowing such statements are true):
(a) The representations and warranties contained in Section
4.01 pertaining to such Borrower and its Subsidiaries are correct on
and as of the date of such A Borrowing, before and after giving effect
to such A Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date;
(b) No event has occurred and is continuing, or would result
from such A Borrowing or from the application of the proceeds
therefrom, 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; and
(c) After giving effect to such A Borrowing and all other
Borrowings which have been requested on or prior to such date but which
have not been made prior to such date, the aggregate principal amount
of all Advances will not exceed the aggregate of the Commitments of the
Banks to TWC (computed without regard to any B Reduction).
Section 3.03 Conditions Precedent to Each B Borrowing. The
obligation of each Bank which is to make a B Advance to a Borrower on the
occasion of a B Borrowing (including the initial B Borrowing) to make such B
Advance as part of such B Borrowing is subject to the further conditions
precedent that (i) at or before the time required by paragraph (iii) of Section
2.16(a), the Agent shall have received the written confirmatory notice of such B
Borrowing contemplated by such paragraph, (ii) on or before the date of such B
Borrowing, but prior to such B Borrowing, if the Bank making any B Advance shall
have requested a B Note pursuant to Section 2.16(a)(ii), the Agent shall have
received a B Note executed by such Borrower payable to the order of such Bank
for the B Advances to be made by such Bank as part of such B Borrowing, in a
principal amount equal to the principal amount of the B Advance to be evidenced
thereby and otherwise on such terms as were agreed to for such B Advance in
accordance with Section 2.16, and (iii) on the date of such B Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of B Borrowing and the acceptance by such Borrower of the proceeds of
such B Borrowing shall constitute a representation and warranty by such Borrower
that on the date of such B Borrowing such statements are true):
(a) The representations and warranties contained in Section
4.01 pertaining to such Borrower and its Subsidiaries are correct on
and as of the date of such B Borrowing, before and after giving effect
to such B Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date;
(b) No event has occurred and is continuing, or would result
from such B Borrowing or from the application of the proceeds
therefrom, which constitutes an
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39
Event of Default or which would constitute an Event of Default but for
the requirement that notice be given or time elapse or both;
(c) Following the making of such B Borrowing and all other
Borrowings to be made on the same day to such Borrower under this
Agreement, the aggregate principal amount of all Advances to such
Borrower then outstanding will not exceed the aggregate amount of the
Commitments to such Borrower (computed without regard to any B
Reduction), and
(d) After giving effect to such B Borrowing and all other
Borrowings which have been requested on or prior to such date but which
have not been made prior to such date, the aggregate principal amount
of all Advances will not exceed the aggregate of the Commitments of the
Banks to TWC (computed without regard to any B Reduction).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as to itself and its Subsidiaries as
follows:
(a) Each 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 such 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
the failure to have which 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 Agreement and the Notes, if any, delivered hereunder and the
consummation of the transactions contemplated by this Agreement are
within such Borrower's corporate or limited liability company powers,
have been duly authorized by all necessary corporate
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40
or limited liability company action, do not contravene (i) such
Borrower's charter, by-laws, or formation agreement, or (ii) 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
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 any
Borrower of this Agreement or the NoteS, if any, or the consummation of
the transactions contemplated by this Agreement.
(d) This Agreement has been duly executed and delivered by
each Borrower. This Agreement is the legal, valid and binding
obligation 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. The A Notes, if any, of each Borrower are, and
when executed the B Notes, if any, of such Borrower will be, the legal,
valid and binding obligations of such Borrower enforceable against such
Borrower in accordance with their respective terms, except as such
enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and by general principles of equity.
(e) (i) The Consolidated and Consolidating balance sheets of
TWC and its Subsidiaries as at December 31, 1999, and the related
Consolidated and Consolidating statements of income and cash flows of
TWC and its Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, and the Consolidated and
Consolidating balance sheets of TWC and its Subsidiaries as at March
31, 2000, and the related Consolidated and Consolidating statements of
income and cash flows of TWC and its Subsidiaries for the three months
then ended, duly certified by an authorized financial officer of TWC,
copies of which have been furnished to each Bank, fairly present, (in
the case of such balance sheets as at March 31, 2000, and such
statements of income and cash flows for the three months then ended,
subject to year-end audit adjustments) the Consolidated and
Consolidating financial condition of TWC and its Subsidiaries as at
such dates and the Consolidated and Consolidating results of operations
of TWC and its Subsidiaries for the year and three month period,
respectively, ended on such dates, all in accordance with generally
accepted accounting principles consistently applied. Since March 31,
2000, there has been no material adverse change in the condition or
operations of TWC or its Subsidiaries.
(ii) The Consolidating balance sheets of TWC and its
Subsidiaries as at December 31, 1999, and March 31, 2000,
referred to in Section 4.01(e)(i), and the related
Consolidating statements of income and cash flows of TWC and
its Subsidiaries for the fiscal year and three months,
respectively, then ended referred to in Section 4.01(e)(i), to
the extent such balance sheets and statements pertain to NWP,
fairly present (subject, in the case of such balance sheet as
at March 31,
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41
2000 and such statements of income and cash flows for the
three months then ended, to year-end audit adjustments) the
Consolidated financial condition of NWP and its Subsidiaries
as at such dates and the Consolidated results of operations of
NWP and its Subsidiaries for the year and three month period,
respectively, ended on such dates, all in accordance with
generally accepted accounting principles consistently applied.
Since March 31, 2000, there has been no material adverse
change in the condition or operations of NWP or its
Subsidiaries.
(iii) [Intentionally Omitted]
(iv) The Consolidated balance sheet of TGPL and its
Subsidiaries as at December 31, 1999, and the related
Consolidated statement of income and cash flows of TGPL and
its Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, and the Consolidated
balance sheet of TGPL and its Subsidiaries as at March 31,
2000, and the related Consolidated statement of income and
cash flows of TGPL and its Subsidiaries for the three months
then ended, duly certified by an authorized financial officer
of TGPL, copies of which have been furnished to each Bank,
fairly present, subject, in the case of such balance sheet as
at March 31, 2000, and such statement of income and cash flows
for the three months then ended, to year-end audit
adjustments, the Consolidated financial condition of TGPL and
its Subsidiaries as at such dates and the Consolidated results
of operations of TGPL and its Subsidiaries for the year and
three month period, respectively, ended on such dates, all in
accordance with generally accepted accounting principles
consistently applied. Since March 31, 2000, there has been no
material adverse change in the condition or operations of TGPL
or its Subsidiaries.
(v) The Consolidated balance sheet of TGT and its
Subsidiaries as at December 31, 1999, and the related
Consolidated statement of income and cash flows of TGT and its
Subsidiaries for the fiscal year then ended, copies of which
have been furnished to each Bank, and the Consolidated balance
sheet of TGT and its Subsidiaries as at March 31, 2000, and
the related Consolidated statement of income and cash flows of
TGT and its Subsidiaries for the three months then ended, duly
certified by an authorized financial officer of TGT, copies of
which have been furnished to each Bank, fairly present,
subject, in the case of such balance sheet as at March 31,
2000, and such statement of income and cash flows for the
three months then ended, to year-end audit adjustments, the
Consolidated financial condition of TGT and its Subsidiaries
as at such dates and the Consolidated results of operations of
TGT and its Subsidiaries for the year and three month period,
respectively, ended on such dates, all in accordance with
generally accepted accounting principles consistently applied.
Since March 31, 2000, there has been no material adverse
change in the condition or operations of TGT or its
Subsidiaries.
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(f) Except as set forth in the Public Filings or as otherwise
disclosed in writing by a Borrower to the Banks and the Agent after the
date hereof and approved by the Majority Banks, there is, as to each
Borrower, 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 Borrower, any Subsidiary
of the 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
Agreement or any Note.
(g) No proceeds of any Advance will be used for any purpose or
in any manner not permitted by Section 5.02(k).
(h) No Borrower is 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 Board of Governors of the Federal
Reserve System), and no proceeds of any Advance will be used to
purchase or carry any such margin stock (other than purchases of common
stock expressly permitted by Section 5.02(k)) or to extend credit to
others for the purpose of purchasing or carrying any such margin stock.
Following the application of the proceeds of each Advance, not more
than 25% of the value of the assets of any Borrower will be represented
by such margin stock and not more than 25% of the value of the assets
of any Borrower and its Subsidiaries (or, in the case of TWC, the
Borrower, its Subsidiaries and the WCG Subsidiaries) will be
represented by such margin stock.
(i) 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.
(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 any of the Borrowers or
on any material Subsidiary of a Borrower (including, in the case of
TWC, any material WCG Subsidiaries). No Borrower nor any ERISA
Affiliate of any Borrower has received any notification that any
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no Borrower is 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 any Borrower, any material
Subsidiary of a Borrower (including, in the case of TWC, any material
WCG Subsidiaries) or any ERISA Affiliate of a Borrower.
(k) As of the date of this Agreement, the United States
federal income tax returns of each Borrower and the material
Subsidiaries of each Borrower have been examined through the fiscal
year ended December 31, 1995. Each Borrower and the
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43
Subsidiaries of each Borrower 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 any 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 each Borrower and the material Subsidiaries of each Borrower
in respect of taxes are adequate.
(l) 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.
(m) Except as set forth in the Public Filings or as otherwise
disclosed in writing by a Borrower to the Banks and the Agent after the
date hereof and approved by the Majority Banks, the Borrowers and their
respective material Subsidiaries are in compliance in all material
respects with all Environmental Protection Statutes to the extent
material to their respective operations or financial condition. Except
as set forth in the Public Filings or as otherwise disclosed in writing
by a 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 each Borrower and its Subsidiaries (other
than those reserved for in accordance with generally accepted
accounting principles and set forth in the financial statements
regarding such Borrower referred to in Section 4.01(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 such 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, without limitation, 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,
condition or operations of such Borrower and its Subsidiaries, taken as
a whole. For purposes of this clause (m) of Section 4.01,
"Subsidiaries" shall be deemed to include WCG Subsidiaries
ARTICLE V
COVENANTS OF THE BORROWERS
Section 5.01 Affirmative Covenants. So long as any Note shall
remain unpaid, any Advance shall remain outstanding or any Bank shall have any
Commitment to any Borrower hereunder, each Borrower will, unless the Majority
Banks shall otherwise consent in writing:
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(a) Compliance with Laws, Etc. Comply, and cause each of its
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 such Borrower and its
Subsidiaries taken as a whole), such compliance to include, without
limitation, the payment and discharge before the same become delinquent
of all taxes, assessments and governmental charges or levies imposed
upon it or any of its Subsidiaries or upon any of its property or any
property of any of its Subsidiaries, and all lawful claims which, if
unpaid, might become a Lien upon any property of it or any of its
Subsidiaries, provided that no Borrower nor any Subsidiary of a
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 such Borrower or such
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 Event of Default or each
event which, with the giving of notice or lapse of time or
both, would constitute an Event of Default, continuing on the
date of such statement, a statement of an authorized financial
officer of such Borrower setting forth the details of such
Event of Default or event and the actions, if any, which such
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 such Borrower, the Consolidated (and,
in the case of TWC, the Consolidating) balance sheets of such
Borrower and its Subsidiaries as of the end of such quarter
and the Consolidated (and, in the case of TWC, the
Consolidating) statements of income and cash flows of such
Borrower and its 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) by an authorized financial
officer of such 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 5.01(b) is readily available on-line through EDGAR,
such Borrower shall not be obligated to furnish copies of such
financial statement. An authorized financial officer of such
Borrower shall furnish a certificate (a) stating that he has
no knowledge that an Event of Default, or an event which, with
notice or lapse of time or both, would constitute an Event of
Default has occurred and is continuing or, if an Event of
Default or such an event has occurred and is continuing, a
statement as to the nature thereof and the action, if any,
which such Borrower proposes to take with respect thereto, and
(b) showing in detail the calculation supporting such
statement in respect of Section 5.02(b), provided that, in the
case of TWC, for purposes of the clause
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45
(b)(ii) and (b)(iii) of this Section 5.01, "Subsidiaries" when
used in relation to a Consolidated balance sheet and the
related statements of income and cash flow shall include the
WCG Subsidiaries;
(iii) as soon as available and in any event not later
than 105 days after the end of each fiscal year of such
Borrower, a copy of the annual audit report for such year for
such Borrower and its Subsidiaries, including therein
Consolidated (and, in the case of TWC, Consolidating) balance
sheets of such Borrower and its Subsidiaries as of the end of
such fiscal year and Consolidated (and, in the case of TWC,
Consolidating) statements of income and cash flows of such
Borrower and its Subsidiaries for such fiscal year, in each
case prepared in accordance with generally accepted accounting
principles and certified by Ernst & Young, LLP or other
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 5.02(b) is readily available on-line through EDGAR,
such Borrower shall not be obligated to furnish copies of such
financial statement. Each Borrower shall also deliver in
conjunction with such financial statements a certificate of
such accounting firm to the Banks (a) stating that, in the
course of the regular audit of the business of such Borrower
and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that
an Event of Default or an event which, with notice or lapse of
time or both, would constitute an Event of Default, has
occurred and is continuing, or if, in the opinion of such
accounting firm, an Event of Default or such an event 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 Section 5.02(b); provided,
however, that in the case of NWP the primary audited financial
statements required by this Section 5.01(b)(iii) may be
presented on a historical cost basis, but such audited
financial statements shall include, as additional information,
on a push-down basis reflecting the purchase price of NWP paid
by TWC, a Consolidated balance sheet, a Consolidated statement
of income and a Consolidated cash flow statement of NWP and
its Subsidiaries as of the end of and for the relevant fiscal
year, all prepared in accordance with generally accepted
accounting principles but excluding footnotes for the
push-down financial statements;
(iv) such other information respecting the business
or properties, or the condition or operations, financial or
otherwise, of such 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 such Borrower sends to any of its security holders, and
copies of all final reports and final registration statements
which such Borrower or any material Subsidiary of such
Borrower files with the
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Multi-Year Credit Agreement
46
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 EDGAR, such 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 such Borrower or any ERISA Affiliate of
such 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 such Borrower or any
material Subsidiary of such Borrower (or, in the case of TWC,
any material WCG Subsidiary) or any ERISA Affiliate of such
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 such Borrower, or
any material Subsidiary of such Borrower (including, in the
case of TWC, any material WCG Subsidiary) or any ERISA
Affiliate of such Borrower, a statement of the chief financial
officer or chief accounting officer of such Borrower
describing such Termination Event and the action, if any,
which such Borrower, such Subsidiary or such ERISA Affiliate
of such Borrower proposes to take with respect thereto;
(vii) promptly and in any event within 25 Business
Days after receipt thereof by such Borrower or any ERISA
Affiliate of such Borrower, copies of each notice received by
such Borrower or any ERISA Affiliate of such Borrower from the
PBGC stating its 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 such Borrower or any
ERISA Affiliate of such Borrower with respect to each Plan;
(ix) promptly and in any event within 25 Business
Days after receipt thereof by such Borrower or any ERISA
Affiliate of such Borrower from the sponsor of a Multiemployer
Plan, a copy of each notice received by such Borrower or any
ERISA Affiliate of such 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 such Borrower or any ERISA
Affiliate of such 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 such Borrower or any
ERISA Affiliate of such Borrower;
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(x) not more than 60 days (or 105 days in the case of
the last fiscal quarter of a fiscal year of such Borrower)
after the end of each fiscal quarter of such Borrower, a
certificate of an authorized financial officer of such
Borrower stating the respective ratings, if any, by each of
S&P and Moody's of the senior unsecured long-term debt of such
Borrower as of the last day of such quarter; and
(xi) promptly after any withdrawal or termination of
any letter of credit, guaranty, insurance or other credit
enhancement referred to in the second to last sentence of
Section 1.05 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 such Borrower by S&P or Moody's, notice thereof.
(c) Maintenance of Insurance. Maintain, and cause each of its
material Subsidiaries 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
properties in the same general areas in which such Borrower or its Subsidiaries
operate, provided that such 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 Subsidiaries 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 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
Non-Borrowing Subsidiary of such Borrower, where the failure of such 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 such Borrower and its Subsidiaries taken as a whole; (ii) in the
case of such Borrower, where the failure of such 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 such Borrower and its
Subsidiaries taken as a whole, (iii) such Borrower and its Subsidiaries may
consummate any merger or consolidation permitted pursuant to Section 5.02(c),
and (iv) any Borrower and any of its Subsidiaries may be converted into a
limited liability company by statutory election; provided that any such
conversion of a Borrower shall not affect its obligations to the Banks pursuant
to this Agreement.
