EXHIBIT 10.13
[EXECUTION COPY]
U.S. $400,000,000
CREDIT AGREEMENT
Dated as of July 31, 2002
among
THE WILLIAMS COMPANIES, INC.
as Borrower
CITICORP USA, INC.
as Agent and Collateral Agent
BANK OF AMERICA N.A.
as Syndication Agent
CITIBANK, N.A.
BANK OF AMERICA N.A.
as Issuing Banks
THE BANKS NAMED HEREIN
as Banks
Arranger:
SALOMON SMITH BARNEY INC.
TABLE OF CONTENTS
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Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Certain Defined Terms.................................................................1
SECTION 1.2. Computation of Time Periods..........................................................21
SECTION 1.3. Accounting Terms.....................................................................21
SECTION 1.4. Miscellaneous........................................................................21
SECTION 1.5. Ratings..............................................................................21
ARTICLE II
AMOUNTS AND TERMS OF THE LETTERS OF CREDIT
SECTION 2.1. Fees.................................................................................22
SECTION 2.2. Reduction of the Commitments.........................................................22
SECTION 2.3. Prepayments..........................................................................22
SECTION 2.4. Increased Costs......................................................................23
SECTION 2.5. Payments and Computations............................................................24
SECTION 2.6. Taxes................................................................................25
SECTION 2.7. Sharing of Payments, Etc.............................................................27
SECTION 2.8. Optional Termination.................................................................28
SECTION 2.9. Extension of Termination Date........................................................28
SECTION 2.10. Letter of Credit Facility...........................................................29
ARTICLE III
CONDITIONS
SECTION 3.1. Conditions Precedent to Initial Issuance.............................................32
SECTION 3.2. Conditions Precedent to an Issuance of a Letter of Credit............................33
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i
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the Borrower.......................................34
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.1. Affirmative Covenants................................................................39
SECTION 5.2. Negative Covenants...................................................................44
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Events of Default....................................................................50
SECTION 6.2. LC Cash Collateral Accounts..........................................................52
ARTICLE VII
[Intentionally Omitted]
ARTICLE VIII
THE AGENT; ISSUING BANK; The collateral Agent; OTHERS
SECTION 8.1. Agent's Authorization and Action.....................................................53
SECTION 8.2. Agent's Reliance, Etc................................................................53
SECTION 8.3. Issuing Bank's Reliance, Etc.........................................................54
SECTION 8.4. Rights...............................................................................54
SECTION 8.5. Bank Credit Decision.................................................................55
SECTION 8.6. Indemnification......................................................................55
SECTION 8.7. Successor Agent......................................................................55
SECTION 8.8. Collateral Agent's Authorization and Action..........................................56
SECTION 8.9. Collateral Agent's Reliance, Etc.....................................................56
SECTION 8.10. Collateral Agent and Its Affiliates.................................................56
SECTION 8.11. Bank Credit Decision................................................................57
SECTION 8.12. Certain Rights of the Collateral Agent..............................................57
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SECTION 8.13. Collateral Agent Indemnification....................................................57
SECTION 8.14. Successor Collateral Agent..........................................................58
SECTION 8.15. Other Agents; the Arranger..........................................................58
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Amendments, Etc......................................................................59
SECTION 9.2. Notices, Etc.........................................................................59
SECTION 9.3. No Waiver; Remedies..................................................................60
SECTION 9.4. Costs and Expenses...................................................................60
SECTION 9.5. Right of Set-off.....................................................................61
SECTION 9.6. Binding Effect; Transfers............................................................61
SECTION 9.7. [Intentionally Omitted.].............................................................64
SECTION 9.8. Governing Law........................................................................64
SECTION 9.9. Interest.............................................................................64
SECTION 9.10. Execution in Counterparts...........................................................65
SECTION 9.11. Survival of Agreements, Representations and Warranties, Etc.........................65
SECTION 9.12. Undertaking; Post Closing Actions...................................................65
SECTION 9.13. Confidentiality.....................................................................65
SECTION 9.14. WAIVER OF JURY TRIAL................................................................66
SECTION 9.15. FORUM SELECTION AND CONSENT TO JURISDICTION.........................................66
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Schedules and Exhibits
Schedule I -- Bank Information
Schedule II -- Notice Information for Borrower
Schedule III -- Permitted Liens
Schedule IV -- Commitments
Schedule V -- Rating Categories
iii
Schedule VI -- Existing Projects
Schedule VII -- [Intentionally Omitted]
Schedule VIII -- [Intentionally Omitted]
Schedule IX -- Liens Securing Existing Debt/Obligations
Schedule X -- Midstream Subsidiaries
Schedule XI -- Progeny Facilities
Schedule XII -- Post-Closing Items
Schedule XIII -- Outstanding Letters of Credit
Exhibit A -- Opinion of William G. von Glahn
Exhibit B-1 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
(Enforceability)
Exhibit B-2 -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
(Perfection)
Exhibit C -- Existing Loans and Investments in WCG Subsidiaries
Exhibit D -- Form of Transfer Agreement
Exhibit E -- Notice of Letter of Credit
Exhibit F -- Form of Security Agreement
Exhibit G -- Form of LLC Guaranty
Exhibit H -- Form of Midstream Guaranty
Exhibit I -- Form of Pledge Agreement
Exhibit J -- Form of Holdings Guaranty
iv
CREDIT AGREEMENT
This Credit Agreement, dated as of July 31, 2002 (as may be
amended, modified, supplemented, renewed, extended or restated from time to
time, this "Agreement"), is by and among The Williams Companies, Inc. and its
Subsidiaries named herein and parties hereto, the various lenders as are or may
become parties hereto; the Issuing Bank, and Citicorp USA, Inc., as Agent and
Collateral Agent. In consideration of the mutual covenants and agreements
contained herein, the Borrower, the Agent and the Banks hereby agree as set
forth herein.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower may from time to time request that an
Issuing Bank issue Letters of Credit pursuant to the terms and conditions and in
the amounts set forth herein.
WHEREAS, each Issuing Bank is willing, on the terms and
subject to the conditions hereinafter set forth (including Article III), to
issue Letters of Credit and each Bank is willing to hold a participation
interest in such Letters of Credit on the terms and subject to the conditions
hereinafter set forth (including Article III).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Acceptable Security Interest" in any property shall mean a
Lien granted pursuant to a Credit Document (a) which exists in favor of
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 Agent, the
Issuing Bank and the Banks, (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, 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 Agent, the Issuing Bank and the
Banks, 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.
"Additional Mortgage" has the meaning specified in Section
5.1(f).
"Agent" means Citicorp USA, Inc. in its capacity as agent
pursuant to Article VIII hereof and any successor Agent pursuant to
Section 8.7.
"Agreed Exceptions" means exceptions to title to be set forth
in the Mortgage that are customary in similar mortgages, do not
materially detract from the value of the assets covered thereby, do not
secure Debt and arise in the ordinary course of business.
"Agreement" has the meaning specified in the first paragraph
of this Agreement.
"American Soda" means American Soda, L.L.P., a Colorado
limited liability partnership.
"Applicable Issued LC Margin" means, for purposes of Section
2.1(b)(ii), the rate per annum set forth in Schedule V under the
heading "Applicable Issued LC Margin" for the relevant Rating Category
applicable to the Borrower from time to time, and the Applicable Issued
LC Margin for purposes of Section 2.1(b)(ii) shall change when and as
the relevant applicable Rating Category changes, provided that for each
day on which the aggregate stated amount of the Letters of Credit
issued and outstanding hereunder is equal to or greater than 25% of the
aggregate amount of the total Letter of Credit Commitments hereunder,
the Applicable Issued LC Margin for the Borrower shall be increased by
0.250% for such day.
"Applicable LC Commitment Margin" means, for purposes of
Section 2.1(b)(ii), the rate per annum set forth in Schedule V under
the heading "Applicable LC Commitment Margin" for the relevant Rating
Category applicable to the Borrower from time to time, and the
Applicable LC Commitment Margin for purposes of Section 2.1(b)(ii)
shall change when and as the relevant applicable Rating Category
changes.
"Arranger" means Salomon Smith Barney Inc.
"Asset" or "property" (in each case, whether or not
capitalized) means any right, title or interest in any kind of property
or asset, whether real, personal or mixed, and whether tangible or
intangible.
"Attributable Obligation" of any Person means, with respect to
any Sale and Lease-Back Transaction of such Person as of any particular
time, the present value at such time discounted at the rate of interest
implicit in the terms of the lease of the obligations of the lessee
under such lease for net rental payments during the remaining term of
the lease (including any period for which such lease has been extended
or may, at the option of such Person, be extended).
"Banks" means the lenders listed on the signature pages hereof
and each other Person that becomes a Bank pursuant to the last sentence
of Section 8.6(a).
"Barrett Loan" means that loans made pursuant to the Barrett
Loan Agreement.
"Barrett Loan Agreement" means the Credit Agreement, dated as
of July 31, 2002, among TWC, Williams Production Holdings LLC ("RMT
LLC"), Williams Production RMT Company ("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.
2
"Base Rate" means a fluctuating interest rate per annum as
shall be in effect from time to time which rate per annum shall at all
times be equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1 percent per annum plus (ii) the rate obtained
by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such three
week period by the Federal Reserve Board for determining the
maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities)
three-month Dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period
of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring Dollar deposits of Citibank in the
United States; and
(c) the sum of 1/2 of one percent per annum plus the
Federal Funds Rate in effect from time to time.
"Borrower" means TWC.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City.
"Business Entity" means a partnership, limited partnership,
limited liability partnership, corporation (including a business
trust), limited liability company, unlimited liability company, joint
stock company, trust, unincorporated association, joint venture or
other entity.
"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.
3
"Cash Collateralize" means, with respect to a Letter of
Credit, the deposit of immediately available funds into the LC Cash
Collateral Account in an amount equal to the stated amount of, and all
Letter of Credit fees related to, such Letter of Credit.
"Cash Flow" means, for any period, the Consolidated cash flow
from operations of the Borrower and its Subsidiaries for such period
determined in accordance with generally accepted accounting principles;
provided that in determining such Consolidated cash flow from
operations, there shall be excluded therefrom (to the extent otherwise
included therein) (a) any positive cash flow from operations of any
Person (including Project Financing Subsidiaries) subject to any
restriction prohibiting the distribution of cash to the Borrower or any
of its Subsidiaries, except and then only to the extent of the amount
thereof that the 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 the 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.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the 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 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.
"Citibank" means Citibank, N.A.
"Citicorp" means Citicorp USA, Inc.
"Code" means, as appropriate, the Internal Revenue Code of
1986, as amended, or any successor federal tax code, and any reference
to any statutory provision shall be deemed to be a reference to any
successor provision or provisions.
"Collateral" means all personal and real property comprising
the Midstream Assets of the Borrower, each Guarantor and each of the
Midstream Subsidiaries whether now owned or hereafter acquired;
provided that no real or personal property of RMT LLC or WGPC shall be
included as "Collateral".
4
"Collateral Account" means a deposit account of the Borrower
(i) with a commercial banking institution that is a member of the
Federal Reserve System, has its short-term deposits rated A- or higher
by Moody's or Standard & Poor's and has a combined capital, surplus and
undivided profits of not less than $1,000,000,000, (ii) over which the
Borrower has no control, (iii) in which an Acceptable Security Interest
exists, (iv) as to which (if not held with the Collateral Agent)
Borrower has complied with Sections 3.1 and 3.6 of the Security
Agreement, and (v) deposits in which, if invested, may be invested only
in those investments permitted under Section 5.2(g).
"Collateral Agent" means Citicorp in its capacity as
Collateral Agent pursuant to Article VIII and any successor in such
capacity pursuant to Section 8.14.
"Collateral Trust Agreement" means the Collateral Trust
Agreement dated as of July 31, 2002 by and among the Company, several
of its Subsidiaries and Citibank N.A., as Collateral Trustee, which
Collateral Trust Agreement provides for certain collateral to be held
by such Collateral Trustee for the benefit of the lenders, issuing
banks and agents under this Agreement, the lenders, issuing banks and
agents under the Multiyear Williams Credit Agreement and the holders of
certain public debt of TWC.
"Collateral Trustee" means Citibank, N.A., in its capacity as
Collateral Trustee under the terms of the Collateral Trust Agreement
and its successors or assigns appointed pursuant to Article 5 of the
Collateral Trust Agreement.
"Consolidated" refers to the consolidation of the accounts of
any Person and its consolidated subsidiaries in accordance with
generally accepted accounting principles.
"Consolidated Net Worth" of any Person means the Net Worth of
such Person and its Subsidiaries on a Consolidated basis plus, in the
case of the Borrower, the Designated Minority Interests to the extent
not otherwise included; provided that in no event shall the value
ascribed to Designated Minority Interests for the Subsidiaries of the
Borrower described in clauses (i) through (v), (vii) and (viii) of the
definition of "Designated Minority Interests" below exceed $136,892,000
in the aggregate for the purposes of this definition. As used in this
definition, "Designated Minority Interests" means, as of any date of
determination, the total value, determined in accordance with generally
accepted accounting principles, of the minority interests of Persons
other than the Borrower and Subsidiaries of the Borrower in the
following Subsidiaries of the Borrower: (i) El Furrial, (ii) PIGAP II,
(iii) Nebraska Energy, (iv) Seminole, (v) American Soda, (vi) the
Midstream Asset MLP, (vii) Apco Argentina, Inc. and (viii) other
Subsidiaries with a value not to exceed in the aggregate $9,000,000 for
such other Subsidiaries not referred to in items (i) through (vii);
provided that minority interests which provide for a stated preferred
cumulative return shall not be included in "Designated Minority
Interests".
"Consolidated Tangible Net Worth" of any Person means the
Tangible Net Worth of such Person and its Subsidiaries on a
Consolidated basis.
5
"Credit Documents" means this Agreement, the Security
Documents, the Letter of Credit Documents, each Letter of Credit, all
documents, instruments, agreements, certificates and notices at any
time executed and/or delivered to the Agent, the Collateral Trustee,
any Issuing Bank, or any Bank in connection therewith.
"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 this Agreement of the Subsidiaries of such Person,
and indebtedness incurred after the date of this Agreement of any other
entity that has been created or utilized, directly or indirectly, for
financing purposes of such Person or any of its Subsidiaries, (viii)
obligations of such Person under guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (vii) of this definition, (ix) indebtedness or
obligations of others of the kinds referred to in clauses (i) through
(viii) of this definition secured by any Lien on or in respect of any
property of such Person and (x) any Attributable Obligations of such
Person; provided, however, that Debt shall not include (w) any
obligations of the Borrower in respect of the FELINE PACS; (x)
[Intentionally Omitted]; (y) Non-Recourse Debt; (z) Performance
Guaranties, (aa) 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 (bb) guarantees by such Person of obligations of others
which are not obligations described in clauses (i) through (x) of this
definition, and provided further that where any such indebtedness or
obligation of such Person is made jointly, or jointly and severally,
with any third party or parties other than any Subsidiary of such
Person, the amount thereof for the purpose of this definition only
shall be the pro rata portion thereof payable by such Person, so long
as such third party or parties have not defaulted on its or their joint
and several portions thereof and can reasonably be expected to perform
its or their obligations thereunder. For the avoidance of doubt, "Debt"
shall include, without duplication, the principal amount of the
obligations of the Borrower hereunder in respect of the Letters of
Credit that have been drawn upon by the beneficiaries to the extent of
the amount drawn.
"Default" means any event or condition that, upon the giving
of notice or passage of time or both, if required by Section 6.1, would
constitute an Event of Default.
6
"Designated Midstream Subsidiaries" means Nebraska Energy; 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 Energy Partners L. P.;
Williams Alaska Air Cargo Properties, L.L.C.; Williams Mobile Bay
Producer Services, L.L.C.; and Williams GP LLC.
"Designating Bank" has the meaning specified in Section
8.6(g).
"Dollars" and "$" means lawful money of the United States of
America.
"EDGAR" means "Electronic Data Gathering, Analysis and
Retrieval" system, a database maintained by the Securities and Exchange
Commission containing electronic filings of issuers of certain
securities.
"El Furrial" means WilPro Energy Services (El Furrial)
Limited, a Cayman Islands corporation.
"Eligible Assignee" means (i) any Bank, (ii) any affiliate of
any Bank, (iii) in the case of an assignment during the continuance of
an Event of Default, any fund that invests in bank loans, and (iv) any
other Person not covered by clause (i), (ii) or (iii) of this
definition that is consented to by the Borrower, the Agent and the
Issuing Bank (which consents shall not be unreasonably withheld);
provided that if any Default or Event of Default has occurred and is
continuing, no consent of the Borrower shall be required; provided
further that the Borrower nor any affiliate of the Borrower shall be an
Eligible Assignee.
"EMT" means Williams Energy Marketing & Trading Company.
"Environment" shall have the meaning set forth in 42 U.S.C.
9601(8) or any successor statute and "Environmental" shall mean
pertaining or relating to the Environment.
"Environmental Permits" mean any and all material permits,
licenses, registrations, notifications, exemptions and any other
authorization required under any Environmental Protection Statutes.
"Environmental Protection Statute" shall mean any United
States local, state or federal, or any foreign, law, statute,
regulation, order, consent decree or other agreement or Governmental
Requirement arising from or in connection with or relating to the
protection or regulation of the Environment, including those laws,
statutes, regulations, orders, decrees, agreements and other
Governmental Requirements relating to the disposal, cleanup,
production, storing, refining, handling, transferring, processing or
transporting of Hazardous Waste, Hazardous Substances or any pollutant
or contaminant, wherever located.
"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.
7
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which is a member of a group of which the Borrower is a
member and which is under common control within the meaning of Section
414 of the Code and the regulations promulgated thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect from
time to time.
"Events of Default" has the meaning specified in Section 6.1.
"Excluded Collateral" means (i) all personal and real property
owned by RMT LLC, WGPC and the Designated Midstream Subsidiaries and
(ii) the Excluded Equity Interest.
"Excluded Equity Interests" means the Equity Interests 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, L.L.C. 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 XII the Equity Interest of such Designated
Midstream Subsidiary shall cease to be an "Excluded Equity Interest".
"Federal Funds Rate" means, for any day, a fluctuating
interest rate per annum equal for such day to the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three federal funds brokers of recognized standing
selected by it.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any federal agency or authority of the
United States from time to time succeeding to its function.
"FELINE PACS" means those certain units, as described in the
Borrower's prospectus supplement dated January 7, 2002, issued by the
Borrower in January, 2002 in an aggregate face amount of
$1,100,000,000.
"Financing Transaction" means, with respect to any Person, any
individual or group of related Persons (i) prepaid forward sales of
oil, gas, minerals or other assets by such Person, (ii) interest rate,
currency, commodity or other swaps, collars, caps, options or other
derivatives or (iii) sales or transfers of assets, the primary effect
of which or an important purpose of which is to receive money or credit
in advance coupled with an obligation to repay or perform in the future
to effect repayment thereof, including any contract monetization or
production payment. Notwithstanding the foregoing, the
8
following transactions, if entered into in the ordinary course of
business by the Borrower or any of its affiliates and otherwise
permitted hereunder, shall be deemed not to be Financing Transactions:
(a) sales or exchanges of property fully delivered within 90 days of
receipt of the first payment by a counterparty therefor, (b) interest
rate, currency, commodity or other swaps, collars, caps, options or
other derivatives (including prepayment of forward sales of property by
a counterparty of the 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 the Borrower or any of its affiliates to deliver such
property without subrogation or other recourse against the Borrower or
any of its affiliates by any party to the transaction. The term
"contract monetization" as used in this definition means the
acceleration of cash flows a contract party expects to receive from
such contract pursuant to which the contract party retains a
significant ongoing obligation to perform, but shall in any event
exclude transactions commonly referred to as securitizations. The term
"production payment" as used in this definition means a limited-term
non-cost bearing right to receive produced hydrocarbons or the proceeds
therefrom satisfiable in cash or in kind up to an aggregate defined
amount of cash and/or hydrocarbons.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar
months ending on December 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "2002 Fiscal Year") refer
to the Fiscal Year ending on December 31 of such calendar year.
"Fitch" means Fitch, Inc.
"Governmental Authority" means the government of the United
States, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other Person exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Governmental Requirements" means all judgments, orders,
writs, injunctions, decrees, awards, laws, ordinances, statutes,
regulations, rules, franchises, permits, certificates, licenses,
authorizations and the like and any other requirements of any
government or any commission, board, court, agency, instrumentality or
political subdivision thereof.
"Guaranties" means, collectively, the LLC Guaranty, the
Midstream Guaranty and the Holdings Guaranty.
