EXHIBIT 10.12
[EXECUTION COPY]
CONSENT AND FOURTH AMENDMENT
DATED AS OF JULY 31, 2002
THE WILLIAMS COMPANIES, INC.
MULTI-YEAR CREDIT AGREEMENT
CONSENT AND FOURTH AMENDMENT TO THE CREDIT AGREEMENT (this
"AGREEMENT"), dated as of July 31, 2002 is entered into by and among the
Borrowers party to the Credit Agreement (as hereinafter defined), the Banks from
time to time party to the Credit Agreement, the Co-Syndication Agents as named
therein, the Documentation Agent as named therein and Citibank, N.A., as agent
for the Banks (in such capacity, the "AGENT"). Except as otherwise defined or as
the context requires, terms defined in the Credit Agreement are used herein as
therein defined.
WITNESSETH
WHEREAS, The Williams Companies, Inc., a Delaware corporation
("TWC"), Northwest Pipeline Corporation, a Delaware corporation ("NWP"),
Transcontinental Gas Pipe Line Corporation ("TGPL") a Delaware corporation, and
Texas Gas Transmission Corporation, a Delaware corporation ("TGT"; TWC, NWP,
TGPL and TGT each a "BORROWER" and collectively, the "BORROWERS") have entered
into a certain Credit Agreement dated as of July 25, 2000 with the financial
institutions from time to time party thereto (the "BANKS'), The Chase Manhattan
Bank and Commerzbank AG, as Co-Syndication Agents, Credit Lyonnais New York
Branch, as Documentation Agent, and Citibank, N.A., as Agent, as amended by a
letter agreement dated as of October 10, 2000, by a Waiver and First Amendment
to Credit Agreement dated as of January 31, 2001, by a Second Amendment to
Credit Agreement dated as of February 7, 2002 and by a Third Amendment to Credit
Agreement dated as of March 11, 2002 (the "CREDIT AGREEMENT").
WHEREAS, the Borrowers have requested that the Banks party
hereto, constituting not less than the Majority Banks, consent to the TWC Asset
Dispositions (as defined herein), and provide certain amendments to the terms
and conditions of the Credit Agreement;
WHEREAS, the Banks party hereto are willing to grant the
requests of the Borrowers as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and subject to the
terms and conditions hereof, the parties hereto agree as follows:
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SECTION 1. Consent. The Banks party hereto consent to (i) the
sale by the Borrowers or by any of their Subsidiaries of (1) WPC (the "CENTRAL
PIPELINES ASSET DISPOSITION"), (2) MAPL (the "MAPL ASSET DISPOSITION"), (3)
Seminole (the "SEMINOLE ASSET DISPOSITION"), (4) the Refineries (the "REFINERIES
ASSET DISPOSITION"), (5) Soda Ash (the "SODA ASH ASSET DISPOSITION"), (6)
TravelCenters (the "TRAVELCENTERS ASSET DISPOSITION"), and (7) Bio-Energy (the
"BIO-ENERGY ASSET DISPOSITION", together with the Central Pipelines Asset
Disposition, MAPL Asset Disposition and Seminole Asset Disposition, Refineries
Asset Disposition, Soda Ash Disposition and TravelCenters Asset Disposition, the
"TWC ASSET DISPOSITIONS"), (ii) the LLC Guaranty, Midstream Guaranty, and the
Holdings Guaranty, and (iii) the execution and delivery of and performance by
RMT, TWC and RMT LLC and their subsidiaries party thereto of the Barrett Loan
Agreement and the transactions related thereto or contemplated thereby.
SECTION 2. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the Conditions of Effectiveness set forth in Section 3, hereby amended as
follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by
replacing the definition of "Chase" with the following:
"Chase" means JPMorgan Chase Bank.
(b) Section 1.01 of the Credit Agreement is hereby amended by
deleting the following definitions thereto: "Permitted NWP Liens",
"Permitted TGPL Liens", "Permitted TGT Liens" and "Permitted TWC
Liens";
(c) Section 1.01 of the Credit Agreement is hereby amended by
inserting, or replacing as applicable, the following definitions in
proper alphabetical order:
"Acceptable Security Interest" in any property shall mean a
Lien granted pursuant to a Credit Document (a) which exists in favor of
either (i) the Collateral Trustee for the benefit of itself and other
parties, as more fully described in the Collateral Trust Agreement, or
(ii) the Collateral Agent for the benefit of itself, the Issuing Banks,
the "Agent" and the "Banks" (each as defined in the L/C Agreement), (b)
which is superior to all other Liens, except Permitted Liens, (c) which
secures (i) the "Secured Obligations" (as defined in the Security
Agreement), and/or (ii) the "Obligations" (as defined in the L/C
Agreement), and (d) which is perfected and is enforceable by either (i)
the Collateral Trustee for the benefit of itself and other parties, as
more fully described in the Collateral Trust Agreement or (ii) the
Collateral Agent, for the benefit of itself, the Issuing Banks, "Agent"
and the "Banks" (each as defined in the L/C Agreement), against all
other Persons in preference to any rights of any such other Person
therein; provided that such Lien may be subject to the Agreed
Exceptions.
"Agreed Exceptions" means exceptions to title to be set forth
in the "Mortgage" (as defined in the L/C Agreement) that are customary
in similar mortgages, do not
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materially detract from the value of the assets covered thereby, do not
secure Debt and arise in the ordinary course of business.
"Applicable Margin" means as to any Eurodollar Rate Advance or
Base Rate Advance to any Borrower, the rate per annum set forth in the
applicable table on Schedule XI under the heading "Applicable Margin"
for the relevant Rating Category applicable to TWC. The Applicable
Margin determined pursuant to this definition for any Eurodollar Rate
Advance or Base Rate Advance, as applicable, shall change when and as
the relevant Rating Category applicable to TWC changes.
"Asset" or "property" (in each case, whether or not
capitalized) means any right, title or interest in any kind of property
or asset, whether real, personal or mixed, and whether tangible or
intangible.
"Attributable Obligation" of any Person means, with respect to
any Sale and Lease-Back Transaction of such Person as of any particular
time, the present value at such time discounted at the rate of interest
implicit in the terms of the lease of the obligations of the lessee
under such lease for net rental payments during the remaining term of
the lease (including any period for which such lease has been extended
or may, at the option of such Person, be extended).
"Barrett Loan" means the loans made pursuant Barrett Loan
Agreement.
"Barrett Loan Agreement" means the Credit Agreement dated July
31, 2002, among TWC, RMT LLC, RMT, the Lenders party thereto from time
to time, Lehman Brothers Inc., as Arranger, and Lehman Commercial Paper
Inc., as Syndication Agent and as Administrative Agent.
"Bio-Energy" means Williams Bio-Energy, L.L.C, Williams
Ethanol Services, Inc., and Nebraska Energy, L.L.C.
"Capital Lease" means a lease that in accordance with
generally acceptable accounting principles must be reflected on a
company's balance sheet as an asset and corresponding liability.
"Cash Equivalents" means any of the following, to the extent
owned by a Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the L/C Collateral Documents and
having a maturity of not greater than 270 days from the date of
acquisition thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause
(c) below, is organized under the laws of the United States or any
State thereof and has combined capital and surplus of at least $1
billion or (c) commercial paper in an aggregate amount of no more than
$500,000,000, per issuer outstanding at any time, issued by any
corporation organized
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under the laws of any State of the United States and rated at least
"Prime-1" (or the then equivalent grade) by Moody's Investors Service,
Inc. or "A-1" (or the then equivalent grade) by Standard & Poor's, a
division of The McGraw-Hill Companies, Inc.
"Cash Flow" means, for any period, the Consolidated cash flow
from operations of a Borrower and its Subsidiaries for such period
determined in accordance with generally accepted accounting principles;
provided that in determining such Consolidated cash flow from
operations, there shall be excluded therefrom (to the extent otherwise
included therein) (a) any positive cash flow from operations of any
Person (including Project Financing Subsidiaries) subject to any
restriction prohibiting the distribution of cash to such Borrower or
any of its Subsidiaries, except and then only to the extent of the
amount thereof that such Borrower or any of its Subsidiaries actually
receives or has the right to receive (within the limits of such
restrictions) during such period, (b) proceeds resulting from the sale,
transfer or other disposition of any property by such Borrower or its
Subsidiaries (other than sales, transfers and other dispositions in the
ordinary course of business), (c) all other extraordinary items, (d)
any item constituting the cumulative effect of a change in accounting
principles, prior to applicable income taxes, (e) repayment of the WCG
Synthetic Lease and (f) for the third Fiscal Quarter of 2002 only,
margin and capital or adequate assurances relating to its refining and
marketing and EMT.
"Citibank" means Citibank, N.A.
"Collateral" shall have the meaning specified in Section 1.1
of the L/C Agreement.
"Collateral Agent" means Citibank in its capacity as
"Collateral Agent" pursuant to the L/C Collateral Documents and the L/C
Agreement.
"Collateral Trust Agreement" means that certain Collateral
Trust Agreement dated as of July 31, 2002 by and among the TWC, several
of its Subsidiaries and the Collateral Trustee.
"Collateral Trustee" means CUSA in its capacity as "Collateral
Trustee" pursuant to the Collateral Trust Agreement.
"Consent and Fourth Amendment" means that certain Consent and
Fourth Amendment dated as of July 31, 2002 among the Borrowers, Banks,
Co-Syndication Agents, Document Agent, Agent and Arranger.
"Consolidated" refers to the consolidation of the accounts of
any Person and its consolidated subsidiaries in accordance with
generally accepted accounting principles.
"Contractual Obligation" means as to any Person, any provision
of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Credit Documents" means this Agreement, the L/C Agreement,
the L/C Collateral Documents, the Letter of Credit Documents, each
Letter of Credit, all
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documents, instruments, agreements, certificates and notices at any
time executed and/or delivered to the Agent, any Issuing Bank, or any
Bank in connection therewith.
"CUSA" means Citicorp USA, Inc.
"Debt" means, in the case of any Person, the principal or
equivalent amount of (i) indebtedness of such Person for borrowed
money, (ii) obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (iii) obligations of such Person to pay
the deferred purchase price of property or services (other than trade
payables not overdue by more than 60 days incurred in the ordinary
course of business), (iv) obligations of such Person as lessee under
leases that are, in accordance with generally accepted accounting
principles, recorded as capital leases, (v) payments necessary to
exercise a purchase option with respect to the property used by such
Person and encumbered by a Synthetic Lease with such Person as lessee,
excluding any portion of such amount representing accrued interest,
transfer taxes or other ancillary items, (vi) obligations of such
Person under any Financing Transaction, (vii) indebtedness incurred
after the date of the Consent and Fourth Amendment of the Subsidiaries
of such Person, and indebtedness incurred after the date of this
Agreement of any other entity that has been created or utilized,
directly or indirectly, for financing purposes of such Person or any of
its Subsidiaries, (viii) obligations of such Person under guaranties in
respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in
respect of indebtedness or obligations of others of the kinds referred
to in clauses (i) through (vii) of this definition, (ix) indebtedness
or obligations of others of the kinds referred to in clauses (i)
through (viii) of this definition secured by any Lien on or in respect
of any property of such Person and (x) any Attributable Obligations of
such Person; provided, however, that Debt shall not include (w) any
obligations of TWC in respect of the FELINE PACS; (x) Non-Recourse
Debt; (y) Performance Guaranties, (z) monetary obligations or
guaranties of monetary obligations of Persons as lessee under leases
(other than, to the extent provided herein above, Synthetic Leases)
that are, in accordance with generally accepted accounting principles,
recorded as operating leases and (aa) guarantees by such Person of
obligations of others which are not obligations described in clauses
(i) through (x) of this definition, and provided further that where any
such indebtedness or obligation of such Person is made jointly, or
jointly and severally, with any third party or parties other than any
Subsidiary of such Person, the amount thereof for the purpose of this
definition only shall be the pro rata portion thereof payable by such
Person, so long as such third party or parties have not defaulted on
its or their joint and several portions thereof and can reasonably be
expected to perform its or their obligations thereunder. For the
avoidance of doubt, "Debt" shall not include the Letters of Credit.
"Designated Midstream Subsidiaries" means Nebraska Energy,
L.L.C; Rio Grande Pipeline Company; Baton Rouge Fractionators, L.L.C;
Williams Lynxs Alaska CargoPort, L.L.C; Tri-States NGL Pipeline, L.L.C;
WILPRISE Pipeline Company, L.L.C.; Williams Mobile Bay Producer
Services, L.L.C; Williams Energy Partners L. P.; Williams Alaska Air
Cargo Properties, L.L.C; and Williams GP LLC.
"EMT" means Williams Energy Marketing & Trading Company.
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"Environmental Permits" mean any and all material permits,
licenses, registrations, notifications, exemptions and any other
authorization required under any Environmental Protection Statutes.
"Equity Interests" means any capital stock, partnership, joint
venture, member or limited liability or unlimited liability company
interest, beneficial interest in a trust or similar entity or other
equity interest or investment of whatever nature.
"Excess Amount" has the meaning specified in Section 2.04(c).
"Excluded Collateral" means (i) all personal and real property
owned by RMT LLC, WGPC and the Designated Midstream Subsidiaries and
(ii) the Excluded Equity Interests.
"Excluded Equity Interests" means the Equity Interest in each
of the Designated Midstream Subsidiaries (other than (i) Williams GP
LLC and (ii) the Equity Interest of Williams Energy Partners L.P. held
by Williams Energy Services, LLC and Williams Natural Gas Liquids,
Inc.) provided, however, as to each Designated Midstream Subsidiary, at
such time as the Company obtains the consents provided for in Paragraph
13 of Schedule XIII the Equity Interest of such Designated Midstream
Subsidiary shall cease to be an "Excluded Equity Interest".