Section 5.02 Negative Covenants. So long as any Note shall
remain unpaid, any Advance shall remain outstanding or any Bank shall have any
Commitment to any Borrower hereunder, no Borrower will, without the written
consent of the Majority Banks:
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Multi-Year Credit Agreement
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(a) Liens, Etc. Create, assume, incur or suffer to exist, or
permit any of its 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 Subsidiary to assign or otherwise convey, any right to receive
income, in each case to secure or provide for the payment of any Debt
of any Person, except that:
(i) TWC and its Non-Borrowing Subsidiaries which are
not Subsidiaries of any other Borrower may create, incur,
assume or suffer to exist Permitted TWC Liens;
(ii) [Intentionally Deleted];
(iii) NWP and its Non-Borrowing Subsidiaries may
create, incur, assume or suffer to exist Permitted NWP Liens;
(iv) TGPL and its Non-Borrowing Subsidiaries may
create, incur, assume or suffer to exist Permitted TGPL Liens;
and
(v) TGT and its Non-Borrowing Subsidiaries may
create, incur, assume or suffer to exist Permitted TGT Liens.
(b) Debt.
(i) In the case of TWC, permit the ratio of (A) the
aggregate amount of Net Debt of TWC to (B) the sum of the
Consolidated Net Worth of TWC plus Net Debt of TWC to exceed
0.65 to 1.0 at any time; and
(ii) In the case of any Borrower (other than TWC),
permit the ratio of (A) the aggregate amount of all Debt of
such Borrower and its Subsidiaries on a Consolidated basis,
excluding Debt which is Non-Recourse Debt with respect to such
Borrower, to (B) the sum of the Consolidated Net Worth of such
Borrower plus the aggregate amount of all Debt of such
Borrower and its Subsidiaries on a Consolidated basis to
exceed 0.60 to 1.0 at any time.
(c) Merger and Sale of Assets. Merge or consolidate with or
into any other Person, or sell, lease or otherwise transfer all or
substantially all of its assets, or permit any of its material
Subsidiaries to merge or consolidate with or into any other Person, or
sell, lease or otherwise transfer all or substantially all of its
assets, except that this Section 5.02(c) shall not prohibit:
(i) any Borrower and its Subsidiaries from selling,
leasing or otherwise transferring their respective assets in
the ordinary course of business;
(ii) any merger, consolidation or sale, lease or
other transfer of assets involving only TWC and its
Subsidiaries; provided, however, that transactions under this
paragraph (ii) shall be permitted if, and only if, (x) there
shall not exist
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49
or result an Event of Default or an event which with notice or
lapse of time or both would constitute an Event of Default and
(y) in the case of each transaction referred to in this
paragraph (ii) involving any Borrower or any of its
Subsidiaries, such transaction could not reasonably be
expected to impair materially the ability of such Borrower to
perform its obligations hereunder and under any NoteS issued
pursuant hereto and such Borrower shall continue to exist;
(iii) any Borrower and its Subsidiaries from selling,
leasing or otherwise transferring their respective gathering
assets and other production area facilities, or the stock of
any Person substantially all of the assets of which are
gathering assets and other production area facilities, to TWC
or to any Subsidiary of TWC for consideration that is not
materially less than the net book value of such assets and
facilities; provided, however, that transactions under this
paragraph (iii) shall be permitted if, and only if, there
shall not exist or such transaction should not result in an
Event of Default or an event which with notice or lapse of
time or both would constitute an Event of Default; or
(iv) sales of receivables of any kind.
(d) Agreements to Restrict Dividends and Certain Transfers.
Enter into or suffer to exist, or permit any of its Subsidiaries to
enter into or suffer to exist, any consensual encumbrance or
restriction on the ability of any Subsidiary of TWC (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 TWC or to any Subsidiary of TWC; or (ii) to make loans or advances
to TWC or any Subsidiary of TWC, except (1) encumbrances and
restrictions on any immaterial Non-Borrowing Subsidiary of TWC, (2)
those encumbrances and restrictions existing on the date hereof, and
(3) other customary encumbrances and restrictions now or hereafter
existing of any Borrower or any of its Non-Borrowing Subsidiaries
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 such Borrower or its Non-Borrowing
Subsidiaries existing on the date hereof.
(e) Loans and Advances; Investments. Make or permit to remain
outstanding, or allow any of its Subsidiaries to make or permit to
remain outstanding, any loan or advance to, or own, purchase or acquire
any obligations or debt securities of, any WCG Subsidiary, except that
a Borrower and its Subsidiaries may permit to remain outstanding loans
and advances to a WCG Subsidiary existing as of the date hereof and
listed on Exhibit E hereof (and such WCG Subsidiaries may permit such
loans and advances on Exhibit E to remain outstanding). Except for
those investments in existence on the date hereof and listed on Exhibit
E hereof, no Borrower shall, and no Borrower shall permit any of its
Subsidiaries to, acquire or otherwise invest in any stock or other
equity or other ownership interest in a WCG Subsidiary.
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(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 shares of or any
interest in any shares of the capital stock or other ownership
interests of (1) WPC, TGPL, TGT or NWP or any of their respective
material Subsidiaries or (2) any Subsidiary of TWC at the time it owns
any shares of or any interest in any shares of the capital stock or
other ownership interests of WPC, TGPL, TGT or NWP or any of their
respective material Subsidiaries; provided, however, that, this Section
5.02(f) shall not prohibit the sale or other disposition of the stock
of any Subsidiary of TWC to TWC or any Wholly-Owned Subsidiary of TWC
if, but only if, (x) there shall not exist or result an Event of
Default or an event which with notice or lapse of time or both would
constitute an Event of Default and (y) in the case of each sale or
other disposition referred to in this proviso involving any Borrower or
any of its Subsidiaries, such sale or other disposition could not
reasonably be expected to impair materially the ability of such
Borrower to perform its obligations hereunder and under the Notes and
such Borrower shall continue to exist. Nothing herein shall be
construed to permit any Borrower or any Subsidiary of a Borrower to
purchase shares, any interest in shares or any ownership interest in a
WCG Subsidiary except as permitted by clause (e) of this Section 5.02.
(g) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate of such Borrower to terminate, any Plan so as to result in
any material liability of such Borrower or any material Subsidiary of
such Borrower (including, in the case of TWC, any material WCG
Subsidiary) or any such ERISA Affiliate to the PBGC or (ii) permit to
exist any occurrence of any Termination Event with respect to a Plan
which would have a material adverse effect on such Borrower or any
material Subsidiary of such Borrower (including, in the case of TWC,
any material WCG Subsidiary).
(h) 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 such 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 such Borrower or
of such 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 such Borrower or such Subsidiary in
the good faith judgment of such Borrower.
(i) Guarantees. After the date of this Agreement, enter into
any agreement to guarantee or otherwise become contingently liable for,
or permit any of its Subsidiaries to guarantee or otherwise become
contingently liable for, Debt or any other obligation of any WCG
Subsidiary or to otherwise insure a WCG Subsidiary against loss.
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(j) Sale and Lease-Back TransactionS. Enter into, or permit
any of its Subsidiaries to enter into, any Sale and Lease-Back
Transaction, if after giving effect thereto such Borrower would not be
permitted to incur at least $1.00 of additional Debt secured by a Lien
permitted by (i) paragraph (z) of Schedule III in the case of NWP and
its Subsidiaries, (ii) paragraph (z) of Schedule VI in the case of TWC
and its Non-Borrowing Subsidiaries which are not Subsidiaries of any
other Borrower, (iii) paragraph (z) of Schedule IV in the case of TGPL
and its Subsidiaries and (iv) paragraph (z) of Schedule V in the case
of TGT and its Subsidiaries.
(k) Use of Proceeds. Use any proceeds of any Advance for any
purpose other than general corporate purposes relating to the business
of a Borrower and its Subsidiaries, but excluding in the case of TWC,
any WCG Subsidiary (including, without limitation, repurchases by TWC
of its capital stock, working capital and capital expenditures), or use
any such proceeds in any manner which violates or results in a
violation of law; provided, however that no proceeds of any Advance
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 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 proceeds of
any Advance will be used to purchase or carry any margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), except purchases by TWC of its capital stock
if, after giving effect thereto, none of the Advances would constitute
purpose credit within the meaning of such Regulation U. No Borrower may
use any Advance to make any loan or advance to, or to own, purchase or
acquire any obligations or debt securities of, any WCG Subsidiary or to
acquire or otherwise invest in any stock or other equity or other
ownership interest in a WCG Subsidiary.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any
Advance or of any Note executed by it when the same becomes due and
payable, or shall fail to pay any interest on any Advance or on any
Note or shall fail to pay any fee or other amount to be paid by it
hereunder within ten days after the same becomes due and payable; or
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Multi-Year Credit Agreement
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(b) Any certification, representation or warranty made by any
Borrower herein or by any Borrower (or any officer of any Borrower) in
writing under or in connection with this Agreement or any instrument
executed in connection herewith (including, without limitation,
representations and warranties deemed made pursuant to Section 3.02 or
3.03) shall prove to have been incorrect in any material respect when
made or deemed made; or
(c) Any Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(b) 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 such Borrower by the Agent or any Bank or the date such
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 5.01(b)) or any Note 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 such Borrower by the Agent or any Bank or the date
such Borrower shall have knowledge of such failure; or
(d) Any Borrower or any Subsidiary of any 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 Advance) of such
Borrower and/or a Subsidiary of such Borrower (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 or as
required pursuant to an illegality event of the type set forth in
Section 2.12), prior to the stated maturity thereof; provided, however,
that the provisions of this Section 6.01(d) shall not apply to any
Non-Recourse Debt of any Non-Borrowing Subsidiary of a Borrower; or
(e) Any Borrower or any material Subsidiary of any Borrower
shall generally not pay its debts as such debts become due, or 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 any Borrower or any
material Subsidiary of any 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
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undismissed or unstayed for a period of 60 days; or any Borrower or any
material Subsidiary of any 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 any Borrower or any material
Subsidiary of any 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 any
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
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) Any Borrower or any ERISA Affiliate of any 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) Any Borrower or any ERISA Affiliate of any 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 Borrowers and
their respective 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 the date hereof by an amount
exceeding $75,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of Banks owed more than 50% in principal amount of the A Advances then
outstanding or, if no A Advances are then outstanding, Banks having more than
50% of the principal amount of the Commitments, by notice to the Borrowers,
declare all of the Commitments and the obligation of each Bank to make Advances
to be terminated, whereupon all of the Commitments and each such obligation
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of Banks owed more than 50% in principal amount of the A Advances then
outstanding or if no A Advances are then outstanding, Banks having more than 50%
of the Commitments, or, if no A Advances are then outstanding and all
Commitments have terminated, Banks owed more than
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50% in principal amount of the B Advances then outstanding, by notice to the
Borrower as to which an Event of Default exists (determined as contemplated by
the definition herein of Events of Default), declare the principal of the
Advances of such Borrower, all interest thereon and all other amounts payable by
such Borrower under this Agreement to be forthwith due and payable, whereupon
such principal of the Advances, such interest and 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 each Borrower; provided,
however, that in the event of any Event of Default described in Section 6.01(e),
(A) the obligation of each Bank to make Advances shall automatically be
terminated and (B) the principal of the Advances outstanding, all such interest
and all such 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 each Borrower. For purposes of this Section 6.01, any Advance owed to
an SPC shall be deemed to be owed to its Designating Bank.
ARTICLE VII
THE AGENT
Section 7.01 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 Agreement
(including, without limitation, enforcement of the terms of this Agreement or
collection of the principal of, and interest on the Advances, fees and any other
amount 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 Banks owed more than 50% of the
principal amount of the A Advances then outstanding is owed or, if no A Advances
are then outstanding, Banks having more than 50% of the Commitments (or, if no A
Advances are then outstanding and all Commitments have terminated, upon the
instructions of Banks owed more than 50% of the principal amount of the B
Advances then outstanding), 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 any
Note, this Agreement or applicable law. The Agent agrees to give to each Bank
prompt notice of each notice given to it by any Borrower pursuant to the terms
of this Agreement.
Section 7.02 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 treat
a Bank as the obligee of any Advance or, if applicable, the payee of any Note
until the Agent receives and accepts a Transfer Agreement executed by a Borrower
(if required pursuant to Section 8.06), the Bank which the assignor Bank, and
the assignee in accordance with the last
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sentence of Section 8.06(a); (ii) may consult with legal counsel (including
counsel for any 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; (iii) 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 any Note
or this Agreement; (iv) 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 on the part of any Borrower or to inspect the property (including
the books and records) of any Borrower; (v) 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 (including any Note requested by a Bank, delivered to
a Bank pursuant to Section 8.06 or otherwise held by a Bank); and (vi) shall
incur no liability under or in respect of any Note 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 7.03 Citibank, Chase, Commerzbank, Credit Lyonnais and
Affiliates. With respect to its Commitments, the Advances made by it and the
NoteS, if any, issued to it, Citibank shall have the same rights and powers
under any such Note and this Agreement as any other Bank and may exercise the
same as though it was not the Agent; with respect to its Commitments, the
Advances made by it and the Notes, if any, issued to it, each of Chase,
Commerzbank and Credit Lyonnais shall have the rights and powers under any Note
and this Agreement as any other Bank and may exercise the same as though it was
not a Co-Syndication Agent or Documentation Agent, as the case may be. The term
"Bank" or "Banks" shall, unless otherwise expressly indicated, include each of
Citibank, Chase, Commerzbank and Credit Lyonnais in its individual capacity.
Citibank, Chase, Commerzbank and Credit Lyonnais 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, any Borrower, any
Subsidiary of any Borrower, any Person who may do business with or own, directly
or indirectly, securities of any Borrower or any such Subsidiary and any other
Person, all as if Citibank were not the Agent and Chase and Commerzbank were not
the Co-Syndication Agents and Credit Lyonnais were not the Documentation Agent
without any duty to account therefor to the Banks.
Section 7.04 Bank Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon the Agent, any Co-Syndication
Agent, the Documentation Agent, the Arranger or any other Bank and based on the
financial statements referred to in Section 4.01(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 Bank also acknowledges that it will,
independently and without reliance upon the Agent, any Co-Syndication Agent, the
Documentation Agent, the Arranger 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 any Note or this
Agreement.
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Section 7.05 Indemnification. The Banks agree to indemnify the
Agent (to the extent not reimbursed by the Borrowers), ratably according to the
respective principal amounts of the A Advances then owed to each of them (or if
no A Advances are at the time outstanding, ratably according to either (i) the
respective amounts of their Commitments to TWC, or (ii) if all Commitments to
TWC have terminated, the respective amounts of the Commitments to TWC
immediately prior to the time the Commitments to TWC terminated), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements 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 action
taken or omitted by the Agent under this Agreement, provided that no Bank shall
be liable to the Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. 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 Borrowers.
Section 7.06 Successor Agent. The Agent may resign at any time
as Agent under this Agreement by giving written notice thereof to the Banks and
the Borrowers 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 TWC (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 VII
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 7.07 Co-Syndication Agents; Documentation Agent. The
Co-Syndication Agents and the Documentation Agent have no duties or obligations
under this Agreement. None of the Co-Syndication Agents or the Documentation
Agent shall have, by reason of this Agreement or the Notes, if any, a fiduciary
relationship in respect of any Bank or the holder of any Note, and nothing in
this Agreement or the Notes, express or implied, is intended or shall be so
construed to impose on any of the Co-Syndication Agents or the Documentation
Agent any obligation in respect of this Agreement or the Notes.
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ARTICLE VIII
MISCELLANEOUS
Section 8.01 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by any 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 Commitments of the
Banks or subject the Banks to any additional obligations, (c) reduce the
principal of, or interest on, the outstanding Advances or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the outstanding Advances 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 percentage of the Commitments or of the
aggregate unpaid principal amount of the A Advances or B Advances, or the number
of Banks, which shall be required for the Banks or any of them to take any
action under this Agreement, or (g) amend this Section 8.01; 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 Note or this Agreement.