"Guarantor" and "Guarantors" means, individually and
collectively, as applicable, RMT LLC, WGPC, EMT and each of the
Midstream Subsidiaries.
9
"Hazardous Substance" shall have the meaning set forth in 42
U.S.C. Section 9601(14) and shall also include each other substance
considered to be a hazardous substance under any Environmental
Protection Statute.
"Hazardous Waste" shall have the meaning set forth in 42
U.S.C. Section 6903(5) and shall also include each other substance
considered to be a hazardous waste under any Environmental Protection
Statute (including 40 C.F.R. Section 261.3).
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
obligations.
"Holdings Guaranty" means a Guaranty executed by RMT LLC in
substantially the form of Exhibit J, as amended, supplemented or
modified from time to time.
"Hydrocarbons" means oil, gas, casinghead gas, condensate,
distillate, and liquid hydrocarbons.
"Indemnified Parties" shall have the meaning set forth in
Section 8.4(c).
"Insufficiency" means, with respect to any Plan, the amount,
if any, by which the present value of the vested benefits under such
Plan exceeds the fair market value of the assets of such Plan allocable
to such benefits.
"Interest Expense" means, for any period, the gross interest
expense (determined in accordance with generally accepted accounting
principles) of the Borrower and its Consolidated Subsidiaries accrued
for such period, including that attributable to the capitalized amount
of obligations owing under Capital Leases, all debt discount amortized
in such period and all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, net of interest income (determined in accordance with
generally accepted accounting principles) of the Borrower and its
Consolidated Subsidiaries, but excluding such interest expense, debt
discount, commissions, discounts and other fees and charges and
interest income to the extent attributable to the Non-Recourse Debt of
Project Financing Subsidiaries.
"Issuing Banks" means Citibank, N.A. and Bank of America N.A.
in their capacity as issuers of Letters of Credit.
"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.
10
"LC Cash Collateral Accounts" has the meaning assigned to such
term in Section 6.2.
"LC Participation Percentage" of any Bank means, at any time,
the amount set opposite such Bank's name on Schedule IV or as reflected
for such Bank in the relevant Transfer Agreement to which it is a
party, as such amount may be terminated, reduced or increased pursuant
to Section 9.6(a).
"Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Lending Office" opposite its name on
Schedule I hereto or in the relevant Transfer Agreement delivered
pursuant to Section 8.6(a), or such other office of such Bank as such
Bank may from time to time specify to the Borrower and the Agent.
"Letter of Credit" has the meaning assigned to such term in
Section 2.10.
"Letter of Credit Commitment" of any Issuing Bank means, at
any time, the amount set opposite such Bank's name on Schedule IV or as
reflected for such Bank in the relevant Transfer Agreement to which it
is a party, as such amount may be terminated, reduced or increased
pursuant to Section 2.2, Section 2.8, Section 6.1 or Section 9.6(a).
"Letter of Credit Documents" means, with respect to any Letter
of Credit, collectively, any application therefor and any other
agreements, instruments, guarantees or other documents (whether general
in application or applicable only to such Letter of Credit) governing
or providing for (a) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b) any
collateral security for any of such obligations, each as the same may
be modified and supplemented and in effect from time to time.
"Letter of Credit Interest" means, for each Bank, (i) such
Bank's participation interest in Letters of Credit (and, in the case of
an Issuing Bank, such Issuing Bank's retained interest in Letters of
Credit issued by it), and (ii) such Bank's rights and interests in
Reimbursement Obligations and fees, interest and other amounts payable
in connection with Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" means at any time and in respect
of any Letter of Credit, the sum (without duplication) of (a) the
maximum possible undrawn amount of such Letter of Credit at such time
(after giving effect to any step up provision or other mechanism for
increase, if any, and assuming that all conditions to drawing have been
satisfied) plus (b) the aggregate unpaid amount of all drawings under
such Letter of Credit that are unpaid at such time. For purposes of
this Agreement, a Bank shall be deemed to hold a Letter of Credit
Liability in an amount equal to its LC Participation Percentage in the
related Letter of Credit under Section 2.10.
"Lien" means any mortgage, lien, pledge, charge, deed of
trust, security interest, encumbrance or other analogous type of
preferential arrangement to secure or provide for the payment of any
Debt, trade payable, obligation or other liability of any Person,
whether arising by contract, operation of law or otherwise (including
the interest of a
11
vendor or lessor under any conditional sale agreement, capital lease or
other title retention agreement).
"LLC Guaranty" means a Guaranty executed by WGPC in
substantially the form of Exhibit G, as amended, supplemented or
modified from time to time.
"Major Subsidiary" means any Subsidiary of the Borrower with
assets having a book value of $1,000,000,000 or more.
"Majority Banks" means at any time (i) Banks having more than
50% of the Letter of Credit Commitments, or (ii) if the Letter of
Credit Commitments have terminated and any Letter of Credit or any
Letter of Credit Interest is outstanding, then Banks having more than
50% of the sum of the aggregate unpaid principal amount of the
outstanding Letter of Credit Interests (provided that for purposes of
this definition and Sections 2.8, 6.1 and 7.1 neither the Borrower nor
any Subsidiary or Related Party of the Borrower, if a Bank, shall be
included in (i) the Banks owed or holding Letter of Credit Interests or
(ii) determining the aggregate amount of the Letter of Credit
Interests).
"MAPL" means Mid-America Pipeline Company, LLC, a Delaware
limited liability company.
"MAPL Asset Disposition" means the sale, transfer or other
distribution of the equity interests in or assets of MAPL.
"Material Subsidiary" means (i) each Major Subsidiary and each
other Subsidiary of the Borrower (other than a Project Financing
Subsidiary) that itself (on an unconsolidated, stand alone basis) owns
in excess of 5% of the book value of the Consolidated assets of the
Borrower and its Consolidated Subsidiaries, (ii) each of TGPL, TGT and
NWP and (iii) each Subsidiary that owns any direct or indirect interest
in TGPL, TGT and NWT.
"Midstream Assets" means all assets now owned or hereafter
acquired by the Borrower or any of its Subsidiaries, which are either
individually, or in conjunction with other Midstream Assets, necessary
for the conduct of the Midstream Business by Borrower and its
Subsidiaries, including the Refineries in Alaska and Tennessee, except
that "Midstream Assets" shall not include (a) the assets being part of
either of the MAPL Asset Disposition or Seminole Asset Disposition
unless the MAPL Asset Disposition or Seminole Assets Disposition, as
applicable, shall not have occurred on or prior to the date that is 60
days from the date of this Agreement and (b) any assets of Williams GP
LLC, Williams Energy Partners L.P. or their Subsidiaries.
"Midstream Asset MLP" means one or more master limited
partnerships included in the Consolidated financial statements of the
Borrower to which the Borrower has transferred or shall transfer
certain assets relating to the Midstream Business as well as certain
marine and inland terminals and related pipeline systems, including
Williams Energy Partners L.P.
12
"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 a Guaranty executed by certain
Guarantors in substantially the form of Exhibit H, as amended,
supplemented or modified from time to time.
"Midstream Subsidiaries" means each Subsidiary of the
Borrower, excluding 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 of the
Midstream Business that either (1) owns, leases or has possession of
Midstream Assets that have an aggregate fair market value of $1,000,000
or more, or (2) owns, leases or has possession of any Midstream Asset
or right that is material to the ownership, leasing or operation of the
Midstream Assets taken as a whole.
"Moody's" means Moody's Investors Service, Inc. or its
successor.
"Mortgage" means each mortgage, deed of trust or comparable
real property Lien document and Security Agreement executed by any
Guarantor from time to time, in such form as necessary to grant an
Acceptable Security Interest in favor of the Collateral Trustee for the
benefit of itself and other parties, as more fully described in the
Collateral Trust Agreement.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate of the Borrower is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"Multiple Employer Plan" means an employee benefit plan as
defined in Section 3(2) of ERISA, other than a Multiemployer Plan,
subject to Title IV of ERISA to which the Borrower or any ERISA
Affiliate of the Borrower, and one or more employers other than the
Borrower or an ERISA Affiliate of the Borrower, is making or accruing
an obligation to make contributions or, in the event that any such plan
has been terminated, to which the Borrower or any ERISA Affiliate of
the Borrower made or accrued an obligation to make contributions during
any of the five plan years preceding the date of termination of such
plan.
"Multiyear Williams Credit Agreement" means that certain
Credit Agreement dated as of July 25, 2000 among the Borrower, NWP,
TGPL and TGT, as Borrowers; the financial institutions party thereto,
as "Banks" thereunder; JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank) and Commerzbank AG, as Co-Syndication Agents; Credit
Lyonnais New York Branch, as Documentation Agent; and Citibank, N.A. as
Agent (as the same may from time to time be amended, supplemented,
restated or otherwise modified).
"Nebraska Energy" means Nebraska Energy, L.L.C., a Kansas
limited liability company.
13
"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 the Borrower
determines in good faith should be reserved for post-closing
adjustments (including indemnification payments, tax expenses and
purchase price adjustments, to the extent the Person delivers to the
Agent a certificate signed by an Officer of such Person as to such
determination), it being understood and agreed that on the day that all
such post-closing adjustments have been determined (which shall not be
later than 120 days following the date of the respective 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 the Borrower or any Subsidiary of the Borrower that is
not a Project Financing Subsidiary), improvement, installation, design,
engineering, construction, development, completion, maintenance or
operation of, or otherwise to pay costs and expenses relating to or
providing financing for, a project listed on Schedule VI or any new
project commenced or acquired after the date hereof, which Debt does
not provide for recourse against the Borrower or any Subsidiary of the
Borrower (other than a Project Financing Subsidiary and such recourse
as exists under a Performance Guaranty) or any property or asset of the
Borrower or any Subsidiary of the Borrower (other than 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
14
any Lien securing such Debt or otherwise add additional security or
support for such Debt.
"Notice of Letter of Credit" has the meaning specified in
Section 2.10(a).
"NWP" means Northwest Pipeline Corporation, a Delaware
corporation.
"Obligations" means all Letter of Credit Liabilities and all
other Debt, advances, debts, liabilities, obligations, indemnities,
covenants and duties owing by the Borrower or any Guarantor to any
Bank, the Agent, any Issuing Bank, or to any other Person required to
be indemnified under any Credit Document, of any kind or nature,
present or future, whether or not evidenced by any note, guaranty or
other instrument, arising under or in connection with this Agreement or
any other Credit Document or any of the transactions evidenced by this
Agreement or any other Credit Document, whether or not for the payment
of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and
however acquired. The term "Obligations" includes all interest,
charges, expenses, fees, attorneys' fees and disbursements and any
other sum chargeable to the Borrower under this Agreement or any other
Credit Document.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Performance Guaranty" means any guaranty issued in connection
with any Non-Recourse Debt that (i) if secured, is secured only by
assets of or Equity Interests in a Project Financing Subsidiary, and
(ii) guarantees to the provider of such Non-Recourse Debt or any other
Person (a) performance of the improvement, installation, design,
engineering, construction, acquisition, development, completion,
maintenance or operation of, or otherwise affects any such act in
respect of, all or any portion of the project that is financed by such
Non-Recourse Debt, (b) completion of the minimum agreed equity
contributions to the relevant Project Finance Subsidiary, or (c)
performance by a Project Financing Subsidiary of obligations to Persons
other than the provider of such Non-Recourse Debt.
"Permitted Liens" means Liens specifically described on
Schedule III.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other Business Entity, or
a government or any political subdivision or agency thereof.
"PIGAP II" means WilPro Energy Services (PIGAP II) Limited, a
Cayman Islands corporation.
"Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) as defined in Section 3(2) of ERISA currently
maintained by, or in the event such plan has terminated, to which
contributions have been made or an obligation to make such
contributions has accrued during any of the five plan years preceding
the date of the termination of such plan by, the Borrower or any ERISA
Affiliate of the Borrower for
15
employees of the Borrower or any such ERISA Affiliate and covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code.
"Pledge Agreement" means a Pledge Agreement executed by the
Borrower and certain Guarantors in substantially the form of Exhibit I,
as amended, supplemented or modified from time to time.
"Progeny Facilities" means the financing facilities
specifically described on Schedule XI.
"Project Financing Subsidiaries" means any non-material
Subsidiary of the Borrower whose principal purpose is to incur
Non-Recourse Debt and/or construct, lease, own or operate the assets
financed thereby, or to become a direct or indirect partner, member or
other equity participant or owner in a Business Entity 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 the Borrower or its
Subsidiaries or other Persons. For purposes of this definition, a
"non-material Subsidiary" shall mean any Consolidated Subsidiary of the
Borrower 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 4.1(e) or 5.1, has total assets which account for less than
five percent (5%) of the total Consolidated assets of the Borrower and
its Consolidated Subsidiaries, as shown on such Consolidated balance
sheet; provided, that the aggregate assets of the non-material
Subsidiaries shall not comprise more than ten percent (10%) of the
total Consolidated assets of the Borrower and its Consolidated
Subsidiaries, as shown on such Consolidated balance sheet.
"Public Filings" means the Borrower's, NWP's, TGPL's and TGT's
(i) annual report on Form 10-K/A for the year ended December 31, 2001
and (ii) quarterly report on Form 10-Q for the quarter ended March 31,
2002.
"Rating Category" means, as to the Borrower, the relevant
category applicable to the Borrower from time to time as set forth on
Schedule V, which is based on the ratings (or lack thereof) of the
Borrower's senior unsecured long-term debt by S&P or Moody's. In the
event there is a split between the ratings of the Borrower's senior
unsecured long-term debt by S&P and Moody, "Rating Category" shall be
determined based on the lowest rating of the Borrower's senior
unsecured long-term debt by S&P or Moody's.
"Refined Hydrocarbons" means all products refined, separated,
fractionated, settled, and dehydrated from Hydrocarbons and all
products derived therefrom, including, without limitation, kerosene,
liquefied petroleum gas, refined lubricating oils, diesel fuels, drip
gasoline, natural gasoline, helium, sulfur and all other minerals.
"Refineries" means the equity interest in and assets owned by
the Midstream Business of the Borrower which produces Refined
Hydrocarbons and is owned
16
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 Lynx 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.
"Reg U Limited Assets" means assets that are subject to any
arrangement (as contemplated by Regulation U) with any Bank, the Agent
or any Issuing Bank (i) that restricts the right or ability of the
Borrower or its Subsidiaries to sell, pledge or otherwise dispose of
(within the meaning of Regulation U) such assets or (ii) that provides
that the exercise of such right is or may be cause for accelerating the
maturity of all or any portion of any amount payable hereunder or under
such arrangement.
"Register" shall mean the books and accounts maintained by the
Agent of the interests of each Bank under this Agreement and its Letter
of Credit Interest, including records of transfers of any interests in
this Agreement and the Letter of Credit Commitment of any Bank pursuant
to Section 9.6.
"Reimbursement Obligations" means, at any time, the
obligations of the Borrower then outstanding, or that may thereafter
arise, in respect of all Letters of Credit then outstanding to
reimburse amounts paid by any Issuing Bank in respect of any drawings
under a Letter of Credit.
"Related Party" of any Person means any corporation,
partnership, joint venture or other entity of which more than 10% of
the outstanding Equity Interests having ordinary voting power to elect
a majority of the board of directors of such corporation, partnership,
joint venture or other entity or others performing similar functions
(irrespective of whether or not at the time Equity Interests of any
other class or classes of such corporation, partnership, joint venture
or other entity shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned by such
Person or which owns at the time directly or indirectly more than 10%
of the Equity Interests having ordinary voting power to elect a
majority of the board of directors of such Person or others performing
similar functions (irrespective of whether or not at the time Equity
Interests of any other class or classes of such corporation,
partnership, joint venture or other entity shall or might have voting
power upon the occurrence of any contingency); provided, however, that
neither the Borrower nor any Subsidiary of the Borrower shall be
considered to be a Related Party of the Borrower or any Subsidiary of
the Borrower.
"RMT" means Williams Production RMT Company.
"RMT LLC" means Williams Production Holdings LLC.
17
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., or its successor.
"Sale and Lease-Back Transaction" of any Person means any
arrangement entered into by such Person or any Subsidiary of such
Person, directly or indirectly, whereby such Person or any Subsidiary
of such Person shall sell or transfer any property, whether now owned
or hereafter acquired to any other person (a "Transferee"), and whereby
such Person or any Subsidiary of such Person shall then or thereafter
rent or lease as lessee such property or any part thereof or rent or
lease as lessee from such Transferee or any other Person other property
which such Person or any Subsidiary of such Person intends to use for
substantially the same purpose or purposes as the property sold or
transferred.
"Security Agreement" means a Security Agreement executed by
the Borrower and certain of the Guarantors in substantially the form of
Exhibit F, as amended, supplemented or modified from time to time.
"Security Documents" means each Mortgage and Additional
Mortgage, the Security Agreement, the Pledge Agreement, the Collateral
Trust Agreement and the Guaranties.
"Seminole" means Seminole Pipeline Company, a Delaware
corporation.
"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.
"SPC" has the meaning specified in Section 9.6(g).
"Stated Termination Date" means July 30, 2003, or such later
date, if any as may be agreed to by the Borrower and the Banks pursuant
to Section 2.9.
"Subordinated Debt" means any Debt of the Borrower which is
effectively subordinated to the obligations of the Borrower hereunder.
"Subsidiary" of any Person means (i) any corporation,
partnership, joint venture or other entity of which more than 50% of
the outstanding Equity Interests having ordinary voting power to elect
a majority of the board of directors of such corporation, partnership,
joint venture or other entity or others performing similar functions
18
(irrespective of whether or not at the time Equity Interests of any
other class or classes of such corporation, partnership, joint venture
or other entity shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned by such
Person, and (ii) any Person that is under the direct or indirect
control of such Person, by voting rights, contract or otherwise, and in
accordance with generally accepted accounting principles, is
Consolidated with the Borrower in its Consolidated financial
statements.
"Synthetic Lease" means any lease (including leases that may
be terminated by the lessee at any time) of any property (whether real,
personal or mixed) (i) that is not a capital lease in accordance with
generally accepted accounting principles and (ii) in respect of which
the lessee retains or obtains ownership of the property so leased for
federal income tax purposes, other than any such lease under which such
Person is the lessor.
"Tangible Net Worth" of any Person means, as of any date of
determination, the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to
be determined in accordance with generally accepted accounting
principles, excluding, however, from the determination of total assets
(i) patents, patent applications, trademarks, copyrights and trade
names, (ii) goodwill, organizational, experimental, research and
development expense and other like intangibles, (iii) treasury stock,
(iv) monies set apart and held in a sinking or other analogous fund
established for the purchase, redemption or other retirement of capital
stock or Subordinated Debt, and (v) unamortized debt discount and
expense.
"Termination Date" means the earlier of (i) the Stated
Termination Date or (ii) the date of termination in whole of the Letter
of Credit Commitments pursuant to Section 2.2, 2.8 or 6.1.
"Termination Event" means (i) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a "reportable
event" not subject to the provision for 30-day notice to the PBGC), or
(ii) the withdrawal of the Borrower or any ERISA Affiliate of the
Borrower from a Multiple Employer Plan during a plan year in which it
was a "substantial employer," as such term is defined in Section
4001(a)(2) of ERISA, or the incurrence of liability by the Borrower or
any ERISA Affiliate of the Borrower under Section 4064 of ERISA upon
the termination of a Plan or Multiple Employer Plan, or (iii) the
distribution of a notice of intent to terminate a Plan pursuant to
Section 4041(a)(2) of ERISA or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate a Plan by the PBGC under Section 4042 of
ERISA, or (v) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.
"TGPL" means Transcontinental Gas Pipe Line Corporation, a
Delaware corporation.
19
"TGPL Bond Offering" means the $325,000,000, 8.875% Senior
Notes issued on July 3, 2002, by TGPL.
"TGT" means Texas Gas Transmission Corporation, a Delaware
corporation.
"Trading Book" means all mark to market daily and forward
traded transactions inclusive of structured portfolio transactions
consisting primarily of tolling and full requirements transactions.
"Transfer Agreement" means an agreement executed pursuant to
Section 8.6 by an assignor Bank and assignee Bank substantially in the
form of Exhibit D, which agreement shall be executed by the Borrower
and the Agent to evidence the consent of each if such consent is
required pursuant to the definition herein of "Eligible Assignee" or
the terms of Section 9.6.
"TWC" means The Williams Companies, Inc., a Delaware
corporation.