"Financing Transaction" means, with respect to any Person, any
individual or group of related Persons (i) prepaid forward sales of
oil, gas, minerals or other assets by such Person, (ii) interest rate,
currency, commodity or other swaps, collars, caps, options or other
derivatives or (iii) sales or transfers of assets, the primary effect
of which or an important purpose of which is to receive money or credit
in advance coupled with an obligation to repay or perform in the future
to effect repayment thereof, including any contract monetization or
production payment. Notwithstanding the foregoing, the following
transactions, if entered into in the ordinary course of business by any
Borrower or any of its affiliates and otherwise permitted hereunder,
shall be deemed not to be Financing Transactions: (a) sales or
exchanges of property fully delivered within 90 days of receipt of the
first payment by a counterparty therefor, (b) interest rate, currency,
commodity or other swaps, collars, caps, options or other derivatives
(including prepayment of forward sales of property by a counterparty of
any Borrower or any of its affiliates to hedge against the credit risk
of such counterparty, provided that the forward delivery obligation
with respect to the property sold must be fully performed within 120
days), and (c) "riskless" forward sales or exchanges of property
whereby a third party guarantees the performance obligations of any
Borrower or any of its affiliates to deliver such property without
subrogation or other recourse against any Borrower or any of its
affiliates by any party to the transaction. The term "contract
monetization" as used in this definition means the acceleration of cash
flows a contract party expects to receive from such contract pursuant
to which the contract party retains a significant ongoing obligation to
perform, but shall in any event exclude transactions commonly referred
to as securitizations. The term "production payment" as used in this
definition means a limited-term non-cost bearing right to receive
produced hydrocarbons or the proceeds therefrom satisfiable in cash or
in kind up to an aggregate defined amount of cash and/or hydrocarbons.
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"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar
months ending on December 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "2002 Fiscal Year") refer
to the Fiscal Year ending on December 31 of such calendar year.
"Governmental Authority" means the government of the United
States, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other Person exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guaranties" means, collectively the LLC Guaranty, the
Midstream Guaranty and the Holdings Guaranty.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
obligations.
"Holdings Guaranty" means that certain guaranty executed by
RMT LLC in substantially the form of Exhibit J to the L/C Agreement, as
amended, supplemented or modified from time to time.
"Hydrocarbons" means oil, gas, casinghead gas, condensate,
distillate, and liquid hydrocarbons.
"Interest Expense" means, for any period, the gross interest
expense (determined in accordance with generally accepted accounting
principles) of a Borrower and its Consolidated Subsidiaries accrued for
such period, including that attributable to the capitalized amount of
obligations owing under Capital Leases, all debt discount amortized in
such period and all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing, net of interest income (determined in accordance with
generally accepted accounting principles) of a Borrower and its
Consolidated Subsidiaries, but excluding such interest expense, debt
discount, commissions, discounts and other fees and charges and
interest income to the extent attributable to the Non-Recourse Debt of
Project Financing Subsidiaries.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any Equity Interests or
Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment
in such Person, including, without limitation, any acquisition by way
of a merger or consolidation and any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (viii) or (ix)
of the definition of "Debt" in respect of such Person.
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"Issuing Banks" means Citibank and Bank of America N.A. in
their capacity as issuers of Letters of Credit.
"L/C Agreement" means that certain Credit Agreement as in
effect on July 31, 2002 among TWC as "Borrower", the "Agent",
"Collateral Agent", "Syndication Agent", "Issuing Banks", the
"Arranger", and those certain financial institutions party thereto as
"Banks".
"L/C Collateral Documents" means the "Security Documents" as
defined in the L/C Agreement.
"L/C Facility" means the letter of credit facility under the
L/C Agreement.
"Legacy L/C's" means those outstanding letters of credit as of
July 31, 2002 as set forth on Schedule XV, to the extent such letters
of credit have not been cash collateralized.
"Letter of Credit" has the meaning specified in Section 1.1 of
the L/C Agreement.
"Letter of Credit Documents" means, with respect to any Letter
of Credit, collectively, any application therefor and any other
agreements, instruments, guarantees or other documents (whether general
in application or applicable only to such Letter of Credit) governing
or providing for (a) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b) any
collateral security for any of such obligations, each as the same may
be modified and supplemented and in effect from time to time.
"LLC Guaranty" means that certain guaranty executed by WGPC in
substantially the form of exhibit G to the L/C Agreement, as amended,
supplemented or modified from time to time.
"Major Subsidiary" means any Subsidiary of a Borrower with
assets having a book value of $1,000,000,000 or more.
"MAPL" means Mid-America Pipeline Company, a Delaware
corporation.
"MAPL Asset Disposition" means the sale, transfer or other
distribution of the Equity Interests in or Assets of MAPL.
"Material Subsidiary" means (i) each Major Subsidiary and each
other Subsidiary of a Borrower (other than a Project Financing
Subsidiary) that itself (on an unconsolidated, stand alone basis) owns
in excess of 5% of the book value of the Consolidated assets of a
Borrower and its Consolidated Subsidiaries, (ii) each of TGPL, TGT and
NWP and (iii) each Subsidiary that owns any direct or indirect interest
in TGPL, TGT and NWP.
"Midstream Assets" means all assets now owned or hereafter
acquired by TWC or any of its Subsidiaries, which are either
individually, or in conjunction with other Midstream Assets, necessary
for the conduct of the Midstream Business by TWC and its
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Subsidiaries, including the Refineries in Alaska and Tennessee, except
that "Midstream Assets" shall not include (a) the assets being part of
either of the MAPL Asset Disposition or Seminole Asset Disposition,
unless the MAPL Disposition or Seminole Asset Disposition, as
applicable, shall not have occurred on or prior to the date that is 60
days from the date of the Consent and Fourth Amendment and (b) any
Assets of Williams GP LLC, Williams Energy Partners L.P. or any of
their Subsidiaries.
"Midstream Asset MLP" means one or more master limited
partnerships included in the Consolidated financial statements of TWC
to which TWC has transferred or shall transfer certain assets relating
to the Midstream Business as well as certain marine and inland
terminals and related pipeline systems, including Williams Energy
Partners L.P.
"Midstream Business" means the gathering, marketing,
dehydrating, treating, processing, fractionating, refining, storing,
selling and transporting of Hydrocarbons and Refined Hydrocarbons, and
any business relating thereto.
"Midstream Guaranty" means that certain guaranty executed by
those certain guarantors in substantially the form of exhibit H to the
L/C Agreement, as amended, supplemented or modified from time to time.
"Midstream Subsidiaries" means each Subsidiary of TWC,
excluding Williams Mobile Bay Producer Services, L.L.C., Williams GP
LLC, Williams Energy Partners L.P., and each of their Subsidiaries, if
any, engaged either in whole or in part in the Midstream Business that
either (1) owns, leases or has possession of Midstream Assets that have
an aggregate fair market value of $1,000,000 or more, or (2) owns,
leases or has possession of any Midstream Asset or right that is
material to the ownership, leasing or operation of the Midstream Assets
taken as a whole.
"Net Cash Proceeds" means, with respect to any sale, transfer
or other disposition of any asset or the sale or issuance of any equity
interests (including, without limitation, any capital contribution) by
any Person, the gross cash proceeds received (including any cash
received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) by or on behalf
of such Person in connection with such transaction net of only (a)
reasonable transaction costs, including customary and reasonable
brokerage commissions, underwriting fees and discounts, legal fees,
fees paid to accountants and financial advisors, finder's fees and
other similar fees and commissions, (b) the amount of taxes payable in
connection with or as a result of such transaction, (c) the amount of
any Debt by the terms of the agreement or instrument governing such
Debt (including, without limitation, the Barrett Loan Agreement), that
is required to be repaid or cash collateralized in the case of letters
of credit, upon such disposition, including any premium, make-whole or
breakage amount related thereto, (d) payments of unassumed liabilities
relating to the assets sold at the time of, or within 60 days after,
the date of such sale, and provided that such gross proceeds shall not
include any portion of such gross cash proceeds which a Borrower
determines in good faith should be reserved for post-closing
adjustments (including indemnification payments, tax expenses and
purchase price adjustments, to the extent the Person delivers to the
Agent a certificate signed by an Officer of such Person as to such
determination), it
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being understood and agreed that on the day that all such post-closing
adjustments have been determined (which shall not be later than 120
days following the date of the respective TWC Asset Disposition;
provided, further that such 120-day period shall be extended to the
extent any amount of such proceeds is subject to a good faith dispute
or claim), the amount (if any) by which the reserved amount in respect
of such sale or disposition exceeds the actual post-closing adjustments
payable by such Person shall constitute Net Cash Proceeds on such date
received by such Person from such sale, lease, transfer or other
disposition.
"Net Worth" of any Person means, as of any date of
determination, the excess of total assets of such Person plus all
non-cash losses resulting from the write-down or disposition of the
Trading Book over total liabilities of such Person, total assets and
total liabilities each to be determined in accordance with generally
accepted accounting principles; provided, however, that for purposes of
calculating Net Worth, total liabilities shall not include any
obligations of the Borrower in respect of the FELINE PACS.
"Non-Recourse Debt" means (i) any Debt incurred by any Project
Financing Subsidiary to finance the acquisition (other than the
acquisition from a Borrower or any Subsidiary of such Borrower that is
not a Project Financing Subsidiary), improvement, installation, design,
engineering, construction, development, completion, maintenance or
operation of, or otherwise to pay costs and expenses relating to or
providing financing for, a project listed on Schedule VI to the L/C
Agreement or any new project commenced or acquired after the date
hereof, which Debt does not provide for recourse against a Borrower or
any Subsidiary of such Borrower (other than a Project Financing
Subsidiary and such recourse as exists under a Performance Guaranty) or
any property or asset of a Borrower or any Subsidiary of such Borrower
(other than the property or assets of a Project Financing Subsidiary)
and (ii) any refinancing of such Debt that does not increase the
outstanding principal amount thereof at the time of the refinancing or
increase the property subject to any Lien securing such Debt or
otherwise add additional security or support for such Debt.
"Performance Guaranty" means any guaranty issued in connection
with any Non-Recourse Debt that (i) if secured, is secured only by
assets of, or Equity Interests in, a Project Financing Subsidiary, and
(ii) guarantees to the provider of such Non-Recourse Debt or any other
Person of the (a) performance of the improvement, installation, design,
engineering, construction, acquisition, development, completion,
maintenance or operation of, or otherwise affects any such act in
respect of, all or any portion of the project that is financed by such
Non-Recourse Debt, (b) completion of the minimum agreed equity
contributions to the relevant Project Finance Subsidiary, or (c)
performance by a Project Financing Subsidiary of obligations to Persons
other than the provider of such Non-Recourse Debt.
"Permitted Liens" means Liens specifically described on
Schedule VI.
"Prairie Wolf Facility" means the financing provided in
connection with that certain $611,788,868 Joint Venture Sponsor
Agreement dated as of December 28, 2000 (as amended, supplemented,
amended and restated or otherwise modified from time to
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time, the "SPONSOR AGREEMENT"), among TWC, as Sponsor, and Williams
Field Services Company, in favor of Prairie Wolf Investors, Arctic Fox
Assets, L.L.C., Williams Energy (Canada), Inc. and the other
Indemnified Persons (as defined in the Sponsor Agreement) listed
therein.
"Progeny Facilities" means the financing facilities
specifically described on Schedule XII attached hereto.
"Project Financing Subsidiaries" means any non-material
Subsidiary of any Borrower whose principal purpose is to incur
Non-Recourse Debt and/or construct, lease, own or operate the assets
financed thereby, or to become a direct or indirect partner, member or
other equity participant or owner in a Business Entity so created, and
substantially all the assets of which Subsidiary or Business Entity are
limited to those assets being financed (or to be financed), or the
operation of which is being financed (or to be financed), in whole or
in part by Non-Recourse Debt, or to Equity Interests in, or Debt or
other obligations of, one or more other such Subsidiaries or Business
Entities, or to Debt or other obligations of any Borrower or its
Subsidiaries or other Persons. For purposes of this definition, a
"non-material Subsidiary" shall mean any Consolidated Subsidiary of any
Borrower that is not the Borrower and which, as of the date of the most
recent Consolidated balance sheet of the Borrower delivered pursuant to
Section 4.01(e) or 5.01, has total assets which account for less than
five percent (5%) of the total Consolidated assets of such Borrower and
its Consolidated Subsidiaries, as shown on such Consolidated balance
sheet; provided, that the aggregate assets of the non-material
Subsidiaries shall not comprise more than ten percent (10%) of the
total Consolidated assets of such Borrower and its Consolidated
Subsidiaries, as shown on such Consolidated balance sheet.
"Refined Hydrocarbons" means all products refined, separated,
fractionated, settled, and dehydrated from Hydrocarbons and all
products derived therefrom, including, without limitation, kerosene,
liquefied petroleum gas, refined lubricating oils, diesel fuels, drip
gasoline, natural gasoline, helium, sulfur and all other minerals.
"Refineries" means the equity interest in, and assets owned
by, the Midstream Business of TWC which produces Refined Hydrocarbons
and is owned collectively by the following subsidiaries: Williams
Express, Inc., a Delaware corporation, Williams Alaska Pipeline
Company, LLC, a Delaware limited liability company, Williams Alaska
Petroleum, Inc., an Alaska corporation, Williams Alaska Air Cargo
Properties, LLC, an Alaska limited liability company, Williams Lynxs
Alaska CargoPort, LLC, an Alaska limited liability company, Williams
Express, Inc., an Alaska corporation, Williams Refining & Marketing,
LLC, a Delaware limited liability company, Williams Olefins, LLC, a
Delaware limited liability company, Williams Olefins Feedstock
Pipelines, LLC, a Delaware limited liability company, Williams Memphis
Terminal, Inc., a Delaware corporation, Williams Generating Memphis,
LLC, a Delaware limited liability company.