Section 8.02 Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopy,
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to any Bank, as specified opposite its name on
Schedule I hereto or specified pursuant to Section 8.06(a); if to any Borrower,
as specified opposite its name on Schedule II hereto; and if to Citibank, as
Agent, to its address at 399 Park Avenue, New York, New York 10043, (telecopier
number: (212) 527-1084), Attention: Bilal Aman, with a copy to Citicorp North
America, Inc., 1200 Smith Street, Suite 2000, Houston, Texas 77002 (telecopier
number: (713) 654-2849; telex number 127001 (Attn: Route Code HOUAA)),
Attention: The Williams Companies, Inc. Account Officer; or, as to any Borrower
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
Borrowers and the Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, 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 pursuant to Section 8.06(a)
(or other telecopy number specified by such party in a written notice to the
other parties hereto), delivered to the telegraph company, telexed to any party
to the telex number set forth herein or on Schedule I or Schedule II or
specified pursuant to Section 8.06(a) (or other telex number designated by such
party in a written notice to the other parties hereto), confirmed by telex
answerback, or delivered to the cable company, 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
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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
counterpart of any amendment or waiver of any provision of this Agreement or of
any Schedule or Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
Section 8.03 No Waiver; Remedies. No failure on the part of
any Bank or the Agent to exercise, and no delay in exercising, any right under
this Agreement 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 8.04 Costs and Expenses.
(a) (i) TWC 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 Notes, if any, and
the other documents to be delivered under this Agreement, including,
without limitation, 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 Note, and (ii) each Borrower agrees to pay on demand all costs
and expenses, if any (including, without limitation, reasonable counsel
fees and expenses, which may include allocated costs of in-house
counsel), of the Agent and each Bank in connection with the enforcement
(whether before or after the occurrence of an Event of Default and
whether through negotiations (including formal workouts and
restructurings), legal proceedings or otherwise) against such Borrower
of any Note of such Borrower or this Agreement and the other documents
to be delivered by such Borrower under this Agreement.
(b) If any payment (or purchase pursuant to Section 2.11(c))
of principal of, or Conversion of, any Eurodollar Rate Advance or B
Advance made to any Borrower is made other than on the last day of an
Interest Period relating to such Advance (or in the case of a B
Advance, other than on the original scheduled maturity date thereof),
as a result of a payment pursuant to Section 2.10 or 2.12 or
acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason or as a result of any purchase pursuant to
Section 2.11(c) or any Conversion, such Borrower shall, upon demand by
any Bank (with a copy of such demand to the Agent), pay to the Agent
for the account of such Bank any amounts required to compensate such
Bank for any additional losses, costs or expenses which it may
reasonably incur as a result of any such payment, purchase or
Conversion, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain such Advance.
(c) Each Borrower agrees, to the fullest extent permitted by
law, to indemnify and hold harmless the Agent, the Arranger and each
Bank and each of their respective
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directors, officers, employees and agents from and against any and all
claims, damages, liabilities and out-of-pocket expenses (including,
without limitation, reasonable fees and disbursements of counsel) for
which any of them may become liable or which may be incurred by or
asserted against the Agent, the Arranger or such Bank or any such
director, officer, employee or agent (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 the Agent, the Arranger or such Bank or any
such director, officer, employee or agent 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 the Advances
are applied (other than any such claim, damage, liability or expense to
the extent attributable to the gross negligence or willful misconduct
of, or violation of any law or regulation by, either the party seeking
indemnity under this Section 8.04(c) or any of its directors, officers,
employees or agents).
Section 8.05 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 6.01 to authorize
the Agent to declare the Advances of a Borrower due and payable pursuant to the
provisions of Section 6.01, 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 such Borrower against any and all of the
obligations of such Borrower now or hereafter existing under this Agreement and
the NoteS, if any, held by such Bank, irrespective of whether or not such Bank
shall have made any demand under this Agreement or such NoteS and although such
obligations may be unmatured. Each Bank agrees promptly to notify such 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, without limitation, other rights of set-off)
which such Bank may have.
Section 8.06 Binding Effect; Transfers.
(a) This Agreement shall become effective when it shall have
been executed by the Borrowers and the Agent 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 Borrowers, the Agent and each Bank and their respective
successors and assigns, except that the Borrowers shall not have the
right to assign any of their respective rights hereunder or any
interest herein without the prior written consent of all of the Banks.
Each Bank may assign to one or more banks, financial institutions or
government entities all or any part of, or may grant participations to
one or more banks, financial institutions or government entities in or
to all or any part of, any Advance or Advances owing to such Bank, any
Note or NoteS held by such Bank and all or any portion of such Bank's
Commitments, and to the extent of any such assignment or participation
(unless
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otherwise stated therein) the assignee or purchaser of such assignment
or participation shall, to the fullest extent permitted by law, have
the same rights and benefits hereunder and under such Note or NoteS as
it would have if it were such Bank hereunder, provided that, except in
the case of an assignment meeting the requirements of the next sentence
hereof, (1) such Bank's obligations under this Agreement, including,
without limitation, its Commitments to the Borrowers hereunder, shall
remain unchanged, such Bank shall remain responsible for the
performance thereof, such Bank shall remain the holder of any such Note
or NoteS for all purposes under this Agreement, and the Borrowers, the
other Banks and the Agent shall continue to deal solely with and
directly with such Bank in connection with such Bank's rights and
obligations under this Agreement; and (2) no Bank shall assign or grant
a participation that conveys to the assignee or participant the right
to vote or consent under this Agreement, other than the right to vote
upon or consent to (i) any increase in the amount of any Commitment of
such Bank; (ii) any reduction of the principal amount of, or interest
to be paid on, such Bank's Advance or Advances; (iii) any reduction of
any fee or other amount payable hereunder to such Bank; or (iv) any
postponement of any date fixed for any payment of principal of, or
interest on, such Bank's Advance or Advances or Note or NoteS or any
fee or other amount payable hereunder to such Bank.
If (I) the assignee of any Bank either (1) is another Bank or
is an affiliate of a Bank (2) is approved in writing by the Agent and
the Borrowers or (3) is approved in writing by the Agent and either an
Event of Default exists or the Borrowers have relinquished the right to
approve the assignment pursuant to Section 8.06(b), and (II) such
assignee assumes all or any portion (which portion shall be a constant,
and not a varying, percentage, and the amount of the Commitment to TWC
assigned, whether all or a portion, shall be in a minimum amount of
$10,000,000 or such lesser amount as shall represent the entire
remaining interest of such assigning Bank or as may be otherwise
approved in writing by the Agent and TWC for such assignment) of each
of the Commitments of such assigning Bank to the respective Borrowers
(either all of each such Commitment shall be assigned or the percentage
portion of each such Commitment assigned shall be the same as to each
Borrower) by executing a document in the form of Exhibit F (or with
such changes thereto as have been approved in writing by the Agent in
its sole discretion as evidenced by its execution thereof) duly
executed by the Agent, the Borrowers (unless an Event of Default
exists), such assigning Bank and such assignee and delivered to the
Agent ("Transfer Agreement"), then upon such delivery, (i) such
assigning Bank shall be released from its obligations under this
Agreement with respect to all or such portion, as the case may be, of
its Commitments, (ii) such assignee shall become obligated for all or
such portion, as the case may be, of such Commitments and all other
obligations of such assigning Bank hereunder with respect to or arising
as a result of all or such portion, as the case may be, of such
Commitments, (iii) such assignee shall be assigned the right to vote or
consent under this Agreement, to the extent of all or such portion, as
the case may be, of such Commitments, (iv) each Borrower shall deliver,
in replacement of any A Note of such Borrower executed to the order of
such assigning Bank then outstanding or as may be requested by the
assignee or assigning Bank (a) to such assignee upon its request or as
required by Section 2.09, a new A Note of such
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Borrower in the amount of the Commitment of such assigning Bank to such
Borrower which is being so assumed by such assignee plus, in the case
of any assignee which is already a Bank hereunder, the amount of such
assignee's Commitment to such Borrower immediately prior to such
assignment (any such assignee which is already a Bank hereunder agrees
to mark "exchanged" and return to such Borrower, with reasonable
promptness following the delivery of such new A Note, the A Note being
replaced thereby, if any), (b) to such assigning Bank, upon its request
or as required by Section 2.09, a new A Note in the amount of the
balance, if any, of the Commitment of such assigning Bank to such
Borrower (without giving effect to any B Reduction) retained by such
assigning Bank (and such assigning Bank agrees to mark "Exchanged" and
return to such Borrower, with reasonable promptness following delivery
of such new A Notes, the A Note being replaced thereby), and (c) to the
Agent, photocopies of such new A Notes, if any, (v) if such assignment
is of all of such assigning Bank's Commitments to the Borrowers, all of
the outstanding A Advances made by such assigning Bank shall be
transferred to such assignee, (vi) if such assignment is not of all of
such Commitments, a part of each A Advance to each Borrower equal to
the amount of such Advance multiplied by a fraction, the numerator of
which is the amount of such portion of such assigning Bank's Commitment
to such Borrower so assumed and the denominator of which is the amount
of the Commitment of such assigning Bank to such Borrower (without
giving effect to any B Reduction) immediately prior to such assumption,
shall be transferred to such assignee and evidenced by such assignee's
A Note from such Borrower, if requested or required by Section 2.09,
and the balance of such A Advance shall be evidenced by such assigning
Bank's new A Note, if any, from such Borrower delivered pursuant to
clause (iv)(b) of this sentence, (vii) if such assignee is not a "Bank"
hereunder prior to such assignment, such assignee shall become a party
to this Agreement as a Bank and shall be deemed to be a "Bank"
hereunder, and the amount of all or such portion, as the case may be,
of the Commitment to each of the respective Borrowers so assumed shall
be deemed to be the amount for such Borrower set opposite such
assigning Bank's name on Schedule X for purposes of this Agreement, and
(viii) if such assignee is not a Bank hereunder prior to such
assignment, such assignee shall be deemed to have specified the offices
of such assignee named in the respective Transfer Agreement as its
"Domestic Lending Office" and "Eurodollar Lending Office" for all
purposes of this Agreement and to have specified for purposes of
Section 8.02 the notice information set forth in such Transfer
Agreement; and the Agent shall promptly after execution of any Transfer
Agreement by the Agent and the other parties thereto notify the Banks
of the parties to such Transfer Agreement and the amounts of the
assigning Bank's Commitments assumed thereby.
(b) [Intentionally omitted]
(c) The Borrowers agree to promptly execute the Transfer
Agreement pertaining to any assignment as to which approval by the
Borrowers of the assignee is not required by clause (I) of the last
sentence of Section 8.06(a).
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(d) 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 Borrowers 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 Borrowers, the option to fund all or any part of any A Advance
that such Designating Bank is obligated to fund pursuant to this
Agreement or to fund all or part of any B Advance to a Borrower
pursuant to Section 2.16 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 further provided that (i) such
Designating Bank's obligations under this Agreement (including, without
limitation, its Commitment to each Borrower hereunder) shall remain
unchanged, (ii) such Designating Bank shall remain solely responsible
to the other parties hereto for the performance of such obligations,
(iii) the Borrowers, 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 Advance, 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 a Borrower
under this Agreement (including, without limitation, its obligations
under Section 2.14). The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Designating Bank to the same extent, and
as if, such Advance were made 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 8.06, an SPC may not
assign its interest in any Advance except that, with notice to, but
without the prior written consent of, the Borrowers and the Agent and
without paying any processing fee therefor, such SPC may assign all or
a portion of its interests in any Advances to the Designating Bank or
to any financial institutions (consented to by the Borrowers and
Agent), providing liquidity and/or credit support to or for the account
of such SPC to support the funding or maintenance of Advances. 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, without limitation, votes, approvals, waivers,
consents and amendments under or relating to this Agreement and the
other Loan 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
Borrowers, the Agent and the Banks may rely thereon without any
requirement that the SPC sign or acknowledge the same or that
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notice be delivered to the Borrowers. This section may not be amended
without the written consent of any SPC. which shall have been
identified to the Agent and the Borrowers.
(e) Any Bank may assign, as collateral or otherwise, any of
its rights (including, without limitation, rights to payments of
principal of and/or interest on the Advances) under this Agreement or
any of its NoteS to any Federal Reserve Bank without notice to or
consent of any Borrower or the Agent.
Section 8.07 Governing Law. This Agreement and the NoteS, if
any, shall be governed by, and construed in accordance with, the laws of the
State of New York.
Section 8.08 Interest. It is the intention of the parties
hereto that the Agent and each Bank shall conform strictly to usury laws
applicable to it, if any. Accordingly, if the transactions with the 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 or such Bank, as the case may be, under the NoteS, this
Agreement or under any other agreement entered into in connection with or as
security for this Agreement or the NoteS shall under no circumstances exceed the
maximum amount allowed by such applicable law and any excess shall be cancelled
automatically and, if theretofore paid, shall at the option of the Agent or such
Bank, as the case may be, be credited by the Agent or such Bank, as the case may
be, on the principal amount of the obligations owed to the Agent or such Bank,
as the case may be, by the appropriate Borrower or refunded by the Agent or such
Bank, as the case may be, to the appropriate Borrower, and (ii) in the event
that the maturity of any Note or other obligation payable to the Agent or such
Bank, as the case may be, is accelerated or in the event of any required or
permitted prepayment, then such consideration that constitutes interest under
law applicable to the 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 or such Bank, as the case may be, provided for in this
Agreement or otherwise shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall, at the option of the
Agent or such Bank, as the case may be, be credited by the Agent or such Bank,
as the case may be, on the principal amount of the obligations owed to the Agent
or such Bank, as the case may be, by the appropriate Borrower or refunded by the
Agent or such Bank, as the case may be, to the appropriate Borrower.
Section 8.09 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 8.10 Survival of Agreements, Representations and
Warranties, Etc. All warranties, representations and covenants made by any
Borrower or any officer of any Borrower
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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 and delivery of the NoteS, if any, and the making of the
Advances regardless of any investigation. The indemnities and other payment
obligations of each Borrower set forth in Sections 2.11, 2.14, and 8.04, and the
indemnities by the Banks in favor of the Agent and its officers, directors,
employees and agents, will survive the repayment of the Advances and the
termination of this Agreement
Section 8.11 Borrowers' Right to Apply Deposits. In the event
that any Bank is placed in receivership or enters a similar proceeding, each
Borrower may, to the full extent permitted by law, make any payment due to such
Bank hereunder, to the extent of finally collected unrestricted deposits of such
Borrower in U.S. dollars held by such Bank, by giving notice to the Agent and
such Bank directing such Bank to apply such deposits to such indebtedness. If
the amount of such deposits is insufficient to pay such indebtedness then due
and owing in full, such Borrower shall pay the balance of such insufficiency in
accordance with this Agreement.
Section 8.12 Confidentiality. Each Bank agrees that it will
not disclose without the prior consent of TWC (other than to employees,
auditors, accountants, counsel or other professional advisors of the Agent or
any Bank) any information with respect to the Borrowers or their Subsidiaries,
(which term, in the case of TWC, shall be deemed to include the WCG
Subsidiaries), which is furnished pursuant to this Agreement and which (i) the
Borrowers in good faith consider to be confidential and (ii) is either clearly
marked confidential or is designated by the Borrowers to the Agent or 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 Board of
Governors of the Federal Reserve System 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 Commitments or Advances or any interest therein by such Bank or
the grant of an option to an SPC to fund any Advance, provided that such
prospective transferee executes an agreement with or for the benefit of the
Borrowers containing provisions substantially identical to those contained in
this Section 8.12, and provided further that if the contemplated transfer is a
grant of a participation in a Note (and not an assignment), no such information
shall be authorized to be delivered to such participant pursuant to this clause
(e) except (i) such information delivered pursuant to Section 4.01(e) or Section
5.01(b) (other than paragraph (iv) thereof) and if the contemplated transfer is
a grant of an option to fund Advances to an SPC pursuant to Section 8.06(d),
such SPC may disclose, on a confidential bases, any non-public information
relating to Advances 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 TWC, such
information as may be required by law or regulation to be delivered, (f) in
60
Multi-Year Credit Agreement
65
connection with the exercise of any remedy by such Bank following an Event of
Default pertaining to this Agreement, any of the Notes or any other document
delivered in connection herewith, (g) in connection with any litigation
involving such Bank pertaining to this Agreement, any of the Notes or any other
document delivered in connection herewith, (h) to any Bank 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 Borrowers containing provisions substantially
identical to those contained in this Section 8.12.
Section 8.13 WAIVER OF JURY TRIAL. THE BORROWERS, THE AGENT,
THE CO-SYNDICATION AGENTS, THE DOCUMENTATION AGENT 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 NOTE OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.14 Miscellaneous. This Agreement shall become
effective in accordance with the first sentence of Section 8.06(a).