"TWC Asset Disposition" means the sale by TWC or by any of its
Subsidiaries of (a) Williams Gas Pipelines Central, Inc., (b) MAPL, (c)
Seminole, (d) the Refineries, (e) Williams Soda Products Company and
American Soda, L.L.P, (f) Williams TravelCenters, Inc., (g) Williams
Bio-Energy, LLC, (h) Williams Ethanol Services, Inc. and (i) Nebraska
Energy, L.L.C.
"TWC Preferred Stock" means the shares of preferred stock of
TWC which may be mandatorily convertible into shares of common stock of
TWC.
"WCG" means Williams Communications Group, Inc., a Delaware
corporation.
"WCG Subsidiaries" means, collectively, WCG and any direct or
indirect Subsidiary of WCG.
"WCG Synthetic Lease" means that certain Amended and Restated
Lease between State Street Bank and Trust Company of Connecticut,
National Association, as Lessor and Williams Communications, Inc., as
Lessee, dated as of September 2, 1998, as amended, which has been
terminated and was fully repaid on March 29, 2002.
"WCG Unwind Transaction" means a transaction in which (i) the
Borrower's 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, the
Borrower 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 the Borrower or any of its
Subsidiaries to WCG or WTC.
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"Wholly-Owned Subsidiary" of any Person means any Subsidiary
of such Person all of the Equity Interests in which are owned by such
Person and/or one or more other Wholly-Owned Subsidiaries of such
Person.
"WF Group" means Williams Field Services Group, Inc., a
Delaware corporation.
"WGPC" means Williams Gas Pipeline Company, L.L.C., a Delaware
limited liability company.
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
"WPRMT" means Williams Production RMT Company, a Delaware
corporation.
SECTION 1.2. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding."
SECTION 1.3. Accounting Terms. All accounting terms not specifically
defined shall be construed in accordance with general accounting principles, and
each reference herein to "generally accepted accounting principles" shall mean
U.S. generally accepted accounting principles in effect, consistently applied.
SECTION 1.4. Miscellaneous. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule and Exhibit references are to Articles
and Sections of and Schedules and Exhibits to this Agreement, unless otherwise
specified. The term "including" shall mean "including, without limitation,".
SECTION 1.5. Ratings. A rating, whether public or private, by S&P or
Moody's shall be deemed to be in effect on the date of announcement or
publication by S&P or Moody's, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or in
the absence of such announcement or publication, the effective date of, any
change in, or withdrawal or termination of, such rating. In the event the
standards for any rating by Moody's or S&P are revised, or any such rating is
designated differently (such as by changing letter designations to different
letter designations or to numerical designations), the references herein to such
rating shall be deemed to refer to the revised or redesignated rating for which
the standards are closest to, but not lower than, the standards at the date
hereof for the rating which has been revised or redesignated, all as determined
by the Majority Banks in good faith. Long-term debt supported by a letter of
credit, guaranty, insurance or other similar credit enhancement mechanism shall
not be considered as senior unsecured long-term debt. If either Moody's or S&P
has at any time more than one rating applicable to senior unsecured long-term
debt of the Borrower, the lowest such rating shall be applicable for purposes
hereof. For example, if Moody's rates some senior unsecured long-term debt of
the Borrower Ba1 and other such debt of
21
the Borrower Ba2, the senior unsecured long-term debt of the Borrower shall be
deemed to be rated Ba2 by Moody's.
ARTICLE II
AMOUNTS AND TERMS OF THE LETTERS OF CREDIT
SECTION 2.1. Fees.
(a) Agent's Fees. The Borrower agrees to pay to the Agent, for
its sole account, such fees as may be separately agreed to in writing by the
Borrower and the Agent.
(b) Letter of Credit Fees.
(i) Issuing Banks. The Borrower agrees to pay to the Agent for
the account of each Issuing Bank a fronting fee on the maximum possible
amount of each Letter of Credit (for the stated duration thereof, and
giving effect to any step up provision or other mechanism for increase
that (1) occurs automatically or (2) that is unilaterally exercisable
by the Borrower) issued by such Issuing Banks in an amount equal to
0.125% per annum.
(ii) Participating Banks. The Borrower agrees to pay to the
Agent for the account of each Bank (in accordance with their respective
LC Participation Percentage) a letter of credit fee (1) on the sum of
the aggregate outstanding Letter of Credit Commitment at the time of
determination less the aggregate outstanding stated amount of the
Letters of Credit issued by the Issuing Banks at such time in an amount
equal to the Applicable LC Commitment Margin in effect from time to
time per annum, (2) on the issued and outstanding stated amount of the
Letters of Credit at the time of determination issued by the Issuing
Banks in an amount equal to the Applicable Issued LC Margin in effect
from time to time per annum (for the stated duration thereof, and
giving effect to any step up provision or other mechanism for increase
that (x) occurs automatically or (y) that is unilaterally exercisable
by the Borrower). All amounts payable pursuant to this clause (ii)
shall be paid in arrears on the last day of each March, June, September
and December and on the Termination Date.
The letter of credit fees referred to in this Section 2.1(b) not paid
on the date due shall accrue interest until such letter of credit fees
are paid in full, due and payable on demand, at a per annum rate equal
at all times to the sum of Base Rate plus 6.5% per annum.
SECTION 2.2. Reduction of the Commitments(a) . The Borrower
shall have the right, upon at least five Business Days notice to the Agent, to
terminate in whole or reduce ratably in part the unused portions of the
respective Letter of Credit Commitments; provided that each partial reduction
shall be in the aggregate amount of at least $10,000,000; and provided further
that the aggregate amount of the Letter of Credit Commitments shall not be
reduced to an amount which is less than the aggregate unpaid amount of all
drawings under all Letters of Credit that are unpaid at the time of such
reduction.
SECTION 2.3. Prepayments.
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(a) The Borrower may, upon notice to the Agent before 10:00
A.M. (New York City time) on the date of prepayment stating the proposed date
(which shall be a Business Day) and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, Cash Collateralize
the outstanding Letter of Credit Liabilities in whole or in part, together with
accrued interest and fees to the date of such Cash Collateralization on the Cash
Collateralized Letter of Credit Liabilities; provided, however, that each
partial Cash Collateralization pursuant to this Section 2.3(a) shall be in an
aggregate principal amount not less than the lesser of (1) $5,000,000 and (2)
the aggregate outstanding Letter of Credit Liabilities at the time of such Cash
Collateralization.
(b) All amounts received by the Agent from either the
Collateral Agent or the Collateral Trustee pursuant to any Security Document
shall be applied first, to reimburse the Collateral Agent for all costs and
expenses incurred by the Collateral Agent in connection with, and other amounts
expended by the Collateral Agent for which the Collateral Agent is entitled to
reimbursement under, any Security Document, and second, as set forth in Sections
6.2.
(c) In the event that on any Business Day the aggregate amount
of all Letter of Credit Liabilities exceeds the aggregate Letter of Credit
Commitments (the amount of such excess herein referred to as the "Excess
Exposure"), the Borrower will deliver to the Agent, at its address specified in
Section 9.2, on such next Business Day, for deposit into the LC Cash Collateral
Account, an amount at least equal to such Excess Exposure.
SECTION 2.4. Increased Costs.
(a) If any Bank or Issuing Bank determines that compliance
with any law or regulation or any guideline or request from any central bank or
other governmental or monetary authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be
maintained by such Bank or Issuing Bank, as the case may be, or any corporation
controlling such Bank or Issuing Bank, as the case may be, and that the amount
of such capital is increased by or based upon the existence of such Bank's or
such Issuing Bank's, as the case may be, commitment to issue Letters of Credit
or purchase participations in Letters of Credit and other commitments of this
type, then, upon demand by such Bank or Issuing Bank, as the case may be (with a
copy of such demand to the Agent), the Borrower shall immediately pay to the
Agent for the account of such Bank or Issuing Bank, as the case may be, from
time to time as specified by such Bank or Issuing Bank, as the case may be,
additional amounts sufficient to compensate such Bank or Issuing Bank, as the
case may be, or such corporation in the light of such circumstances, to the
extent that such Bank or Issuing Bank, as the case may be, reasonably determines
such increase in capital to be allocable to the existence of such Bank's or such
Issuing Bank's, as the case may be, commitment to issue Letters of Credit or
purchase participations in Letters of Credit hereunder. A certificate as to the
amount of such additional amounts, submitted to the Borrower and the Agent by
such Bank or Issuing Bank, as the case may be, shall be prima facie evidence of
the amount of such additional amounts. No Bank or Issuing Bank shall have any
right to recover any additional amounts under this Section 2.4(a) for any period
more than 90 days prior to the date such Bank or Issuing Bank, as the case may
be, notifies the Borrower of any such compliance.
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(b) In the event that any Bank makes a demand for payment
under Section 2.6 or this Section 2.4, the Borrower may within ninety (90) days
of such demand, if no Default or Event of Default then exists, replace such Bank
with another commercial bank in accordance with all of the provisions of the
second and third sentences of Section 9.6(a), and clauses (b) and (d) of Section
9.6 (including execution of an appropriate Transfer Agreement); provided that
(i) all obligations of such Bank to purchase participations in Letters of Credit
shall be terminated and the Letter of Credit Interests held by such Bank and all
other obligations owed to such Bank hereunder shall be purchased in full without
recourse at par plus accrued interest at or prior to such replacement, (ii) such
replacement bank shall be an Eligible Assignee, (iii) such replacement bank
shall, from and after such replacement, be deemed for all purposes to be a
"Bank" hereunder with Letter of Credit Liabilities in the amount of the Letter
of Credit Liabilities of such Bank immediately prior to such replacement (plus,
if such replacement bank is already a Bank prior to such replacement the
respective Letter of Credit Liabilities of such Bank prior to such replacement),
as such amount may be changed from time to time pursuant hereto, and shall have
all of the rights, duties and obligations hereunder of the Bank being replaced,
including obligations under Section 2.10, and (iv) such other actions shall be
taken by the Borrower, such Bank and such replacement bank as may be appropriate
to effect the replacement of such Bank with such replacement bank on terms such
that such replacement bank has all of the rights, duties and obligations
hereunder as such Bank (including specification of the information contemplated
by Schedule I as to such replacement bank).
(c) Before making any demand under this Section 2.4, each Bank
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Lending Office if the
making of such a designation would avoid the need for, or reduce the amount of,
such increased cost and would not, in the reasonable judgment of such Bank, be
otherwise disadvantageous to such Bank.
SECTION 2.5. Payments and Computations.
(a) The Borrower shall make each payment hereunder to be made
by it not later than 11:00 A.M. (New York City time) on the day when due in
Dollars to the Agent at its New York address referred to in Section 9.2, in same
day funds, without deduction, counterclaim or offset of any kind. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal, interest or letter of credit fees to the Banks for the account of
their respective Lending Offices, and like funds relating to the payment of any
other amount payable to any Bank to such Bank for the account of its Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. The Paying Agent will promptly pay to the Collateral Agent like funds
relating to the payment of any amount payable to the Collateral Agent. In no
event shall any Bank be entitled to share any fee paid to the Agent pursuant to
Section 2.1(a), any other fee paid to the Agent, as such or any fronting fee
paid to an Issuing Bank pursuant to Section 2.1(b).
(b) [Intentionally Omitted]
(c) (i) All computations of interest based on clause (a) or
clause (b) of the definition herein of Base Rate shall be made by the Agent on
the basis of a year of 365 or 366 days, as the case may be, and (ii) all
computations of interest based on the Federal Funds Rate or
24
clause (c) of the definition herein of Base Rate shall be made by the Agent, and
all computations of letter of credit fees shall be made by the Issuing Banks
that issued the relevant Letter of Credit, on the basis of a year of 360 days,
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or
letter of credit fees are payable. Each determination by the Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or letter of credit fee, as
the case may be.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due by the Borrower to any
Bank hereunder that the Borrower will not make such payment in full, the Agent
may assume that the Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank hereunder. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, each Bank shall repay to the Agent forthwith
on demand such amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.6. Taxes.
(a) Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 2.5, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings with respect thereto, and all liabilities with respect thereto,
excluding in the case of each Bank and the Agent, (i) taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Bank or the Agent (as the case may be) is organized or any political
subdivision thereof and (ii) taxes imposed as a result of a present or former
connection between such Bank or the Agent, as the case may be, and the
jurisdiction imposing such tax or any political subdivision thereof and, in the
case of each Bank, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction of such Bank's Lending Office or any political
subdivision thereof, other than any such connection arising solely from the Bank
or Agent having executed or delivered, or performed its obligations or received
a payment under, or taken any other action related to this Agreement (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.6) such
Bank or the Agent, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
25
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made by the Borrower hereunder or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank, each Issuing Bank
and the Agent for the full amount of Taxes or Other Taxes (including any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.6) owed and paid by such Bank, such Issuing Bank or the Agent, as the case may
be, and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Bank, such Issuing Bank or the Agent, as the case may
be, makes written demand therefor; provided that the Borrower shall have no
liability pursuant to this clause (c) of this Section 2.6 to indemnify a Bank,
an Issuing Bank or the Agent for Taxes or Other Taxes which were paid by such
Bank, such Issuing Bank or the Agent, as the case may be, more than ninety days
prior to such written demand for indemnification.
(d) In the event that a Bank, an Issuing Bank or the Agent
receives a written communication from any governmental authority with respect to
an assessment or proposed assessment of any Taxes, such Bank, such Issuing Bank
or Agent, as the case may be, shall promptly notify the Borrower in writing and
provide the Borrower with a copy of such communication. The Agent's, an Issuing
Bank's or a Bank's failure to provide a copy of such communication to the
Borrower shall not relieve the Borrower of any of its obligations hereunder.
(e) Within 30 days after the date of the payment of Taxes by
or at the direction of the Borrower, the Borrower will furnish to the Agent, at
its address referred to in Section 9.2, the original or a certified copy of a
receipt evidencing payment thereof. Should any Bank, any Issuing Bank or the
Agent ever receive any refund, credit or deduction from any taxing authority to
which such Bank, such Issuing Bank or the Agent, as the case may be, would not
be entitled but for the payment by the Borrower of Taxes as required by this
Section 2.6 (it being understood that the decision as to whether or not to
claim, and if claimed, as to the amount of any such refund, credit or deduction
shall be made by such Bank, such Issuing Bank or the Agent, as the case may be,
in its reasonable judgment), such Bank, such Issuing Bank or the Agent, as the
case may be, thereupon shall repay to the Borrower an amount with respect to
such refund, credit or deduction equal to any net reduction in taxes actually
obtained by such Bank, such Issuing Bank or the Agent, as the case may be, and
determined by such Bank, such Issuing Bank or the Agent, as the case may be, to
be attributable to such refund, credit or deduction.
(f) Each Bank organized under the laws of a jurisdiction
outside the United States shall on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank which is a party to this
Agreement on the date this Agreement becomes effective and on the date of the
Transfer Agreement pursuant to which it becomes a Bank is first effective in the
case of each other Bank, and from time to time thereafter as necessary or
appropriate (but only so long thereafter as such Bank remains lawfully able to
do so), provide each of the Agent and the Borrower with two original Internal
Revenue Service Forms W-8BEN or W-8ECI (or, in the case of a Bank that has
provided a certificate to the Agent that it is not (i) a "bank" as defined in
26
Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a ten-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of the Borrower or (iii) a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue Code),
Internal Revenue Service Form W-8BEN), or any successor or other form prescribed
by the Internal Revenue Service, certifying that such Bank is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or any other Credit Document or, in the case of a Bank that
has certified that it is not a "bank" as described above, certifying that such
Bank is a foreign corporation. If the forms provided by a Bank at the time such
Bank first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Bank provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms.
(g) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form, certificate or other document
described in subsection (f) of this Section 2.6 (other than if such failure is
due to a change in the applicable law, or in the interpretation or application
thereof, occurring after the date on which a form, certificate or other document
originally was required to be provided) such Bank shall not be entitled to
indemnification under subsection (a) or (c) of this Section 2.6 with respect to
Taxes imposed by the United States by reason of such failure; provided, however,
that should a Bank become subject to Taxes because of its failure to deliver a
form, certificate or other document required hereunder, the Borrower shall take
such steps as such Bank shall reasonably request to assist such Bank in
recovering such Taxes.
(h) Any Bank claiming any additional amounts payable pursuant
to this Section 2.6 agrees to use reasonable efforts to change the jurisdiction
of its Lending Office if the making of such a change would avoid the need for,
or reduce the amount of, any such additional amounts that may thereafter accrue
and would not, in the reasonable judgment of such Bank, be otherwise materially
disadvantageous to such Bank.
(i) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.6 shall survive the payment in full of principal and
interest hereunder and the Termination Date.
(j) Notwithstanding any provision of this Agreement to the
contrary, this Section 2.6 shall be the sole provision governing indemnities and
claims for taxes under this Agreement.
SECTION 2.7. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary or involuntary, or through the exercise of
any right of set-off or otherwise) on account of its Letter of Credit Interest
(other than pursuant to Section 2.6 or 9.4(b)) in excess of its ratable share of
payments on account of all Letter of Credit Interests obtained by all the Banks,
such Bank shall forthwith purchase from the other Banks such participations in
the Letter of Credit Interests of such other Banks as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
them, provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from
27
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such Bank's ratable share (according to the
proportion of (i) the amount of the participation purchased from such Bank as a
result of such excess payment to (ii) the total amount of such excess payment)
of such recovery together with an amount equal to such Bank's ratable share
(according to the proportion of (i) the amount of such Bank's required repayment
to (ii) the total amount so recovered from the purchasing Bank) of any interest
or other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.7 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such participation as fully as if such Bank were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.8. Optional Termination. Notwithstanding anything to
the contrary in this Agreement, if (i) any Person (other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Borrower or
of any Subsidiary of the Borrower) or two or more Persons acting in concert
(other than any group of employees of the Borrower or of any of its
Subsidiaries) shall have acquired beneficial ownership (within the meaning of
Rule l3d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of securities of the Borrower (or
other securities convertible into such securities) representing 35% or more of
the combined voting power of all securities of the Borrower entitled to vote in
the election of directors, other than securities having such power only by
reason of the happening of a contingency, or (ii) during any period of up to 24
consecutive months, commencing on, before or after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of the
Borrower or who were elected by individuals who at the beginning of such period
were such directors or by individuals elected in accordance with this clause
(ii) shall cease for any reason (other than as a result of death, incapacity or
normal retirement) to constitute a majority of the board of directors of the
Borrower, or (iii) any Person (other than the Borrower or a Wholly-Owned
Subsidiary of the Borrower) or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a merger or
purchase agreement with the Borrower pursuant to which such Person or Persons
shall have acquired the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Borrower; then the Agent shall
at the request, or may with the consent, of the Majority Banks, by notice to the
Borrower, declare all of the Letter of Credit Commitments of each Bank and the
obligation of each Issuing Bank to issue Letters of Credit to be terminated,
whereupon all of the Letter of Credit Commitments and each such obligation of
the Banks (including the obligation to issue or participate in any new Letters
of Credit issued after such termination, but specifically excluding the
obligation of each Bank to participate in Letters of Credit outstanding at the
time of such termination) shall forthwith terminate, and the Borrower shall not
have any further right to obtain Letters of Credit hereunder.
SECTION 2.9. Extension of Termination Date. By notice given to
the Agent and the Banks, at least thirty days but not more than forty-five days
before the Stated Termination Date then in effect, the Borrower may request the
Banks to extend the Stated Termination Date for an additional period to a date
which is 364 days after the then current Stated Termination Date. Within thirty
days after receipt of such request, each Bank that agrees, in its sole and
absolute discretion, to so extend the Stated Termination Date shall notify the
Borrower and the
28
Agent in writing that it so agrees, and if all Banks so agree the Stated
Termination Date shall be so extended.
SECTION 2.10. Letter of Credit Facility. Subject to the terms
and conditions of this Agreement, the Letter of Credit Commitments may be
utilized, upon the request of the Borrower, by the issuance by any Issuing Bank
(such issuance, and any funding of a draw thereunder, to be made by the Issuing
Banks in reliance of the agreements of the other Banks in this Section) of
standby letters of credit (collectively, the "Letters of Credit", and each a
"Letter of Credit") for the account of the Borrower; provided that in no event
shall (i) the aggregate amount of all Letter of Credit Liabilities exceed the
aggregate Letter of Credit Commitments, (ii) the aggregate amount of all Letters
of Credit issued by any Issuing Bank exceed the aggregate Letter of Credit
Commitments of such Issuing Bank, (iii) the expiration date of any Letter of
Credit extend beyond the date that is ten Business Days prior to the Stated
Termination Date then in effect, or (iv) any Letter of Credit be payable in any
currency other than Dollars. The following additional provisions shall apply to
Letters of Credit:
(a) Notice of Issuance. The Borrower shall give the Agent and
the Issuing Bank from which it is requesting a Letter of Credit at
least three Business Days' (or such shorter period as agreed to by the
Agent and such Issuing Bank) prior notice, in the form of Exhibit E (a
"Notice of Letter of Credit"), specifying the Business Day such Letter
of Credit is to be issued and the account party or parties therefor and
describing in reasonable detail the proposed terms of such Letter of
Credit (including the beneficiary thereof) and the nature of the
transactions or obligations proposed to be supported thereby.