"RMT" means Williams Production RMT Company.
"RMT LLC" means Williams Production Holdings LLC.
12
"Security Agreement" means a Security Agreement executed by
the TWC and those certain guarantors party thereto in substantially the
form of Exhibit F to the L/C Agreement, as amended, supplemented or
modified from time to time.
"Seminole Asset Disposition" means the sale, transfer or other
distribution of all or substantially all of the Equity Interests in or
assets of Seminole.
"Soda Ash" means Williams Soda Products Company and American
Soda, L.L.P.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Synthetic Lease" means any lease (including leases that may
be terminated by the lessee at any time) of any property (whether real,
personal or mixed) (i) that is not a capital lease in accordance with
generally accepted accounting principles and (ii) in respect of which
the lessee retains or obtains ownership of the property so leased for
federal income tax purposes, other than any such lease under which such
Person is the lessor.
"TGPL Bond Offering" means that certain $325,000,000, 8.875%
Senior Notes due 2012 issued on July 3, 2002 by TGPL.
"Trading Book" means all mark to market daily and forward
traded transactions inclusive of structured portfolio transactions
consisting primarily of tolling and full requirements transactions.
"TravelCenters" means Williams TravelCenters, Inc.
"TWC Asset Dispositions" has the meaning specified in Section
1 of the Consent and Fourth Amendment.
"TWC Preferred Stock" means the shares of preferred stock of
TWC which may be perpetual preferred stock or mandatorily convertible
into shares of common stock of TWC.
"TWC Asset Disposition Documents" means all material
agreements relating to the TWC Asset Dispositions.
13
"WCG Unwind Transaction" means a transaction in which (i) the
TWC's Sale Leaseback transaction with WCG and its Subsidiary, Williams
Technology Center, LLC ("WTC") involving Williams Technology Center and
two aircraft dated September 13, 2001 (the "WCG Sale Leaseback"), is
terminated, (ii) in exchange for such termination, TWC receives a
promissory note payable by the reorganized WCG, WTC and/or the other
WCG Subsidiaries, as co-makers in an amount of $100,000,000 or less,
and (iii) consideration from the Borrower and its Subsidiaries includes
termination of the existing WCG Sale Leaseback, but does not include
any cash payment by TWC or any of its Subsidiaries to WCG or WTC.
"WPRMT" means Williams Production RMT Company, a Delaware
company.
"WPXE" means WPX Enterprises, Inc., a Delaware corporation.
(d) Section 2.04 is hereby amended by adding to the end
thereof a new subsection (c) to read as follows:
"(c) Mandatory. Upon the date of receipt by TWC or
any of its Subsidiaries of any Net Cash Proceeds from (1) any
asset disposition (other than the MAPL Asset Disposition and
the Seminole Asset Disposition), or (2) an issuance of TWC
Preferred Stock, TWC shall apply such Net Cash Proceeds as
follows:
(i) in the case of any such Net Cash
Proceeds arising from any disposition referred to in
clause (1) above which consists of the Refinery in
Alaska owned by certain Subsidiaries and the assets
related thereto, 50% of such Net Cash Proceeds shall
be applied on a pro-rata basis to the permanent
ratable reduction of the respective Commitments of
the Banks to TWC;
(ii) in the case of any such Net Cash
Proceeds arising from any asset disposition referred
to in clause (1) above and not otherwise applied
pursuant to clause (i) above (including any
disposition of the Refinery in Memphis, Tennessee
owned by certain Subsidiaries and the assets related
thereto), 50% of such Net Cash Proceeds shall be
applied solely to the permanent ratable (x) reduction
of the respective Commitments of the Banks to TWC and
the outstanding amounts of the Progeny Facilities
(excluding the Prairie Wolf Facility) and (y) cash
collateralization of the Legacy L/Cs; and
(iii) in the case of any such Net Cash
Proceeds arising from an issuance of TWC Preferred
Stock referred to in clause (2) above, 100% of such
Net Cash Proceeds shall be applied on a pro-rata
basis to the permanent ratable (x) reduction of the
respective Commitments of the
14
Banks to TWC and the outstanding amounts of the
Progeny Facilities (excluding the Prairie Wolf
Facility) and (y) cash collateralization of the
Legacy L/Cs;
provided, however, that notwithstanding the foregoing
provisions of this clause (c), in no event shall the Commitment of the
Banks to TWC be reduced, pursuant to this clause (c), to less than
$400,000,000; provided, further, that (1) upon the mandatory permanent
reduction of the Commitments of the Banks to TWC to $400,000,000, 50%
of any Net Cash Proceeds arising from an asset disposition referred to
in clause (c)(ii) above shall be applied solely to the permanent
ratable reduction of the outstanding amounts of the Progeny Facilities
(excluding the Prairie Wolf Facility) and the cash collateralization of
the Legacy L/Cs and (2) if a reduction of the Commitments pursuant to
this Section 2.04(c) shall cause the Commitments as so reduced to be
less than the aggregate outstanding principal amount of the Advances
(such positive difference between the Commitments and the outstanding
Advances being referred to herein as the "EXCESS AMOUNT"), TWC shall
repay an aggregate principal amount equal to no less than such Excess
Amount, and except as set forth in this proviso, the obligation of TWC
to apply Net Cash Proceeds to the reduction of the Commitments of the
Banks shall not require any payments to the Banks.";
(e) Section 2.06(a) is hereby amended by inserting the words
"plus the Applicable Margin" after the words "Base Rate" in the second
and ninth lines thereof ;
(f) Section 3.02 is hereby amended by adding at the end
thereof a new clause (d) to read as follows:
"(d) Evidence that TWC shall have received gross cash
proceeds in the aggregate amount of no less than
$2,100,000,000; provided that some or all of those proceeds
shall have been received from the MAPL Asset Disposition,
Seminole Asset Disposition and Barrett Loan.";
(g) Section 3.03 is hereby amended by adding at the end
thereof a new clause (e) to read as follows:
"(e) Evidence that TWC shall have received gross cash
proceeds in the aggregate amount of no less than
$2,100,000,000; provided that some or all of those proceeds
shall have been received from the MAPL Asset Disposition,
Seminole Asset Disposition and Barrett Loan.";
(h) Section 4.01(a) is hereby amended by replacing the words
"material Subsidiary" in the eighth and thirteenth lines thereof and
replacing them with "Material Subsidiary";
(i) Section 4.01(b) is hereby amended and restated in its
entirety and replaced with the following:
"(b) The execution, delivery and performance by each
Borrower of the Credit Documents to which it is a party
delivered hereunder and the
15
consummation of the transactions contemplated thereby are
within such Borrower's corporate or limited liability company
powers, have been duly authorized by all necessary corporate
or limited liability company action, do not contravene (i) any
Borrower's charter, by-laws or formation agreement or (ii) law
or any restriction under any material agreement binding on or
affecting any Borrower or any Midstream Subsidiary and will
not result in or require the creation or imposition of any
Lien prohibited by this Agreement.";
(j) Section 4.01(c) is hereby amended and restated in its
entirety and replaced with the following:
"(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 each Borrower or any Midstream Subsidiary
of any Credit Document to which any of them is a party, or the
consummation of the transactions contemplated thereby.";
(k) Section 4.01(e)(i) is hereby amended by deleting the
following sentence at the end of thereof:
"Since March 31, 2000 there has been no material
adverse change in the condition or operations of TWC or its
Subsidiaries.";
(l) Section 4.01(e)(ii) is hereby amended by deleting the
following sentence at the end of thereof:
"Since March 31, 2000, there has been no material
adverse change in the condition or operations of NWP or its
Subsidiaries.";
(m) Section 4.01(e)(iv) is hereby amended by deleting the
following sentence at the end of thereof:
"Since March 31, 2000, there has been no material
adverse change in the condition or operations of TGPL or its
Subsidiaries.";
(n) Section 4.01(e)(v) is hereby amended by deleting the
following sentence at the end of thereof:
"Since March 31, 2000, there has been no material
adverse change in the condition or operations of TGT or its
Subsidiaries.";
(o) Section 4.01(f) is hereby amended by deleting the words
"material Subsidiary" commencing in the fourth sentence thereof and
replacing them with "Material Subsidiary";
(p) Section 4.01(j) is hereby amended by deleting the words
"material Subsidiary" in the third and ninth sentences thereof and
replacing them with "Material Subsidiary";
16
(q) Section 4.01(k) is hereby amended by replacing the words
"material Subsidiary" in the second sentence thereof with "Material
Subsidiary";
(r) Section 4.01(m) is hereby amended and restated in its
entirety and replaced with the following:
"(m) Except as set forth in the Public Filings or as
otherwise disclosed in writing by any Borrower to the Banks
and the Agent after the date hereof and approved by the
Majority Banks, each Borrower and its respective Material
Subsidiaries are in compliance in all material respects with
all Environmental Protection Statutes to the extent material
to the operations or the Consolidated financial condition of
each Borrower and its Consolidated Subsidiaries taken as a
whole. Except as set forth in the Public Filings or as
otherwise disclosed in writing by any 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 Consolidated Subsidiaries
(other than those reserved for in accordance with generally
accepted accounting principles and set forth in the financial
statements regarding any such Borrower referred to in Section
4.1(e) and delivered to each Bank and excluding liabilities to
the extent covered by insurance if the insurer has confirmed
that such insurance covers such liabilities or which 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 any release or threatened
release (as such terms are defined in the Comprehensive
Environmental Response, Compensation and Liability Act of
1980) of any Hazardous Waste, Hazardous Substance, other
waste, petroleum or petroleum products into the Environment)
could not reasonably be expected to have a material adverse
effect on the business, assets, conditions or operations of
any Borrower and its Subsidiaries, taken as a whole. Each
Borrower and its respective Material Subsidiaries holds all
Environmental Permits (each of which is in full force and
effect) required for any of its current or planned operations
or for any property owned, leased, or otherwise operated by
it; and is, and within the period of all applicable statutes
of limitation has been, in compliance with all of its
Environmental Permits."
(s) Section 4.01 is hereby amended by adding a new clauses
(n), (o), (p), (q), (r) and (s) to read as follows:
"(n) Other than the Permitted Liens, each Borrower
and its Subsidiaries has good, valid and indefeasible title
to, or a valid leasehold interest in, its respective property
and to all property reflected by its respective balance sheet
referenced in clause (e) above as being owned by such
Borrower. TWC and each of the Midstream Subsidiaries have
sufficient title to all Midstream Assets they collectively own
and operate as is necessary for the conduct of the Midstream
Business after the date hereof in accordance with the
ownership and operation of the Midstream Business in the
twelve months prior to the date hereof. There
17
exists, or following completion of the post-closing items more
fully described in Schedule XIII, there will exist an
Acceptable Security Interest in all Collateral other than the
Excluded Collateral.
(o) The Persons listed on Schedule XIV are all of the
Midstream Subsidiaries and own, lease or hold all Midstream
Assets necessary and/or appropriate for the operation and
carrying on of the Midstream Business associated with the
Midstream Assets as conducted during the 12 months preceding
the date hereof.
(p) Neither TWC nor any Midstream Subsidiary is in
default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected
to have a material adverse effect the Midstream Business of
TWC or any Midstream Subsidiary. No Default or Event of
Default has occurred and is continuing.
(q) Except as would not have a material adverse
effect on the conduct of the Midstream Business conducted by
the Midstream Subsidiaries, the various gathering systems
which comprise part of the Midstream Assets are covered by
recorded fee deeds, right of ways, easements, leases,
servitudes, permits, licenses, or other instruments in favor
of the Midstream Subsidiaries (or their predecessors in title)
and their successors and assigns, which instruments establish
a contiguous right of way for the respective gathering systems
and grant the right to construct, operate, and maintain the
respective gathering system in, over, under, and across the
land covered thereby; provided, that certain licenses and
permits from railroads, utilities, meter sites, and from the
various state and local Governmental Authorities and rights
granted by Hydrocarbon producers on their respective
properties may not be recorded. The pipelines comprising the
various gathering systems which are part of the Midstream
Assets of the Midstream Subsidiaries are located within the
confines of contiguous rights of way and do not encroach upon
any adjoining property in any material respects. The rights of
ingress and egress held by the Midstream Subsidiaries with
respect to such gathering systems allow the applicable
Midstream Subsidiaries to inspect, operate, repair, and
maintain such gathering systems in a normal manner consistent
with past practices.