61
Multi-Year Credit Agreement
66
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.
BORROWERS:
THE WILLIAMS COMPANIES, INC.
By:
-----------------------------------------
Name: James G. Ivey
Title: Treasurer
TEXAS GAS TRANSMISSION CORPORATION
By:
-----------------------------------------
Name: Jeffrey P. Heinrichs
Title: Treasurer
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
By:
-----------------------------------------
Name: Jeffrey P. Heinrichs
Title: Treasurer
NORTHWEST PIPELINE CORPORATION
By:
-----------------------------------------
Name: Jeffrey P. Heinrichs
Title: Treasurer
S-1
Multi-Year Credit Agreement
67
AGENT:
CITIBANK, N.A., as Agent
By:
----------------------------------------
Authorized Officer
CO-SYNDICATION AGENTS:
---------------------
THE CHASE MANHATTAN BANK,
as Co-Syndication Agent
By:
----------------------------------------
Authorized Officer
COMMERZBANK AG, as Co-Syndication Agent
By:
----------------------------------------
Authorized Officer
By:
----------------------------------------
Authorized Officer
DOCUMENTATION AGENT:
-------------------
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------------
Authorized Officer
S-2
Multi-Year Credit Agreement
68
BANKS:
CITIBANK, N.A.
By:
----------------------------------------
Authorized Officer
S-3
Multi-Year Credit Agreement
69
THE BANK OF NOVA SCOTIA
By:
----------------------------------------
Authorized Officer
S-4
Multi-Year Credit Agreement
70
BANK OF AMERICA, N.A.
By:
----------------------------------------
Authorized Officer
S-5
Multi-Year Credit Agreement
71
BANK ONE, NA (CHICAGO)
By:
----------------------------------------
Authorized Officer
S-6
Multi-Year Credit Agreement
72
THE CHASE MANHATTAN BANK
By:
----------------------------------------
Authorized Officer
S-7
Multi-Year Credit Agreement
73
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN
BRANCHES
By:
----------------------------------------
Authorized Officer
By:
----------------------------------------
Authorized Officer
S-8
Multi-Year Credit Agreement
74
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------------
Authorized Officer
S-9
Multi-Year Credit Agreement
75
THE FUJI BANK, LIMITED
By:
----------------------------------------
Authorized Officer
S-10
Multi-Year Credit Agreement
76
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By:
---------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By:
---------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
Multi-Year Credit Agreement
S-11
77
ABN AMRO BANK, N.V.
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-12
Multi-Year Credit Agreement
78
BANK OF MONTREAL
By:
---------------------------------
Authorized Officer
S-13
Multi-Year Credit Agreement
79
THE BANK OF NEW YORK
By:
---------------------------------
Authorized Officer
S-14
Multi-Year Credit Agreement
80
BARCLAYS BANK PLC
By:
---------------------------------
Authorized Officer
S-15
Multi-Year Credit Agreement
81
CIBC INC.
By:
---------------------------------
Authorized Officer
S-16
Multi-Year Credit Agreement
82
CREDIT SUISSE FIRST BOSTON
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-17
Multi-Year Credit Agreement
83
ROYAL BANK OF CANADA
By:
---------------------------------
Authorized Officer
S-18
Multi-Year Credit Agreement
84
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:
---------------------------------
Authorized Officer
S-19
Multi-Year Credit Agreement
85
FLEET NATIONAL BANK,
f/k/a BankBoston, N.A.
By:
---------------------------------
Authorized Officer
S-20
Multi-Year Credit Agreement
86
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
---------------------------------
Authorized Officer
S-21
Multi-Year Credit Agreement
87
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By:
---------------------------------
Authorized Officer
S-22
Multi-Year Credit Agreement
88
TORONTO DOMINION (TEXAS), INC.
By:
---------------------------------
Authorized Officer
S-23
Multi-Year Credit Agreement
89
UBS AG, STAMFORD BRANCH
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-24
Multi-Year Credit Agreement
90
WELLS FARGO BANK TEXAS, N.A.
By:
---------------------------------
J. Alan Alexander, Jr.
Vice President
S-25
Multi-Year Credit Agreement
91
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-26
Multi-Year Credit Agreement
92
CREDIT AGRICOLE INDOSUEZ
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-27
Multi-Year Credit Agreement
93
SUNTRUST BANK
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-28
Multi-Year Credit Agreement
94
THE DAI-ICHI KANGYO BANK, LTD.
By:
---------------------------------
Authorized Officer
S-29
Multi-Year Credit Agreement
95
ARAB BANKING CORPORATION (B.S.C.)
By:
---------------------------------
WAHID O. BUGAIGHIS
First Vice President
S-30
Multi-Year Credit Agreement
96
BANK OF CHINA, NEW YORK BRANCH
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-31
Multi-Year Credit Agreement
97
BANK OF OKLAHOMA, N.A.
By:
---------------------------------
Authorized Officer
S-32
Multi-Year Credit Agreement
98
BNP PARIBAS, HOUSTON AGENCY
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-33
Multi-Year Credit Agreement
99
DG BANK DEUTSCHE
GENNOSSENSCHAFTSBANK AG
By:
---------------------------------
Authorized Officer
By:
---------------------------------
Authorized Officer
S-34
Multi-Year Credit Agreement
100
KBC BANK N.V.
NEW YORK BRANCH
By:
---------------------------------
Authorized Officer
S-35
Multi-Year Credit Agreement
101
THE SUMITOMO BANK, LIMITED
By:
---------------------------------
Authorized Officer
S-36
Multi-Year Credit Agreement
102
COMMERCE BANK, N.A.
By:
---------------------------------
Authorized Officer
S-37
Multi-Year Credit Agreement
103
RZB FINANCE LLC
By:
---------------------------------
Authorized Officer
S-38
Multi-Year Credit Agreement
104
SCHEDULE I
APPLICABLE LENDING OFFICES
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Citibank N.A. Citibank N.A. Citibank N.A.
399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, New York 10043
Notices: Notices:
Citibank, N.A. Citibank, N.A.
399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, New York 10043
Telecopier: (212) 527-1084 Telecopier: (212) 527-1084
Telex: None Telex: None
Attn: Christine Grundel Attn: Christine Grundel
Dept: Medium Term Finance Dept: Medium Term Finance
with copies to: with copies to:
Citicorp North America, Inc. Citicorp North America, Inc.
1200 Smith Street, Suite 2000 1200 Smith Street, Suite 2000
Houston, Texas 77002 Houston, Texas 77002
Telecopier: (713) 654-2849 Telecopier: (713) 654-2849
Telex: 127001 Telex: 127001
(Attn. Route Code HOUAA) (Attn. Route Code HOUAA)
Attn: The Williams Companies, Inc. Attn: The Williams Companies, Inc.
Account Officer Account Officer
The Bank of Nova Scotia The Bank of Nova Scotia The Bank of Nova Scotia
600 Peachtree Street, N.E., Suite 2700 600 Peachtree Street, N.E., Suite 2700
Atlanta, Georgia 30308 Atlanta, Georgia 30308
Telecopier: (404) 888-8998 Telecopier: (404) 888-8998
Telex: 00542319 Telex: 00542319
Attn: Robert L. Ahern Attn: Robert L. Ahern
with copy to: with copy to:
1100 Louisiana, Suite 3000 1100 Louisiana, Suite 3000
Houston, Texas 77002 Houston, Texas 77002
Telecopier: (713) 752-2425 Telecopier: (713) 752-2425
Telephone: (713) 759-3440 Telephone: (713) 759-3440
Attn: Attn:
Bank of America, N.A. Bank of America, N.A. Bank of America, N.A.
901 Main Street, 14th Floor 901 Main Street, 14th Floor
Dallas, Texas 75202 Dallas, Texas 75202
Telecopier: (214) 209-9415 Telecopier: (214) 209-9415
Telephone: (214) 209-1225 Telephone: (214) 209-1225
Attn: Brandi Baker Attn: Brandi Baker
Schedule I - 1
Multi-Year Credit Agreement
105
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
with copy to: with copy to:
Bank of America Bank of America
333 Clay Street, Suite 4550 333 Clay Street, Suite 4550
Houston, Texas 77002 Houston, Texas 77002
Telecopier: (713) 651-4807 Telecopier: (713) 651-4807
Telephone: (713) 651-4855 Telephone: (713) 651-4855
Attn: Claire Liu Attn: Claire Liu
Bank One, NA Bank One, NA Bank One, NA
(Chicago) 1 Bank One Plaza 1 Bank One Plaza
0634, 1FNP, 10 IL 1 0634
Chicago, Illinois 60670 Chicago, Illinois 60670
Telephone: (312) 732-5219 Telephone:
Telecopier: (312) 732-4840 Telecopier:
Attn: Attn:
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank
270 Park Avenue, 21st Floor 270 Park Avenue, 21st Floor
New York, New York 10017 New York, New York 10017
Telecopier: (212) 270-3897 Telecopier: (212) 270-3897
Telephone: (212) 270-4676 Telephone: (212) 270-4676
Attn: Peter Ling Attn: Peter Ling
Commerzbank AG, Commerzbank AG, Atlanta Agency Commerzbank AG, Atlanta Agency
New York and Grand Cayman 1230 Peachtree St., NE 1230 Peachtree St., NE
Branches Suite 3500 Suite 3500
Atlanta, Georgia 30309 Atlanta, Georgia 30309
Telecopier: (404) 888-6539 Telecopier: (404) 888-6539
Telephone: (404) 888-6518 Telephone: (404) 888-6518
Attn: Brian Campbell, Vice President Attn: Brian Campbell, Vice President
email: bcampbell@cbkna.com email: bcampbell@cbkna.com
Credit Lyonnais Credit Lyonnais New York Branch Credit Lyonnais New York Branch
New York Branch 1301 Avenue of the Americas 1301 Avenue of the Americas
New York, New York 10019 New York, New York 10019
Telecopier: (713) 759-9766 Telecopier: (713) 759-9766
Telephone: (713) 753-8723 Telephone: (713) 753-8723
Attn: Bernadette Archie Attn: Bernadette Archie
The Fuji Bank, Limited The Fuji Bank, Limited The Fuji Bank, Limited
2 World Trade Center, 79th Floor 2 World Trade Center, 79th Floor
New York, New York 10048 New York, New York 10048
Telecopier: (212) 488-8216 Telecopier: (212) 488-8216
Telephone: (212) 898-2099 Telephone: (212) 898-2099
Attn: Tina Catapano Attn: Tina Catapano
Schedule I - 2
Multi-Year Credit Agreement
106
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
National Westminster Bank National Westminster Bank PLC National Westminster Bank PLC
New York Branch Nassau Branch
65 East 55th Street, 24th Floor 65 East 55th Street, 24th Floor
New York, New York 10022 New York, New York 10022
Telecopier: (212) 401-1406 Telecopier: (212) 401-1406
Telephone: (212) 401-1494 Telephone: (212) 401-1494
Attn: Sheila Shaw Attn: Sheila Shaw
with copies to: with copies to:
Greenwich NatWest Greenwich NatWest
600 Travis Street., Suite 6070 600 Travis Street, Suite 6070
Houston, Texas 77002 Houston, Texas 77002
Telecopier: (713) 221-2430 Telecopier: (713) 221-2430
Telephone: (713) 221-2429 Telephone: (713) 221-2429
Attn: Kristi DeMaiolo Attn: Kristi DeMaiolo
ABN AMRO Bank, N.V. ABN AMRO Bank, N.V. ABN AMRO Bank, N.V.
208 South LaSalle, Suite 1500 208 South LaSalle, Suite 1500
Chicago, Illinois 60604-1003 Chicago, Illinois 60604-1003
Telecopier: (312) 992-5157 Telecopier: (312) 992-5157
Telephone: (312) 992-5152 Telephone: (312) 992-5152
Attn: Loan Administration Attn: Loan Administration
with copies to: with copies to:
ABN AMRO Bank, N.V. ABN AMRO Bank, N.V.
208 South LaSalle, Suite 1500 208 South LaSalle, Suite 1500
Chicago, Illinois 60604-1003 Chicago, Illinois 60604-1003
Telecopier: (312) 992-5111 Telecopier: (312) 992-5111
Telephone: (312) 992-5110 Telephone: (312) 992-5110
Attn: Connie Podgorny Attn: Connie Podgorny
Bank of Montreal Bank of Montreal Bank of Montreal
115 S. LaSalle Street, 11th Floor 115 S. LaSalle Street, 11th Floor
Chicago, Illinois 60603 Chicago, Illinois 60603
Telecopier: (312) 750-6061 Telecopier: (312) 750-6061
Telephone: (312) 750-3771 Telephone: (312) 750-3771
Attn: Keiko Kuze Attn: Keiko Kuze
The Bank of New York The Bank of New York The Bank of New York
One Wall St., 19th Floor One Wall St., 19th Floor
New York, New York 10286 New York, New York 10286
Telecopier: (212) 635-7923 Telecopier: (212) 635-7923
Telephone: (212) 635-7834 Telephone: (212) 635-7834
Attn: Raymond Palmer Attn: Raymond Palmer
Schedule I - 3
Multi-Year Credit Agreement
107
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Barclays Bank PLC Barclays Bank PLC " New York Branch Barclays Bank PLC " New York Branch
222 Broadway, 11th Floor 222 Broadway, 11th Floor
New York, New York 10038 New York, New York 10038
Telecopier: (212) 412-5308 Telecopier: (212) 412-5308
Telephone: (212) 412-3702 Telephone: (212) 412-3702
Attn: David Barton Attn: David Barton
CIBC Inc. CIBC Inc. CIBC Inc.
Two Paces West Two Paces West
2727 Paces Ferry Road, Suite 1200 2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339 Atlanta, Georgia 30339
Telecopier: (770) 319-4950 Telecopier: (770) 319-4950
Telephone: (770) 319-4828 Telephone: (770) 319-4828
Attn: Anita Rounds Attn: Anita Rounds
with a copy to: with a copy to:
1600 Smith, Suite 3000 1600 Smith, Suite 3000
Houston, Texas 77002 Houston, Texas 77002
Telecopier: (713) 650-3727 Telecopier: (713) 650-3727
Telephone: (713) 650-2588 Telephone: (713) 650-2588
Attn: Mark H. Wolf Attn: Mark H. Wolf
Credit Suisse First Boston Credit Suisse First Boston Credit Suisse First Boston
11 Madison Avenue 11 Madison Avenue
New York, New York 10010 New York, New York 10010
Telecopier: (212) 335-0593 Telecopier: (212) 335-0593
Telephone: (212) 322-1384 Telephone: (212) 322-1384
Attn: Jenaro Sarasola Attn: Jenaro Sarasola
Royal Bank of Canada Royal Bank of Canada, New York Royal Bank of Canada, New York
One Liberty Plaza, 4th Floor One Liberty Plaza, 4th Floor
New York, New York 10006 New York, New York 10006
Telecopier: (416) 955-6720 Telecopier: (416) 955-6720
Telephone: (416) 955-6569 Telephone: (416) 955-6569
Attn: Linda Joannou, Attn: Linda Joannou,
Loan Processing Loan Processing
The Bank of Tokyo- The Bank of Tokyo - Mitsubishi, Ltd., The Bank of Tokyo - Mitsubishi, Ltd.,
Mitsubishi, Ltd., Houston Agency Houston Agency
Houston Agency 1100 Louisiana Street, Suite 2800 1100 Louisiana Street, Suite 2800
Houston, Texas 77002-5216 Houston, Texas 77002-5216
Telecopier: (713) 655-3855 Telecopier: (713) 655-3855
Telephone: (713) 655-3845 Telephone: (713) 655-3845
Attn: J.M. McIntyre Attn: J.M. McIntyre
Schedule I - 4
Multi-Year Credit Agreement
108
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Fleet National Bank, Fleet National Bank Fleet National Bank
f/k/a BankBoston, N.A. 100 Federal Street, MA DE 10008B 100 Federal Street, MA DE 10008B
Boston, MA 02110 Boston, MA 02110
Telecopier: (617) 434-9820 Telecopier: (617) 434-9820
Telephone: (617) 434-9627 Telephone: (617) 434-9627
Attn: John Cannon, Loan Administrator Attn: John Cannon, Loan Administrator
Societe Generale, Societe Generale, Southwest Agency Societe Generale, Southwest Agency
Southwest Agency 2001 Ross Avenue, Suite 4800 2001 Ross Avenue, Suite 4800
Dallas, Texas 75201 Dallas, Texas 75201
Telecopier: (214) 754-0171 Telecopier: (214) 754-0171
Telephone: (214) 979-2749 Telephone: (214) 979-2749
Attn: Stacie Row Attn: Stacie Row
Industrial Bank of Japan Industrial Bank of Japan Trust Company Industrial Bank of Japan Trust Company
Trust Company 1251 Avenue of the Americas 1251 Avenue of the Americas
New York, New York 10020 New York, New York 10020
Telecopier: (212) 282-4480 Telecopier: (212) 282-4480
Telephone: (212) 282-4065 Telephone: (212) 282-4065
Attn: Andrew Encarnacion Attn: Andrew Encarnacion
Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc. Toronto Dominion (Texas), Inc.