(b) Participations in Letters of Credit. On each day during
the period commencing with the issuance by any Issuing Bank of any
Letter of Credit and until such Letter of Credit shall have expired or
been terminated, the Letter of Credit Commitment of each Issuing Bank
shall be deemed to be utilized for all purposes of this Agreement in an
amount equal to the stated amount of such Letter of Credit. Each Bank
agrees that, upon the issuance of any Letter of Credit hereunder by any
Issuing Bank, it shall automatically acquire a participation in such
Issuing Bank's liability under such Letter of Credit in an amount equal
to such Bank's LC Participation Percentage of such liability, and each
Bank thereby shall absolutely, unconditionally and irrevocably assume,
as primary obligor and not as surety, and shall be unconditionally
obligated to such Issuing Bank to the extent provided in this Section
2.10.
(c) Reimbursement Obligations; Notice of Drawings. Upon
receipt from the beneficiary of any Letter of Credit of any demand for
payment under such Letter of Credit, the Issuing Banks that issued such
Letter of Credit shall promptly notify the Borrower (through the Agent)
of the amount to be paid by such Issuing Bank as a result of such
demand and the date on which payment is to be made by such Issuing Bank
to such beneficiary in respect of such demand, which shall be at least
one Business Day after the date on which the Agent shall deliver such
notice to the Borrower pursuant to this sentence. Notwithstanding the
identity of the account party of any Letter of Credit, the Borrower
hereby unconditionally agrees to pay and reimburse the Agent for the
account of the Issuing Bank that issued a Letter of Credit for the
amount of each demand
29
for payment under such Letter of Credit that is in substantial
compliance with the provisions of such Letter of Credit at or prior to
the date on which payment is to be made by such Issuing Bank to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind, together with interest thereon at a rate per
annum equal to the Base Rate plus 6.5% per annum for the period from
the date of such demand until the date of such reimbursement. The
Borrower's obligations to reimburse each Issuing Bank as provided
herein shall be absolute, unconditional and irrevocable under all
circumstances whatsoever, including the following circumstances: (i)
any lack of validity of this Agreement, the other Credit Documents or
the other documents to be delivered under this Agreement; (ii) the
existence of any claim, set-off, defense or other right that the
Borrower may have at any time against the Agent, any Bank, any Issuing
Bank or any other Person, whether in connection with the transactions
contemplated by this Agreement or any unrelated transaction; (iii) any
action or inaction taken or suffered by any Issuing Bank under a Letter
of Credit if taken in good faith and in conformity with applicable law;
(iv) the payment by any Issuing Bank under a Letter of Credit against
presentation of a demand, statement or other document which in the sole
discretion of such Issuing Bank substantially complies with the terms
of such Letter of Credit, including any demand, statement or other
document which is forged, fraudulent, invalid or inaccurate in any
respect; (v) any exchange, release or non-perfection of any Collateral
for, or any release or amendment or waiver of or consent to departure
from any guarantee of, all or any of the Obligations of the Borrower in
respect of any Letter of Credit and (vi) any determination of
invalidity or unenforceability with respect to any Letter of Credit
after payment by an Issuing Bank thereunder.
(d) Payments by Banks to Issuing Banks. To the extent that the
Borrower fails to make any payment to an Issuing Bank that the Borrower
is required to make pursuant to Section 2.10(c), each Bank (other than
such Issuing Bank) shall pay to the Agent, for the account of such
Issuing Bank in Dollars and in immediately available funds, the amount
of such Bank's LC Participation Percentage of any payment under a
Letter of Credit upon notice by such Issuing Bank (through the Agent)
to such Bank requesting such payment and specifying such amount. Each
such Bank's obligation to make such payment to the Agent for the
account of such Issuing Bank under this Section 2.10(d), and such
Issuing Bank's right to receive the same, shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever
other than the gross negligence or willful misconduct of such Issuing
Bank in making payment under such Letter of Credit, including the
failure of any other Bank to make its payment under this Section
2.10(d), the financial condition of the Borrower (or any account party
in respect of such Letter of Credit), the existence of any Event of
Default or the termination of the Letter of Credit Commitments. If any
Bank shall default in its obligation to make any such payment to the
Agent for the account of an Issuing Bank, for so long as such default
shall continue the Agent may at the request of such Issuing Bank
withhold from any payments received by the Agent under this Agreement
for the account of such Bank the amount so in default and, to the
extent so withheld, pay the same to such Issuing Bank for application
to such defaulted obligation.
(e) Participations in Reimbursement Obligations. Upon the
making of each payment by a Bank to an Issuing Bank pursuant to Section
2.10(d) in respect of any
30
Letter of Credit, such Bank shall, automatically and without any
further action on the part of the Agent, any Issuing Bank or such Bank,
acquire (i) a funded participation in an amount equal to such payment
in the Reimbursement Obligation owing to such Issuing Bank by the
Borrower hereunder and under the Letter of Credit Documents relating to
such Letter of Credit and (ii) a participation in a percentage equal to
such Bank's LC Participation Percentage in any interest or other
amounts payable by the Borrower hereunder and under such Letter of
Credit Documents in respect of such Reimbursement Obligation (other
than the fronting fee contemplated by Section 2.1(b)(i)). Upon receipt
by any Issuing Bank from or for the account of the Borrower of any
payment in respect of any Reimbursement Obligation or any such interest
or other amount (including by way of setoff or application of proceeds
of any collateral security), such Issuing Bank shall promptly pay to
the Agent, for the account of each Bank entitled thereto, such Bank's
participation percentage of such payment, each such payment by such
Issuing Bank to be made in the same currency and funds in which
received by any Issuing Bank. In the event any payment received by such
Issuing Bank and so paid to the Banks hereunder is rescinded or must
otherwise be returned by any Issuing Bank, each Bank shall, upon the
request of such Issuing Bank (through the Agent), repay to such Issuing
Bank (through the Agent) the portion of such payment paid to such Bank.
(f) Information Provided by Issuing Banks to Banks. Promptly
after the issuance of or amendment to any Letter of Credit, each
Issuing Bank will notify the Agent and the Borrower in writing of such
issuance or amendment and such notice shall be accompanied by a copy of
such issuance or amendment. Upon receipt of such notice, the Agent
shall notify each Bank of such issuance or amendment and, if requested
by a Bank, the Agent shall provide such Bank with copies of such issued
or amended Letter of Credit.
(g) Conditions Precedent to Issuance, Extension and
Modification. The issuance by any Issuing Bank of a Letter of Credit,
or any extension of any outstanding Letter of Credit, shall be subject
to satisfaction of each of the conditions precedent set forth in
Article III, and shall further be subject to the conditions precedent
that (i) such Letter of Credit shall be in such form and contain such
terms as shall be reasonably satisfactory to such Issuing Bank
consistent with its then current practices and procedures of general
applicability with respect to letters of credit of the same type and
(ii) the Borrower shall have executed and delivered such agreements and
other instruments relating to such Letter of Credit as such Issuing
Bank shall have reasonably requested consistent with its then current
practices and procedures of general applicability with respect to
letters of credit of the same type; provided that in the event of any
conflict between any such application, agreement or other instrument
and the provisions of this Agreement, the provisions of this Agreement
shall control. The issuance by any Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the
same conditions applicable under this Section 2.10 to the issuance of
new Letters of Credit, and no such modification or supplement shall be
issued hereunder unless the Letter of Credit affected thereby would
have complied with such conditions had it originally been issued
hereunder in such modified or supplemented form.
31
(h) Interest Payable to Issuing Banks by Banks. To the extent
that any Bank shall fail to pay any amount required to be paid pursuant
to Section 2.10(d) or (e) on the due date therefor, such Bank shall pay
interest to the Issuing Bank owed such amount (through the Agent) on
such amount from and including such due date to but excluding the date
such payment is made at a rate per annum equal to the Federal Funds
Rate.
(i) Indemnification of the Banks, Issuing Banks and Agent. the
Borrower hereby indemnifies and holds harmless each Bank, each Issuing
Bank and the Agent from and against any and all claims, damages,
losses, liabilities, costs and expenses that such Bank, such Issuing
Bank or the Agent may incur (or that may be claimed against such Bank,
such Issuing Bank or the Agent by any Person whatsoever) by reason of
or in connection with the execution and delivery or transfer of or
payment or refusal to pay by each Issuing Bank under any Letter of
Credit (EXPRESSLY INCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR
EXPENSE ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE
OF SUCH BANK, SUCH ISSUING BANK OR THE AGENT, AS THE CASE MAY BE, BUT
EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE
ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
BANK, SUCH ISSUING BANK AND THE AGENT). IT IS THE INTENT OF THE PARTIES
HERETO THAT EACH BANK, EACH ISSUING BANK OR THE AGENT, AS THE CASE MAY
BE, SHALL, TO THE EXTENT PROVIDED IN THIS SECTION 2.10(i), BE
INDEMNIFIED FOR ITS OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE;
provided that the Borrower shall not be required to indemnify --------
any Bank, any Issuing Bank or the Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) in the case of each Issuing Bank, the willful
misconduct or gross negligence of such Issuing Bank in determining
whether a request presented under any Letter of Credit complied with
the terms of such Letter of Credit or (y) in the case of any Bank, such
Bank's failure to pay its Letter of Credit Liabilities pursuant to
Sections 2.10(d), (e) and (h).
ARTICLE III
CONDITIONS
SECTION 3.1. Conditions Precedent to Initial Issuance. The
obligation of each Issuing Bank to issue its initial Letter of Credit is subject
to the condition precedent that the Agent shall have received on or before the
date hereof, each dated on or before such date, in form and substance
satisfactory to the Agent (and the Banks, in the case of the Security Documents)
and in sufficient copies (if applicable) for each Bank:
(a) Certified copies of the resolutions of the Board of
Directors, or the Executive Committee thereof, of the Borrower
authorizing the execution of this Agreement, the other Credit Documents
to which the Borrower is a party, and each Notice of Letter of Credit,
and all other documents, in each case evidencing any necessary company
action and governmental approvals, if any, with respect to each such
Credit Document.
32
(b) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying (i) that attached thereto are true and
correct copies of the Certificate of Incorporation and Bylaws of the
Borrower, together with any amendments thereto, and (ii) the names and
true signatures of the officers of the Borrower authorized to sign each
Credit Document.
(c) Opinions of each of (i) William G. von Glahn, General
Counsel of the Borrower, substantially in the form of Exhibit A hereto
and (ii) Skadden, Arps, Slate, Meagher & Flom LLP, New York counsel to
the Borrower and Guarantors, substantially in the form of Exhibits B-1
and B-2 hereto, and, in each case, as to such other matters as any Bank
through the Agent may reasonably request.
(d) A duly executed and fully effective amendment to the
Multiyear Williams Credit Agreement and each of the Progeny Facility
documents, other than those automatically amended by virtue of the
amendment to the Multiyear Williams Credit Agreement, each dated the
date of this Agreement.
(e) A certificate of an officer of the Borrower stating the
respective ratings by each of S&P and Moody's of the senior unsecured
long-term debt of the Borrower as in effect on the date of this
Agreement.
(f) The Security Documents (other than the Mortgages and
Additional Mortgages) and all documents required for perfection of the
Liens granted pursuant to such Security Documents.
(g) 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 each of the
MAPL Asset Disposition, Seminole Asset Disposition and Barrett Loan.
(h) The Borrower shall have paid all accrued fees of the Agent
and all accrued expenses of the Agent (including the accrued fees and
expenses of counsel to the Agent and local counsel to the Agent).
For purposes of determining compliance with the conditions specified in this
Section 3.1, each Bank shall be deemed to have consented to, approved and
accepted and to be satisfied with each document or other matter required under
this Section 3.1, unless both (i) an officer of the Agent responsible for the
transactions contemplated by this Agreement shall have received written notice
from such Bank prior to the issuance of the initial Letter of Credit specifying
its objection thereto and (ii) such Bank shall not have accepted any portion of
the fees set forth in Section 2.1(b).
SECTION 3.2. Conditions Precedent to an Issuance of a Letter
of Credit. The obligation of each Issuing Bank to issue a Letter of Credit
(including the initial Letter of Credit) shall be subject to the further
conditions precedent that on the date of the requested issuance of such Letter
of Credit, the following statements shall be true (and each of the giving of the
applicable Notice of Letter of Credit and the issuance of such Letter of Credit
shall constitute
33
a representation and warranty by the Borrower that on the date such Letter of
Credit is issued such statements are true):
(a) The representations and warranties contained in Section
4.1 are correct on and as of the date of such Letter of Credit, before
and after issuance of such Letter of Credit, as though made on and as
of such date (unless such representation and warranty speaks solely as
of a particular date or a particular period, in which case, as of such
date or for such period),
(b) No event has occurred and is continuing, or would result
from the issuance of such Letter of Credit, which constitutes a Default
or Event of Default, and
(c) After giving effect to such Letter of Credit and Letters
of Credit which have been requested by the Borrower on or prior to such
date but which have not been made or issued prior to such date, the sum
of the aggregate amount of all Letter of Credit Liabilities will not
exceed the aggregate of the Letter of Credit Commitments.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is duly organized or validly formed, validly
existing and (if applicable) in good standing under the laws of the
State of Delaware and has all corporate or limited liability company
powers and all governmental licenses, authorizations, certificates,
consents and approvals required to carry on its business as now
conducted in all material respects, except for those licenses,
authorizations, certificates, consents and approvals the failure to
have which could not reasonably be expected to have a material adverse
effect on the business, assets, condition or operation of the Borrower
and its Subsidiaries taken as a whole. Each Material Subsidiary is duly
organized or validly formed, validly existing and (if applicable) in
good standing under the laws of its jurisdiction of incorporation or
formation, except where the failure to be so organized, existing and in
good standing could not reasonably be expected to have a material
adverse effect on the business, assets, condition or operations of the
Borrower and its Subsidiaries taken as a whole. Each Material
Subsidiary has all corporate or limited liability company powers and
all governmental licenses, authorizations, certificates, consents and
approvals required to carry on its business as now conducted in all
material respects, except for those licenses, authorizations,
certificates, consents and approvals the failure to have which could
not reasonably be expected to have a material adverse effect on the
business, assets, condition or operation of the Borrower and its
Subsidiaries taken as a whole.
(b) The execution, delivery and performance by the Borrower of
the Credit Documents to which it is a party delivered hereunder and the
consummation of the transactions contemplated thereby are within the
Borrower's corporate or limited liability
34
company powers, have been duly authorized by all necessary corporate or
limited liability company action, do not contravene (i) the Borrower's
charter, by-laws or formation agreement or (ii) law or any restriction
under any material agreement binding on or affecting the Borrower, any
Guarantor or any Midstream Subsidiary and will not result in or require
the creation or imposition of any Lien prohibited by this Agreement.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Borrower, any Guarantor or any Midstream Subsidiary of any Credit
Document to which any of them is a party, or the consummation of the
transactions contemplated thereby.
(d) Each Credit Document to which the Borrower is a party has
been duly executed and delivered by the Borrower and is the legal,
valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, except as such enforceability
may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally and by general principles of equity.
(e) (i) The Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at December 31, 2001, and the related
Consolidated statements of income and cash flows of the Borrower and
its Consolidated Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, and the Consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as at March 31,
2002, and the related Consolidated statements of income and cash flows
of the Borrower and its Consolidated Subsidiaries for the three months
then ended, duly certified by an authorized financial officer of the
Borrower, copies of which have been furnished to each Bank, fairly
present (in the case of such balance sheets as at March 31, 2002, and
such statements of income and cash flows for the three months then
ended, subject to year-end audit adjustments and the lack of footnotes)
the Consolidated financial condition of the Borrower and its
Consolidated Subsidiaries as at such dates and the Consolidated results
of operations of the Borrower and its Consolidated Subsidiaries for the
year and three month period, respectively, ended on such dates, all in
accordance with generally accepted accounting principles consistently
applied. Except as has been disclosed to each Bank, from December 31,
2001 to the date of this Agreement, there has been no material adverse
change in the Consolidated financial condition or Consolidated results
of operations of the Borrower and its Consolidated Subsidiaries.
(ii) The Consolidated balance sheet of WGPC and its
Consolidated Subsidiaries as at December 31, 2001, and the related
Consolidated statements of income and cash flows of WGPC and its
Consolidated Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, and the Consolidated balance
sheet of WGPC and its Consolidated Subsidiaries as at March 31, 2002,
and the related Consolidated statements of income and cash flows of
WGPC and its Consolidated Subsidiaries for the three months then ended,
duly certified by an authorized financial officer of WGPC, copies of
which have been furnished to each Bank, fairly present (in the case of
such balance sheets as at March 31, 2002, and such statements of income
and
35
cash flows for the three months then ended, subject to year-end audit
adjustments and the lack of footnotes) the Consolidated financial
condition of WGPC and its Consolidated Subsidiaries, respectively, as
at such dates and the Consolidated results of operations of WGPC and
its Consolidated Subsidiaries, respectively, for the year and three
month period, respectively, ended on such dates, all in accordance with
generally accepted accounting principles consistently applied. From
December 31, 2001 to the date of this Agreement, there has been no
material adverse change in the Consolidated financial condition or
Consolidated results of operations of WGPC and its Consolidated
Subsidiaries.
(iii) The unaudited Consolidated balance sheet of WF Group and
its Consolidated Subsidiaries as at December 31, 2001, and the related
unaudited Consolidated statements of income and cash flows of WF Group
and its Consolidated Subsidiaries for the fiscal year then ended,
copies of which have been furnished to each Bank, and the unaudited
Consolidated balance sheet of WF Group and its Consolidated
Subsidiaries as at March 31, 2002, and the related unaudited
Consolidated statements of income and cash flows of WF Group and its
Consolidated Subsidiaries for the three months then ended, duly
certified by an authorized financial officer of WF Group, copies of
which have been furnished to each Bank, fairly present (in the case of
such balance sheets as at March 31, 2002, and such statements of income
and cash flows for the three months then ended, subject to the lack of
footnotes) the Consolidated financial condition of WF Group and its
Consolidated Subsidiaries as at such dates and the Consolidated results
of operations of WF Group and its Consolidated Subsidiaries for the
year and three month period, respectively, ended on such dates, all in
accordance with generally accepted accounting principles consistently
applied.
(f) Except as set forth in the Public Filings or as otherwise
disclosed in writing by the Borrower to the Banks and the Agent after
the date hereof and approved by the Majority Banks, there is no pending
or, to the knowledge of the Borrower, threatened action or proceeding
affecting the Borrower, any Guarantor or any Material Subsidiary of the
Borrower or against any of its or their respective properties or
revenues before any court, governmental agency or arbitrator, which
could reasonably be expected to materially and adversely affect the
financial condition or operations of the Borrower and its Subsidiaries
taken as a whole or which purports to affect the legality, validity,
binding effect or enforceability of this Agreement or any other Credit
Document.
(g) Letter of Credit has been or will be used for any purpose
or in any manner not permitted by Section 5.2(l).
(h) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Federal Reserve Board), and
no proceeds of any issuance of a Letter of Credit will be used to
purchase or carry any such margin stock (other than purchases of common
stock expressly permitted by Section 5.2(l)) or to extend credit to
others for the purpose of purchasing or carrying any such margin stock.
Following application of the proceeds of each issuance of a Letter of
Credit, no more than 25% of the value of the Reg U Limited Assets of
the Borrower will consist of margin stock (as defined in
36
Regulation U), and no more than 25% of the value of the Reg U Limited
Assets of the Borrower and its Subsidiaries on a consolidated basis
will consist of margin stock (as defined in Regulation U).
(i) The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(j) No Termination Event has occurred or is reasonably
expected to occur with respect to any Plan that could reasonably be
expected to have a material adverse effect on any of the Borrower or
any Material Subsidiary of the Borrower. The Borrower has not nor has
any ERISA Affiliate of the Borrower received any notification that any
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and the Borrower is not aware of any
reason to expect that any Multiemployer Plan is to be in reorganization
or to be terminated within the meaning of Title IV of ERISA that would
have any material adverse effect on the Borrower, any Material
Subsidiary of the Borrower or any ERISA Affiliate of the Borrower.