(r) After giving effect to the Consent and Fourth
Amendment and the concurrent amendments to various financing
arrangements and agreements of each Borrower and its
Subsidiaries, each Borrower, individually and together with
its Subsidiaries, is Solvent.";
(s) No Borrower nor any Midstream Subsidiary is in
default under or with respect to any of its margin
requirements and capital assurance requirements in any respect
which could reasonably be expected to have a material adverse
effect on the Midstream Business of TWC, or any Midstream
Subsidiary. No Default or Event of Default has occurred and is
continuing.";
18
(t) Section 5.01(b)(ii) is hereby amended and restated in its
entirety and replaced with the following:
"(ii) as soon as available and in any event not later
than 60 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of such Borrower, (1) the
Consolidated balance sheet of such Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal
Quarters and the Consolidated statements of income and cash
flows of such Borrower and its Consolidated Subsidiaries for
the period commencing at the end of the previous year and
ending with the end of such quarter, all in reasonable detail
and duly certified (subject to year-end audit adjustments and
the lack of footnotes) by an authorized financial officer of
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 as
of the date on which such financial statement is required to
be delivered hereunder, such Borrower shall not be obligated
to furnish copies of such financial statement; and (2) a
certificate of an authorized financial officer of such
Borrower (a) stating that he has no knowledge that a Default
or Event of Default has occurred and is continuing or, if a
Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action, if any,
which such Borrower proposes to take with respect thereto, and
(b) showing in detail the calculation supporting such
statement in respect of Sections 5.02(b) and 5.02(m);";
(u) Section 5.01(b)(iii) is hereby amended and restated in its
entirety and replaced with the following:
"(iii) as soon as available and in any event not
later than 105 days after the end of each Fiscal Year of such
Borrower, (1) a copy of the annual audited report for such
year for such Borrower and its Consolidated Subsidiaries,
including therein Consolidated balance sheet of such Borrower
and its Consolidated Subsidiaries as of the end of such Fiscal
Year and Consolidated statements of income and cash flows of
such Borrower and its Consolidated Subsidiaries for such
Fiscal Year, in each case prepared in accordance with
generally accepted accounting principles and reported on by
Ernst & Young, LLP or such 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 5.01(b) is readily available
on-line through EDGAR as of the date on which such financial
statement is required to be delivered hereunder, such Borrower
shall not be obligated to furnish copies of such financial
statement; and (2) a letter of such accounting firm to the
Banks (a) stating that, in the course of the regular audit of
the business of such Borrower and its Consolidated
Subsidiaries, which audit was conducted by such accounting
firm in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge that a Default
or Event of Default has occurred and is continuing, or if, in
the opinion of such accounting firm, a Default or Event of
Default has occurred and is continuing, a statement as to the
nature thereof, and
19
(b) showing in detail the calculations supporting such
statement in respect of Sections 5.02(b) and 5.20(m), (which
letter may nevertheless be limited in form, scope and
substance to the extent required by applicable accounting
rules or guidelines in effect from time to time);";
(v) Section 5.01(b)(iv) is hereby amended by deleting the
words "material Subsidiaries" in the third line thereof and replacing
them with "Material Subsidiaries";
(w) Section 5.01(b)(v) is hereby amended by deleting the words
"material Subsidiary" in the fourth and eighth lines thereof and
replacing them with "Material Subsidiaries";
(x) Section 5.01(b)(vi) is hereby amended and restated in its
entirety and replaced with the following:
"(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 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 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 or such Subsidiary or such ERISA Affiliate
proposes to take with respect thereto;";
(y) Section 5.01(b) is hereby amended by adding at the end
thereof a new clause (xii) to read as follows:
"(xii) promptly after any officer of such Borrower
obtains knowledge thereof, notice of (1) any material
violation of, noncompliance with, or remedial obligations
under, any Environmental Protection Statute, and (2) any
material release or threatened material release of Hazardous
Substance or Hazardous Waste affecting any property owned,
leased or operated by such Borrower or any Subsidiary of such
Borrower that such Borrower or such Subsidiary is compelled by
the requirements of any Environmental Protection Statute to
report to any governmental agency, department, board or other
instrumentality,";
(z) Section 5.01(c) is hereby amended by deleting the words
"material Subsidiary" commencing in the first line thereof and
replacing them with "Material Subsidiary";
(aa) Section 5.01 is hereby amended by adding at the end
thereof new clauses (e), (f), (g), (h), (i), (j), (k), (l) and (m) to
read as follows:
20
"(e) Acceptable Security Interest. Cause an
Acceptable Security Interest to exist at all times in all
Collateral, except as to the Excluded Collateral and as
otherwise contemplated by Section 5.01(g).
(f) Further Assurances. At any time and from time to
time, such Borrower shall, at its expense, promptly execute
and deliver to the Collateral Trustee and/or the Collateral
Agent such further instruments and documents, and take such
further action (including, without limitation, with respect to
the granting of a valid first priority Lien, subject to
Permitted Liens, on any personal or real property of TWC, any
MidStream Subsidiary or Williams Mobile Bay Producer Services,
L.L.C. which, on the date of this Agreement, is subject to any
contractual restriction prohibiting the granting of such a
Lien on such property, which contractual restriction shall
terminate prior to the Termination Date), as the Majority
Banks may from time to time reasonably request, in order to
further carry out the intent and purpose of the Credit
Documents and to establish and protect the rights, interests
and remedies created, or intended to be created, in favor of
the Collateral Trustee, Collateral Agent or any of the Banks,
including the execution, delivery, recordation and filing of
security agreements, financing statements and continuation
statements under the law of any applicable jurisdiction and
mortgages and deeds of trust necessary to grant a valid first
Lien on all Collateral of such Borrower and its Subsidiaries
whether such Collateral is now owned, leased, possessed by
license or any other means of acquiring a possessory interest
or hereafter acquired or possessed (each such mortgage or deed
of trust being an "Additional Mortgage"); provided, however,
that (i) Williams GP LLC shall not be required to grant a Lien
on any Equity Interests held by it in Williams Energy Partners
L.P. and (ii) Williams Energy Partners L.P. shall not be
required to grant a Lien on any of its personal or real
property.
(g) Post-Closing Requirements. On or before the dates
more fully set forth in Schedule XIII hereto, the Borrowers
shall satisfy, or shall cause satisfaction, of the items more
fully set forth in such Schedule XIII.
(h) Subsidiaries. Give the Agent thirty days prior
written notice of the creation or acquisition of any
Subsidiary (other than a Project Financing Subsidiary or any
Subsidiary of Williams Energy Partners L.P.) and concurrently
with the creation or acquisition of any such Subsidiary, cause
such Subsidiary (other than a Project Financing Subsidiary or
any Subsidiary of Williams Energy Partners L.P.) to provide to
the Collateral Agent a Security Agreement granting an
Acceptable Security Interest for the benefit of the Collateral
Trustee, appropriate legal opinions and, if such Subsidiary
owns any real property, a Mortgage covering such real
property, all of which shall be in the form and substance
satisfactory to the Collateral Agent.
(i) Bond Offerings. On or before August 1, 2002,
cause the net proceeds from the TGPL Bond Offering to be
maintained in a separate, segregated account in the name of
TGPL to be used solely for the purpose of paying the
bondholders as such bonds mature to be used solely as set
forth in the offering documents for the TGPL Bond Offering.
(j) Midstream Subsidiaries. Cause the representation
set forth in Section 4.01(p) to be true at all times.
(k) Cash Deposits. Maintain all or substantially all
of its cash deposits with one or more of the Banks party to
this Agreement, other than any cash deposit held in local
operational account or any international accounts.
21
(l) Barrett Liquidity Reserve. Cause RMT to at all
times maintain the Borrower Liquidity Reserve (as defined in
the Barrett Loan Agreement).
(m) Williams GP LLC. (i)Upon any sale or other
disposition (other than a redemption) of any Equity Interests
of Williams Energy Partners L.P. owned, directly or
indirectly, by Williams GP LLC, TWC shall furnish, or cause
Williams GP LLC to furnish, to the Agent a fairness opinion
with respect to such disposition prepared by a nationally
recognized investment banking firm; (ii) TWC shall cause
proceeds resulting from any redemption or disposition
described in clause (i) which have been distributed by
Williams GP LLC to, or otherwise received by, a Subsidiary
(except Williams Energy Partners L.P. or a Subsidiary thereof)
to be promptly delivered by such Subsidiary to the Collateral
Trustee pursuant to the Collateral Trust Agreement, to be held
by the Collateral Trustee as Collateral thereunder; and (iii)
upon a purchase of any property by Williams GP LLC using
proceeds from any redemption or disposition referred to in
clause (i), TWC shall furnish, or cause Williams GP LLC to
furnish, to the Agent a fairness opinion with respect to such
purchase prepared by a nationally recognized investment
banking firm.";
(bb) Section 5.02(a) is hereby amended in its entirety and
replaced with the following:
"(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,
trade payable or other obligation or liability or any Person
(other than obligations or liabilities that are (i) neither
Debt nor trade payables, (ii) incurred, and are owed to
trading counterparties, in the ordinary course of the trading
business of the Borrowers or any of their Subsidiaries, and
(iii) secured only by cash, short-term investments or a Letter
of Credit); provided however, that, notwithstanding the
foregoing, (1) the Borrowers or any of their Subsidiaries may
create, incur, assume or suffer to exist Permitted Liens and
(2) RMT and RMT LLC may create, incur, assume or suffer to
exist any Lien created pursuant to the Barrett Loan Agreement
or documents related thereto.";
(cc) Section 5.02(b)(i) is hereby amended in its entirety and
replaced with the following:
"In the case of TWC, permit the ratio of (A) the
aggregate amount of Consolidated Debt of TWC and its
Consolidated Subsidiaries to (B) the sum of the Consolidated
Net Worth of TWC plus the aggregate amount of Consolidated
Debt of TWC and its Consolidated Subsidiaries to exceed at any
time (x) on or before December 30, 2002, 0.70 to 1.00, (y)
after December 30, 2002 and on or before March 30, 2003, 0.68
to 1.00 and (z) after March 30, 2003, 0.65 to 1.00.";
22
(dd) Section 5.02(b)(ii) is hereby amended in its entirety and
replaced with the following:
"In the case of any Borrower (other than TWC), permit
the ratio of (A) the aggregate amount of Consolidated Debt of
such Borrower and its Subsidiaries on a Consolidated basis, to
(B) the sum of the Consolidated Net Worth of such Borrower
plus the aggregate amount of Consolidated Debt of such
Borrower and its Subsidiaries on a Consolidated basis to
exceed at any time 0.55 to 1.00.";
(ee) Section 5.02(c) is hereby amended and restated in its
entirety and replaced with the following:
"(c) Merger and Sale of Assets. Merge or consolidate
with or into any other Person, or sell, lease or otherwise
transfer a material part of its assets, or permit any of its
Major Subsidiaries to merge or consolidate with or into any
other Person, or sell, lease or otherwise transfer a material
part of such Major Subsidiary's assets, except that this
Section 5.02(c) shall not prohibit any sale or transfer
permitted by Section 5.02 (l) or any TWC Asset Disposition.";
(ff) Section 5.02(d) is hereby amended and restated in its
entirety and replaced with the following:
"(d) Agreements to Restrict 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 its ability or the ability of any of its
Subsidiaries (i) to pay, directly or indirectly, dividends or
make any other distributions in respect of its capital stock
or pay any Debt or other obligation owed to a Borrower or to
any of its Subsidiaries; or (ii) to make loans or advances to
a Borrower or any Subsidiary thereof, except (1) encumbrances
and restrictions on any Subsidiary that is not a Material
Subsidiary, (2) those encumbrances and restrictions existing
on July 31, 2002, (3) other customary encumbrances and
restrictions now or hereafter existing of a Borrower or any
Subsidiary thereof entered into in the ordinary course of
business that are not more restrictive in any material respect
than the encumbrances and restrictions with respect to a
Borrower or its Subsidiaries existing on the date hereof, (4)
encumbrances or restrictions on any Subsidiary that is
obligated to pay Non-Recourse Debt arising in connection with
such Non-Recourse Debt, (5) encumbrances and restrictions on
Williams Energy Partners L.P. and (6) encumbrances and
restrictions on any Subsidiary pursuant to the Barrett Loan
Agreement.";
(gg) Section 5.02(e) is hereby amended and restated in its
entirety and replaced with the following:
"(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 or Equity
Interests of, any WCG Subsidiary, except that a Borrower and
23
its Subsidiaries may (i) permit to remain outstanding, and to
replace or refinance, loans and advances and other financing
arrangements to, or Equity Interest in, a WCG Subsidiary
existing or owned (in the case of such Equity Interests) as of
the date hereof and listed on Exhibit E hereof, but no such
replacement or refinancing shall exceed the amount of such
loans, advances or other amounts outstanding immediately prior
to such replacement or refinancing, (ii) pursuant to the WCG
Unwind Transaction, acquire and own the promissory note
referred to in clause (b) of the definition herein of WCG
Unwind Transaction, and (iii) receive any distribution from
WCG or any Subsidiary thereof in connection with the
bankruptcy proceedings of WCG or any Subsidiary thereof.