909 Fannin Street, 17th Floor 909 Fannin Street, 17th Floor
Houston, Texas 77010 Houston, Texas 77010
Swift Address: TDOMU S4H Swift Address: TDOMU S4H
Telecopier: (713) 951-9921 Telecopier: (713) 951-9921
Attn: Azar Azarpour Attn: Azar Azarpour
UBS UBS AG, Stamford Branch UBS AG, Stamford Branch
677 Washington Boulevard 677 Washington Boulevard
Stamford, Connecticut 06901 Stamford, Connecticut 06901
Telecopier: (203) 719-4176 Telecopier: (203) 719-4176
Telephone: (203) 719-4181 Telephone: (203) 719-4181
Attn: Barry Kohler Attn: Barry Kohler
Wells Fargo Bank Wells Fargo Bank, N.A. Wells Fargo Bank, N.A.
Texas, N.A. 1740 Broadway 1740 Broadway
Denver, CO 80274 Denver, CO 80274
Telecopier: (303) 863-2729 Telecopier: (303) 863-2729
Telephone: (303) 863-6102 Telephone: (303) 863-6102
Attn: Tanya Ivie Attn: Tanya Ivie
SunTrust Bank SunTrust Bank SunTrust Bank
303 Peachtree Street, 3rd Floor 303 Peachtree Street, 3rd Floor
MK 1929 MK 1929
Atlanta, Georgia 30308 Atlanta, Georgia 30308
Telecopier: (404) 827-6270 Telecopier: (404) 827-6270
Telephone: (404) 827-6735 Telephone: (404) 827-6735
Attn: David Edge Attn: David Edge
Schedule I - 5
Multi-Year Credit Agreement
109
Westdeutsche Landesbank Westdeutsche Landesbank Girozentrale, Westdeutsche Landesbank Girozentrale,
Girozentrale, New York New York Branch New York Branch
Branch 1211 Avenue of the Americas 1211 Avenue of the Americas
New York, New York 10036 New York, New York 10036
Telecopier: (212) 852-6307 Telecopier: (212) 852-6307
Telephone: (212) 852-6096 Telephone: (212) 852-6096
Attn: Attn:
Credit Agricole Indosuez Credit Agricole Indosuez Credit Agricole Indosuez
Texas Commerce Tower Texas Commerce Tower
600 Travis, Suite 2340 600 Travis, Suite 2340
Houston, Texas 77002 Houston, Texas 77002
Telecopier: (713) 223-7029 Telecopier: (713) 223-7029
Telephone: (713) 223-7001 Telephone: (713) 223-7001
Attn: Brian Knezeak Attn: Brian Knezeak
The Dai-Ichi Kangyo The Dai-Ichi Kangyo Bank, Ltd. The Dai-Ichi Kangyo Bank, Ltd.
Bank, Ltd. One World Trade Center, 48th Floor One World Trade Center, 48th Floor
New York, New York 10048 New York, New York 10048
Telecopier: (212) 912-1879 Telecopier: (212) 912-1879
Telephone: (212) 432-6627 Telephone: (212) 432-6627
Attn: Katsuya Noto Attn: Katsuya Noto
Arab Banking Corporation Arab Banking Corp. Arab Banking Corp. (Grand Cayman)
(B.S.C.) 277 Park Avenue, 32nd Floor 277 Park Avenue, 32nd Floor
New York, New York 10172 New York, New York 10172
Telecopier: (212) 583-0932 Telecopier: (212) 583-0932
Telephone: (212) 583-4770 Telephone: (212) 583-4770
Attn: R.S. Hassan Attn: R.S. Hassan
Bank of China, New York Branch Bank of China, New York Branch Bank of China, New York Branch
410 Madison Avenue 410 Madison Avenue
New York, New York 10017 New York, New York 10017
Telecopier: (212) 308-4993 or Telecopier: (212) 308-4993 or
(212) 688-0919 (212) 688-0919
Telephone: (212) 935-3101 x 256 Telephone: (212) 935-3101 x 256
Telex: ITT 423635 Telex: ITT 423635
Attn: Shelly Lang Attn: Shelly Lang
Bank of Oklahoma, N.A. Bank of Oklahoma, N.A. Bank of Oklahoma, N.A.
One Williams Center, 8th Floor One Williams Center, 8th Floor
Tulsa, Oklahoma 74192 Tulsa, Oklahoma 74192
Telecopier: (918) 588-6880 Telecopier: (918) 588-6880
Telephone: (918) 588-6217 Telephone: (918) 588-6217
Attn: Robert Mattax Attn: Robert Mattax
Schedule I - 6
Multi-Year Credit Agreement
110
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
BNP Paribas, BNP Paribas, Houston Agency BNP Paribas, Houston Agency
Houston Agency 333 Clay Street, Suite 3400 333 Clay Street, Suite 3400
Houston, Texas 77002 Houston, Texas 77002
Telecopier: (713) 659-1414 Telecopier: (713) 659-1414
Telephone: (713) 951-1240 Telephone: (713) 951-1240
Attn: Donna Rose Attn: Donna Rose
DG Bank DG Bank DG Bank
609 Fifth Avenue 609 Fifth Avenue
New York, New York 10017 New York, New York 10017
Telecopier: (212) 745-1556 Telecopier: (212) 745-1556
Telephone: (212) 745-1560 Telephone: (212) 745-1560
Attn: Mark K. Connelly Attn: Mark K. Connelly
KBC Bank N.V., New York Branch KBC Bank N.V., New York Branch KBC Bank N.V., New York Branch
125 West 55th Street 125 West 55th Street
New York, New York 10019 New York, New York 10019
Telecopier: (212) 956-5581 Telecopier: (212) 956-5581
Telephone: (212) 541-0653 Telephone: (212) 541-0653
Attn: Charlene Cumberbatch/ Attn: Charlene Cumberbatch/
Loan Administration Loan Administration
The Sumitomo Bank, The Sumitomo Bank, Limited The Sumitomo Bank, Limited
Limited 277 Park Avenue 277 Park Avenue
New York, New York 10172 New York, New York 10172
Telex: SUMBK 420515/SUMBK Telex: SUMBK 420515/SUMBK
Telecopier: (212) 224-5197 Telecopier: (212) 224-5197
with copies to: with copies to:
The Sumitomo Bank, Limited The Sumitomo Bank, Limited
277 Park Avenue 277 Park Avenue
New York, New York 10172 New York, New York 10172
Telecopier: (212) 224-4384 Telecopier: (212) 224-4384
Telephone: (212) 224-4194 Telephone: (212) 224-4194
Attn: Mr. Bruce Meredith Attn: Mr. Bruce Meredith
Commerce Bank, N.A. Commerce Bank, N.A. Commerce Bank, N.A.
1000 Walnut Street, 17th Floor 1000 Walnut Street, 17th Floor
Kansas City, Missouri 64106 Kansas City, Missouri 64106
Telecopier: (816) 234-7290 Telecopier: (816) 234-7290
Telephone: (816) 234-2477 Telephone: (816) 234-2477
Attn: Dennis R. Block Attn: Dennis R. Block
RZB Finance LLC RZB Finance LLC RZB Finance LLC
1133 Avenue of the Americas, 16th Floor 1133 Avenue of the Americas, 16th Floor
New York, New York 10036 New York, New York 10036
Telecopier: (212) 944-2143 Telecopier: (212) 944-2143
Telephone: (212) 845-4593 Telephone: (212) 845-4593
Attn: Elisabeth Hirst Attn: Elisabeth Hirst
Schedule I - 7
Multi-Year Credit Agreement
111
SCHEDULE II
BORROWER INFORMATION
Name of Borrower Information for Notices
- ---------------- -----------------------
The Williams Companies, Inc. The Williams Companies, Inc.
One Williams Center, Suite 5000
Tulsa, Oklahoma 74172
Attention: Patti J. Kastl
Telecopier:(918) 573-2065
Telephone: (918) 573-2172
Northwest Pipeline Corporation Northwest Pipeline Corporation
295 Chipeta Way
Salt Lake City, Utah 84158-0900
Attention: Ronald E. Houston
Telecopier: (801) 584-7255
Transcontinental Gas Pipe Line Corporation Transcontinental Gas Pipe Line Corporation
P. O. Box 1396, MD 1060, Level 17
Houston, Texas 77251
Attention: Jeffrey P. Heinrichs
Telecopier: (713) 215-3309
Texas Gas Transmission Corporation Texas Gas Transmission Corporation
3800 Frederica St.
Owensboro, Kentucky 42302
Attention: Susanne W. Harris
Telecopier: (270) 688-6392
Schedule II - 1
Multi-Year Credit Agreement
112
SCHEDULE III
PERMITTED NWP LIENS
a) Any purchase money Lien created by NWP or any of its Subsidiaries to
secure all or part of the purchase price of any property (or to secure
a loan made to enable NWP or any of its Subsidiaries to acquire the
property secured by such Lien) provided that the principal amount of
the Debt secured by any such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase
price of the property acquired.
b) Any Lien existing on any property at the time of the acquisition
thereof by NWP or any of its Subsidiaries, whether or not assumed by
NWP or any of its Subsidiaries, and any Lien on any property acquired
or constructed by NWP or any of its Subsidiaries and created not later
than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that if assumed or created by
NWP or any of its Subsidiaries, the principal amount of the Debt
secured by such Lien, together with all other Debt secured by a Lien
on such property, shall not exceed the purchase price of the property
acquired and/or the cost of the property constructed.
c) Any Lien created or assumed by NWP or any of its Subsidiaries on any
contract for the sale of any product or service or any rights
thereunder or any proceeds therefrom, including accounts and other
receivables, related to the operation or use of any property acquired
or constructed by NWP or any of its Subsidiaries and created not later
than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that the principal amount of
the Debt secured by such mortgage together with all other Debt secured
by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the
property constructed.
d) Any Lien existing on any property of a Subsidiary of NWP at the time
it becomes a Subsidiary of NWP.
e) Any refunding or extension of maturity, in whole or in part, of any
Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below; provided that the principal
amount of the Debt secured by such refunding Lien or extended Lien
shall not exceed the principal amount of the Debt secured by the Lien
to be refunded or extended outstanding at the time of such refunding
or extension and that such refunding Lien or extended Lien shall be
limited to the same property that secured the Lien so refunded or
extended.
f) Mechanics' or materialmen's or other similar liens 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 or any
Lien arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
Schedule III - 1
Multi-Year Credit Agreement
113
connection with tenders or leases of real estate, bids or contracts
(other than contracts for the payment of money), in each case to
secure obligations of TWC or any of its Subsidiaries.
g) Deposits to secure public or statutory obligations, deposits to secure
or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other similar charges, in
each case to secure obligations of TWC or any of its Subsidiaries;
provided, however, that the aggregate amount of obligations secured by
Liens permitted by this paragraph (g) shall not exceed 10% of
Consolidated Tangible Net Worth of TWC.
h) 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 TWC or any of its Subsidiaries of any business or the
exercise by TWC or any of its Subsidiaries of any privilege or
license, (ii) to enable TWC 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 TWC or any of its Subsidiaries to share in the privileges
or benefits required for companies participating in such arrangements.
i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other
minerals or timber to be produced from the property subject thereto
and to be sold or delivered by NWP or any of its Subsidiaries,
including any interest of the character commonly referred to as a
"production payment".
j) Any Lien created or assumed by a Subsidiary of NWP on oil, gas, coal
or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of
developing such properties, including any interest of the character
commonly referred to as a "production payment"; provided, however,
that neither NWP nor any other Subsidiary of NWP shall assume or
guarantee such loans or otherwise be liable in respect thereto.
k) Liens incurred in the ordinary course of business upon rights- of-way.
l) 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.
m) 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.
n) The Lien of taxes and assessments which are not at the time
delinquent.
Schedule III - 2
Multi-Year Credit Agreement
114
o) The Lien of specified taxes and assessments which are delinquent but
the validity of which is being contested in good faith by NWP 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 NWP or the relevant Subsidiary of NWP, as the case may be.
p) The Lien reserved in 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 property leasehold estates.
q) 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 NWP and its Subsidiaries
considered as a whole.
r) Any Liens securing Debt neither assumed nor guaranteed by NWP or any
of its Subsidiaries nor on which any of them customarily pays
interest, existing upon real estate or rights in or relating to real
estate (including rights-of- way and easements) acquired by NWP or any
of its Subsidiaries for pipeline, metering station or right-of-way
purposes, which Liens were not created in anticipation of such
acquisition and do not materially impair the use of such property for
the purposes for which it is held by NWP or such Subsidiary.
s) Easements, exceptions or reservations in any property of NWP or any of
its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication
equipment and cable, 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, which do not materially impair the use of such property
for the purposes for which it is held by NWP or such Subsidiary.
t) Rights reserved to or vested in any municipality or public authority
to control or regulate any property of NWP 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 NWP
or such Subsidiary.
u) Any obligations or duties, affecting the property of NWP or any of its
Subsidiaries, to any municipality or public authority with respect to
any franchise, grant, license or permit.
v) The Liens of any judgments in an aggregate amount for NWP and all of
its Subsidiaries (i) not in excess of $5,000,000, the execution of
which has not been stayed and (ii) not in excess of $25,000,000, the
execution of which has been stayed and which have been appealed and
secured, if necessary and permitted hereby, by the filing of an appeal
bond.
w) Zoning laws and ordinances.
Schedule III - 3
Multi-Year Credit Agreement
115
x) Any Lien existing on any office equipment, data processing equipment
(including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation
equipment.
y) Any Lien consisting of interests in receivables in connection with
agreements for sales of receivables of any kind by NWP or any of its
Subsidiaries for cash.
z) Any Lien not permitted by paragraphs (a) through (y) above securing
Debt of NWP and its Subsidiaries or securing any Debt of NWP and its
Subsidiaries which constitutes a refunding or extension of any such
Debt if at the time of, and after giving effect to, the creation or
assumption of any such Lien, the sum of the aggregate of all Debt of
NWP and its Subsidiaries secured by all such Liens not so permitted by
paragraphs (a) through (y) above plus the amount of Attributable
Obligations of NWP and its Subsidiaries in respect of Sale and
Lease-Back Transactions permitted by Section 5.02(j) does not exceed
10% of the sum of (i) Consolidated Tangible Net Worth of NWP plus (ii)
Debt of NWP and its Subsidiaries on a Consolidated basis. For purposes
hereof, "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).