(k) As of the date of this Agreement, the United States
federal income tax returns of the Borrower and its Material
Subsidiaries have been examined through the fiscal year ended December
31, 1995. The Borrower and its Subsidiaries have filed all United
States Federal income tax returns and all other material domestic tax
returns which are required to be filed by them and have paid, or
provided for the payment before the same become delinquent of, all
taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower or any such Subsidiary, other than those taxes
contested in good faith by appropriate proceedings. The charges,
accruals and reserves on the books of the Borrower and the Material
Subsidiaries of the Borrower in respect of taxes are adequate.
(l) The Borrower is not a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," or a
"public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(m) Except as set forth in the Public Filings or as otherwise
disclosed in writing by the Borrower to the Banks and the Agent after
the date hereof and approved by the Majority Banks, the Borrower and
its respective Material Subsidiaries are in compliance in all material
respects with all Environmental Protection Statutes to the extent
material to the operations or the consolidated financial condition of
the Borrower and its Consolidated Subsidiaries taken as a whole. Except
as set forth in the Public Filings or as otherwise disclosed in writing
by the Borrower to the Banks and the Agent after the date hereof and
approved by the Majority Banks, the aggregate contingent and
non-contingent liabilities of the Borrower and its Consolidated
Subsidiaries (other than those reserved for in accordance with
generally accepted accounting principles and set forth in the financial
statements regarding the Borrower referred to in Section 4.1(e) and
delivered to each Bank and excluding liabilities to the extent covered
by insurance if the insurer has confirmed that such insurance covers
such liabilities or which the Borrower reasonably
37
expects to recover from ratepayers) which are reasonably expected to
arise in connection with (i) the requirements of Environmental
Protection Statutes or (ii) any obligation or liability to any Person
in connection with any Environmental matters (including any release or
threatened release (as such terms are defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980) of any
Hazardous Waste, Hazardous Substance, other waste, petroleum or
petroleum products into the Environment) could not reasonably be
expected to have a material adverse effect on the business, assets,
conditions or operations of the Borrower and its Subsidiaries, taken as
a whole. The 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.
(n) Other than the Permitted Liens, the Borrower and its
Subsidiaries have good, valid and indefeasible title to, or a valid
leasehold interest in, its respective property and to all property
reflected by its respective balance sheet referenced in clause (e)
above as being owned by the Borrower. Each of the Borrower, the
Guarantors 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 exists,
or following completion of the post-closing items more fully described
in Schedule XII, there will exist an Acceptable Security Interest in
all Collateral other than the Excluded Collateral.
(o) After giving effect to this Agreement and the concurrent
amendments to various financing arrangements and agreements of the
Borrower and its Subsidiaries, the Borrower and each Guarantor,
individually and together with its Subsidiaries, is Solvent.
(p) The Persons listed on Schedule X are all of the Midstream
Subsidiaries and own, lease or hold all Midstream Assets necessary
and/or appropriate for the operation and carrying on of the Midstream
Business associated with the Midstream Assets as conducted during the
12 months preceding the date hereof.
(q) Neither the Borrower nor any Guarantor or 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 the Borrower, any Guarantor or any Midstream
Subsidiary. No Default or Event of Default has occurred and is
continuing.
(r) Except as would not have a material adverse effect on the
conduct of the Midstream Business conducted by the Midstream
Subsidiaries, the various gathering systems which comprise part of the
Midstream Assets are covered by recorded fee deeds, right of ways,
easements, leases, servitudes, permits, licenses, or other instruments
in favor of the Midstream Subsidiaries (or their predecessors in title)
and their successors and assigns, which instruments establish a
contiguous right of way for the respective gathering systems and grant
the right to construct, operate, and maintain the respective
38
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.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.1. Affirmative Covenants. So long as any Letter of
Credit shall remain outstanding, any Letter of Credit Liability shall exist or
any Bank shall have any Letter of Credit Commitment hereunder, the Borrower
will, unless the Majority Banks shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders (except where failure to comply
could not reasonably be expected to have a material adverse effect on
the business, assets, condition or operations of the Borrower and its
Subsidiaries taken as a whole), such compliance to include the payment
and discharge before the same become delinquent of all taxes,
assessments and governmental charges or levies imposed upon it or any
of its Subsidiaries or upon any of its property or any property of any
of its Subsidiaries, and all lawful claims which, if unpaid, might
become a Lien upon any property of it or any of its Subsidiaries;
provided that neither the Borrower nor any Subsidiary of the --------
Borrower shall be required to pay any such tax, assessment, charge,
levy or claim which is being contested in good faith and by proper
proceedings and with respect to which reserves in conformity with
generally accepted accounting principles, if required by such
principles, have been provided on the books of the Borrower or such
Subsidiary, as the case may be.
(b) Reporting Requirements. Furnish to each of the Banks:
(i) as soon as possible and in any event within five
days after the occurrence of each Default or Event of Default,
continuing on the date of such statement, a statement of an
authorized financial officer of the Borrower setting forth the
details of such Default or Event of Default and the actions,
if any, which the Borrower has taken and proposes to take with
respect thereto;
(ii) as soon as available and in any event not later
than 60 days after the end of each of the first three quarters
of each fiscal year of the Borrower, (1) the Consolidated
balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the
Consolidated statements of income and cash
39
flows of the Borrower and its Consolidated Subsidiaries for
the period commencing at the end of the previous year and
ending with the end of such quarter, all in reasonable detail
and duly certified (subject to year-end audit adjustments and
the lack of footnotes) by an authorized financial officer of
the Borrower as having been prepared in accordance with
generally accepted accounting principles; provided that, if
any financial statement referred to in this clause (ii) of
Section 5.1(b) is readily available on-line through EDGAR as
of the date on which such financial statement is required to
be delivered hereunder, the Borrower shall not be obligated to
furnish copies of such financial statement; and (2) a
certificate of an authorized financial officer of the Borrower
(a) stating that he has no knowledge that a Default or Event
of Default has occurred and is continuing or, if a Default or
Event of Default has occurred and is continuing, a statement
as to the nature thereof and the action, if any, which the
Borrower proposes to take with respect thereto, and (b)
showing in detail the calculation supporting such statement in
respect of Sections 5.2(b) and 5.2(c);
(iii) as soon as available and in any event not later
than 105 days after the end of each fiscal year of the
Borrower, (1) a copy of the annual audit report for such year
for the Borrower and its Consolidated Subsidiaries, including
therein Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Borrower and its Consolidated Subsidiaries for such fiscal
year, in each case prepared in accordance with generally
accepted accounting principles and reported on by Ernst &
Young, LLP or other independent certified public accountants
of recognized standing acceptable to the Majority Banks;
provided that if any financial statement referred to in this
clause (iii) of Section 5.1(b) is readily available on-line
through EDGAR as of the date on which such financial statement
is required to be delivered hereunder, the Borrower shall not
be obligated to furnish copies of such financial statement;
and (2) a letter of such accounting firm to the Banks (a)
stating that, in the course of the regular audit of the
business of the Borrower and its Consolidated Subsidiaries,
which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge that a Default or
Event of Default has occurred and is continuing, or if, in the
opinion of such accounting firm, a Default or Event of Default
has occurred and is continuing, a statement as to the nature
thereof, and (b) showing in detail the calculations supporting
such statement in respect of Sections 5.2(b) and 5.2(c),
(which letter may nevertheless be limited in form, scope and
substance to the extent required by applicable accounting
rules or guidelines in effect from time to time);
(iv) such other information respecting the business
or properties, or the condition or operations, financial or
otherwise, of the Borrower or any of its Material Subsidiaries
as any Bank through the Agent may from time to time reasonably
request;
40
(v) promptly after the sending or filing thereof,
copies of all proxy material, reports and other information
which the Borrower sends to any of its security holders, and
copies of all final reports and final registration statements
which the Borrower or any Material Subsidiary of the Borrower
files with the Securities and Exchange Commission or any
national securities exchange; provided that if such proxy
materials and reports, registration statements and other
information are readily available on-line through EDGAR, the
Borrower or Material Subsidiary shall not be obligated to
furnish copies thereof;
(vi) as soon as possible and in any event within 30
Business Days after the Borrower or any ERISA Affiliate of the
Borrower knows or has reason to know (A) that any Termination
Event described in clause (i) of the definition of Termination
Event with respect to any Plan has occurred that could have a
material adverse effect on the Borrower or any Material
Subsidiary of the Borrower or any ERISA Affiliate of the
Borrower or (B) that any other Termination Event with respect
to any Plan has occurred or is reasonably expected to occur
that could have a material adverse effect on the Borrower or
any Material Subsidiary of the Borrower or any ERISA Affiliate
of the Borrower, a statement of the chief financial officer or
chief accounting officer of the Borrower describing such
Termination Event and the action, if any, which the Borrower
or such Subsidiary or such ERISA Affiliate proposes to take
with respect thereto;
(vii) promptly and in any event within 25 Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate, copies of each notice received by the Borrower or
any ERISA Affiliate of the Borrower from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(viii) within 30 days following request therefor by
any Bank, copies of each Schedule B (Actuarial Information) to
each annual report (Form 5500 Series) of the Borrower or any
ERISA Affiliate of the Borrower with respect to each Plan;
(ix) promptly and in any event within 25 Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate of the Borrower from the sponsor of a Multiemployer
Plan, a copy of each notice received by the Borrower or any
ERISA Affiliate of the Borrower concerning (A) the imposition
of a Withdrawal Liability by a Multiemployer Plan, (B) the
determination that a Multiemployer Plan is, or is expected to
be, in reorganization within the meaning of Title IV of ERISA,
(C) the termination of a Multiemployer Plan within the meaning
of Title IV of ERISA, or (D) the amount of liability incurred,
or expected to be incurred, by the Borrower or any ERISA
Affiliate of the Borrower in connection with any event
described in clause (A), (B) or (C) above that, in each case,
could have a material adverse effect on the Borrower or any
ERISA Affiliate of the Borrower;
41
(x) not more than 60 days (or 105 days in the case of
the last fiscal quarter of a fiscal year of the Borrower)
after the end of each fiscal quarter of the Borrower, a
certificate of an authorized financial officer of the Borrower
stating the respective ratings, if any, by each of S&P and
Moody's of the senior unsecured long-term debt of the Borrower
as of the last day of such quarter; and
(xi) promptly after any withdrawal or termination of
any letter of credit, guaranty, insurance or other credit
enhancement referred to in the second to last sentence of
Section 1.5 or any change in the indicated rating set forth
therein or any change in, or issuance, withdrawal or
termination of, the rating of any senior unsecured long-term
debt of the Borrower by S&P or Moody's, notice thereof.
(xii) Promptly after any officer of the Borrower
obtains knowledge thereof, notice of (1) any material
violation of, noncompliance with, or remedial obligations
under, any Environmental Protection Statute, and (2) any
material release or threatened material release of Hazardous
Substance or Hazardous Waste affecting any property owned,
leased or operated by the Borrower or any Subsidiary of the
Borrower that the Borrower or such Subsidiary is compelled by
the requirements of any Environmental Protection Statute to
report to any governmental agency, department, board or other
instrumentality,
(c) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Borrower or its Subsidiaries operate, provided that
the Borrower or any of its Subsidiaries may self-insure to the extent
and in the manner normal for companies of like size, type and financial
condition.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified,
and cause each Subsidiary to qualify and remain qualified, as a foreign
corporation in each jurisdiction in which qualification is necessary or
desirable in view of its business and operations or the ownership of
its properties, except (i) in the case of any Subsidiary of the
Borrower, where the failure of such Subsidiary to so preserve,
maintain, qualify and remain qualified could not reasonably be expected
to have a material adverse effect on the business, assets, condition or
operations of the Borrower and its Subsidiaries taken as a whole; (ii)
in the case of the Borrower, where the failure of the Borrower to
preserve and maintain such rights, franchises and privileges and to so
qualify and remain qualified could not reasonably be expected to have a
material adverse effect on the business, assets, condition or
operations of the Borrower and its Subsidiaries taken as a whole, (iii)
the Borrower and its Subsidiaries may consummate any merger or
consolidation permitted pursuant to Section 5.2(d), and (iv) the
Borrower and any of its Subsidiaries may be converted into a limited
liability company by statutory election;
42
provided that any such conversion of the Borrower shall not affect its
liabilities and obligations to the Banks pursuant to this Agreement.
(e) Acceptable Security Interest. Cause an Acceptable Security
Interest to exist at all times in all Collateral, except as to the
Excluded Collateral and as otherwise contemplated by Section 5.1(g).
(f) Further Assurances. At any time and from time to time, the
Borrower shall, at its expense, promptly execute and deliver to the
Collateral Trustee and/or the Collateral Agent such further instruments
and documents, and take such further action (including, without
limitation, with respect to the granting of a valid first priority
Lien, subject to Permitted Liens, on any personal or real property of
the Borrower, 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 the Borrower
and its Subsidiaries whether such Collateral is now owned, leased,
possessed by license or any other means of acquiring a possessory
interest or hereafter acquired or possessed (each such mortgage or deed
of trust being an "Additional Mortgage"); provided, however, that (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 XII hereto, the Borrower shall satisfy, or
shall cause the satisfaction, of the items more fully set forth in such
Schedule XII.
(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 Proceeds. On or before August 1, 2002, cause the net
proceeds from the TGPL Bond Offerings to be maintained in a separate,
segregated account in the name of TGPL to be used solely as set forth
in the offering documents for the TGPL Bond Offering.
(j) Midstream Subsidiaries. Cause the representation set forth
in Section 4.1(p) to be true at all times.
(k) Cash Deposits. Maintain all or substantially all of its
cash deposits with one or more of the lenders under the Multiyear
Williams Credit Agreement, other than any cash deposits held in local
operational accounts or any international accounts.
43
(l) Barrett Liquidity Reserve. Cause RMT to at all times
maintain the Barrett 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 by Williams GP LLC, the Borrower 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) the Borrower 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), the Borrower 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.
SECTION 5.2. Negative Covenants. So long as any Letter of
Credit Liability shall exist or any Bank shall have any Letter of Credit
Commitment hereunder, the Borrower will not, without the written consent of the
Majority Banks:
(a) Liens, Etc. Create, assume, incur or suffer to exist, or
permit any of its 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 of any Person (other
than obligations or liabilities that are (i) neither Debt nor trade
payables, (ii) incurred, and are owed to trading counterparties, in the
ordinary course of the trading business of the Borrower or any
Subsidiary, and (iii) secured only by cash, short-term investments or a
Letter of Credit); provided, however, that notwithstanding the
foregoing (1) the Borrower or any of its 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.
(b) Debt.
(i) In the case of the Borrower, permit the ratio of
(A) the aggregate amount of Consolidated Debt of the Borrower
and its Consolidated Subsidiaries to (B) the sum of the
Consolidated Net Worth of the Borrower plus the aggregate
amount of Consolidated Debt of the Borrower and its
Consolidated Subsidiaries to exceed at any time (i) on or
before December 30, 2002, 0.70 to 1.00, (ii) after December
30, 2002 and on or before March 30, 2003, 0.68 to 1.00 and
(iii) after March 30, 2003, 0.65 to 1.00.
(ii) With respect to each of TGPL, TGT and NWP,
permit the ratio of (A) the aggregate amount of Consolidated
Debt of such Subsidiary and its
44
Consolidated Subsidiaries to (B) the sum of the Consolidated
Net Worth of such Subsidiary plus the aggregate amount of
Consolidated Debt of such Subsidiary and its Consolidated
Subsidiaries to exceed at any time 0.55 to 1.00.
(c) Cash Flow to Interest Expense Ratio. Permit, for any
period of four consecutive quarters, the ratio of (A) the sum of Cash
Flow of the Borrower plus Interest Expense of the Borrower to (B)
Interest Expense of the Borrower to be less than 1.5 to 1.0.
(d) Merger and Sale of Assets. Merge or consolidate with or
into any other Person, or sell, lease or otherwise transfer a material
part of its assets, or permit any of its Major Subsidiaries to merge or
consolidate with or into any other Person, or sell, lease or otherwise
transfer a material part of such Major Subsidiary's assets, except that
this Section 5.2(d) shall not prohibit any sale or transfer permitted
by Section 5.2(e) or any TWC Asset Disposition.
(e) Asset Disposition. Sell, lease, transfer or otherwise
dispose of, or permit any of its Material Subsidiaries or the
Guarantors to sell, lease, transfer or otherwise dispose of, any
property of the Borrower or any Guarantor or Material Subsidiary of the
Borrower, except (i) sales of inventory in the ordinary course of
business and on reasonable terms, (ii) sales of worn out or obsolete
equipment in the ordinary course of business, if no Event of Default
exists at the time of such sale, (iii) replacement of equipment in the
ordinary course of business with other equipment at least as useful and
beneficial to the Borrower or its Material Subsidiaries and their
respective businesses as the equipment replaced if no Event of Default
exists at the time of such replacement and an Acceptable Security
Interest exists in such other equipment at the time of such
replacement, (iv) sales of other immaterial Property (other than Equity
Interests, Debt or other obligations of any Subsidiary) in the ordinary
course of business and on reasonable terms, if no Event of Default
exists at the time of such sale; provided that Property may not be sold
pursuant to this clause (iv) if the aggregate fair market value of all
Property sold pursuant to this clause (iv) exceeds $250,000 in any
year, (v) sales of assets which are not Collateral for cash in arm's
length transactions, (vi) sales or other dispositions of Williams
Pipelines Central, Inc. 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) so long as
the Multiyear Williams Credit Agreement is still in effect, the
proceeds received from any disposition permitted pursuant to clauses
(i) through (vi) shall be applied in accordance with the terms and
conditions of the Multiyear Williams Credit Agreement and (B) assets
disposed of pursuant to clauses (i) through (v) shall not constitute a
material part of the assets of TGPL, TGT or NWP. Upon receipt of a
written request therefor from the Borrower relating to dispositions
permitted pursuant to this Section 5.2(e), (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 to the Collateral Trust Agreement and the
other Security Documents and (y) each Bank shall be deemed to have
affirmatively approved the release of such Collateral. Notwithstanding
anything in this Section 5.2(e) to the contrary, 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
45
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.
(f) Maintenance of Ownership of Certain Subsidiaries. Except
with respect to Williams Energy Partners L.P., Williams Pipelines
Central, Inc., 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 the Borrower or any Material Subsidiary; provided,
however, that this Section 5.2(f) shall not prohibit (i) Permitted
Liens, (ii) the sale or other disposition of the Equity Interests in
any Subsidiary of the Borrower to the Borrower or any Wholly-Owned
Subsidiary of the Borrower if, but only if, (x) there shall not exist
or result a Default or Event of Default and (y) in the case of each
sale or other disposition referred to in this proviso involving the
Borrower or any of its Subsidiaries, such sale or other disposition
could not reasonably be expected to impair materially the ability of
the Borrower to perform its obligations hereunder and under any other
Credit Document and the Borrower shall continue to exist, (iii) any
Subsidiary from selling or otherwise disposing of any direct or
indirect Equity Interests in any Subsidiary of the Borrower (other than
TGPL, TGT or NWP), (iv) the sale or other disposition of the Equity
Interests in any Subsidiary of the Borrower pursuant to, and in
accordance with, the Barrett Loan Agreement or (v) any TWC Asset
Disposition; provided that, after giving effect to any 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
5.2(h).
(g) 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 the
Borrower or to any of its Subsidiaries; or (ii) to make loans or
advances to the 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 the
date hereof, (3) other customary encumbrances and restrictions now or
hereafter existing of the Borrower or any Subsidiary thereof entered
into in the ordinary course of business that are not more restrictive
in any material respect than the encumbrances and restrictions with
respect to the Borrower or its Subsidiaries existing on 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.
46
(h) 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 the Borrower and 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 C hereof, but no such replacement or
refinancing shall exceed the amount of such loans, advances or other
amounts outstanding immediately prior to such replacement or
refinancing, (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.
(i) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate of the Borrower to terminate, any Plan so as to result in any
material liability of the Borrower or any ERISA Affiliate of the
Borrower or any Material Subsidiary to the PBGC, or (ii) permit to
exist any occurrence of any Termination Event with respect to a Plan
which would have a material adverse effect on the Borrower or any
Material Subsidiary of the Borrower.