Except for those investments permitted in subsections (i),
(ii) and (iii) above, no Borrower shall, and no Borrower shall
permit any of its Subsidiaries to, acquire or otherwise invest
in Equity Interests in, or make any loan or advance to, a WCG
Subsidiary.";
(hh) Section 5.02(f) is hereby and restated in its entirety
and replaced with the following:
"(f) Maintenance of Ownership of Certain
Subsidiaries. Except with respect to Williams Energy Partners
L.P., WPC, the Refineries, MAPL, Seminole and their respective
Subsidiaries, sell, issue or otherwise dispose of, or create,
assume, incur or suffer to exist any Lien on or in respect of,
or permit any of its Subsidiaries to sell, issue or otherwise
dispose of or create, assume, incur or suffer to exist any
Lien on or in respect of, any Equity Interests or any direct
or indirect interest in any Equity Interests in any Borrower
or any of its Material Subsidiaries; provided, however, that
this Section 5.02(f) shall not prohibit (i) Permitted Liens,
(ii) the sale or other disposition of the Equity Interests in
any Subsidiary of a Borrower to the Borrower or any
Wholly-Owned Subsidiary of a Borrower if, but only if, (x)
there shall not exist or result a Default or Event of Default
and (y) in the case of each sale or other disposition referred
to in this proviso involving such 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
any other Credit Document and such Borrower shall continue to
exist, (iii) any Subsidiary from selling or otherwise
disposing of any direct or indirect Equity Interests in any
Subsidiary (other than TPGL, TGT, or NWP) of a Borrower, (iv)
any TWC Asset Disposition, or (v) the sale or other
disposition of the Equity Interests in any Subsidiary of any
Borrower pursuant to, and in accordance with, the Barrett Loan
Agreement; provided that, after giving effect to any such sale
or other disposition of any Equity Interests owned directly or
indirectly by a Major Subsidiary, such Subsidiary continues to
be a Major Subsidiary. Nothing herein shall be construed to
permit the Borrower or any of its Subsidiaries to purchase
shares, any interest in shares or any ownership interest in a
WCG Subsidiary except as permitted by Section 5.02(d).";
24
(ii) Section 5.02(g) is hereby amended by deleting the words
"material Subsidiary" in the third and sixth lines thereof and
replacing them with "Material Subsidiary";
(jj) Section 5.02(h) is hereby amended by deleting the words
"material Subsidiary" in the third line thereof and replacing them with
"Material Subsidiary";
(kk) Section 5.02(i) is hereby amended and restated in its
entirety and replaced with the following:
"(i) Guarantees. After the date of the Consent and
Fourth Amendment, 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 assure a WCG Subsidiary, or any creditor of a
WCG Subsidiary, against loss, except for any guarantees
permitted by the L/C Agreement and the Holdings Guaranty.";
(ll) Section 5.02(j) is hereby amended and restated in its
entirety and replaced with the following:
"(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 paragraph (y)
of Schedule VI.";
(mm) Section 5.02(k) is hereby amended by adding to the end
thereof the following:
"Notwithstanding anything to the contrary contained
herein, if any, (i) with respect to EMT, proceeds of any
Advance shall only be used, directly or indirectly, as
necessary for the orderly disposition of the Trading Book and
(ii) no proceeds of any Advance shall be used to pay any
principal amounts outstanding, interest, fees or other costs
with respect to the Barrett Loan, it being understood that
proceeds of any Advance may be used to support margin
requirements with regard to Hedging Agreements on oil and
gas.";
(nn) Section 5.02 is hereby amended by adding at the end
thereof new clauses (l), (m), (n), (o), and (p) to read as follows:
"(l) Asset Disposition. Sell, lease, transfer or
otherwise dispose of, or permit any of their Material
Subsidiaries to sell, lease, transfer or otherwise dispose of,
any property of the Borrowers or any Material Subsidiary of
the Borrowers, except (i) sales of inventory in the ordinary
course of business and on reasonable terms, (ii) sales of worn
out or obsolete equipment in the ordinary course of business,
if no Event of Default exists at the time of such sale, (iii)
replacement of equipment in the ordinary course of business
with other equipment at least as useful and beneficial to TWC
or its Material Subsidiaries and their
25
respective businesses as the equipment replaced if no Event of
Default exists at the time of such replacement and an
Acceptable Security Interest exists in such other equipment at
the time of such replacement, (iv) sales of other immaterial
Property (other than Equity Interests, Debt or other
obligations of any Subsidiary) in the ordinary course of
business and on reasonable terms, if no Event of Default
exists at the time of such sale; provided that Property may
not be sold pursuant to this clause (iv) if the aggregate fair
market value of all Property sold pursuant to this clause (iv)
exceeds $250,000 in any year, (v) sales of assets which are
not Collateral for cash in arm's length transactions, (vi)
sales or other dispositions of WPC or the Refineries, (vii)
sales of MAPL and Seminole and (viii) sales or other
dispositions of assets of Williams GP LLC or Williams Energy
Partners L.P.; provided that (A) the proceeds from any
disposition permitted pursuant to clauses (i) through (vi),
shall be applied in accordance with the terms and conditions
of this Agreement and (B) assets disposed of pursuant to
clauses (i) through (v) shall not constitute a material part
of the assets of TGPL, TGT or NWP. Upon receipt of a written
request therefor from the applicable Borrower relating to
dispositions permitted pursuant to this Section 5.02(l), (x)
the Collateral Agent will execute and deliver all documents as
may reasonably be requested to effect a release of the Liens
on any such Collateral held by the Collateral Trustee pursuant
the Collateral Trust Agreement and other L/C Collateral
Documents and (y) each Bank shall be deemed to have
affirmatively approved the release of such Collateral.
Notwithstanding anything in this Section 5.02(l) to the
contrary, and for greater certainty, nothing in this Agreement
shall prohibit (1) the transfer of Equity Interests of RMT
from TWC to RMT LLC or (2) TWC or any of its Subsidiaries
(including RMT LLC, RMT and their respective Subsidiaries)
from selling, leasing, transferring or otherwise disposing of
any property of the Borrowers or any Subsidiaries of the
Borrowers in accordance with the provisions of the Barrett
Loan Agreement.
(m) Cash Flow to Interest Expense Ratio. Permit, for
any period of four consecutive quarters, the ratio of (A) the
sum of Cash Flow of any Borrower plus Interest Expense of such
Borrower to (B) Interest Expense of such Borrower to be less
than 1.5 to 1.0.
(n) Restricted Payments. Declare or pay any
dividends, purchase, redeem, retire, defease or otherwise
acquire for value any of its Equity Interests now or hereafter
outstanding, return any capital to its stockholders, partners
or members (or the equivalent Persons thereof) as such, make
any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the
equivalent Person thereof) as such or issue or sell any Equity
Interests or accept any capital contributions, or permit any
of its Subsidiaries to do any of the foregoing, or permit any
of its Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any Equity Interests in a Borrower
or to issue or sell any Equity Interests therein, make any
prepayment with respect to any Debt (other than the Progeny
Facilities or Debt of Williams Energy Partners L.P. and its
Subsidiaries) or repurchase any Debt securities except as
required by the terms thereof in effect on the date hereof,
except that, so long as no Default
26
shall have occurred and be continuing at the time of any
action described in clauses (i) through (iv) below or would
result therefrom:
(i) TWC may (A) declare and pay cash
dividends and distributions on its (1) 9 7/8ths%
Cumulative Convertible Preferred Stock, (2) December
2000 Cumulative Convertible Preferred Stock and (3)
March 2001 Mandatorily Convertible Single Reset
Preferred Stock, (B) declare and pay cash dividends
and distributions on TWC Preferred Stock issued on or
after July 30, 2002 in form and substance
satisfactory to the Agent and (C) in any Fiscal
Quarter, declare and pay cash dividends to its
stockholders and purchase, redeem, retire or
otherwise acquire shares of its own outstanding
capital stock for cash if after giving effect thereto
the aggregate amount of such dividends, purchases,
redemptions, retirements and acquisitions paid or
made in any such Fiscal Quarter would be no greater
than the sum of $6,250,000;
(ii) any Subsidiaries of TWC may (A) declare
and pay cash dividends to TWC and (B) declare and pay
cash dividends to any other Guarantor under the L/C
Agreement of which it is a Subsidiary;
(iii) Williams Energy Partners L.P. may
declare and pay cash distributions to its
unitholders; provided that any such cash distribution
shall comply with the partnership agreement governing
Williams Energy Partners L.P.; and
(iv) Apco Argentina, Inc. may declare and
pay dividends in accordance with applicable laws and
its governing documents.".
(o) Investment in Other Persons. Make or hold, or
permit any of its Subsidiaries to make or hold, any Investment
in any Person, except (i) equity Investments by a Borrower and
its Subsidiaries in their Subsidiaries outstanding on the date
hereof and additional investments in Subsidiaries engaged in
businesses reasonably related to the businesses carried on by
such Borrower and its Subsidiaries on the date hereof; (ii)
loans and advances to employees in the ordinary course of the
business of a Borrower and its Subsidiaries as presently
conducted; (iii) Investments of a Borrower and its
Subsidiaries in Cash Equivalents; (iv) Investments existing on
the date hereof; (v) Investments by a Borrower in Hedge
Agreements entered into in the ordinary course of business and
not for speculative purposes; (vi) Investments consisting of
intercompany debt; and (vii) other Investments in an aggregate
amount invested not to exceed $50,000,000 annually; provided
that with respect to Investments made under this clause (vii);
(1) any newly acquired or organized Subsidiary of a Borrower
or any of its Subsidiaries shall be a wholly owned Subsidiary
thereof; (2) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or
would result therefrom; and (3) any company or business
acquired
27
or invested in pursuant to this clause (vii) shall be in the
same line of business as the business of a Borrower or any of
its Subsidiaries.
(p) Subsidiary Debt. Permit any of its Subsidiaries
to create, incur, assume or suffer to exist Debt, other than
(i) Debt incurred, assumed or suffered to exist by TGPL, TGT,
NWP, or Williams Energy Partners L.P. or its Subsidiaries,
(ii) Debt incurred, assumed or suffered to exist by
Subsidiaries (other than those referred to in clause (i) and
the Subsidiaries the stock of which is pledged under the
Pledge Agreement (as defined in the L/C Agreement)) in an
aggregate amount equal to $50,000,000, (iii) Debt in existence
on the date hereof, (iv) Debt under the Guaranties, (v) Debt
of the Project Financing Subsidiaries; (vi) Debt under the
Barrett Loan Agreement and (vii) Debt consisting of
intercompany debt so long as obligations of the debtors
thereunder are subordinated to their obligations under the
Credit Documents and are incurred in the ordinary of the cash
management systems of the Borrowers and their Subsidiaries.";
(oo) Section 8.01 of the Credit Agreement is hereby amended by
deleting the word "or" in the fifteenth line thereof and adding a new
(h) at the end thereto to read as follows:
"or (h) release any of the Collateral (except as
contemplated by Section 5.02(l))";
(pp) Schedule VI is hereby amended in its entirety and
replaced with Annex A attached hereto;
(qq) Schedule XI is hereby amended in its entirety and
replaced with Annex B attached hereto;
(rr) Schedules III, IV and V are hereby deleted in their
entirety and replaced with the following:
"[Intentionally Omitted]";
(ss) The Credit Agreement is hereby amended by adding a new
Schedule XII attached hereto as Annex C;
(tt) The Credit Agreement is hereby amended by adding a new
Schedule XIII attached hereto as Annex D; and
(uu) The Credit Agreement is hereby amended by adding a new
Schedule XIV attached hereto as Annex E.
SECTION 3. Successor Agent. Pursuant to Section 7.06 of the
Credit Agreement, Citibank hereby resigns as Agent and, with the consent and
approval of the Majority Banks and TWC, hereby appoints, in accordance with the
terms of such Section 7.06, Citicorp USA, Inc. ("Citicorp") as successor Agent
under the Credit Agreement. By its signature hereto, Citicorp hereby
acknowledges its acceptance of such appointment as Agent and to the terms and
conditions of such appointment as set forth in Section 7.06 of the Credit
Agreement.
28
For purposes of Section 8.02 of the Credit Agreement, all
notices and other communications to Citicorp, as Agent, shall be delivered to
its address at 399 Park Avenue, New York, New York 10043, (telecopier number:
(302) 894-6120), Attention: Williams Account Officer, with a copy to Citicorp
North America, Inc., 1200 Smith Street, Suite 2000, Houston, Texas 77002
(telecopier number: (713) 654-2849), Attention: The Williams Companies, Inc.
Account Officer, or at such other address as shall be designated by Citicorp in
a written notice to the other parties.
SECTION 4. Conditions of Effectiveness. This Agreement shall
become effective as of the date first above written when, and only when, on or
before July 31, 2002, the Agent shall have received counterparts of this
Agreement executed by the Borrowers and the Majority Banks or, as to any of the
Banks, advice satisfactory to the Agent that such Bank has executed this
Agreement. This Agreement is subject to the provisions of Section 8.01 of the
Credit Agreement. Sections 1 through 3 hereof shall become effective when, and
only when, on or before July 31, 2002, the Agent shall have additionally
received all of the following documents, each such document (unless otherwise
specified) dated the date of receipt thereof by the Agent (unless otherwise
specified) and in sufficient copies for each Bank, in form and substance
satisfactory to the Agent and the Majority Banks (unless otherwise specified)
and in sufficient copies for each Bank:
(a) Certified copies of (i) the resolutions of the Board of
Directors, or the Executive Committee thereof, of each of the Borrowers
approving this Agreement and the matters contemplated hereby and (ii)
all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
matters contemplated hereby.
(b) A certificate of the Secretary or an Assistant Secretary
of each Borrower certifying (i) the names and true signatures of the
officers of such Borrower authorized to sign this Agreement and the
other documents to be delivered hereunder and thereunder and, (ii) that
attached thereto is a complete and correct copy of the Certificate of
Incorporation and Bylaws of such Borrower together with any amendments
thereto.
(c) Favorable opinions of William G. von Glahn, General
Counsel of TWC, and Skadden, Arps, Slate, Meagher & Flom LLP, counsel
for the Borrowers, substantially in the Form of Exhibit A hereto and as
to such other matters as the Agent may reasonably require.
(d) A certificate signed by a duly authorized officer of each
Borrower stating that:
(i) the representations and warranties contained in
Section 5 are correct on and as of the date of such
certificate as though made on and as of such date other than
any such representations or warranties that, by their terms,
refer to a date other than the date of such certificate; and
29
(ii) after giving effect to the Consent and Fourth
Amendment and the transactions contemplated therein, no event
has occurred and is continuing that constitutes a Default.
(e) A duly executed and fully effective L/C Agreement and an
amendment to each of the Progeny Facility documents, other than those
automatically amended by virtue of this Agreement, each dated the date
of this Agreement.
(f) The L/C Collateral Documents (other than the Mortgages and
Additional Mortgages; each as defined in the L/C Agreement) and all
documents required for perfection of the Liens granted pursuant to such
L/C Collateral Documents.