Schedule III - 4
Multi-Year Credit Agreement
116
SCHEDULE IV
PERMITTED TGPL LIENS
a) Any purchase money Lien created by TGPL or any of its Subsidiaries to
secure all or part of the purchase price of any property (or to secure
a loan made to enable TGPL or any of its Subsidiaries to acquire the
property secured by such Lien); provided that the principal amount of
the Debt secured by any such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase
price of the property acquired.
b) Any Lien existing on any property at the time of the acquisition
thereof by TGPL or any of its Subsidiaries, whether or not assumed by
TGPL or any of its Subsidiaries, and any Lien on any property acquired
or constructed by TGPL or any of its Subsidiaries and created not
later than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that if assumed or created by
TGPL or any of its Subsidiaries, the principal amount of the Debt
secured by such Lien, together with all other Debt secured by a Lien
on such property, shall not exceed the purchase price of the property
acquired and/or the cost of the property constructed.
c) Any Lien created or assumed by TGPL or any of its Subsidiaries on any
contract for the sale of any product or service or any rights
thereunder or any proceeds therefrom, including accounts and other
receivables, related to the operation or use of any property acquired
or constructed by TGPL or any of its Subsidiaries and created not
later than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that the principal amount of
the Debt secured by such mortgage together with all other Debt secured
by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the
property constructed.
d) Any Lien existing on any property of a Subsidiary of TGPL at the time
it becomes a Subsidiary of TGPL.
e) Any refunding or extension of maturity, in whole or in part, of any
Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below; provided that the principal
amount of the Debt secured by such refunding Lien or extended Lien
shall not exceed the principal amount of the Debt secured by the Lien
to be refunded or extended outstanding at the time of such refunding
or extension and that such refunding Lien or extended Lien shall be
limited to the same property that secured the Lien so refunded or
extended.
f) Mechanics' or materialmen's or other similar liens 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 or any
Lien arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
Schedule IV - 1
Multi-Year Credit Agreement
117
connection with tenders or leases of real estate, bids or contracts
(other than contracts for the payment of money), in each case to
secure obligations of TWC or any of its Subsidiaries.
g) Deposits to secure public or statutory obligations, deposits to secure
or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other similar charges, in
each case to secure obligations of TWC or any of its Subsidiaries;
provided, however, that the aggregate amount of obligations secured by
Liens permitted by this paragraph (g) shall not exceed 5% of
Consolidated Tangible Net Worth of TWC.
h) 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 TWC or any of its Subsidiaries of any business or the
exercise by TWC or any of its Subsidiaries of any privilege or
license, (ii) to enable TWC 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 TWC or any of its Subsidiaries to share in the privileges
or benefits required for companies participating in such arrangements.
i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other
minerals or timber to be produced from the property subject thereto
and to be sold or delivered by TGPL or any of its Subsidiaries,
including any interest of the character commonly referred to as a
"production payment".
j) Any Lien created or assumed by a Subsidiary of TGPL on oil, gas, coal
or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of
developing such properties, including any interest of the character
commonly referred to as a "production payment"; provided, however,
that neither TGPL nor any other Subsidiary of TGPL shall assume or
guarantee such loans or otherwise be liable in respect thereto.
k) Liens incurred in the ordinary course of business upon rights-of-way.
l) 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.
m) 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.
n) The Lien of taxes and assessments which are not at the time delinquent.
Schedule IV - 2
Multi-Year Credit Agreement
118
o) The Lien of specified taxes and assessments which are delinquent but
the validity of which is being contested in good faith by TGPL 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 TGPL or the relevant Subsidiary of TGPL, as the case may be.
p) The Lien reserved in 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 property leasehold estates.
q) 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 TGPL and its Subsidiaries
considered as a whole.
r) Any Liens securing Debt neither assumed nor guaranteed by TGPL or any
of its Subsidiaries nor on which any of them customarily pays
interest, existing upon real estate or rights in or relating to real
estate (including rights-of-way and easements) acquired by TGPL or any
of its Subsidiaries for pipeline, metering station or right-of-way
purposes, which Liens were not created in anticipation of such
acquisition and do not materially impair the use of such property for
the purposes for which it is held by TGPL or such Subsidiary.
s) Easements, exceptions or reservations in any property of TGPL or any
of its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication
equipment and cable, 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, which do not materially impair the use of such property
for the purposes for which it is held by TGPL or such Subsidiary.
t) Rights reserved to or vested in any municipality or public authority
to control or regulate any property of TGPL 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 TGPL or such Subsidiary.
u) Any obligations or duties, affecting the property of TGPL or any of
its Subsidiaries, to any municipality or public authority with respect
to any franchise, grant, license or permit.
v) The Liens of any judgments in an aggregate amount for TGPL and all of
its Subsidiaries (i) not in excess of $5,000,000, the execution of
which has not been stayed and (ii) not in excess of $25,000,000, the
execution of which has been stayed and which have been appealed and
secured, if necessary and permitted hereby, by the filing of an appeal
bond.
w) Zoning laws and ordinances.
Schedule IV - 3
Multi-Year Credit Agreement
119
x) Any Lien existing on any office equipment, data processing equipment
(including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation
equipment.
y) Any Lien consisting of interests in receivables in connection with
agreements for sales of receivables of any kind by TGPL or any of its
Subsidiaries for cash.
z) Any Lien not permitted by paragraphs (a) through (y) above securing
Debt of TGPL and its Subsidiaries or securing any Debt of TGPL and its
Subsidiaries which constitutes a refunding or extension of any such
Debt if at the time of, and after giving effect to, the creation or
assumption of any such Lien, the sum of the aggregate of all Debt of
TGPL and its Subsidiaries secured by all such Liens not so permitted
by paragraphs (a) through (y) above plus the amount of Attributable
Obligations of TGPL and its Subsidiaries in respect of Sale and
Lease-Back Transactions permitted by Section 5.02(j) does not exceed
5% of the sum of (i) Consolidated Tangible Net Worth of TGPL plus (ii)
Debt of TGPL and its Subsidiaries on a Consolidated basis. For
purposes hereof, "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).
Schedule IV - 4
Multi-Year Credit Agreement
120
SCHEDULE V
PERMITTED TGT LIENS
a) Any purchase money Lien created by TGT or any of its Subsidiaries to
secure all or part of the purchase price of any property (or to secure
a loan made to enable TGT or any of its Subsidiaries to acquire the
property secured by such Lien); provided that the principal amount of
the Debt secured by any such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase
price of the property acquired.
b) Any Lien existing on any property at the time of the acquisition
thereof by TGT or any of its Subsidiaries, whether or not assumed by
TGT or any of its Subsidiaries, and any Lien on any property acquired
or constructed by TGT or any of its Subsidiaries and created not later
than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that if assumed or created by
TGT or any of its Subsidiaries, the principal amount of the Debt
secured by such Lien, together with all other Debt secured by a Lien
on such property, shall not exceed the purchase price of the property
acquired and/or the cost of the property constructed.
c) Any Lien created or assumed by TGT or any of its Subsidiaries on any
contract for the sale of any product or service or any rights
thereunder or any proceeds therefrom, including accounts and other
receivables, related to the operation or use of any property acquired
or constructed by TGT or any of its Subsidiaries and created not later
than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that the principal amount of
the Debt secured by such mortgage together with all other Debt secured
by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the
property constructed.
d) Any Lien existing on any property of a Subsidiary of TGT at the time
it becomes a Subsidiary of TGT.
e) Any refunding or extension of maturity, in whole or in part, of any
Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below; provided that the principal
amount of the Debt secured by such refunding Lien or extended Lien
shall not exceed the principal amount of the Debt secured by the Lien
to be refunded or extended outstanding at the time of such refunding
or extension and that such refunding Lien or extended Lien shall be
limited to the same property that secured the Lien so refunded or
extended.
f) Mechanics' or materialmen's or other similar liens 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 or any
Lien arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
Schedule V - 1
Multi-Year Credit Agreement
121
connection with tenders or leases of real estate, bids or contracts
(other than contracts for the payment of money), in each case to
secure obligations of TWC or any of its Subsidiaries.
g) Deposits to secure public or statutory obligations, deposits to secure
or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other similar charges, in
each case to secure obligations of TWC or any of its Subsidiaries;
provided, however, that the aggregate amount of obligations secured by
Liens permitted by this paragraph (g) shall not exceed 10% of
Consolidated Tangible Net Worth of TWC.
h) 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 TWC or any of its Subsidiaries of any business or the
exercise by TWC or any of its Subsidiaries of any privilege or
license, (ii) to enable TWC 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 TWC or any of its Subsidiaries to share in the privileges
or benefits required for companies participating in such arrangements.
i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other
minerals or timber to be produced from the property subject thereto
and to be sold or delivered by TGT or any of its Subsidiaries,
including any interest of the character commonly referred to as a
"production payment".
j) Any Lien created or assumed by a Subsidiary of TGT on oil, gas, coal
or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of
developing such properties, including any interest of the character
commonly referred to as a "production payment"; provided, however,
that neither TGT nor any other Subsidiary of TGT shall assume or
guarantee such loans or otherwise be liable in respect thereto.
k) Liens incurred in the ordinary course of business upon rights-of-way.
l) 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.
m) 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.
n) The Lien of taxes and assessments which are not at the time
delinquent.
Schedule V - 2
Multi-Year Credit Agreement
122
o) The Lien of specified taxes and assessments which are delinquent but
the validity of which is being contested in good faith by TGT 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 TGT or the relevant Subsidiary of TGT, as the case may be.
p) The Lien reserved in 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 property leasehold estates.
q) 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 TGT and its Subsidiaries
considered as a whole.
r) Any Liens securing Debt neither assumed nor guaranteed by TGT or any
of its Subsidiaries nor on which any of them customarily pays
interest, existing upon real estate or rights in or relating to real
estate (including rights-of-way and easements) acquired by TGT or any
of its Subsidiaries for pipeline, metering station or right-of-way
purposes, which Liens were not created in anticipation of such
acquisition and do not materially impair the use of such property for
the purposes for which it is held by TGT or such Subsidiary.
s) Easements, exceptions or reservations in any property of TGT or any of
its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication
equipment and cable, 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, which do not materially impair the use of such property
for the purposes for which it is held by TGT or such Subsidiary.
t) Rights reserved to or vested in any municipality or public authority
to control or regulate any property of TGT 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 TGT
or such Subsidiary.
u) Any obligations or duties, affecting the property of TGT or any of its
Subsidiaries, to any municipality or public authority with respect to
any franchise, grant, license or permit.
v) The Liens of any judgments in an aggregate amount for TGT and all of
its Subsidiaries (i) not in excess of $5,000,000, the execution of
which has not been stayed and (ii) not in excess of $25,000,000, the
execution of which has been stayed and which have been appealed and
secured, if necessary and permitted hereby, by the filing of an appeal
bond.
w) Zoning laws and ordinances.
x) Any Lien existing on any office equipment, data processing equipment
(including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation
equipment.
Schedule V - 3
Multi-Year Credit Agreement
123
y) Any Lien consisting of interests in receivables in connection with
agreements for sales of receivables of any kind by TGT or any of its
Subsidiaries for cash.
z) Any Lien not permitted by paragraphs (a) through (y) above securing
Debt of TGT and its Subsidiaries or securing any Debt of TGT and its
Subsidiaries which constitutes a refunding or extension of any such
Debt if at the time of, and after giving effect to, the creation or
assumption of any such Lien, the sum of the aggregate of all Debt of
TGT and its Subsidiaries secured by all such Liens not so permitted by
paragraphs (a) through (y) above plus the amount of Attributable
Obligations of TGT and its Subsidiaries in respect of Sale and
Lease-Back Transactions permitted by Section 5.02(j) does not exceed
5% of the sum of (i) Consolidated Tangible Net Worth of TGT plus (ii)
Debt of TGT and its Subsidiaries on a Consolidated basis. For purposes
hereof, "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).
Schedule V - 4
Multi-Year Credit Agreement
124
SCHEDULE VI
PERMITTED TWC LIENS
a) Any purchase money Lien created by TWC or any of its Subsidiaries to
secure all or part of the purchase price of any property (or to secure
a loan made to enable TWC or any of its Subsidiaries to acquire the
property secured by such Lien); provided that the principal amount of
the Debt secured by any such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase
price of the property acquired.
b) Any Lien existing on any property at the time of the acquisition
thereof by TWC or any of its Subsidiaries, whether or not assumed by
TWC or any of its Subsidiaries, and any Lien on any property acquired
or constructed by TWC or any of its Subsidiaries and created not later
than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that if assumed or created by
TWC or any of its Subsidiaries, the principal amount of the Debt
secured by such Lien, together with all other Debt secured by a Lien
on such property, shall not exceed the purchase price of the property
acquired and/or the cost of the property constructed.
c) Any Lien created or assumed by TWC or any of its Subsidiaries on any
contract for the sale of any product or service or any rights
thereunder or any proceeds therefrom, including accounts and other
receivables, related to the operation or use of any property acquired
or constructed by TWC or any of its Subsidiaries and created not later
than 12 months after (i) such acquisition or completion of such
construction or (ii) commencement of full operation of such property,
whichever is later; provided, however, that the principal amount of
the Debt secured by such mortgage together with all other Debt secured
by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the
property constructed.
d) Any Lien existing on any property of a Subsidiary of TWC at the time
it becomes a Subsidiary of TWC.
e) Any refunding or extension of maturity, in whole or in part, of any
Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below; provided that the principal
amount of the Debt secured by such refunding Lien or extended Lien
shall not exceed the principal amount of the Debt secured by the Lien
to be refunded or extended outstanding at the time of such refunding
or extension and that such refunding Lien or extended Lien shall be
limited to the same property that secured the Lien so refunded or
extended.
f) Mechanics' or materialmen's or other similar liens 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 or any
Lien arising by reason of pledges or deposits to secure payment of
workmen's compensation or other insurance, good faith deposits in
Schedule VI - 1
Multi-Year Credit Agreement
125
connection with tenders or leases of real estate, bids or contracts
(other than contracts for the payment of money), in each case to
secure obligations of TWC or any of its Subsidiaries.
g) Deposits to secure public or statutory obligations, deposits to secure
or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other similar charges, in
each case to secure obligations of TWC or any of its Subsidiaries;
provided, however, that the aggregate amount of obligations secured by
Liens permitted by this paragraph (g) shall not exceed 10% of
Consolidated Tangible Net Worth of TWC.
h) 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 TWC or any of its Subsidiaries of any business or the
exercise by TWC or any of its Subsidiaries of any privilege or
license, (ii) to enable TWC 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 TWC or any of its Subsidiaries to share in the privileges
or benefits required for companies participating in such arrangements.
i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other
minerals or timber to be produced from the property subject thereto
and to be sold or delivered by TWC or any of its Subsidiaries,
including any interest of the character commonly referred to as a
"production payment".
j) Any Lien created or assumed by a Subsidiary of TWC on oil, gas, coal
or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of
developing such properties, including any interest of the character
commonly referred to as a "production payment"; provided, however,
that neither TWC nor any other Subsidiary of TWC shall assume or
guarantee such loans or otherwise be liable in respect thereto.
k) Liens incurred in the ordinary course of business upon rights-of-way.
l) 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.
m) 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.
n) The Lien of taxes and assessments which are not at the time
delinquent.
Schedule VI - 2
Multi-Year Credit Agreement
126
o) The Lien of specified taxes and assessments which are delinquent but
the validity of which is being contested in good faith by TWC 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 TWC or the relevant Subsidiary of TWC, as the case may be.
p) The Lien reserved in 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 property leasehold estates.
q) 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 TWC and its Subsidiaries
considered as a whole.
r) Any Liens securing Debt neither assumed nor guaranteed by TWC or any
of its Subsidiaries nor on which any of them customarily pays
interest, existing upon real estate or rights in or relating to real
estate (including rights-of- way and easements) acquired by TWC or any
of its Subsidiaries, which Liens were not created in anticipation of
such acquisition and do not materially impair the use of such property
for the purposes for which it is held by TWC or such Subsidiary.
s) Easements, exceptions or reservations in any property of TWC or any of
its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication
equipment and cable, 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, which do not materially impair the use of such property
for the purposes for which it is held by TWC or such Subsidiary.
t) Rights reserved to or vested in any municipality or public authority
to control or regulate any property of TWC 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 TWC
or such Subsidiary.
u) Any obligations or duties, affecting the property of TWC or any of its
Subsidiaries, to any municipality or public authority with respect to
any franchise, grant, license or permit.
v) The Liens of any judgments in an aggregate amount for TWC and all of
its Subsidiaries (i) not in excess of $5,000,000, the execution of
which has not been stayed and (ii) not in excess of $25,000,000, the
execution of which has been stayed and which have been appealed and
secured, if necessary and permitted hereby, by the filing of an appeal
bond.
w) Zoning laws and ordinances.
x) Any Lien existing on any office equipment, data processing equipment
(including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation
equipment.