(j) Transactions with Related Parties. Make any sale to, make
any purchase from, extend credit to, make payment for services rendered
by, or enter into any other transaction with, or permit any Material
Subsidiary of the Borrower to make any sale to, make any purchase from,
extend credit to, make payment for services rendered by, or enter into
any other transaction with, any Related Party of the Borrower or of
such Subsidiary unless as a whole such sales, purchases, extensions of
credit, rendition of services and other transactions are (at the time
such sale, purchase, extension of credit, rendition of services or
other transaction is entered into) on terms and conditions reasonably
fair in all material respects to the Borrower or such Subsidiary in the
good faith judgment of the Borrower.
(k) Guarantees. After the date of this Agreement, enter into
any agreement to guarantee or otherwise become contingently liable for,
or permit any of its Subsidiaries to guarantee or otherwise become
contingently liable for, Debt or any other obligation of any WCG
Subsidiary or to otherwise assure a WCG Subsidiary, or any creditor of
a WCG Subsidiary, against loss.
(l) 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 the Borrower would not be
permitted to incur at least $1.00 of additional Debt secured by a Lien
permitted by paragraph (y) of Schedule III.
47
(m) Use of Proceeds. Use any Letter of Credit for any purpose
other than general corporate purposes relating to the business of the
Borrower and its Subsidiaries, (including working capital and capital
expenditures), or use any Letter of Credit in any manner which violates
or results in a violation of law; provided, however, that no Letter of
Credit will be used to acquire any equity security of a class which is
registered pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (other than any purchase of common stock of any
corporation, if such purchase is not subject to Sections 13 and 14 of
the Securities Exchange Act of 1934 and is not opposed, resisted or
recommended against by such corporation or its management or directors,
provided that the aggregate amount of common stock of any corporation
(other than Apco Argentina Inc., a Cayman Islands corporation)
purchased during any calendar year shall not exceed 1% of the common
stock of such corporation issued and outstanding at the time of such
purchase) or in any manner which contravenes law, and no Letter of
Credit will be used to purchase or carry any margin stock (within the
meaning of Regulation U issued by the Federal Reserve Board), except
purchases by the Borrower of its capital stock if, after giving effect
thereto, no Letter of Credit would constitute purpose credit within the
meaning of such Regulation U. Notwithstanding anything to the contrary
contained herein, if any, (i) with respect to EMT, Letters of Credit
shall only be used, directly or indirectly, as necessary for the
orderly disposition of the Trading Book and (ii) no Letter of Credit
shall be used to pay any principal amounts outstanding, interest, fees
or other costs with respect to the Barrett Loan, it being understood
that Letters of Credit may be used to support margin requirements with
regard to Hedging Agreements on oil and gas.
(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, permit any of its Subsidiaries
to purchase, redeem, retire, defease or otherwise acquire for value any
Equity Interests in the 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 shall have occurred and be continuing at
the time of any action described in clause (i) through (iv) below or
would result therefrom:
(i) The Borrower may (A) declare and pay cash
dividends and distributions on its (1) 9 7/8ths% Cumulative
Convertible Preferred Stock, (2) December 2000 Cumulative
Convertible Preferred Stock and (3) March 2001 Mandatorily
Convertible Single Reset Preferred Stock, (B) declare and pay
cash dividends and distributions on TWC Preferred Stock issued
on or after July 30, 2002 in form and substance satisfactory
to the Agent and (C) in any Fiscal Quarter, declare and pay
cash dividends to its 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,
48
redemptions, retirements and acquisitions paid or made in any
such Fiscal Quarter would be not greater than the sum of
$6,250,000;
(ii) any Subsidiaries of the Borrower may (A) declare
and pay cash dividends to the Borrower and (B) declare and pay
cash dividends to any other Guarantor 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) Investments 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 the 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 the Borrower and its Subsidiaries on the
date hereof; (ii) loans and advances to employees in the ordinary
course of the business of the Borrower and its Subsidiaries as
presently conducted; (iii) Investments of the Borrower and its
Subsidiaries in Cash Equivalents; (iv) Investments existing on the date
hereof; (v) Investments by the 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 the Borrower or any of its Subsidiaries shall be a wholly owned
Subsidiary thereof; (2) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or would
result therefrom; and (3) any company or business acquired or invested
in pursuant to this clause (vii) shall be in the same line of business
as the business of the Borrower or any of its Subsidiaries.
(p) Subsidiary Debt. Permit any of its 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 Subsidiaries the stock of which is pledged under the
Pledge 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 the obligations of the debtors thereunder are subordinated
to their obligations under the Credit Documents and are incurred in the
ordinary course of the cash management system of the Borrower and its
Subsidiaries.
49
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower (i) shall fail to pay any Reimbursement
Obligation when the same becomes due and payable, or (ii) shall fail to
pay any interest on any Reimbursement Obligation within three days
after the same becomes due and payable or (iii) shall fail to pay any
fee or other amount to be paid by it hereunder or under any Credit
Document to which it is a party within ten days after the same becomes
due and payable; or
(b) Any certification, representation or warranty made by the
Borrower herein or by the Borrower (or any officer of the Borrower) in
writing under or in connection with this Agreement or any instrument
executed in connection herewith (including representations and
warranties deemed made pursuant to Section 3.2) shall prove to have
been incorrect in any material respect when made or deemed made; or
(c) The Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.1(b) on its part to
be performed or observed and such failure shall continue for five
Business Days after the earlier of the date notice thereof shall have
been given to the Borrower by the Agent or any Bank or the date the
Borrower shall have knowledge of such failure, or (ii) any term,
covenant or agreement contained in this Agreement (other than a term,
covenant or agreement contained in Section 5.1(b), Section 5.2 or any
other Credit Document on its part to be performed or observed and such
failure shall continue for ten Business Days after the earlier of the
date notice thereof shall have been given to the Borrower by the Agent
or any Bank or the date the Borrower shall have knowledge of such
failure; or (iii) any term, covenant or agreement contained in Section
5.2; or
(d) The Borrower or any Subsidiary of the Borrower shall fail
to pay any principal of or premium or interest on any Debt which is
outstanding in a principal amount of at least $60,000,000 in the
aggregate (excluding Debt incurred pursuant to any Letter of Credit) of
the Borrower and/or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment, as required in connection
with any permitted sale of assets or as required in connection with any
casualty or condemnation), prior to the stated maturity thereof;
provided, however, that the provisions of this Section 6.1(d)
50
shall not apply to any Non-Recourse Debt of any non-material Subsidiary
of the Borrower which is a Non-Borrowing Subsidiary as defined in the
Multiyear Williams Credit Agreement; or
(e) The Borrower or any Material Subsidiary of the Borrower
(i) shall generally not pay its debts as such debts become due, or (ii)
shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors or any
proceeding shall be instituted by or against the Borrower or any
Material Subsidiary of the Borrower seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted
by it), shall remain undismissed or unstayed for a period of 60 days;
or the Borrower or any Material Subsidiary of the Borrower shall take
any action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $60,000,000 shall be rendered against the Borrower or any Material
Subsidiary of the Borrower and remain unsatisfied and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(g) Any Termination Event with respect to a Plan shall have
occurred and, 30 days after notice thereof shall have been given to the
Borrower by the Agent, (i) such Termination Event shall still exist and
(ii) the sum (determined as of the date of occurrence of such
Termination Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which a
Termination Event shall have occurred and then exist (or in the case of
a Plan with respect to which a Termination Event described in clause
(ii) of the definition of Termination Event shall have occurred and
then exist, the liability related thereto) is equal to or greater than
$75,000,000; or
(h) The Borrower or any ERISA Affiliate of the Borrower shall
have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an amount
which, when aggregated with all other amounts required to be paid to
Multiemployer Plans in connection with Withdrawal Liabilities
(determined as of the date of such notification), exceeds $75,000,000
in the aggregate or requires payments exceeding $50,000,000 per annum;
or
(i) The Borrower or any ERISA Affiliate of the Borrower shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such reorganization
or termination the aggregate annual contributions of the Borrower and
its ERISA Affiliates to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over
the amounts
51
contributed to such Multiemployer Plans for the respective plan years
which include the date hereof by an amount exceeding $75,000,000;
(j) Any provision (other than any provision excepted from, or
subject to a qualification in, the opinion delivered pursuant to
Section 3.1(c), but only to the extent of such exception or
qualification) of any Security Document for any reason is not a legal,
valid, binding and enforceable obligation of the Borrower party thereto
or the Borrower party thereto shall so state in writing;
(k) Any material portion of the Collateral that is not covered
by adequate insurance shall be destroyed or any material portion of the
Collateral shall otherwise become unavailable for use by its owner for
a period in excess of 30 days (or 90 days if such owner has business
interruption insurance adequate to cover the loss to it resulting from
such Collateral being unavailable for use) or title to any material
portion of the Collateral shall be successfully challenged; or
(l) Any "Default" or "Event of Default" as defined in any
Security Document shall occur;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrower, declare, the
obligation of each Issuing Bank to issue any Letter of Credit to be terminated,
whereupon each such obligation shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Majority Banks, by notice to the
Borrower, declare the principal of the Reimbursement Obligations, all interest
thereon and all other amounts payable by the Borrower under this Agreement and
any other Credit Document to be forthwith due and payable, whereupon all such
amounts shall become and be forthwith due and payable, without requirement of
any presentment, demand, protest, notice of intent to accelerate, further notice
of acceleration or other further notice of any kind (other than the notice
expressly provided for above), all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of any Event of Default described
in Section 6.1(e)(ii), (A) the obligation of each Issuing Bank to issue a Letter
of Credit shall automatically be terminated and (B) the principal of the
Reimbursement Obligations, all such interest and all such other amounts shall
automatically become and be due and payable, without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or any other
notice of any kind, all of which are hereby expressly waived by the Borrower.
For purposes of this Section 6.1, any Reimbursement Obligation owed to an SPC
shall be deemed to be owed to its Designating Bank.
SECTION 6.2. LC Cash Collateral Accounts. Upon the occurrence
and during the continuance of any Event of Default (if the Agent has declared
all amounts owed hereunder to be due and payable), the Borrower agrees that it
shall forthwith, without any demand or the taking of any other action by any
Issuing Bank, the Agent, or any of the Banks, provide cover for the outstanding
Letter of Credit Liabilities by paying to the Agent immediately available funds
in an amount equal to the then aggregate undrawn face amount of all outstanding
Letters of Credit, which funds shall be deposited into a blocked deposit account
or accounts to be established and maintained at the office of Citibank (or an
affiliate thereof) in the name of the Agent as collateral security for any
outstanding Letter of Credit Liabilities (the "LC Cash Collateral Accounts").
The Borrower hereby pledges, and grants to the Agent for the ratable benefit of
each Issuing
52
Bank and the Banks, a security interest in all funds held in the LC Cash
Collateral Accounts from time to time and all proceeds thereof, as security for
the payment of the outstanding Letter of Credit Liabilities. The Agent shall
from time to time withdraw funds then held in the LC Cash Collateral Accounts to
satisfy the payment of any Reimbursement Obligations owing to any Issuing Bank
as shall have become or shall become due and payable by the Borrower to such
Issuing Bank under this Agreement in connection with the Letters of Credit. The
Agent shall exercise reasonable care in the custody and preservation of any
funds held in the LC Cash Collateral Accounts and shall be deemed to have
exercised such care if such funds are accorded treatment substantially
equivalent to that which the Agent accords its own property, it being understood
that the Agent shall not have any responsibility for taking any necessary steps
to preserve rights against any parties with respect to any such funds. If at any
time (a) no Event of Default exists and (b) the funds in the LC Cash Collateral
Accounts exceed the aggregate amount of all Letter of Credit Liabilities, the
Agent shall, upon request of the Borrower, return such excess to the Borrower or
to any Person designated by the Borrower.
ARTICLE VII
[INTENTIONALLY OMITTED]
ARTICLE VIII
THE AGENT; ISSUING BANK; THE COLLATERAL AGENT; OTHERS
SECTION 8.1. Agent's Authorization and Action. Each Bank
hereby appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including enforcement of the terms of this Agreement or collection of
the Reimbursement Obligations, fees and any other amounts due and payable
pursuant to this Agreement), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding upon all Banks; provided, however, that the Agent shall not be required
to take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law. The Agent agrees to give to each
Bank prompt notice of each notice given to it by the Borrower pursuant to the
terms of this Agreement.
SECTION 8.2. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iii) shall not have any duty to ascertain or
to inquire as to the performance
53
or observance of any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (iv) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto;
(v) shall incur no liability under or in respect of any Letter of Credit or this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties; and (vi) may treat
any Issuing Bank that issues or has issued a Letter of Credit as being the
issuer of such Letter of Credit for all purposes.
SECTION 8.3. Issuing Banks' Reliance, Etc. Neither the Issuing
Banks nor any of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence or willful
misconduct. The Issuing Banks shall not have, by reason of this Agreement a
fiduciary relationship in respect of any Bank; and nothing in this Agreement,
expressed or implied, is intended or shall be so construed as to impose upon the
Issuing Banks any obligations in respect of this Agreement except as expressly
set forth herein. Without limitation of the generality of the foregoing, the
Issuing Banks: (i) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (ii)
makes no warranty or representation to any Bank and shall not be responsible to
any Bank for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iii) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(iv) shall not be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (v) shall incur
no liability under or in respect of any Letter of Credit or this Agreement by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 8.4. Rights. With respect to any Letter of Credit
Interest held by it, Citibank shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it was not the
Agent; with respect to its Letter of Credit Commitments, the Reimbursement
Obligations owed to it, any Letter of Credit Interest held by it, the Issuing
Banks shall have the right and power under this Agreement as any other Bank and
may exercise the same as though it was not an Issuing Bank, as the case may be.
The term "Bank" or "Banks" shall, unless otherwise expressly indicated, include
each of the Issuing Banks in their individual capacity. Citicorp, each Issuing
Bank and the respective affiliates of each may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of
business with, the Borrower, any Subsidiary of the Borrower, any Person who may
do business with or own, directly or indirectly, securities of the Borrower or
any such Subsidiary and any other Person, all as if Citicorp were not the Agent
and each Issuing Bank was not an Issuing Bank, in each case without any duty to
account therefor to the Banks.
54
SECTION 8.5. Bank Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon the Collateral Trustee, Agent,
the Arranger, the Issuing Banks or any other Bank and based on the financial
statements referred to in Section 4.1(e) and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Collateral Trustee, Agent, the
Issuing Banks, the Arranger or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 8.6. Indemnification. The Banks agree to indemnify the
Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective Reimbursement Obligations then owed to each of them (or if no
Reimbursement Obligations are at the time outstanding, ratably according to
their respective LC Participation Percentage), from and against any and all
claims, damages, losses, liabilities and expenses (including reasonable fees and
disbursements of counsel) of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement (EXPRESSLY INCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR
EXPENSE ATTRIBUTABLE TO THE ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF THE
AGENT, BUT EXCLUDING ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE
ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE AGENT). IT IS
THE INTENT OF THE PARTIES HERETO THAT THE AGENT SHALL, TO THE EXTENT PROVIDED IN
THIS SECTION 8.6, BE INDEMNIFIED FOR ITS OWN ORDINARY, SOLE OR CONTRIBUTORY
NEGLIGENCE. Without limitation of the foregoing, each Bank agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under this Agreement to
the extent that the Agent is not reimbursed for such expenses by the Borrower.
SECTION 8.7. Successor Agent. The Agent may resign at any time
as Agent under this Agreement by giving written notice thereof to the Banks and
the Borrower and may be removed at any time with or without cause by the
Majority Banks. Upon any such resignation or removal, the Majority Banks shall
have the right to appoint, with the consent the Borrower (which consent shall
not be unreasonably withheld and shall not be required if an Event of Default
exists), a successor Agent from among the Banks. If no successor Agent shall
have been so appointed by the Majority Banks with such consent, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Majority Banks' removal of the retiring Agent, then
the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a Bank which is a commercial bank organized under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent under this Agreement by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent and shall function as the Agent under this
Agreement, and the retiring Agent shall be discharged
55
from its duties and obligations as Agent under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VIII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
SECTION 8.8. Collateral Agent's Authorization and Action. Each
Bank hereby appoints and authorizes the Collateral Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Collateral Agent by the terms hereof, together with such powers
as are reasonably incidental thereto. As to any matters not expressly provided
for by this Agreement (including enforcement of the terms of this Agreement or
collection of the Reimbursement Obligations, fees and any other amounts due and
payable pursuant to this Agreement), the Collateral Agent shall not be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Banks, and such instructions
shall be binding upon all Banks; provided, however, that the Collateral Agent
shall not be required to take any action which exposes the Collateral Agent to
personal liability or which is contrary to this Agreement or applicable law. The
Collateral Agent agrees to give to each Bank prompt notice of each notice given
to it by the Borrower pursuant to the terms of this Agreement.
SECTION 8.9. Collateral Agent's Reliance, Etc. Neither the
Collateral Agent nor any of its directors, officers, agents or employees shall
be liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the
Collateral Agent: (i) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (ii)
makes no warranty or representation to any Bank and shall not be responsible to
any Bank for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iii) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(iv) shall not be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; (v) shall incur no
liability under or in respect of any Note, Letter of Credit or this Agreement by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties; and (vi) may treat
any Issuing Bank that issues or has issued a Letter of Credit as being the
issuer of such Letter of Credit for all purposes.
SECTION 8.10. Collateral Agent and Its Affiliates. With
respect to any Letter of Credit Interest held by it, each Bank which is also the
Collateral Agent shall have the same rights and powers under the Credit
Documents as any other Bank and may exercise the same as though it were not the
Collateral Agent; and the term "Bank" or "Banks" shall, unless otherwise
expressly indicated, include any Bank serving as the Collateral Agent in its
individual capacity. Any Bank serving as the Collateral Agent and its affiliates
may accept deposits from, lend
56
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of the Subsidiaries and any Person who may do business with or own
securities of the Borrower or any Subsidiary, all as if such Bank were not the
Collateral Agent and without any duty to account therefor to the Banks.
SECTION 8.11. Bank Credit Decision. Each of the Banks and the
other beneficiaries of any Security Document parties hereto (both on its own
behalf and on behalf of any of its affiliates that is a beneficiary of any
Security Document) acknowledges that it has, independently and without reliance
upon the Collateral Trustee, Collateral Agent or any other Bank and based on the
financial statements referred to in Section 4.1(e) and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Banks and the other
beneficiaries of any Security Document parties hereto (both on its own behalf
and on behalf of any of its Affiliates that is a beneficiary of any Security
Document) also acknowledges that it will, independently and without reliance
upon the Collateral Trustee, Collateral Agent or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Credit Documents. Neither the Collateral Trustee
nor the Collateral Agent shall have any duty or responsibility, either initially
or on a continuing basis, to provide any Person with any credit or other
information with respect thereto, whether coming into its possession before the
issuance of any Letter of Credit or at any time or times thereafter.
SECTION 8.12. Certain Rights of the Collateral Agent. If the
Collateral Agent shall request instructions from the Majority Banks with respect
to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Collateral Agent shall be entitled
to refrain from such act or taking such action unless and until the Collateral
Agent shall have received instructions from the Majority Banks; and it shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Bank nor any beneficiary of any Security Document shall have any
right of action whatsoever against the Collateral Agent as a result of its
acting or refraining from acting hereunder or under any other Loan Document in
accordance with the instructions of the Majority Banks or all of the Banks, as
the case may be. Furthermore, except for action expressly required of the
Collateral Agent hereunder, the Collateral Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall be
specifically indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
SECTION 8.13. Collateral Agent Indemnification. The Banks
agree to indemnify the Collateral Agent (to the extent not reimbursed by the
Borrower), including to the extent the Collateral Agent is acting in its
capacity as "Collateral Trustee" under the Collateral Trust Agreement, ratably
according to the respective principal amounts of the Reimbursement Obligations
then owed to each of them (or if no Reimbursement Obligations are at the time
outstanding, ratably according to their LC Participation Percentage), from and
against any and all claims, damages, losses, liabilities and expenses (including
reasonable fees and disbursements of counsel) of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the Collateral Agent
in any way relating to or arising out of this Agreement or any action taken or
omitted by the Collateral Agent under this Agreement (EXPRESSLY INCLUDING
57
ANY SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE ATTRIBUTABLE TO THE ORDINARY,
SOLE OR CONTRIBUTORY NEGLIGENCE OF THE COLLATERAL AGENT, BUT EXCLUDING ANY SUCH
CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE ATTRIBUTABLE TO THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT). IT IS THE INTENT OF THE PARTIES
HERETO THAT THE COLLATERAL AGENT SHALL, TO THE EXTENT PROVIDED IN THIS SECTION
8.5, BE INDEMNIFIED FOR ITS OWN ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE.
Without limitation of the foregoing, each Bank agrees to reimburse the
Collateral Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Collateral Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under
this Agreement to the extent that the Collateral Agent is not reimbursed for
such expenses by the Borrower.