SECTION 5. Representations and Warranties of the Borrowers
Each of the Borrowers represents and warrants as follows:
(a) Each Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
indicated in the recital of parties to this Agreement.
(b) The execution, delivery and performance by the Borrowers
of this Agreement, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action and do not (i)
contravene the Borrowers' charters or by-laws, (ii) violate any law
(including, without limitation, the Securities Exchange Act of 1934, as
amended, and the Racketeer Influenced and Corrupt Organizations Chapter
of the Organized Crime Control Act of 1970), rule or regulation
(including, without limitation, Regulation X of the Board of Governors
of the Federal Reserve System), or any order, writ, judgment,
injunction, decree, determination or award, binding on or affecting the
Borrowers or any of their Subsidiaries or any of their properties,
(iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting the Borrowers,
any of their Subsidiaries or any of their properties or (iv) except for
the Liens created under the L/C Collateral Documents and the TWC Asset
Disposition Documents, as amended hereby, result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of the Borrowers or any of their Subsidiaries.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery or
performance by the Borrowers of this Agreement or L/C Collateral
Documents to which it is or is to be a party.
(d) This Agreement has been duly executed and delivered by
each Borrower. This Agreement and the Credit Agreement, as amended
hereby, to which each Borrower is a party, are legal, valid and binding
obligations of each Borrower, enforceable against each Borrower in
accordance with their respective terms.
(e) There is no action, suit, investigation, litigation or
proceeding affecting any Borrower or any of its Subsidiaries
(including, without limitation, any environmental
30
action) pending or threatened before any court, governmental agency or
arbitrator that (i) would be reasonably likely to have a material
adverse effect on the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Borrower or any
of its Subsidiaries or (ii) purports to affect the legality, validity
or enforceability of this Agreement or the Credit Agreement, as amended
hereby, or the consummation of any of the transactions contemplated
hereby.
(f) The representations and warranties made by each Borrower
in Article IV of the Credit Agreement, as amended hereby, are correct
and true in all material respects on and as of the date hereof as
though made on and as of the date hereof (it being understood and
agreed that any such representation or warranty which by its terms
applies only to a specified date shall be true and correct in all
material respects only as of such specified date).
(g) Except as has been disclosed to each Bank, from December
31, 2001, to the date of this Agreement, there has been no material
adverse change in the Consolidated financial condition or Consolidated
results of operations of any Borrower and its Consolidated
Subsidiaries.
SECTION 6. Reference to and Effect on the Credit Agreement and
the Notes.
(a) On and after the effectiveness of this Agreement, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Credit Agreement, and
each reference in the Notes to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement,
shall mean and be a reference to the Credit Agreement, as amended by
this Agreement.
(b) The Credit Agreement and the Notes, as specifically
amended by this Agreement, are and shall continue to be in full force
and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Agreement shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Bank or the Agent under the
Credit Agreement, nor constitute a waiver of any provision of the
Credit Agreement.
SECTION 7. Costs, Expenses and Taxes. The Borrowers, jointly
and securely, agree to pay on demand all costs and expenses of the Agent in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Agreement and the other instruments and
documents to be delivered hereunder (including, without limitation, the
reasonable fees and expenses of counsel for the Agent) in accordance with the
terms of Section 8.04 of the Credit Agreement.
SECTION 8. 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 but one and the same
agreement. Delivery of an executed counterpart of a signature
31
page to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9. Miscellaneous. Each Bank party hereto which is
also, on the date hereof, the issuing bank under any bilateral letter of credit
to which any Borrower is the account party thereof shall be deemed to have
waived its right, if any, to cash collateralize on demand such letter of credit
by its signature hereto.
SECTION 10. Undertaking; Post Closing Actions. The parties to
this Agreement hereby agree and undertake to each use their best efforts and to
act diligently and promptly in taking any action or step necessary to resolve or
correct any error, omission, open item or general inconsistency or other
discrepancy which may exist, or of which the parties hereto may hereafter become
aware, in any Credit Document.
SECTION 11. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
[Signature pages to follow on next page]
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 /s/ James G. Ivey
----------------------------------------
Name: James G. Ivey
Title: Treasurer
TEXAS GAS TRANSMISSION CORPORATION
By /s/ Richard Rodekohr
--------------------------------------
Name: Richard Rodekohr
Title: V.P. and C.F.O.
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
By /s/ Richard Rodekohr
----------------------------------------
Name: Richard Rodekohr
Title: V.P. and C.F.O.
NORTHWEST PIPELINE CORPORATION
By /s/ Richard Rodekohr
----------------------------------------
Name: Richard Rodekohr
Title: V.P. and C.F.O.
AGENT:
CITIBANK, N.A., as Agent
By: /s/ J. Christopher Lyons
----------------------------------------
Authorized Officer
Date: 7/31 , 2002
-----------------
CO-SYNDICATION AGENTS:
JPMORGAN CHASE BANK
(formerly known as
THE CHASE MANHATTAN BANK),
as Co-Syndication Agent
By: /s/ Sanjeev Khemlani, V.P.
----------------------------------------
Authorized Officer
Date: July 31, 2002
-----------------
COMMERZBANK AG,
as Co-Syndication Agent
By: /s/ Subash Viswanathan
----------------------------------------
Subash Viswanathan
Senior Vice President
By: /s/ Brian Campbell
----------------------------------------
Brian Campbell
Senior Vice President
Date: July 30, 2002
-----------------
DOCUMENTATION AGENT:
CREDIT LYONNAIS NEW YORK BRANCH
as Documentation Agent
By: /s/ Bernard Weymuller
----------------------------------------
Bernard Weymuller
Senior Vice President
Date: July 31, 2002
-----------------
BANKS:
CITIBANK, N.A.
By: /s/ J. Christopher Lyons
----------------------------------------
Authorized Officer
Date: 7/31 , 2002
-----------------
THE BANK OF NOVA SCOTIA
By: /s/ Nadine Bell
----------------------------------------
Nadine Bell, Senior Manager
Date: , 2002
-----------------
BANK OF AMERICA, N.A.
By: /s/ Claire Liu
----------------------------------------
Claire M. Liu
Date: , 2002
-----------------
BANK ONE, N.A. (MAIN OFFICE - CHICAGO)
By: /s/ Jeanie C. Gonzalez
----------------------------------------
Authorized Officer
Date: July 31 , 2002
-----------------
JPMORGAN CHASE BANK
(formerly known as
THE CHASE MANHATTAN BANK)
By: /s/ Sanjeev Khemlani
----------------------------------------
Sanjeev Khemlani
Date: July 31 , 2002
-----------------
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By:
----------------------------------------
Authorized Officer
By:
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Bernard Weymuller
----------------------------------------
Bernard Weymuller
Senior Vice President
Date: July 31 , 2002
-----------------
MIZUHO CORPORATE BANK, LTD.
By: /s/ Jacques Azagury
----------------------------------------
Authorized Officer
Jacques Azagury
Senior Vice President and Manager
Date: July 30 , 2002
-----------------
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By:
----------------------------------------
Name:
----------------------------
Title:
---------------------------
Date: , 2002
-----------------
ABN AMRO BANK, N.V.
By:
----------------------------------------
Authorized Officer
By:
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
BANK OF MONTREAL
By:
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
THE BANK OF NEW YORK
By: /s/ Raymond J. Palmer
----------------------------------------
Authorized Officer
Raymond J. Palmer
Vice President
Date: July 30 , 2002
-----------------
BARCLAYS BANK PLC
By: /s/ Richard B. Williams
----------------------------------------
Authorized Officer
Richard B. Williams
Director
Date: 7/31 , 2002
-----------------
CIBC INC.
By: /s/ [ILLEGIBLE]
----------------------------------------
Authorized Officer
Date: July 31 , 2002
-----------------
CREDIT SUISSE FIRST BOSTON
By: /s/ James P. Moran
----------------------------------------
Authorized Officer
James P. Moran, Director
By: /s/ Jay Chall
----------------------------------------
Authorized Officer
Jay Chall, Director
Date: July 30 , 2002
-----------------
ROYAL BANK OF CANADA
By: /s/ Linda M. Stephens
----------------------------------------
Authorized Officer
Date: July 30 , 2002
-----------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ K. Glasscock
----------------------------------------
Authorized Officer
K. Glasscock
VP & Manager
Date: July 30 , 2002
-----------------
FLEET NATIONAL BANK
f/k/a Bank Boston, N.A.
By:
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ J. Douglas McMurrey, Jr.
----------------------------------------
Authorized Officer
J. Douglas McMurrey, Jr.
Managing Director
Date: July 31 , 2002
-----------------
TORONTO DOMINION (TEXAS), INC.
By: /s/ Ann S. Slanis
----------------------------------------
Authorized Officer
Ann S. Slanis
Vice President
Date: July 31 , 2002
-----------------
UBS AG, STAMFORD BRANCH
By:
----------------------------------------
Authorized Officer
By:
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
WELLS FARGO BANK TEXAS, N.A.
By: /s/ J. Alan Alexander
----------------------------------------
Authorized Officer
J. Alan Alexander
Vice President
Date: July 30 , 2002
-----------------
WESTDEUTSCHE LANDESBANK GIRONZENTRALE,
NEW YORK BRANCH
By: /s/ [ILLEGIBLE]
----------------------------------------
Authorized Officer
By: /s/ [ILLEGIBLE]
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
CREDIT AGRICOLE INDOSUEZ
By: /s/ [ILLEGIBLE]
----------------------------------------
Authorized Officer
By: /s/ [ILLEGIBLE]
----------------------------------------
Authorized Officer
Date: 07/30 , 2002
-----------------
SUNTRUST BANK
By: /s/ [ILLEGIBLE]
----------------------------------------
Authorized Officer
Date: July 31 , 2002
-----------------
ARAB BANKING CORPORATION (B.S.C.)
By: /s/ [ILLEGIBLE]
----------------------------------------
Authorized Officer
Date: August 1st , 2002
-----------------
BANK OF CHINA, NEW YORK BRANCH
By:
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
BANK OF OKLAHOMA, N.A.
By: /s/ Robert D. Mattax
----------------------------------------
Robert D. Mattax
Senior Vice President
Date: July 30 , 2002
-----------------
BNP PARIBAS, HOUSTON AGENCY
By: /s/ Barton D. Schouest
----------------------------------------
Barton D. Schouest
Managing Director
By: /s/ Greg Smothers
----------------------------------------
Greg Smothers
Vice President
Date: July 31 , 2002
-----------------
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK,
By:
----------------------------------------
Authorized Officer
By:
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
KBC BANK N.V.
By: /s/ Jean-Pierre Diels
----------------------------------------
Authorized Officer
Jean-Pierre Diels
First Vice President
By: /s/ Eric Raskin
----------------------------------------
Authorized Officer
Eric Raskin
Vice President
Date: , 2002
-----------------
FIRST UNION NATIONAL BANK
By:
----------------------------------------
Authorized Officer
Date: , 2002
-----------------
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ John Kissinger
----------------------------------------
John Kissinger
General Manager
Date: July 31 , 2002
-----------------
COMMERCE BANK, N.A.
By: /s/ Dennis R. Block
----------------------------------------
Dennis R. Block, SVP
Date: July 30 , 2002
-----------------
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ David E. Humphreys
----------------------------------------
David E. Humphreys
Vice President
Date: 7/30 , 2002
-----------------
ACKNOWLEDGED
AND ACCEPTED BY
(with respect to Section 3):
CITICORP USA, INC.
By:
---------------------------------
Authorized Officer
Date: , 2002
------------------
ANNEX A
SCHEDULE VI
PERMITTED LIENS
(a) (i) Any Lien existing on any property at the time of the acquisition thereof
and not created in contemplation of such acquisition by any Borrower or any of
its Subsidiaries, whether or not assumed by any Borrower or any of its
Subsidiaries, (ii) purchase money, construction or analogous Liens securing
obligations incurred in connection with or financing the direct or indirect
costs of or relating to the acquisition, construction (including design,
engineering, installation, testing and other related activities), development
(including drilling), improvement, repair or replacement of property (including
such Liens securing Debt or other obligations incurred in connection with the
foregoing or within 30 days of the later of (x) the date on which such Property
was acquired or construction, development, improvement, repair or replacement
thereof was complete or (y) if applicable, the final "in service" date for
commencement of full operations of such property), provided that all such Liens
attach only to the property acquired, constructed, developed, improved or
repaired or constituting replacement property, and the principal amount of the
Debt or other obligations secured by such Lien, together with the principal
amount of all other Debt secured by a Lien on such property, shall not exceed
the gross acquisition, construction, replacement and other costs specified above
of or for the property, (iii) Liens on receivables created pursuant to a sale,
securitization or monetization of such receivables, and Liens on rights of any
Borrower or any Subsidiary related to such receivables which are transferred to
the purchaser of such receivables in connection with such sale, securitization
or monetization; provided that the Liens secure only the obligations of any
Borrower or any of its Subsidiaries in connection with such sale, securitization
or monetization, (iv) Liens created by or reserved in any operating lease
(whether for real or personal property) entered into in the ordinary course of
business (excluding Synthetic Leases) provided that the Liens created thereby
(1) attach only to the Property leased to any Borrower or one of its
Subsidiaries, pursuant to such operating lease and (2) secure only the
obligations under such lease and supporting documents that do not create
obligations other than with respect to the leased property (including for rent
and for compliance with the terms of the lease), (v) Liens on property subject
to a Capital Lease created by such Capital Lease and securing only obligations
under such Capital Lease and supporting documents that do not create obligations
other than with respect to the leased property, (vi) any interest or title of a
lessor in the property subject to any Capital Lease, Synthetic Lease or
operating lease, (vii) Liens in the form of filed Uniform Commercial Code or
personal property security statements (or similar filings outside Canada and the
United States) to perfect any Permitted Lien, and (viii) Liens on up to four
aircraft owned or leased by any Borrower or any Subsidiary of any such Borrower.