Schedule VI - 3
Multi-Year Credit Agreement
127
y) Any Lien consisting of interests in receivables in connection with
agreements for sales of receivables of any kind by TWC or any of its
Subsidiaries for cash.
z) Any Lien not permitted by paragraphs (a) through (y) above or (aa) or
(bb) below securing Debt of TWC and its Subsidiaries or securing any
Debt of TWC and its Subsidiaries which constitutes a refunding or
extension of any such Debt if at the time of, and after giving effect
to, the creation or assumption of any such Lien, the sum of the
aggregate of all Debt of TWC and its Subsidiaries secured by all such
Liens not so permitted by paragraphs (a) through (y) above or (aa)
below plus the amount of Attributable Obligations of TWC and its
Subsidiaries in respect of Sale and Lease-Back Transactions permitted
by Section 5.02(j) does not exceed 5% of the sum of (i) Consolidated
Tangible Net Worth of TWC plus (ii) Debt of TWC and its Subsidiaries
on a Consolidated basis. For purposes hereof, "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).
aa) Any overriding royalties or other rights of Pacific Northwest Pipeline
Corporation, a Delaware corporation ("Pacific") and Phillips Petroleum
Company ("Phillips") or their respective successors in interest under
a contract dated January 9, 1953, as amended, between Phillips and
Pacific, to which TWC is successor in interest; and the obligations of
TWC 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.
bb) Any Lien created by TWC or any of its Subsidiaries on any contract (or
any rights thereunder or proceeds therefrom) providing for advances by
TWC or any of its Subsidiaries to finance gas exploration and
development, which Lien is created to secure only indebtedness
incurred to finance such advances.
Schedule VI - 4
Multi-Year Credit Agreement
128
SCHEDULE X
COMMITMENTS
AS OF JULY 25, 2000
TWC NWP TGPL TGT
Banks Commitment Commitment Commitment Commitment
----- ---------- ---------- ---------- ----------
The Bank of Nova Scotia $29,895,833.33 $17,083,333.33 $17,083,333.33 $8,541.666.67
Bank of America, N.A. 29,895,833.33 17,083,333.33 17,083,333.33 8,541,666.67
Bank One, N.A. 29,895,833.33 17,083,333.33 17,083,333.33 8,541,666.67
The Chase Manhattan 29,895,833.33 17,083,333.33 17,083,333.33 8,541,666.67
Citibank, N.A. 29,895,833.33 17,083,333.33 17,083,333.33 8,541,666.67
Commerzbank AG 29,895,833.33 17,083,333.33 17,083,333.33 8,541,666.67
Credit Lyonnais 29,895,833.33 17,083,333.33 17,083,333.33 8,541,666.67
Fuji Bank, Limited 29,895,833.33 17,083,333.33 17,083,333.33 8,541,666.67
National Westminster Bank PLC 29,895,833.33 17,083,333.33 17,083,333.33 8,541,666.67
ABN Amro Bank N.V. 24,500,000.00 14,000,000.00 14,000,000.00 7,000,000.00
Bank of Montreal 24,500,000.00 14,000,000.00 14,000,000.00 7,000,000.00
The Bank of New York 24,500,000.00 14,000,000.00 14,000,000.00 7,000,000.00
Barclays Bank PLC 24,500,000.00 14,000,000.00 14,000,000.00 7,000,000.00
CIBC Inc. 24,500,000.00 14,000,000.00 14,000,000.00 7,000,000.00
Credit Suisse First Boston 24,500,000.00 14,000,000.00 14,000,000.00 7,000,000.00
Royal Bank of Canada 24,500,000.00 14,000,000.00 14,000,000.00 7,000,000.00
Bank of Tokyo - Mitsubishi, Ltd. 20,708,333.33 11,833,333.33 11,833,333.33 5,916,666.67
Fleet National Bank 20,708,333.33 11,833,333.33 11,833,333.33 5,916,666.67
Societe Generale 20,708,333.33 11,833,333.33 11,833,333.33 5,916,666.67
The Industrial Bank of Japan Trust Company 20,708,333.33 11,833,333.33 11,833,333.33 5,916,666.67
Toronto Dominion (Texas) Inc. 20,708,333.33 11,833,333.33 11,833,333.33 5,916,666.67
UBS AG, Stamford Branch 20,708,333.33 11,833,333.33 11,833,333.33 5,916,666.67
Wells Fargo Bank Texas, N.A. 20,708,333.33 11,833,333.33 11,833,333.33 5,916,666.67
Westdeutsche Landesbank 20,708,333.33 11,833,333.33 11,833,333.33 5,916,666.67
Credit Agricole Indosuez 11,520,833.33 6,583,333.33 6,583,333.33 3,291,666.67
Suntrust Bank 11,520,833.33 6,583,333.33 6,583,333.33 3,291,666.67
The Dai-Ichi Kangyo Bank, Ltd. 11,520,833.33 6,583,333.33 6,583,333.33 3,291,666.67
Arab Banking Corporation 7,218,750.00 4,125,000.00 4,125,000.00 2,062,500.00
Bank of China 7,218,750.00 4,125,000.00 4,125,000.00 2,062,500.00
Bank of Oklahoma 7,218,750.00 4,125,000.00 4,125,000.00 2,062,500.00
Banque Nationale De Paris 7,218,750.00 4,125,000.00 4,125,000.00 2,062,500.00
DG Bank 7,218,750.00 4,125,000.00 4,125,000.00 2,062,500.00
KBC Bank, N.V. 7,218,750.00 4,125,000.00 4,125,000.00 2,062,500.00
Sumitomo Bank, Limited 7,218,750.00 4,125,000.00 4,125,000.00 2,062,500.00
Commerce Bank, N.A. 4,338,541.67 2,479,166.67 2,479,166.67 1,239,583.33
RZB Finance LLC 4,338,541.67 2,479,166.67 2,479,166.67 1,239,583.33
------------- ------------- ------------- -------------
TOTAL $700,000,000.00 $400,000,000.00 $400,000,000.00 $200,000,000.00
Schedule X - 1
Multi-Year Credit Agreement
129
SCHEDULE XI
RATING CATEGORIES
APPLICABLE MARGIN
RATING ------------------------------------------
CATEGORY S&P OR MOODY'S RATINGS OF THE < OR = TO 50% OF >50% OF APPLICABLE
OF THE SENIOR UNSECURED LONG-TERM DEBT OF COMMITMENTS COMMITMENTS COMMITMENT FEE
BORROWER THE BORROWER DRAWN DRAWN RATE
--------------- ------------------------------------- ---------------------- -------------------- ------------------
A or better by S&P or A2 or better
ONE by Moody's .375% .500% .100%
--------------- ------------------------------------- ---------------------- -------------------- ------------------
TWO A- by S&P or A3 by Moody's .500% .625% .105%
--------------- ------------------------------------- ---------------------- -------------------- ------------------
THREE BBB+ by S&P or Baa1 by Moody's .625% .750% .115%
--------------- ------------------------------------- ---------------------- -------------------- ------------------
FOUR BBB by S&P or Baa2 by Moody's .750% .875% .125%
--------------- ------------------------------------- ---------------------- -------------------- ------------------
FIVE BBB- by S&P and Baa3 by Moody's 1.00% 1.125% .175%
--------------- ------------------------------------- ---------------------- -------------------- ------------------
SIX BBB- by S&P or Baa3 by Moody's 1.25% 1.50% .250%
--------------- ------------------------------------- ---------------------- -------------------- ------------------
Such Borrower is Unrated or none of
SEVEN the above applies to such Borrower 1.50% 2.00% .375%
--------------- ------------------------------------- ---------------------- -------------------- ------------------
The Rating Category of a particular Borrower depends solely on the
ratings (or lack thereof) of the senior unsecured long-term debt of such
Borrower and not the ratings for any other Borrower. The Applicable Commitment
Fee Rate is based solely on the ratings of the senior unsecured long-term debt
of TWC.
Schedule XI - 1
Multi-Year Credit Agreement
130
EXHIBIT A-1
A PROMISSORY NOTE
U.S. $__________________ July 25, 2000
FOR VALUE RECEIVED, the undersigned, ______________________, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
____________________ (the "Bank"), for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on the Stated
Termination Date (as defined in the Credit Agreement referred to below), the
principal amount of $______________, or, if less, the aggregate principal
amount of the A Advances (as defined in the Credit Agreement referred to below)
owed to the Bank by the Borrower on such Stated Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
hereof until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement referred to
below. Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at 399 Park Avenue, New York,
New York 10043, in same day funds.
This A Promissory Note is one of the A Notes referred to in, and is
subject to and entitled to the benefits of the Credit Agreement, dated as of
July 25, 2000 (as amended or otherwise modified from time to time, the "Credit
Agreement"), by and among the Borrower, the Bank, certain other borrowers party
thereto, certain other financial institutions parties thereto, 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 for the
Bank and such other financial institutions. The Credit Agreement, among other
things, (i) provides for the making of advances to the Borrower from time to
time pursuant to Section 2.01 of the Credit Agreement in an aggregate
outstanding amount not to exceed at any time the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such advance
owed to the Bank being evidenced by this A Promissory Note and (ii) contains
provisions for the acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
Capitalized terms used herein which are not defined herein and are defined in
the Credit Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and any other notice of any kind,
except as provided in the Credit Agreement. No failure to exercise, and no
delay in exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This A Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
Exhibit A-1 -- 1
Multi-Year Credit Agreement
131
[BORROWER NAME]
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Exhibit A-1 -- 2
Multi-Year Credit Agreement
132
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Principal Unpaid
Of Paid or Principal Notation
Date Advance Prepaid Balance Made By
- -------------------- --------------------- ---------------------- ---------------------- ---------------------------
- -------------------- --------------------- ---------------------- ---------------------- ---------------------------
- -------------------- --------------------- ---------------------- ---------------------- ---------------------------
- -------------------- --------------------- ---------------------- ---------------------- ---------------------------
Exhibit A-1 -- 3
Multi-Year Credit Agreement
133
EXHIBIT A-2
B PROMISSORY NOTE
U.S. $__________________ Dated: ____________, _____
FOR VALUE RECEIVED, the undersigned, _______________________, a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
____________________ (the "Bank"), for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on _________,
the principal amount of _____________ U.S. Dollars ($______________).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: ______% per annum (calculated on the basis
of a year of ____ days for the actual number of days elapsed).
Interest Payment
Date or Dates: ___________________
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, for the account of the Bank at
the office of Citibank, N.A., at 399 Park Avenue, New York, New York 10043, in
same day funds.
This B Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of the Credit Agreement, dated as of July 25, 2000 (as
amended or otherwise modified from time to time, the "Credit Agreement"), by
and among the Borrower, the Bank, certain other borrowers party thereto,
certain other financial institutions parties thereto, 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 for the Bank and such
other financial institutions. The Credit Agreement contains, among other
things, provisions for acceleration of the maturity hereof upon the happening
of certain stated events. Capitalized terms used herein which are not defined
herein and are defined in the Credit Agreement are used herein as therein
defined.
The Borrower hereby waives presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and any other notice of any kind,
except as provided in the Credit Agreement. No failure to exercise, and no
delay in exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
Exhibit A-2 -- 1
Multi-Year Credit Agreement
134
This B Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[BORROWER]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Exhibit A-2 -- 2
Multi-Year Credit Agreement
135
EXHIBIT B-1
NOTICE OF A BORROWING
[Date]
Citibank, N.A., as Agent
for the Banks parties to the Credit
Agreement referred to below
399 Park Avenue
New York, New York 10043
ATTENTION: Bilal Aman
Ladies and Gentlemen:
The undersigned, _____________________ (the "Borrower"), refers to the
Credit Agreement, dated as of July 25, 2000 (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), by and among the
undersigned, certain other borrowers parties thereto, certain Banks parties
thereto, 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 for such Banks; hereby gives you notice, irrevocably, pursuant to Section
2.02 of the Credit Agreement that the undersigned hereby requests an A
Borrowing under the Credit Agreement and (c) in that connection sets forth
below the information relating to such A Borrowing (the "Proposed A Borrowing")
as required by Section 2.02 (a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is
______________, 19____.
(ii) The Type of A Advances comprising the Proposed A Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$__________________.
(iv) [The Interest Period for each A Advance made as part of the
Proposed A Borrowing is ______ months.]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed A
Borrowing:
(a) the representations and warranties contained in Section 4.01
of the Credit Agreement as to the Borrower and its
Subsidiaries are correct on and as of the date of the
Proposed A Borrowing, before and after giving effect to the
Proposed A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
Exhibit B-1 -- 1
Multi-Year Credit Agreement
136
(b) no event has occurred and is continuing, or would result from
the Proposed A Borrowing or from the application of the
proceeds therefrom, 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;
(c) [the senior unsecured debt of the Borrower is rated ______ by
S&P and ______ by Moody's; and]
[(d)] after giving effect to the Proposed A Borrowing and all other
Borrowings which have been requested on or prior to the date
of the Proposed A Borrowing but which have not been made
prior to such date, the aggregate principal amount of all
Advances will not exceed the aggregate of the Commitments of
the Banks to the Borrower (computed without regard to any B
Reduction).
Very truly yours,
[BORROWER]
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
cc: Citicorp North America, Inc.
1200 Smith Street, Suite 2000
Houston, Texas 77002
Attn: The Williams Companies, Inc.
Account Officer
Exhibit B-1 -- 2
Multi-Year Credit Agreement
137
EXHIBIT B-2
NOTICE OF B BORROWING
[Date]
Citibank, N.A., as Agent
for the Banks parties to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
ATTENTION: Bilal Aman
Ladies and Gentlemen:
The undersigned, __________________ (the "Borrower"), (a) refers to
the Credit Agreement, dated as of July 25, 2000 (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), by and among the
undersigned, certain other borrowers parties thereto, certain Banks parties
thereto, 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 for such Banks; (b) hereby gives you notice, irrevocably, pursuant to
Section 2.16 of the Credit Agreement that the undersigned hereby requests a B
Borrowing under the Credit Agreement and (c) in that connection sets forth the
terms on which such B Borrowing (the "Proposed B Borrowing") is requested to be
made:
(A) Date of B Borrowing _________________________
(B) Amount of B Borrowing _________________________
(C) Maturity Date _________________________
(D) Interest Rate Basis _________________________
(E) Interest Payment Date(s) _________________________
(F) Prepayment Permitted [Yes/No] [Conditions]
(G) ____________________ _________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed B
Borrowing:
(a) the representations and warranties contained in Section 4.01
of the Credit Agreement as to the Borrower and its
Subsidiaries are correct on and as of the date of the
Proposed B Borrowing, before and after giving effect to the
Proposed B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from
the Proposed B Borrowing or from the application of the
proceeds therefrom, which constitutes an
Exhibit B-2 -- 1
Multi-Year Credit Agreement
138
Event of Default or which would constitute an Event of
Default but for the requirement that notice be given or time
elapse or both;
(c) following the making of the Proposed B Borrowing and all
other Borrowings to be made on the same day under the Credit
Agreement, the aggregate principal amount of all Advances of
the Banks to the Borrower then outstanding will not exceed
the aggregate amount of the Commitments of the Banks to the
Borrower (computed without regard to any B Reduction); and
(d) after giving effect to the Proposed B Borrowing and all other
Borrowings which have been requested on or prior to the date
of the Proposed B Borrowing but which have not been made
prior to such date, the aggregate principal amount of all
Advances will not exceed the aggregate of the Commitments of
the Banks (computed without regard to any B Reduction).
The undersigned hereby confirms that the Proposed B Borrowing is to be
made available to it in accordance with Section 2.16(a)(v) of the Credit
Agreement.
Very truly yours,
[BORROWER NAME]
By:
---------------------------
Name:
-------------------------
Title:
------------------------
cc: Citicorp North America, Inc.
1200 Smith Street, Suite 2000
Houston, Texas 77002
Attn: The Williams Companies, Inc.
Account Officer
Exhibit B-2 -- 2
Multi-Year Credit Agreement
139
EXHIBIT C
WILLIAM G. VON GLAHN One Williams Center
Senior Vice President and Tulsa, Oklahoma 74172
General Counsel 918/573-2480
July 25, 2000
To each of the Banks parties to the Credit Agreement dated as of July 25, 2000,
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 Williams 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 (the "Agreement").
This opinion is furnished to you at the request of the Borrowers pursuant to
Section 3.01(d) of the Agreement. Terms defined in the Agreement 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 Agreement, including all exhibits, schedules, and
attachments thereto, and any Notes issued pursuant thereto;
(b) Certificates of the Secretary of State of the State of
Delaware dated July 25, 2000, attesting to the continued
corporate existence and good standing of each Borrower in
that State; and
(c) the Certificates of Incorporation and By-Laws of the
Borrowers, and all amendments thereto.
Those documents identified in items (a) through (c) 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
Exhibit C - 1
Multi-Year Credit Agreement
140
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 original 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 Agreement by the Banks and the Agent and the enforceability of the
Agreement against the 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 Agreement and any Notes and the consummation of the
transactions contemplated by the Agreement 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 (d) will not
result in or require the creation or imposition of any Lien
prohibited by the Agreement.