SECTION 8.14. Successor Collateral Agent. The Collateral Agent
may resign at any time as Collateral Agent under this Agreement by giving
written notice thereof to the Banks and the Borrower and may be removed at any
time with or without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint, with the consent of
the Borrower (which consent shall not be unreasonably withheld and shall not be
required if an Event of Default exists), a successor Collateral Agent from among
the Banks. If no successor Collateral Agent shall have been so appointed by the
Majority Banks with such consent, and shall have accepted such appointment,
within 30 days after the retiring Collateral Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Collateral Agent,
then the retiring Collateral Agent may, on behalf of the Banks, appoint a
successor Collateral Agent, which shall be a Bank which is a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Collateral Agent under this Agreement by a
successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent and shall function as the Collateral Agent
under this Agreement, and the retiring Collateral Agent shall be discharged from
its duties and obligations as Collateral Agent under this Agreement. After any
retiring Collateral Agent's resignation or removal hereunder as Collateral
Agent, the provisions of this Article VIII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent under
this Agreement.
SECTION 8.15. Other Agents; the Arranger. The other agents,
the Collateral Trustee, and the Arranger have no duties or obligations under
this Agreement. None of the other agents, the Collateral Trustee, nor the
Arranger shall have, by reason of this Agreement or the other Credit Documents,
a fiduciary relationship in respect of any Bank, and nothing in this Agreement
or other Credit Documents, express or implied, is intended or shall be so
construed to impose on any of the other agents or the Arranger any obligation in
respect of this Agreement or other Credit Documents.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the following: (a) waive any of
the conditions specified in Article III, (b) increase the Letter of Credit
Commitments of the Issuing Banks or subject any Bank to any additional
obligation, (c) reduce the Reimbursement Obligations or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of the
Reimbursement Obligations or any fees or other amounts payable hereunder, (e)
take any action which requires the signing of all the Banks pursuant to the
terms of this Agreement, (f) change the definition of Majority Banks or
otherwise change the percentage of the Letter of Credit Commitments or of the
aggregate unpaid principal amount of the Letter of Credit Liabilities or the
Reimbursement Obligations, or the number of Banks, which shall be required for
the Banks or any of them to take any action under this Agreement, (g) release
any of the Collateral (except as contemplated by Section 5.2(e)), or (h) amend
this Section 9.1; and provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Banks
required above to take such action, affect the rights or duties of the Agent
under any Credit Document; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by each Issuing Bank in addition to
the Banks required above to take such action, affect the rights or duties of any
Issuing Bank under any Credit Document; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Collateral Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Collateral Agent under any Credit Document.
SECTION 9.2. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopy
communication) and mailed, telecopied or delivered, if to any Bank, as specified
opposite its name on Schedule I hereto or specified in a Transfer Agreement for
any assignee Bank delivered pursuant to Section 9.6(a); if to the Borrower, as
specified opposite its name on Schedule II hereto; if to an Issuing Bank to its
address as specified opposite its name on Schedule I; and if to Citicorp, as
Agent or Collateral Agent, to its address at 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, as to the Borrower, any Issuing
Bank, the Collateral Agent, or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower, each Issuing Bank, the Collateral Agent and
the Agent. All such notices and communications shall, when mailed or telecopied,
be effective when received in the mail, sent by telecopier to any party to the
telecopier number as set forth herein or on Schedule I or Schedule II or
specified in a Transfer Agreement for any assignee Bank delivered pursuant to
Section 9.6(a) (or other telecopy number specified by such party in a written
notice to the other parties hereto), respectively, except that
59
notices and communications to the Agent shall not be effective until received by
the Agent. Any notice or communication to a Bank shall be deemed to be a notice
or communication to any SPC designated by such Bank and no further notice to an
SPC shall be required. Delivery by telecopier of an executed counterpart of this
Agreement or of any amendment or waiver of any provision of this Agreement or
any Schedule or Exhibit F hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 9.3. No Waiver; Remedies. No failure on the part of
any Bank or the Agent to exercise, and no delay in exercising, any right under
this Agreement or any other Credit Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
provided in this Agreement are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.4. Costs and Expenses.
(a) (i) the Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Arranger and the Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the other Credit Documents, if any, and the other
documents to be delivered under this Agreement, including the reasonable fees
and out-of-pocket expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities under
this Agreement and any other Credit Document, the reasonable costs and expenses
of the Issuing Banks in connection with any Letter of Credit, the reasonable
costs and expenses of the Collateral Agent and all amounts paid by the
Collateral Agent pursuant to any Security Document, and (ii) the Borrower agrees
to pay on demand all costs and expenses, if any (including reasonable counsel
fees and expenses, which may include allocated costs of in-house counsel), of
the Agent, the Collateral Agent, the Issuing Banks and each Bank in connection
with the enforcement (whether before or after the occurrence of an Event of
Default and whether through negotiations (including formal workouts or
restructurings), legal proceedings or otherwise) against the Borrower of any
Credit Document to be delivered by the Borrower under this Agreement.
(b) The Borrower agrees, to the fullest extent permitted by
law, to indemnify and hold harmless the Agent, the Collateral Agent, the Issuing
Banks, other agents, the Arranger and each Bank and each of their respective
directors, officers, employees and agents (the "Indemnified Parties") from and
against any and all claims, damages, losses, liabilities and expenses (including
reasonable fees and disbursements of counsel) of any kind or nature whatsoever
for which any of them may become liable or which may be incurred by or asserted
against any of the Indemnified Parties (other than by another Bank or any
successor or assign of another Bank), in each case in connection with or arising
out of or by reason of any investigation, litigation, or proceeding, whether or
not any of the Indemnified Parties is a party thereto, arising out of, related
to or in connection with this Agreement or any transaction in which any proceeds
of all or any part of Letters of Credit are applied (EXPRESSLY INCLUDING ANY
SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE ATTRIBUTABLE TO THE ORDINARY,
SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNIFIED PARTY, BUT EXCLUDING ANY
SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE ATTRIBUTABLE TO THE GROSS
NEGLIGENCE
60
OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY). IT IS THE INTENT OF THE
PARTIES HERETO THAT EACH INDEMNIFIED PARTY SHALL, TO THE EXTENT PROVIDED IN THIS
SECTION 9.4(b), BE INDEMNIFIED FOR ITS OWN ORDINARY, SOLE OR CONTRIBUTORY
NEGLIGENCE.
SECTION 9.5. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.1 to authorize the
Agent to declare the Reimbursement Obligations due and payable pursuant to the
provisions of Section 6.1, each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank to or for
the credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Agreement and the other
Credit Documents, if any, held by such Bank, irrespective of whether or not such
Bank shall have made any demand under this Agreement or the other Credit
Documents and although such obligations may be unmatured. Each Bank agrees
promptly to notify the Borrower after such set-off and application made by such
Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Bank under this
Section are in addition to other rights and remedies (including other rights of
set-off) which such Bank may have.
SECTION 9.6. Binding Effect; Transfers.
(a) This Agreement shall become effective when it shall have
been executed by the Borrower, the Agent, the Collateral Agent and the Issuing
Banks, and when each Bank listed on the signature pages hereof has delivered an
executed counterpart hereof to the Agent, has sent to the Agent a facsimile copy
of its signature hereon or has notified the Agent that such Bank has executed
this Agreement and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Agent, the Collateral Agent, the Issuing Banks and each Bank
and their respective successors and assigns; provided that the Borrower shall
not have the right to assign any of its rights hereunder or any interest herein
without the prior written consent of the Agent. Each Bank may assign to one or
more banks, financial institutions or other entities all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Letter of Credit Commitments or its Letter of Credit Interest); provided,
however, that (i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement, (ii)
except in the case of an assignment of all of a Bank's rights and obligations
under this Agreement or an assignment to another Bank, the amount of the Letter
of Credit Commitment and/or LC Participation Percentage of the assigning Bank
being assigned pursuant to each such assignment (determined as of the date of
the Transfer Agreement with respect to such assignment) shall in no event be
less than $5,000,000 in the aggregate or such lesser amount as may be consented
to by the Agent and the Borrower, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the Register
maintained by the Agent, a Transfer Agreement and, unless the assignment is to
an affiliate of such Bank, a processing and recordation fee of $3,500. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Transfer Agreement, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it
61
pursuant to such Transfer Agreement, have the rights and obligations of a Bank
hereunder (including obligations to the Agent pursuant to Section 8.5) and (y)
the Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Transfer Agreement,
relinquish its rights and be released from its obligations under this Agreement,
except for rights and obligations which continue after repayment of the
Reimbursement Obligations or termination of this Agreement pursuant to the
express terms of this Agreement (and, in the case of a Transfer Agreement
covering all of an assigning Bank's rights and obligations under this Agreement,
such Bank shall cease to be a party hereto).
(b) By executing and delivering a Transfer Agreement, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Transfer Agreement, such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement, any other Credit Document or any other instrument or document
furnished pursuant hereto or in connection herewith, the perfection, existence,
sufficiency or value of any Collateral, guaranty or insurance or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Credit Document or any other instrument or document furnished pursuant hereto or
in connection herewith; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any other Person or the performance or observance by the
Borrower or any other Person of any of its respective obligations under the
Credit Documents or any other instrument or document furnished pursuant hereto
or in connection herewith; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of such financial statements and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Transfer Agreement; (iv)
such assignee will, independently and without reliance upon the Agent, the
Collateral Agent, any Issuing Bank, such assigning Bank or any other Bank and
based on such financial statements and such other documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis
and decisions in taking or not taking action under this Agreement, any of the
other Credit Documents or any other instrument or document; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Agent to act as Agent on its behalf and to exercise such powers
and discretion under the Agreement, any other Credit Document or any other
document executed in connection herewith or therewith as are delegated to the
Agent by the terms hereof or thereof, together with such powers and discretion
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Bank.
(c) The Agent shall maintain a copy of each Transfer
Agreement, delivered to and accepted by it and the Register for the recordation
of the names and addresses of the Banks and the Letter of Credit Commitment of
and Letter of Credit Interest of each Bank from time to time.
(d) Upon its receipt of a Transfer Agreement executed and
completed by an assigning Bank and an assignee representing that it is an
Eligible Assignee (and consented to by the Agent and, if required, by the
Borrower), the Agent shall (i) accept such Transfer Agreement,
62
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower.
(e) Each Bank may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Letter of Credit Interest); provided, however, that (i) such
Bank's obligations under this Agreement (including its Letter of Credit
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the Borrower, the Agent, the Collateral Agent, each
Issuing Bank and the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement, (iv) all amounts payable under this Agreement shall be calculated as
if such Bank had not sold such participation, and (v) the terms of any such
participation shall not restrict such Bank's ability to consent to any departure
by the Borrower herefrom without the approval of the participant, except that
the approval of the participant may be required to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Reimbursement Obligations or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Reimbursement
Obligations or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation.
(f) Notwithstanding any other provisions set forth in this
Agreement, any Bank may at any time create a security interest in all or any
portion of its rights under this Agreement (including its Letter of Credit
Interest) in favor of any Federal Reserve Bank in accordance with Regulation A
of the Federal Reserve Board without notice to or consent of the Borrower or the
Agent. Furthermore, any Bank may assign, as collateral or otherwise, any of its
rights (including rights to payments of principal of and/or interest on its
Letter of Credit Interest) under this Agreement or any of its Letter of Credit
Interest to any Federal Reserve Bank without notice to or consent of the
Borrower or the Agent.
(g) Notwithstanding anything to the contrary contained herein,
any Bank (a "Designating Bank") with the consent of the Agent and, if no Event
of Default has occurred and is continuing, the Borrower may grant to a special
purpose funding vehicle (an "SPC"), identified as such in writing from time to
time by the Designating Bank to the Agent and the Borrower, the option to fund
all or any part of any payment to any Issuing Bank which the Designating Bank
has agreed to make; provided that no Designating Bank shall have granted at any
one time such option to more than one SPC and provided further that (i) such
Designating Bank's obligations under this Agreement (including its Letter of
Credit Commitment to the Borrower hereunder, if any) shall remain unchanged,
(ii) such Designating Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the Borrower, the Issuing
Banks, the Collateral Agent, the Agent and the other Banks shall continue to
deal solely and directly with such Designating Bank in connection with such
Designating Bank's rights and obligations under this Agreement, (iv) any such
option granted to an SPC shall not constitute a commitment by such SPC to fund
any drawing under a Letter of Credit, and (v) neither the grant nor the exercise
of such option to an SPC shall increase the costs or expenses or otherwise
increase or change the obligations of the Borrower under this Agreement
(including its obligations under Section 2.6). The issuance of a Letter of
Credit by an SPC
63
hereunder shall utilize the Letter of Credit Commitment of the Designating Bank
to the same extent, and as if, such Letter of Credit were issued by such
Designating Bank. Each party hereto hereby agrees that no SPC shall be liable
for any indemnity or similar payment obligation under this Agreement to the
extent that any such indemnity or similar payment obligations shall have been
paid by its Designating Bank. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against such
SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States. In addition, notwithstanding
anything to the contrary contained in this Section 9.6, an SPC may not assign
its interest in any Letter of Credit Interests except that, with notice to, but
without the prior written consent of, the Borrower and the Agent and without
paying any processing fee therefor, such SPC may assign all or a portion of its
interests in any Letter of Credit Interests to the Designating Bank or to any
financial institutions (consented to by the Borrower and Agent), providing
liquidity and/or credit support to or for the account of such SPC to support the
funding or maintenance of Letter of Credit Interests. Each Designating Bank
shall serve as the agent of its SPC and shall on behalf of its SPC: (i) receive
any and all payments made for the benefit of such SPC and (ii) give and receive
all communications and notices, and vote, approve or consent hereunder, and take
all actions hereunder, including votes, approvals, waivers, consents and
amendments under or relating to this Agreement and the other Credit Documents.
Any such notice, communication, vote, approval, waiver, consent or amendment
shall be signed by the Designating Bank for the SPC and need not be signed by
such SPC on its own behalf. The Borrower, the Issuing Banks, the Collateral
Agent, the Agent and the Banks may rely thereon without any requirement that the
SPC sign or acknowledge the same or that notice be delivered to the Borrower or
the SPC. This Section 9.6(g) may not be amended without the written consent of
any SPC, which shall have been identified to the Agent and the Borrower.
SECTION 9.7. [Intentionally Omitted.]
SECTION 9.8. Governing Law. This Agreement and the other
Credit Documents shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 9.9. Interest. It is the intention of the parties
hereto that the Agent, each Issuing Bank, the Collateral Agent and each Bank
shall conform strictly to usury laws applicable to it, if any. Accordingly, if
the transactions with the Agent, any Issuing Bank, the Collateral Agent or any
Bank contemplated hereby would be usurious under applicable law, then, in that
event, notwithstanding anything to the contrary in this Agreement or any other
agreement entered into in connection with or as security for this Agreement, it
is agreed as follows: (i) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, taken, reserved, charged
or received by the Agent, such Issuing Bank, the Collateral Agent or such Bank,
as the case may be, under this Agreement, any other Credit Document or under any
other agreement entered into in connection with or as security for this
Agreement or the other Credit Documents shall under no circumstances exceed the
maximum amount allowed by such applicable law and any excess shall be canceled
automatically and, if theretofore paid, shall at the option of the Agent, such
Issuing Bank, the Collateral Agent or such Bank, as the case may be, be credited
by the Agent, such Issuing Bank, the Collateral Agent or such Bank, as the case
may be, on the principal amount of the obligations owed to the Agent, such
Issuing Bank, the Collateral Agent or such
64
Bank, as the case may be, by the Borrower or refunded by the Agent, such Issuing
Bank, the Collateral Agent or such Bank, as the case may be, to the Borrower,
and (ii) in the event that the maturity of any obligation payable to the Agent,
such Issuing Bank, the Collateral Agent or such Bank, as the case may be, is
accelerated or in the event of any required or permitted prepayment, then such
consideration that constitutes interest under law applicable to the Agent, such
Issuing Bank, the Collateral Agent or such Bank, as the case may be, may never
include more than the maximum amount allowed by such applicable law and excess
interest, if any, to the Agent, such Issuing Bank, the Collateral Agent or such
Bank, as the case may be, provided for in this Agreement or otherwise shall be
canceled automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall, at the option of the Agent, such Issuing Bank, the
Collateral Agent or such Bank, as the case may be, be credited by the Agent,
such Issuing Bank, the Collateral Agent or such Bank, as the case may be, on the
principal amount of the obligations owed to the Agent, such Issuing Bank, the
Collateral Agent or such Bank, as the case may be, by the Borrower or refunded
by the Agent, such Issuing Bank, the Collateral Agent or such Bank, as the case
may be, to the Borrower.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 9.11. Survival of Agreements, Representations and
Warranties, Etc. All warranties, representations and covenants made by the
Borrower or any officer of the Borrower herein or in any certificate or other
document delivered in connection with this Agreement shall be considered to have
been relied upon by the Banks and shall survive the issuance and delivery of the
Notes, if any, the issuance of any Letters of Credit and the making of the
Advances regardless of any investigation. The indemnities and other payment
obligations of the Borrower set forth in Sections 2.4, 2.6 and 9.4, the
indemnities set forth in Section 2.10 and the indemnities by the Banks in favor
of the Agent and its officers, directors, employees and agents, will survive the
repayment of the Reimbursement Obligations and the termination of this
Agreement.
SECTION 9.12. 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 9.13. Confidentiality. Each Bank agrees that it will
not disclose without the prior consent of the Borrower (other than to employees,
auditors, accountants, counsel or other professional advisors of the Agent or
any Bank) any information with respect to the Borrower or its Subsidiaries
(which term shall be deemed to include the WCG Subsidiaries for purposes of this
Section 9.13), which is furnished pursuant to this Agreement and which (i) the
Borrower in good faith considers to be confidential and (ii) is either clearly
marked confidential or is designated by the Borrower to the Agent and the Banks
in writing as
65
confidential, provided that any Bank may disclose any such information (a) as
has become generally available to the public, (b) as may be required or
appropriate in any report, statement or testimony submitted to or required by
any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or submitted to or required by the Federal Reserve
Board or the Federal Deposit Insurance Corporation or similar organizations
(whether in the United States or elsewhere) or their successors, (c) as may be
required or appropriate in response to any summons or subpoena in connection
with any litigation, (d) in order to comply with any law, order, regulation or
ruling applicable to such Bank, (e) to the prospective transferee or grantee in
connection with any contemplated transfer of any of the Letter of Credit
Commitments or Letter of Credit Interests or any interest therein by such Bank
or the grant of an option to an SPC to fund any drawing under a Letter of
Credit, provided that such prospective transferee executes an agreement with or
for the benefit of the Borrower containing provisions substantially identical to
those contained in this Section 9.13, and provided further that if the
contemplated transfer is a grant of an option to fund a drawing under a Letter
of Credit to an SPC pursuant to Section 9.6(g), such SPC may disclose, on a
confidential basis, any non-public information relating to such drawings funded
by it to any rating agency, commercial paper dealer or provider of any surety,
guaranty or credit or liquidity enhancement to such SPC, and (ii) if prior
notice of the delivery thereof is given to the Borrower, such information as may
be required by law or regulation to be delivered, (f) in connection with the
exercise of any remedy by such Bank following an Event of Default pertaining to
this Agreement, any of the other Credit Documents or any other document
delivered in connection herewith, (g) in connection with any litigation
involving such Bank pertaining to this Agreement, any of the other Credit
Documents or any other document delivered in connection herewith, (h) to any
Bank, any Issuing Bank, the Collateral Agent or the Agent, or (i) to any
affiliate of any Bank, provided that such affiliate executes an agreement with
or for the benefit of the Borrower containing provisions substantially identical
to those contained in this Section 9.13.
SECTION 9.14. Waiver of Jury Trial. THE BORROWER, THE AGENT,
THE COLLATERAL AGENT, THE ISSUING BANK AND THE BANKS HEREBY IRREVOCABLY WAIVE
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT, ANY LETTER OF CREDIT OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.15. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, ANY
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE BANKS, ANY ISSUING BANK OR THE
BORROWER IN CONNECTION HEREWITH OR THEREWITH MAY BE BROUGHT AND MAINTAINED IN
THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
66
WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN
SECTION 9.2. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER
HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS.
67
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWER:
THE WILLIAMS COMPANIES, INC.