(b) Any Lien existing on any property of a Subsidiary of any Borrower at the
time it becomes a Subsidiary of such Borrower and not created in contemplation
thereof and any Lien existing on any property of any Person at the time such
Person is merged or liquidated into or consolidated with any such Borrower or
any Subsidiary thereof and not created in contemplation thereof.
(c) Mechanics', materialmen's, workmen's, warehousemen's, carrier's, landlord's
or other similar Liens arising in the ordinary course of business securing
amounts incurred in the ordinary course of business which are not more than 90
days past due or are being contested in good faith by appropriate proceedings.
(d) Liens arising by reason of pledges, deposits or other security to secure
payment of workmen's compensation insurance or unemployment insurance, pension
plans or systems and other types of social security, and good faith deposits or
other security to secure tenders or leases of property or bids, in each case to
secure obligations of any Borrower or any of its Subsidiaries under such
insurance, tender, lease, bid or contract, as the case may be; provided,
however, that the only Liens permitted by this paragraph (d) shall be Liens
incurred in the ordinary course of business that do not secure any Debt or
accounts payable (other than accounts payable to the counterparties or obligees
applicable to the foregoing).
(e) Liens on deposits or other security given to secure public or statutory
obligations, or to secure or in lieu of surety bonds (other than appeal bonds)
and deposits as security for the payment of taxes or assessments or other
similar charges, in each case to secure obligations of any Borrower or any of
its Subsidiaries arising in the ordinary course of business; provided, however,
that the aggregate amount of obligations secured by Liens permitted by this
paragraph (e) shall not exceed 10% of Consolidated Tangible Net Worth of the
Borrower.
(f) Any Lien arising by reason of deposits with or the giving of any form of
security to any governmental agency or any body created or approved by law or
governmental regulation for any purpose at any time as required by law or
governmental regulation (i) as a condition to the transaction by any Borrower or
any of its Subsidiaries of any business or the exercise by any Borrower or any
of its Subsidiaries of any privilege or license, (ii) to enable any Borrower or
any of its Subsidiaries to maintain self-insurance or to participate in any fund
for liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to any Borrower or any of its Subsidiaries to share in the
privileges or benefits required for companies participating in such
arrangements.
(g) Liens incurred in the ordinary course of business upon rights-of-way
securing obligations (other than Debt and trade payables) of any Borrower or any
of its Subsidiaries.
(h) Undetermined mortgages and charges incidental to construction or maintenance
arising in the ordinary course of business which are not more than 90 days past
due or are being contested in good faith by appropriate proceedings.
(i) The right reserved to, or vested in, any municipality or governmental or
other public authority or railroad by the terms of any right, power, franchise,
grant, license, permit or by any provision of law, to terminate or to require
annual or other periodic payments as a condition to the continuance of such
right, power, franchise, grant, license or permit.
(j) The Lien of taxes, customs duties or other governmental charges or
assessments that are not at the time determined (or, if determined, are not at
the time delinquent), or that are delinquent but the validity of which is being
contested in good faith by any Borrower or any of its Subsidiaries by
appropriate proceedings and with respect to which reserves in conformity
with generally accepted accounting principles, if required by such principles,
have been provided on the books of the Borrower or the relevant Subsidiary of
any Borrower, as the case may be.
(k) The Lien reserved in (i) leases entered into in the ordinary course of
business for rent and for compliance with the terms of the lease in the case of
real or personal property leasehold estates or (ii) leases and sub-leases
granted to others that do not materially interfere with the ordinary course of
business of any Borrower and its Subsidiaries, taken as a whole.
(l) Defects and irregularities in the titles to any property (including
rights-of-way and easements) which are not material to the business, assets,
operations or financial condition of any Borrower and its Subsidiaries, taken as
a whole.
(m) Easements, exceptions or reservations in any property of any Borrower or any
of its Subsidiaries granted or reserved in the ordinary course of business for
the purpose of pipelines, roads, equipment, streets, alleys, highways,
railroads, the removal of oil, gas, coal or other minerals or timber, and other
like purposes, or for the joint or common use of real property, facilities and
equipment, or in favor of governmental authorities or public utilities, in each
case above which do not materially impair the use of such property for the
purposes for which it is held by any Borrower or such Subsidiary.
(n) Rights reserved to or vested in any municipality or public authority to
control or regulate any property of any Borrower or any of its Subsidiaries, or
to use such property in any manner which does not materially impair the use of
such property for the purposes for which it is held by any Borrower or such
Subsidiary.
(o) Any obligations or duties, affecting the property of any Borrower or any of
its Subsidiaries, to any municipality or public authority with respect to any
franchise, grant, license or permit.
(p) The Liens of any judgments in an aggregate amount for any Borrower and all
of its Subsidiaries (i) not in excess of $8,500,000, the execution of which has
not been stayed and (ii) not in excess of $40,000,000, the execution of which
has been stayed and which have been appealed and secured, if necessary, by a
stay or appeal bond or other security of similar effect and stay or appeal bonds
in respect of the judgments permitted in clause (ii).
(q) Zoning laws and ordinances.
(r) Liens existing on July 1, 2002, that secure only Debt and other obligations
incurred or committed and available for draw down on or prior to or outstanding
on July 1, 2002 and listed on Schedule IX as secured by such Liens.
(s) Liens existing on July 1, 2002 (i) that cover only immaterial assets and
(ii) that secure only Debt and other obligations incurred or committed and
available for draw down on or prior to or outstanding on July 1, 2002.
(t) Liens reserved in customary oil, gas and/or mineral leases for bonus or
rental payments and for compliance with the terms of such leases and Liens
reserved in customary operating agreements, farm-out and farm-in agreements,
exploration agreements, development agreements
and other similar agreements for compliance with the terms of such agreements;
provided that (i) such Liens do not secure Debt or accounts payable (other than
obligations under such lease or agreement, as the case may be) and (ii) such
leases and agreements are entered into in the ordinary course of business.
(u) Liens arising in the ordinary course of business out of all presently
existing and future division and transfer orders, advance payment agreements,
processing contracts, gas processing plant agreements, operating agreements, gas
balancing or deferred production agreements, participation, joint venture, joint
operating, pooling, unitization or communitization agreements, pipeline,
gathering or transportation agreements, platform agreements, drilling contracts,
injection or repressuring agreements, cycling agreements, construction
agreements, salt water or other disposal agreements, leases, sub-leases or
rental agreements, royalty interests, overriding royalty interests, farm-out and
farm-in agreements, exploration and development agreements, and any and all
other contracts or agreements covering, arising out of, used or useful in
connection with or pertaining to the exploration, development, operation,
production, sale, use, purchase, exchange, storage, separation, dehydration,
treatment, compression, gathering, transportation, processing, improvement,
marketing, disposal or handling of any property of a Person (each such order,
agreement or contract being a "Subject Document"), provided that and to the
extent that (i) such Subject Documents are entered into the ordinary course of
business and contain terms customary for such documents in the industry, (ii)
such permitted Liens shall not include any security interests in accounts
receivable or other receivables and do not secure Debt or accounts payable
(other than accounts payable arising under the particular Subject Document that
creates the Lien), and (iii) such Subject Documents do not create nor do such
Liens secure Financing Transactions.
(v) Liens arising by law under Section 9.343 of the Texas Uniform Commercial
Code or similar statutes of states other than Texas.
(w) Liens arising pursuant to the L/C Collateral Documents which secure the
obligations of the Borrowers and their Subsidiaries under this Agreement and
the L/C Agreement and certain public debt of TWC.
(x) Liens in existence prior to the date hereof in the nature of a right of
offset or netting of cash amounts owed arising in the ordinary course of
business (and Liens on the trading receivables owed by any trading counterparty
and/or affiliate thereof to a Borrower or any affiliate thereof granted by a
Borrower or any such affiliate thereof under agreements commonly in use in the
industry of a Borrower or such affiliate, but solely to secure the offset or
netting rights of such trading counterparty and/or affiliates thereof to the
payment of such trading receivables arising from and to the extent of the
trading obligations of a Borrower or any affiliate thereof to such trading
counterparty or its affiliates).
(y) Any Lien not permitted by paragraphs (a) through (x) above or (z) through
(ii) below securing Debt of the Borrower or any of its Subsidiaries if at the
time of, and after giving effect to, the creation or assumption of any such
Lien, the aggregate (without duplication) of the principal or equivalent amount
of all Debt of a Borrower and its Subsidiaries secured by all such Liens not so
permitted by paragraphs (a) through (x) above or (z) through (ii) below plus the
amount of Attributable Obligations (other than those relating to Liens described
in clause
(a)(viii)) of a Borrower and its Subsidiaries in respect of Sale and Lease-Back
Transactions permitted by Section 5.02(l) which does not exceed $100,000,000.
(z) To the extent applicable, 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 the Borrower is successor in interest; and the obligations
of the Borrower to surrender, transfer, release or reassign the leases or
interests or rights to which said instruments relate under the conditions and
upon the occurrence of the events specified in said instruments.
(aa) Any option or other agreement to purchase any property of any Borrower or
any Subsidiary the purchase, sale or other disposition of which is not
prohibited by any other provision of this Agreement.
(bb) Liens securing reimbursement obligations with respect to letters of credit
that encumber documents and other property relating to such letters of credit
and the proceeds and products thereof.
(cc) Liens on the products and proceeds (including insurance, condemnation and
eminent domain proceeds) of and accessions to, and contract or other rights
(including rights under insurance policies and product warranties) derivative of
or relating to, property permitted to be subject to Liens under this Agreement
but subject to the same restrictions and limitations herein set forth as to
Liens on such property (including the requirement that such Liens on products,
proceeds, accessions and rights secure only obligations that such property is
permitted to secure).
(dd) Liens on the Property of a Project Finance Subsidiary or the Equity
Interests in such Project Finance Subsidiary securing the Non-Recourse Debt of
such Project Finance Subsidiary.
(ee) Liens on cash and short-term investments incurred in the ordinary course
of business, consistent with past practices and not for the purpose of securing
Debt (i) deposited by any Borrower or any of its Subsidiaries in margin
accounts with or on behalf of futures contract brokers or other counterparties
or (ii) pledged by any Borrower or any of its Subsidiaries, in the case of each
of clauses (i) and (ii) above, to secure its obligations with respect to (x)
contracts (including without limitation, physical delivery, option (whether
cash or financial), exchange, swap and futures contracts) for the purchase or
sale of any energy-related commodity or (y) interest rate or currency rate
management contracts.
(ff) Liens securing Debt of Williams Energy Partners LP and/or its
Subsidiaries; provided that such Liens shall only apply to assets owned
directly by Williams Energy Partners LP and/or its Subsidiaries.
(gg) Liens securing the Barrett Loan.
(hh) Liens securing Permitted Refinancing Debt (as defined below) (and related
obligations) covering the substantially the same collateral ) securing
(immediately prior to such refinancing) the Debt Refinanced (as defined below)
by such Permitted Refinancing Debt; provided that: (i) the principal amount of
such Permitted Refinancing Debt does not exceed the principal amount of the Debt
Refinanced (plus the amount of penalties, premiums (including required premiums
and the amount of any premiums reasonably determined by any Borrower being in
its best economic interest and as necessary to accomplish such Refinancing by
means of a tender offer or privately negotiated repurchase), fees, accrued
interest and reasonable expenses and other obligations incurred in connection
therewith) at the time of refinancing; and (ii) such Debt is incurred either by
any Borrower or by such Subsidiary that is the obligor of the Debt being
Refinanced. "Permitted Refinancing Debt" means any Debt (other than Debt
referred to clause
(gg) above) of any Borrower or any of its Subsidiaries issued to Refinance other
Debt of the Borrower or any such Subsidiaries. "Refinance" means, in respect of
any Debt (other than Debt referred to clause (gg) above), to refinance, extend,
renew, refund, repay, prepay, replace, acquire, redeem, defease or retire, or to
issue other Debt in exchange or replacement, directly or indirectly for, such
Debt in whole or in part.
(ii) Liens extending, renewing or replacing any of the foregoing Liens (other
than Liens referred to in clause (gg) above), provided that the principal amount
of the Debt or other obligation secured by such Lien is not increased or the
maturity thereof shortened and such Lien is not extended to cover any additional
Debt, obligations or property, other than like obligations of no greater
principal amount and the substitution of like property (or specific categories
of property of the same grantor to the extent the terms of the Lien being
extended, renewed or replaced, extended to or covered such categories of
property) of no greater value.