3. The Agreement and any Notes have 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, and
performance by any Borrower of the Agreement or the
consummation of the transactions contemplated by the
Agreement, except, in the case of such performance, for such
authorizations, approvals, actions, notices, and filings
which have been made or obtained.
5. The Agreement and the Notes, if any, when executed and
delivered, will constitute legal, valid, and binding
obligations of the Borrowers enforceable against each
Borrower in accordance with their respective terms.
Exhibit C - 2
Multi-Year Credit Agreement
141
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 Agreement or the Notes, if any, 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
Agreement or any of the Notes 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 Agreement and the
Notes that set forth the governing law, and (b) construe the
Agreement and the Notes in accordance with the internal laws
of the State of New York. Subject to the foregoing and
without limiting the generality thereof, a court of the State
of Oklahoma or a Federal court sitting in the State of
Oklahoma would apply the usury law of the State of New York,
and would not apply the usury law of the State of Oklahoma,
to the Agreement and the Notes. However, if a court were to
hold that the Agreement or any of the Notes are governed by
or to be construed in accordance with the laws of the State
of Oklahoma, the Agreement and the Notes when executed,
delivered, and funded, 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 their respective terms.
The opinions expressed in this letter are subject to the following
additional qualifications and limitations:
A. My opinion in paragraph 1 with respect to the incorporation
and good standing of the Borrowers is based solely on
Certificates, dated as of July 25, 2000, from the Secretary
of State of the State of Delaware, certifying as to such
matters.
B. 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
Exhibit C - 3
Multi-Year Credit Agreement
142
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar law affecting creditors'
rights and remedies generally.
C. 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).
D. 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 the Agreement, (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 the Agreement, insofar as any of the foregoing are
contained in the Agreement.
E. 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.
F. 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 Agreement, such as delivery of payment,
in the State of New York.
G. 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 Agreement, no information has come to the
attention of me or attorneys reporting to me that would give
me or such attorneys
Exhibit C - 4
Multi-Year Credit Agreement
143
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.
Exhibit C - 5
Multi-Year Credit Agreement
144
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 Agreement, 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,
William G. von Glahn
Exhibit C - 6
Multi-Year Credit Agreement
145
EXHIBIT D
[FORM OF OPINION]
July ___, 2000
To each of the Banks party to the
Credit Agreement described below,
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
Ladies and Gentlemen:
We have acted as special counsel to Citibank, N.A., acting for itself
and as Agent, in connection with the preparation, execution and delivery of the
Credit Agreement, dated as of July ___ , 2000 (the "Credit Agreement"), by and
among The Williams Companies, Inc., Northwest Pipeline Corporation,
Transcontinental Gas Pipe Line Corporation, and Texas Gas Transmission
Corporation (each a "Borrower" and collectively, the "Borrowers"), and each of
you. Terms defined in the Credit Agreement are used herein as therein defined.
In that connection, we have examined the following documents:
(1) Counterparts of the Credit Agreement, executed by the
Agent, the Co-Syndication Agents, the Documentation Agent and each of
the Borrowers, respectively.
(2) The documents furnished by the Borrowers pursuant to
Section 3.01 of the Credit Agreement and listed on Annex A hereto,
including the opinion of William G. von Glahn ("Opinion").
In our examination of the documents referred to above, we have assumed
(i) the authenticity of all such documents submitted to us as originals, (ii)
the genuineness of all signatures and (iii) the conformity to the originals of
all such documents submitted to us as copies. We have also assumed the accuracy
of all matters set forth in the certificates referred to on Annex A hereto and
assumed that the Borrowers, the Banks, the Co-Syndication Agents, the
Documentation Agent and the Agent have duly executed and delivered, with all
necessary power and authority (corporate and otherwise), the Credit Agreement
and that the Borrowers have duly executed and delivered, with all necessary
power and authority (corporate and otherwise), the respective A Notes. We have
also assumed that (i) no Bank has requested that the opinion
Exhibit D - 1
Multi-Year Credit Agreement
146
required by Section 3.1(d) of the Credit Agreement contain any matter not
contained in the form of opinion set forth as Exhibit C to the Credit
Agreement, (ii) no Bank other than those Banks listed in item (1) of Annex A
has requested that A Notes be delivered to it and (iii) the Agent has
satisfactory evidence that principal and interest on all loans and advances
outstanding and all accrued fees and other obligations owed by any of the
Borrowers pursuant to the Second Amended and Restated Credit Agreement dated as
of July 23, 1997, among the Borrowers, the financial institutions party thereto
and Citibank, N.A., as agent for such institutions (as amended) have been paid
in full.
Based upon the foregoing examination of documents and assumptions and
upon such other investigation as we have deemed necessary, we are of the
opinion that the Opinion and the other documents referred to in item (2) above
are substantially responsive to the requirements of the Credit Agreement.
This opinion (i) is furnished solely for the benefit of the Banks, the
Co-Syndication Agents, the Documentation Agent, the Agent, their respective
successors, assigns, participants and other transferees and solely in
connection with the transactions described above and (ii) may not be relied
upon by, or communicated to, any other Person or for any other purpose, nor may
it be quoted, circulated or published or made public, in whole or in part, or
furnished, without our prior written consent, to any Person. This opinion is
rendered as of the date hereof, and we express no opinion as to, and disclaim
any undertaking or obligation to update this opinion in respect of changes in
laws or interpretations thereof or in circumstances or events that occur
subsequent to this date.
Very truly yours,
Mayer, Brown & Platt
Exhibit D - 2
Multi-Year Credit Agreement
147
ANNEX A
(1) A Notes dated July ___, 2000 of each Borrower payable to the order of
the following Banks:
[list banks requesting A Notes]
(2) Certified copies of resolutions of the Board of Directors of each
Borrower pertaining to the Credit Agreement and the Notes.
(3) A certificate of the Secretary or an Assistant Secretary of each
Borrower certifying (a) the names and the signatures of officers of
such Borrower authorized to sign the Credit Agreement and the Notes
for such Borrower and (b) copies of the Certificate of Incorporation
and Bylaws of such Borrower.
(4) The opinion of William G. von Glahn, Esq., substantially in the form
of Exhibit C to the Credit Agreement.
(5) A certificate of an officer of each Borrower stating the respective
ratings by each of S&P and Moody's of the senior unsecured long-term
debt of such Borrower as in effect on July ___, 2000.
Exhibit D - 3
Multi-Year Credit Agreement
148
EXHIBIT E
INVESTMENTS DESCRIBED IN
PARAGRAPH 5.02(e) OF THE CREDIT AGREEMENT
Loan Agreement dated as of September 8, 1999 between Williams Communications,
Inc., as Borrower, and TWC, as Lender, filed as Exhibit 10.57 to WCG's Form
10-K/A for the fiscal year ended December 31, 1999.
Various immaterial intercompany receivables between TWC or its Subsidiaries and
the WCG Subsidiaries for services rendered, which are settled on a reasonably
prompt basis. Services are rendered to the WCG Subsidiaries by TWC or its
Subsidiaries pursuant to certain intercompany services agreements, all of which
are filed as exhibits to WCG's Form 10-K/A for the fiscal year ended December
31, 1999.
As of July 25, 2000, TWC's investment in WCG consists of 395,434,965 shares of
Class B common stock.
Exhibit E - 1
Multi-Year Credit Agreement
149
EXHIBIT F
TRANSFER AGREEMENT
This Transfer Agreement, dated as of ___________________ (this
"Agreement"), is made by and among The Williams Companies, Inc., a Delaware
corporation ("TWC"), Northwest Pipeline Corporation ("NWP"), Transcontinental
Gas Pipe Line Corporation ("TGPL") and Texas Gas Transmission Corporation
("TGT"), each a Delaware corporation (TWC, NWP, TGPL and TGT being each a
"Borrower" and collectively, the "Borrowers"); Citibank, N.A., as Agent for the
banks party to the Credit Agreement, dated as of July 25, 2000 (as such may be
amended from time to time, the "Credit Agreement"), by and among the Borrowers,
such Agent and such banks; ___________________ ("Assignor"); and (d)
_______________ ("Assignee"). In consideration of the mutual covenants herein
contained, the parties hereto agree as set forth herein.
1. Transfer. Pursuant to the last sentence of Section 8.06(a)
of the Credit Agreement, Assignor hereby assigns to Assignee (without
representation or warranty to Assignee and without Assignee having
recourse against Assignor as a result of such assignment), and
Assignee hereby assumes, a constant ____% of each of the Assignor's
Commitments (such term used throughout this Agreement without giving
effect to any B Reduction) to each of the Borrowers under the Credit
Agreement, such assignment from Assignor to Assignee being [all of
Assignor's Commitments to the Borrower] [(a) $___________ of
Assignor's $____________ Commitment to TWC; (b) $__________ of
Assignor's $_________ Commitment to NWP; (c) $_________ of Assignor's
$__________ Commitment to TGPL; and (d) $__________ of Assignor's
$__________ Commitment to TGT] (the amount of such Commitment to the
Borrower so assigned is called the "Assigned Portion" of such
Commitment). [The Assignee is already a Bank under the Credit
Agreement with a Commitment of $___________, $___________,
$___________, $___________, $___________, $___________ and
$___________ to TWC, NWP, TGPL and TGT, respectively, prior to the
assumption contemplated hereby.] [The Assignee is hereby approved by
the Agent [and the Borrowers] for purposes of the assignment and
assumption contemplated hereby.] As contemplated by such Section 8.06,
it is hereby agreed that:
(i) the Assignor is hereby released from all of its
obligations under the Credit Agreement with respect
to or arising as a result of the Assigned Portions
of its Commitment assigned hereby;
(ii) the Assignee hereby becomes obligated for the
Assigned Portions of such Commitment and all other
obligations of the Assignor (including, without
limitation, obligations to the Agent under Section
7.05 of the Credit Agreement or otherwise) under the
Credit Agreement with respect to or arising as a
result of the Assigned Portions of such Commitments;
(iii) the Assignee is hereby assigned the right to vote or
consent under the Credit Agreement and the other
rights and obligations of the Assignor under the
Credit
Exhibit F-1
Multi-Year Credit Agreement
150
Agreement, in each case to the extent of the
Assigned Portions of such Commitment;
(iv) TWC, if requested or required to do so pursuant to
Section 2.09 of the Credit Agreement,
contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note
of the Assignor currently outstanding [(and in
replacement of Assignee's existing $___________ A
Note)] (a) to the Assignee, a new A Note in the
amount of $____________ [(and the Assignee agrees to
mark "Exchanged" and return to TWC, with reasonable
promptness following such delivery, any A Note of
the Assignee being replaced thereby)], (b) to the
Assignor, a new A Note in the amount of
$____________ (and the Assignor agrees to return to
TWC, with reasonable promptness following delivery
of such new A Note, any A Note of the Assignor being
replaced thereby, marked "Exchanged"), and (c) to
the Agent, photocopies of all such new A Notes and
of all such replaced A Notes;
(v) NWP, if requested or required to do so pursuant to
Section 2.09 of the Credit Agreement,
contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note
of the Assignor currently outstanding [(and in
replacement of Assignee's existing $___________ A
Note)] (a) to the Assignee, a new A Note in the
amount of $____________ [(and the Assignee agrees to
mark "Exchanged" and return to TWC, with reasonable
promptness following such delivery, any A Note of
the Assignee being replaced thereby)], (b) to the
Assignor, a new A Note in the amount of
$____________ (and the Assignor agrees to return to
TWC, with reasonable promptness following delivery
of such new A Note, any A Note of the Assignor being
replaced thereby, marked "Exchanged"), and (c) to
the Agent, photocopies of all such new A Notes and
of all such replaced A Notes;
(vi) TGPL, if requested or required to do so pursuant to
Section 2.09 of the Credit Agreement,
contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note
of the Assignor currently outstanding [(and in
replacement of Assignee's existing $___________ A
Note)] (a) to the Assignee, a new A Note in the
amount of $____________ [(and the Assignee agrees to
mark "Exchanged" and return to TGPL, with reasonable
promptness following such delivery, any A Note of
the Assignee being replaced thereby)], (b) to the
Assignor, a new A Note in the amount of
$____________ (and the Assignor agrees to return to
TGPL, with reasonable promptness following delivery
of such new A Note, any A Note of the Assignor being
replaced thereby, marked "Exchanged"), and (c) to
the Agent, photocopies of all such new A Notes and
of all such replaced A Notes;
(vii) TGT, if requested or required to do so pursuant to
Section 2.09 of the Credit Agreement,
contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note
of the Assignor currently outstanding [(and in
replacement of Assignee's existing $___________ A
Note)] (a) to the
Exhibit F-2
Multi-Year Credit Agreement
151
Assignee, a new A Note in the amount of
$____________ [(and the Assignee agrees to mark
"Exchanged" and return to TGT, with reasonable
promptness following such delivery, any A Note of
the Assignee being replaced thereby)], (b) to the
Assignor, a new A Note in the amount of
$____________ (and the Assignor agrees to return to
TGT, with reasonable promptness following delivery
of such new A Note, any A Note of the Assignor being
replaced thereby, marked "Exchanged"), and (c) to
the Agent, photocopies of all such new A Notes and
of all such replaced A Notes;
(viii) [inasmuch as there are currently no outstanding A
Advances, no transfer of A Advances is hereby made];
(ix) [$__________, $__________, $__________, $__________
of the Assignor's outstanding A Advances to TWC,
NWP, TGPL and TGT, respectively, are hereby
transferred to the Assignee, which amounts represent
[the aggregate amount of all of the Assignor's
outstanding A Advances to TWC, NWP, TGPL and TGT,
respectively,] [the amount of the assigned portions
of the outstanding A Advances of the Assignor to the
Borrower being hereby assigned to Assignee a portion
of each such A Advance with the assigned portion of
each such A Advance being equal to the amount of
such A Advance multiplied by a fraction, the
numerator of which is the amount of the Assignor's
Commitments assumed hereby by the Assignee and the
denominator of which is the amount of the Assignor's
Commitments (without giving effect to any B
Reduction) immediately prior to such assumption];
[and]
(x) the Assignee hereby confirms that it is a party to
the Credit Agreement as a Bank and agrees that after
giving effect to this Agreement its Commitments will
be $_______________, $__________, $__________,
$__________ to TWC, NWP, TGPL and TGT, respectively;
[and]
(xi) the Assignee hereby specifies the following offices
as its Applicable Lending Offices under the Credit
Agreement:
Domestic Eurodollar
Lending Office Lending Office
-------------- --------------
Attention: Attention:
----------------------- ------------------------
Telephone: Telephone:
----------------------- ------------------------
Telecopy: Telecopy:
----------------------- ------------------------
Answerback: Answerback:
----------------------- ------------------------
(xii) [the Assignee hereby specifies the following as its
address for notices and communications under the
Credit Agreement:
Exhibit F-3
Multi-Year Credit Agreement
152
[Assignee]
Attention:
---------------------------------------
Telephone:
---------------------------------------
Telecopy:
---------------------------------------
Answerback: ]
--------------------------------------
2. Miscellaneous.
2.1 Amendments, Etc. This Agreement shall not be amended,
waived or otherwise modified except in writing executed by the parties hereto.
2.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
2.3 Definitions. Capitalized terms used herein which are
defined in the Credit Agreement and not defined herein are used herein as
defined in the Credit Agreement.
2.4 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.
2.5 Effective Date. This Agreement shall be effective as of
the date first above written for purposes of computation of commitment fees
under the Credit Agreement and for all other relevant purposes.
2.6 Assignee Credit Decision. The Assignee acknowledges that
it has, independently and without reliance upon the Agent or any other Bank and
based on such financial statements and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. The Assignee also acknowledges that it will, independently
and without reliance upon the 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 any Note,
the Credit Agreement or this Agreement.
2.7 Indemnity. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including
without limitation reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
performance or non-performance of obligations assumed by Assignee under this
Agreement.
Exhibit F-4
Multi-Year Credit Agreement
153
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.
[NAME OF ASSIGNEE] THE WILLIAMS COMPANIES, INC.
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
[NAME OF ASSIGNOR] NORTHWEST PIPELINE CORPORATION
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
CITIBANK, N.A., AS AGENT TRANSCONTINENTAL GAS PIPELINE CORPORATION
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
TEXAS GAS TRANSMISSION CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Exhibit F-5
Multi-Year Credit Agreement