ANNEX B
SCHEDULE XI
RATING CATEGORIES
Pricing: Pricing is based upon the lower rating from S&P and Moody's,
with respect to TWC's senior unsecured long-term debt. The
pricing grid is as follows:
EURODOLLAR RATE ADVANCES
<Table>
<Caption>
APPLICABLE MARGIN
RATING --------------------------------------
CATEGORY S&P OR MOODY'S RATINGS OF THE < or = to 25% OF >25% OF APPLICABLE
OF THE SENIOR UNSECURED LONG-TERM COMMITMENTS COMMITMENTS COMMITMENT
BORROWER DEBT OF THE BORROWER DRAWN DRAWN FEE RATE
- -------- ----------------------------- ---------------- ----------- ----------
One BB+ or Ba1 or higher 3.00% 3.25% .75%
Two BB or Ba2 3.50% 3.75% .875%
Three BB- or Ba3 4.00% 4.25% 1.00%
Four B+ or B1 4.25% 4.50% 1.25%
Five B or B2 or lower 4.50% 4.75% 1.50%
</Table>
BASE RATE ADVANCES
<Table>
<Caption>
APPLICABLE MARGIN
RATING --------------------------------------
CATEGORY S&P OR MOODY'S RATINGS OF THE < or = to 25% OF >25% OF APPLICABLE
OF THE SENIOR UNSECURED LONG-TERM COMMITMENTS COMMITMENTS COMMITMENT
BORROWER DEBT OF THE BORROWER DRAWN DRAWN FEE RATE
- -------- ----------------------------- ---------------- ----------- ----------
One BB+ or Ba1 or higher 1.75% 2.00% .75%
Two BB or Ba2 2.25% 2.50% .875%
Three BB- or Ba3 2.75% 3.00% 1.00%
Four B+ or B1 3.00% 3.25% 1.25%
Five B or B2 or lower 3.25% 3.50% 1.50%
</Table>
ANNEX C
SCHEDULE XII
PROGENY FACILITIES
$200,000,000 Parent Support Agreement dated as of December 23, 1998, made by The
Williams Companies, Inc. in favor of Castle Associates L.P. and Colchester LLC
and the other Indemnified Persons listed therein, as amended.
Amended and Restated Guarantee dated as of July 25, 2000, issued by The Williams
Companies, Inc. for the benefit of The Commonwealth Plan, Inc. and CBL Capital
Corporation, as amended. WFS-Pipeline Company, as lessee and Commonwealth, as
lessor entered into a Lease Agreement dated as of December 29, 1995.
WFS-Offshore Gathering Company, as lessee, and CBL, as lessor, entered into a
Lease Agreement dated December 29, 1995, as amended and restated.
$400,000,000 Term Loan Agreement dated as of April 7, 2000, among The Williams
Companies, Inc., as Borrower, and Credit Lyonnais New York Branch, as
Administrative Agent, and the Lenders named therein, as amended.
$192,570,931 aggregate Second Amended and Restated Participation Agreements (2
separate leases) dated as of January 28, 2002, among Williams Oil Gathering,
L.L.C. and Williams Field Services - Gulf Coast Company, L.P., as Lessees,
Williams Field Services Company, as Construction Agent, The Williams Companies,
Inc., as Guarantor, First Security Bank, N.A. as Certificate Trustee, Wells
Fargo Bank Nevada, N.A., as Collateral Agent, Bank of America, N.A., as
Administrative Agent and Administrator, and financial institutions named therein
as Certificate Holders, as amended.
$200,000,000 Term Loan Agreement dated as of January 29, 1999, among The
Williams Companies, Inc., as Borrower, and The Fuji Bank, Limited, as
Administrative Agent, and the Banks named therein, as amended.
The Prairie Wolf Facility.
Letter of Credit and Reimbursement Agreement dated as of May 15, 1994, among
Tulsa Parking Authority, The Williams Companies, Inc., Bank of Oklahoma,
National Association, and Bank of America, N.A. (formerly Nationsbank of Texas,
N.A.), relative to Tulsa Parking Authority First Mortgage Revenue Bonds, as
amended.
$127,000,000 Master Agreement dated as of March 6, 2000, among The Williams
Companies, Inc., as Guarantor, Williams TravelCenters, Inc., as Lessee, Atlantic
Financial Group, Ltd., as Lessor, SunTrust Bank, as Agent, and the Lenders named
therein, as amended.
$100,000,000 PPH Sponsor Agreement dated as of December 31, 2001, by The
Williams Companies, Inc., as Sponsor, in favor of Piceance Production Holdings
LLC, Plowshare Investors LLC, and other Indemnified Persons listed in the
agreement, as amended.
Legacy L/C's.
All documents, instruments, agreements, certificates and notices at any time
executed and/or delivered in connection with any of the foregoing.
ANNEX D
SCHEDULE XIII
POST-CLOSING ITEMS
1. Consents, Licenses and Approvals. All governmental and third party
approvals (including consents) necessary in connection with the continuing
operations of the Borrower and its Midstream Subsidiaries and the execution,
delivery and performance of the Credit Documents shall have been obtained and be
in full force and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions on the execution
and delivery of the Credit Documents or the financing thereof, including,
without limitation, this Agreement. TO BE REQUESTED 10 DAYS AFTER THE DATE OF
THIS AGREEMENT.
2. Legal Opinions. The Agent shall have received, with a counterpart
for each Issuing Bank, the executed legal opinions of local counsel to the
Agents in the States of Colorado, New Mexico and Wyoming, such other states as
requested by Agent which such legal opinions shall cover such matters incident
to the perfection of the Liens and the other transactions contemplated by the
Agreement as the Agent may reasonably require. TO BE DELIVERED 15 DAYS AFTER THE
DATE OF THIS AGREEMENT.
3. Actions to Perfect Liens. The Agent shall have received properly
completed and executed financing statements (or other similar documents),
including, without limitation, duly executed financing statements on form UCC-1,
necessary or, in the opinion of the Collateral Agent, desirable to perfect the
Liens created by the Security Documents, and the Collateral Agent shall be
reasonably satisfied that, other than filing such financing statements and other
similar documents and the Mortgages, no other filings, recordings, registrations
or other actions are necessary or, in the opinion of the Collateral Agent,
desirable to perfect the Liens created by the Security Documents. TO BE
COMPLETED 60 DAYS AFTER THE DATE OF THIS AGREEMENT.
4. Surveys. At the request of the Agent, the Agent shall have received
boundary line surveys of (i) the property leased by the Borrower and the
Midstream Subsidiaries located in the States of Alaska, Arkansas, Colorado, New
Mexico, Tennessee, and Wyoming, and such other states as may be designated by
the Agent, (ii) the real property owned by Borrower and the Midstream
Subsidiaries located in the States of Alaska, Arkansas, Colorado, New Mexico,
Tennessee, and Wyoming, and such other states as may be designated by the Agent,
other than the Gathering Systems which boundary line surveys shall in each case
be (A) dated a date reasonably close to the date of the Agreement (as determined
by the Agent), (B) prepared by an independent professional licensed land
surveyor reasonably satisfactory to the Agent, (C) prepared in a manner
reasonably acceptable to the Agent and (D) shall reflect that the buildings,
structures and other improvements necessary for the ownership and operation of
the
processing plants purported to be located on the property surveyed do not
protrude on any adjoining property nor do any improvements located on land
adjacent to the property surveyed encroach upon the property surveyed, which
encroachments or protrusions in either case could reasonably be expected to
adversely affect the ability of the Borrower or the Midstream Subsidiaries to
own, maintain, operate or sell the property surveyed and/or the improvements
located thereon. The Agent shall have received a certificate of an authorized
officer of the Borrower certifying said boundary line surveys are true and
correct as of the date of the Agreement. TO BE COMPLETED 60 DAYS AFTER REQUEST
BY THE AGENT.
5. Flood Insurance. If requested by the Agent, the Agent shall have
received a policy of flood insurance in form and substance satisfactory to the
Agent. TO BE COMPLETED 60 DAYS AFTER THE DATE OF THIS AGREEMENT.
6. Copies of Documents. If requested by the Agent, the Agent shall have
received a copy, certified by such parties as the Agent may deem appropriate, of
any document burdening the property covered by any Mortgage. TO BE COMPLETED 30
DAYS AFTER THE DATE OF THIS AGREEMENT.
7. Lien Searches. The Agent shall have received the results of recent
lien searches by Persons reasonably satisfactory to the Agent, in each of the
jurisdictions and offices where assets of the Borrower or any of the Midstream
Subsidiaries are located or recorded, and such searches shall reveal no Liens on
any assets of the Borrower or any such Subsidiary, except for (i) Liens
permitted by the Agreement and (ii) Liens to be released or assigned to the
Agent, for the ratable benefit of the Banks, on the date of the Agreement in
connection with the execution, delivery and performance of the Credit Documents.
TO BE COMPLETED 30 DAYS AFTER THE DATE OF THIS AGREEMENT.
8. Insurance. The Agent shall have received (i) copies of, or an
insurance broker's or agent's certificate as to coverage under, the insurance
policies required by the Agreement and the applicable provisions of the Security
Documents, each of which policies shall be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement and to name
the Agent as additional insured, in form and substance satisfactory to the
Collateral Agent and (ii) confirmation from such insurance broker that the scope
and amount of coverage maintained by the Borrower and its Subsidiaries are
comparable to the scope and amount of the insurance maintained by other
companies of similar size in the same industry and general location. TO BE
COMPLETED 30 DAYS AFTER THE DATE OF THIS AGREEMENT.
9. Solvency. If requested by the Agent, the Agent shall have received
(i) a satisfactory solvency opinion from an independent valuation firm
satisfactory to the Issuing Banks which shall document the solvency of the
Borrower and its Subsidiaries, on a consolidated basis, after giving effect to
the execution, delivery and performance of the Credit Documents, the other
transactions contemplated thereby and the extensions of credit contemplated
hereby and (ii) a certificate from the chief financial officer of the
Borrower (in his capacity as chief financial officer) as to the solvency of each
of the Borrower and its Subsidiaries, on a consolidated basis, after giving
effect to the execution, delivery and performance of the Credit Documents, the
other transactions contemplated hereby and the extensions of credit contemplated
hereunder. TO BE COMPLETED 60 DAYS AFTER THE DATE OF THIS AGREEMENT.
10. Environmental Reports. If requested by the Agent, the Agent shall
have received environmental assessment reports from E.vironment, Inc. with
respect to processing, refining and other facilities and other parcels of real
property owned or leased by the Borrower and the Midstream Subsidiaries, and the
Issuing Banks shall be reasonably satisfied with the potential environmental
liabilities to which the Borrower and its Subsidiaries may be subject based on
such reports. TO BE COMPLETED 60 DAYS AFTER THE DATE OF THIS AGREEMENT.
11. Title Vested in Borrower. The Agent and the Issuing Banks shall be
reasonably satisfied that all filings and other actions required to be taken or
made in order to vest title to all of the Properties of the Borrower and the
Midstream Subsidiaries shall have been taken or made and are in full force and
effect. TO BE COMPLETED 60 DAYS AFTER THE DATE OF THIS AGREEMENT.
12. Mortgages. The Collateral Agent shall receive, on or before August
9, 2002, evidence of the completion of all recordings and filings of each
initial "Mortgage" (as defined in the L/C Agreement)(which "initial" Mortgages
consist of Mortgages filed in Colorado, Wyoming and New Mexico) as may be
necessary, in the opinion of the Collateral Agent, to perfect the Liens in favor
of the Collateral Agent created by such Mortgages. Thereafter, the Collateral
Agent shall receive, within fifteen Business Days of the delivery of any
additional Mortgage to the Borrower, evidence of such recordings and filings as
may be necessary, in the opinion of the Collateral Agent, to perfect the Liens
in favor of the Collateral Agent created by such additional Mortgage. Upon the
request of Collateral Agent, the Borrower shall provide all assistance as may be
necessary in connection with the preparation of the Mortgages.
13. Consents to the Pledging of Excluded Equity Interest. TWC shall use
its best efforts to obtain all third party consents necessary to pledge the
Excluded Equity Interests in (other than the Equity Interest in Williams Mobile
Bay Producer Services, L.L.C. and the Equity Interest of Williams Energy
Partners L.P. held by Williams GP LLC) pursuant to the Pledge Agreement. TO BE
REQUESTED 30 DAYS AFTER THE DATE OF THIS AGREEMENT AND TO BE PURSUED DILIGENTLY
THEREAFTER
14. Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated hereby
or thereby as it shall reasonably request.
ANNEX E
SCHEDULE XIV
MIDSTREAM SUBSIDIARIES
Delaware
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Williams Energy Services, L.L.C.
Williams Natural Gas Liquids, Inc.
Williams Midstream Natural Gas Liquids, Inc.
Williams Express, Inc. (a Delaware corporation)
Williams Field Services Group, Inc.
Williams Alaska Pipeline Company, L.L.C.
Williams Bio-Energy, L.L.C.
Williams Merchant Services Company, Inc.
Mapco, Inc.
WFS Enterprises, Inc.
WFS-Liquids Company
Williams Field Services Company
Williams Gas Processing Company
Williams Gas Processing - Wamsutter Company
North Padre Island Spindown, Inc.
Williams Ethanol Services, Inc.
Williams Energy Marketing & Trading Company
Worthington Generation, L.L.C.
Memphis Generation, L.L.C.
Gas Supply, L.L.C.
Williams Generation Company - Hazelton
Juarez Pipeline Company
MAPL Investments, Inc.
Williams Refining & Marketing, L.L.C.
Williams Memphis Terminal, Inc.
Williams Mid-South Pipelines, L.L.C.
Williams Olefins, L.L.C.
Williams Olefins Feedstock Pipelines, L.L.C.
Williams Generating Memphis, LLC
Williams Field Services-Gulf Coast Company, L.P.
Williams Gas Pipeline Company, L.L.C.
Williams Petroleum Pipeline Systems, Inc.
WFS - NGL Pipeline Company Inc.
WFS - Offshore Gathering Company
Baton Rouge Fractionators, L.L.C.
Tri-States NGL Pipeline, L.L.C.
WILPRISE Pipeline Company, L.L.C.
Alaska
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Williams Express, Inc. (an Alaska corporation)
Williams Alaska Petroleum, Inc.
Williams Alaska Air Cargo Properties, L.L.C.
Williams Lynxs Alaska CargoPort, L.L.C.
Texas
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Black Marlin Pipeline Company
Rio Grande Pipeline Company
Kansas
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Nebraska Energy, L.L.C
EXHIBIT A
Please see attached.