By: /s/ James G. Ivey
--------------------------------------
Name: James G. Ivey
Title: Treasurer
BANKS:
CITICORP USA, INC., as Agent and Collateral
Agent
By:
--------------------------------------
Authorized Officer
CITIBANK, N.A., as Bank and Issuing Bank
By: /s/ J. Christopher Lyons
--------------------------------------
Authorized Officer
BANK OF AMERICA N.A., as Issuing Bank and
Bank
By: /s/ Claire Liu
--------------------------------------
Authorized Officer
Claire Liu
Managing Director
JPMORGAN CHASE BANK
By: /s/ Sanjeev Khemlani, V.P.
--------------------------------------
Authorized Officer
TORONTO DOMINION (TEXAS), INC.
By: /s/ Ann S. Slanis
--------------------------------------
Authorized Officer
Ann S. Slanis
Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Bernard Weymuller
--------------------------------------
Authorized Officer
Bernard Weymuller,
Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Nadine Bell
--------------------------------------
Nadine Bell,
Senior Manager
MERRILL LYNCH CAPITAL CORP.
By: /s/ Carol J.B. Fosley
--------------------------------------
Authorized Officer
Carol J.B. Fosley
Vice President
Merrill Lynch Capital Corp.
LEHMAN COMMERCIAL PAPER INC.
By: /s/ Michele Swanson
--------------------------------------
Authorized Officer
Michele Swanson
Authorized Signatory
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Bank Lending Office
- ------------ --------------
Citibank N.A. Citibank N.A.
399 Park Avenue
New York, New York 10043
Notices:
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Telecopier: (212) 527-1084
Attn: Christine Grundel
Dept: Medium Term Finance
with copies to:
Citicorp North America, Inc.
1200 Smith Street, Suite 2000
Houston, Texas 77002
Telecopier: (713) 654-2849
Attn: The Williams Companies, Inc.
Account Officer
Citicorp USA, Inc. Citicorp USA, Inc.
399 Park Avenue
New York, New York 10043
Notices:
Citicorp USA, Inc.
399 Park Avenue
New York, New York 10043
Telecopier: (212) 527-1084
Attn: Christine Grundel
Dept: Medium Term Finance
with copies to:
Citicorp North America, Inc.
1200 Smith Street, Suite 2000
Houston, Texas 77002
Telecopier: (713) 654-2849
Attn: The Williams Companies, Inc.
Account Officer
The Bank of Nova Scotia The Bank of Nova Scotia
600 Peachtree Street, N.E., Suite 2700
Atlanta, Georgia 30308
Telecopier: (404) 888-8998
Telephone: (404) 877-1555
Attn: Cleve Boushey
with copies to:
1100 Louisiana, Suite 3000
Houston, Texas 77002
Telecopier: (713) 752-2425
Telephone: (713) 759-3435
Attn: Joe Lattanzi
Telecopier: (713) 752-2425
Telephone: (713) 759-3426
Attn: John Frazell
Bank of America, N.A. Bank of America, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Telecopier: (214) 290-9415
Telephone: (214) 209-1228
Attn: Marija Salic
with copies to:
Bank of America, N.A.
Three Allen Center, Suite 4550
Houston, Texas 77002
Telecopier: (713) 651-4807
Telephone: (713) 651-4855
Attn: Claire Liu
JPMorgan Chase Bank JPMorgan Chase Bank
270 Park Avenue, 23rd Floor
New York, New York 10017
Telecopier: (212) 270-3089
Telephone: (212) 270-7056
Attn: Steve Wood
Credit Lyonnais Credit Lyonnais
New York Branch 1301 Travis, Suite 2100
Houston, Texas 77002
Telecopier: (713) 890-8666
Telephone: (713) 890-8605
Attn: Rich Kaufman
Telecopier: (713) 751-0307
Telephone: (713) 753-8741
Attn: Ericka Jackson
Toronto Dominion (Texas), Toronto Dominion (Texas), Inc.
Inc. 909 Fannin Street, 17th Floor
Houston, Texas 77010
Swift Address: TDOMU S4H
Telecopier: (713) 951-9921
Attn: Ann Slanis
Merrill Lynch Capital Corp. Merrill Lynch Capital Corp.
4 World Financial Center, 7th Floor
New York, New York 10080
Telecopier: (212) 738-1649
Telephone: (212) 449-8414
Attn: Carol Seely (Notices)
Telecopier: (212) 738-1719
Telephone: (212) 449-6996
Attn: Mark Campbell (Operations)
Lehman Commercial Paper
Inc. Lehman Commercial Paper Inc.
745 Seventh Avenue, 19th Floor
New York, NY 10019
Telecopier: (212) 526-0242/7691
Telephone: (212) 526-0330
Attn: Michele Swanson (Credit)
Telecopier: (212) 526-6653
Telephone: (212) 526-3321
Attn: Marie Cowell (Operations)
SCHEDULE II
BORROWER INFORMATION
Name of Borrower Information for Notices
- ---------------- -----------------------
The Williams Companies, Inc. The Williams Companies, Inc.
One Williams Center, Suite 5000
Tulsa, Oklahoma 74172
Attention: Patti J. Kastl
Telecopier: (918) 573-2065
Telephone: (918) 573-2172
SCHEDULE III
PERMITTED BORROWER LIENS
(a) (i) Any Lien existing on any property at the time of the acquisition thereof
and not created in contemplation of such acquisition by the Borrower or any of
its Subsidiaries, whether or not assumed by the Borrower or any of its
Subsidiaries, (ii) purchase money, construction or analogous Liens securing
obligations incurred in connection with or financing the direct or indirect
costs of or relating to the acquisition, construction (including design,
engineering, installation, testing and other related activities), development
(including drilling), improvement, repair or replacement of property (including
such Liens securing Debt or other obligations incurred in connection with the
foregoing or within 30 days of the later of (x) the date on which such Property
was acquired or construction, development, improvement, repair or replacement
thereof was complete or (y) if applicable, the final "in service" date for
commencement of full operations of such property), provided that all such Liens
attach only to the property acquired, constructed, developed, improved or
repaired or constituting replacement property, and the principal amount of the
Debt or other obligations secured by such Lien, together with the principal
amount of all other Debt secured by a Lien on such property, shall not exceed
the gross acquisition, construction, replacement and other costs specified above
of or for the property, (iii) Liens on receivables created pursuant to a sale,
securitization or monetization of such receivables, and Liens on rights of the
Borrower or any Subsidiary related to such receivables which are transferred to
the purchaser of such receivables in connection with such sale, securitization
or monetization; provided that the Liens secure only the obligations of the
Borrower or any of its Subsidiaries in connection with such sale, securitization
or monetization, (iv) Liens created by or reserved in any operating lease
(whether for real or personal property) entered into in the ordinary course of
business (excluding Synthetic Leases) provided that the Liens created thereby
(1) attach only to the Property leased to the Borrower or one of its
Subsidiaries, pursuant to such operating lease and (2) secure only the
obligations under such lease and supporting documents that do not create
obligations other than with respect to the leased property (including for rent
and for compliance with the terms of the lease), (v) Liens on property subject
to a Capital Lease created by such Capital Lease and securing only obligations
under such Capital Lease and supporting documents that do not create obligations
other than with respect to the leased property, (vi) any interest or title of a
lessor in the property subject to any Capital Lease, Synthetic Lease or
operating lease, (vii) Liens in the form of filed Uniform Commercial Code or
personal property security statements (or similar filings outside Canada and the
United States) to perfect any Permitted Lien, and (viii) Liens on up to four
aircraft owned or leased by the Borrower or any Subsidiary of the Borrower.
(b) Any Lien existing on any property of a Subsidiary of the Borrower at the
time it becomes a Subsidiary of the Borrower and not created in contemplation
thereof and any Lien existing on any property of any Person at the time such
Person is merged or liquidated into or consolidated with the Borrower or any
Subsidiary thereof and not created in contemplation thereof.
(c) Mechanics', materialmen's, workmen's, warehousemen's, carrier's, landlord's
or other similar Liens arising in the ordinary
course of business securing amounts incurred in the ordinary course of business
which are not more than 90 days past due or are being contested in good faith by
appropriate proceedings.
(d) Liens arising by reason of pledges, deposits or other security to secure
payment of workmen's compensation insurance or unemployment insurance, pension
plans or systems and other types of social security, and good faith deposits or
other security to secure tenders or leases of property or bids, in each case to
secure obligations of the Borrower or any of its Subsidiaries under such
insurance, tender, lease, bid or contract, as the case may be; provided,
however, that the only Liens permitted by this paragraph (d) shall be Liens
incurred in the ordinary course of business that do not secure any Debt or
accounts payable (other than accounts payable to the counterparties or obligees
applicable to the foregoing).
(e) Liens on deposits or other security given to secure public or statutory
obligations, or to secure or in lieu of surety bonds (other than appeal bonds)
and deposits as security for the payment of taxes or assessments or other
similar charges, in each case to secure obligations of the Borrower or any of
its Subsidiaries arising in the ordinary course of business; provided, however,
that the aggregate amount of obligations secured by Liens permitted by this
paragraph (e) shall not exceed 10% of Consolidated Tangible Net Worth of the
Borrower.
(f) Any Lien arising by reason of deposits with or the giving of any form of
security to any governmental agency or any body created or approved by law or
governmental regulation for any purpose at any time as required by law or
governmental regulation (i) as a condition to the transaction by the Borrower or
any of its Subsidiaries of any business or the exercise by the Borrower or any
of its Subsidiaries of any privilege or license, (ii) to enable the Borrower or
any of its Subsidiaries to maintain self-insurance or to participate in any fund
for liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to the Borrower or any of its Subsidiaries to share in the
privileges or benefits required for companies participating in such
arrangements.
(g) Liens incurred in the ordinary course of business upon rights-of-way
securing obligations (other than Debt and trade payables) of the Borrower or any
of its Subsidiaries.
(h) Undetermined mortgages and charges incidental to construction or maintenance
arising in the ordinary course of business which are not more than 90 days past
due or are being contested in good faith by appropriate proceedings.
(i) The right reserved to, or vested in, any municipality or governmental or
other public authority or railroad by the terms of any right, power, franchise,
grant, license, permit or by any provision of law, to terminate or to require
annual or other periodic payments as a condition to the continuance of such
right, power, franchise, grant, license or permit.
(j) The Lien of taxes, customs duties or other governmental charges or
assessments that are not at the time determined (or, if determined, are not at
the time delinquent), or that are delinquent but the validity of which is being
contested in good faith by the Borrower or any of its Subsidiaries by
appropriate proceedings and with respect to which reserves in conformity with
generally accepted accounting principles, if required by such principles, have
been provided on the books of the Borrower or the relevant Subsidiary of the
Borrower, as the case may be.
2
(k) The Lien reserved in (i) leases entered into in the ordinary course of
business for rent and for compliance with the terms of the lease in the case of
real or personal property leasehold estates or (ii) leases and sub-leases
granted to others that do not materially interfere with the ordinary course of
business of the Borrower and its Subsidiaries, taken as a whole.
(l) Defects and irregularities in the titles to any property (including
rights-of-way and easements) which are not material to the business, assets,
operations or financial condition of the Borrower and its Subsidiaries, taken as
a whole.
(m) Easements, exceptions or reservations in any property of the Borrower or any
of its Subsidiaries granted or reserved in the ordinary course of business for
the purpose of pipelines, roads, equipment, streets, alleys, highways,
railroads, the removal of oil, gas, coal or other minerals or timber, and other
like purposes, or for the joint or common use of real property, facilities and
equipment, or in favor of governmental authorities or public utilities, in each
case above which do not materially impair the use of such property for the
purposes for which it is held by the Borrower or such Subsidiary.
(n) Rights reserved to or vested in any municipality or public authority to
control or regulate any property of the Borrower or any of its Subsidiaries, or
to use such property in any manner which does not materially impair the use of
such property for the purposes for which it is held by the Borrower or such
Subsidiary.
(o) Any obligations or duties, affecting the property of the Borrower or any of
its Subsidiaries, to any municipality or public authority with respect to any
franchise, grant, license or permit.
(p) The Liens of any judgments in an aggregate amount for the Borrower and all
of its Subsidiaries (i) not in excess of $8,500,000, the execution of which has
not been stayed and (ii) not in excess of $40,000,000, the execution of which
has been stayed and which have been appealed and secured, if necessary, by a
stay or appeal bond or other security of similar effect and stay or appeal bonds
in respect of the judgments permitted in clause (ii).
(q) Zoning laws and ordinances.
(r) Liens existing on July 1, 2002, that secure only Debt and other obligations
incurred or committed and available for draw down on or prior to or outstanding
on July 1, 2002 and listed on Schedule IX as secured by such Liens.
(s) Liens existing on July 1, 2002 (i) that cover only immaterial assets and
(ii) that secure only Debt and other obligations incurred or committed and
available for draw down on or prior to or outstanding on July 1, 2002.
(t) Liens reserved in customary oil, gas and/or mineral leases for bonus or
rental payments and for compliance with the terms of such leases and Liens
reserved in customary operating agreements, farm-out and farm-in agreements,
exploration agreements, development agreements and other similar agreements for
compliance with the terms of such agreements; provided that (i) such Liens do
not secure Debt or accounts payable (other than obligations under such lease or
3
agreement, as the case may be) and (ii) such leases and agreements are entered
into in the ordinary course of business.
(u) Liens arising in the ordinary course of business out of all presently
existing and future division and transfer orders, advance payment agreements,
processing contracts, gas processing plant agreements, operating agreements, gas
balancing or deferred production agreements, participation, joint venture, joint
operating, pooling, unitization or communitization agreements, pipeline,
gathering or transportation agreements, platform agreements, drilling contracts,
injection or repressuring agreements, cycling agreements, construction
agreements, salt water or other disposal agreements, leases, sub-leases or
rental agreements, royalty interests, overriding royalty interests, farm-out and
farm-in agreements, exploration and development agreements, and any and all
other contracts or agreements covering, arising out of, used or useful in
connection with or pertaining to the exploration, development, operation,
production, sale, use, purchase, exchange, storage, separation, dehydration,
treatment, compression, gathering, transportation, processing, improvement,
marketing, disposal or handling of any property of a Person (each such order,
agreement or contract being a "Subject Document"), provided that and to the
extent that (i) such Subject Documents are entered into the ordinary course of
business and contain terms customary for such documents in the industry, (ii)
such permitted Liens shall not include any security interests in accounts
receivable or other receivables and do not secure Debt or accounts payable
(other than accounts payable arising under the particular Subject Document that
creates the Lien), and (iii) such Subject Documents do not create nor do such
Liens secure Financing Transactions.
(v) Liens arising by law under Section 9.343 of the Texas Uniform Commercial
Code or similar statutes of states other than Texas.
(w) Liens arising pursuant to the Security Documents which secure the
obligations of TWC and its Subsidiaries under this Agreement and the Multiyear
Williams Credit 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 the Borrower or any affiliate thereof granted by the
Borrower or any such affiliate thereof under agreements commonly in use in the
industry of the Borrower or such affiliate, but solely to secure the offset or
netting rights of such trading counterparty and/or affiliates thereof to the
payment of such trading receivables arising from and to the extent of the
trading obligations of the Borrower or any affiliate thereof to such trading
counterparty or its affiliates).
(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 the Borrower and its Subsidiaries secured by all such Liens not
so permitted by paragraphs (a) through (x) above or (z) through (ii) below plus
the amount of Attributable Obligations (other than those relating to Liens
described in clause (a)(viii)) of the Borrower and its Subsidiaries in respect
of Sale and Lease-Back Transactions permitted by Section 5.2(l) does not exceed
$100,000,000.
4
(z) 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 the Borrower or
any Subsidiary the purchase, sale or other disposition of which is not
prohibited by any other provision of this Agreement.
(bb) Liens securing reimbursement obligations with respect to letters of credit
that encumber documents and other property relating to such letters of credit
and the proceeds and products thereof.
(cc) Liens on the products and proceeds (including insurance, condemnation and
eminent domain proceeds) of and accessions to, and contract or other rights
(including rights under insurance policies and product warranties) derivative of
or relating to, property permitted to be subject to Liens under this Agreement
but subject to the same restrictions and limitations herein set forth as to
Liens on such property (including the requirement that such Liens on products,
proceeds, accessions and rights secure only obligations that such property is
permitted to secure).
(dd) Liens on the Property of a Project Finance Subsidiary or the Equity
Interests in such Project Finance Subsidiary securing the Non-Recourse Debt of
such Project Finance Subsidiary.
(ee) Liens on cash and short-term investments incurred in the ordinary course of
business, consistent with past practice and not for the purpose of securing Debt
(i) deposited by the Borrower or any of its Subsidiaries in margin accounts with
or on behalf of futures contract brokers or other counterparties or (ii) pledged
by the Borrower or any of its Subsidiaries, in the case of each of clauses (i)
and (ii) above, to secure its obligations with respect to (x) contracts
(including without limitation, physical delivery, option (whether cash or
financial), exchange, swap and futures contracts) for the purchase or sale of
any energy-related commodity or (y) interest rate or currency rate management
contracts.
(ff) Liens securing Debt of Williams Energy Partners L.P. and/or its
Subsidiaries; provided that such Liens shall only apply to assets owned directly
by William Energy Partners L.P. or its Subsidiaries.
(gg) Liens securing the Barrett Loan.
(hh) Liens securing Permitted Refinancing Debt (as defined below) (and related
obligations) covering substantially the same collateral securing (immediately
prior to such refinancing) the Debt Refinanced (as defined below) by such
Permitted Refinancing Debt; provided that: (i) the principal amount of such
Permitted Refinancing Debt does not exceed the principal amount of the Debt
Refinanced (plus the amount of penalties, premiums (including required premiums
and the amount of any premiums reasonably determined by the Borrower being in
its best economic interest and as necessary to accomplish such Refinancing by
means of a tender offer or privately
5
negotiated repurchase), fees, accrued interest and reasonable expenses and other
obligations incurred in connection therewith) at the time of refinancing; and
(ii) such Debt is incurred either by the Borrower or by such Subsidiary that is
the obligor of the Debt being Refinanced. "Permitted Refinancing Debt" means any
Debt (other than Debt referred to clause (gg) above) of the Borrower or any of
its Subsidiaries issued to Refinance other Debt of the Borrower or any such
Subsidiaries. "Refinance" means, in respect of any Debt (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.
6
SCHEDULE IV
COMMITMENTS
AS OF JULY 31, 2002
<Table>
<Caption>
BANKS LETTER OF CREDIT COMMITMENT LC PARTICIPATION PERCENTAGE
----- --------------------------- ---------------------------
CITIBANK, N.A. $200,000,000 0
BANK OF AMERICA N.A. $200,000,000 20.625%
CITICORP USA, INC. 0 20.625%
JPMORGAN CHASE BANK 0 16.25%
TORONTO DOMINION (TEXAS), INC. 0 12.5%
CREDIT LYONNAIS NEW YORK BRANCH 0 12.5%
THE BANK OF NOVA SCOTIA 0 12.5%
MERRILL LYNCH CAPITAL CORP. 0 2.5%
LEHMAN COMMERCIAL PAPER INC. 0 2.5%
TOTAL: $400,000,000 100%
</Table>
SCHEDULE V
RATING CATEGORIES
<Table>
<Caption>
Applicable Applicable LC
Rating S&P or Moody's ratings of the senior unsecured Issued LC Commitment
Category long-term debt of the applicable Borrower* Margin Margin
-------- ----------------------------------------------- ------------ --------------
One BB+ or better by S&P and Ba1 or better by Moody's 3.00% 0.75%
Two BB by S&P and Ba2 by Moody's 3.50% 0.875%
Three BB- by S&P and Ba3 by Moody's 4.00% 1.00%
Four B+ by S&P and B1 by Moody's 4.25% 1.25%
Five Below B+ by S&P or below B1 by Moody's 4.50% 1.50%
</Table>
*If split-rated, the lower rating will apply. At all times when no senior
unsecured long-term debt of the Borrower is rated by Moody's or when no senior
unsecured long-term debt of the Borrower is rated by S&P, Rating Category five
shall apply.
SCHEDULE VI
EXISTING PROJECTS
1. Gulfstream
2. Cove Point
3. Devil's Tower
4. PIGAP II Project
SCHEDULE VII
[INTENTIONALLY OMITTED.]
SCHEDULE VIII
[INTENTIONALLY OMITTED.]
SCHEDULE IX
LIENS SECURING EXISTING DEBT/OBLIGATIONS
Liens existing on July 1, 2002, that secure only Debt and
other obligations incurred or committed and available for draw down on or prior
to or outstanding on July 1, 2002 and listed on Schedule IX as secured by such
Liens. See clause (r) on Schedule III.
1. Liens granted in connection with those 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, TWC, 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, and related transaction documents.
2. Liens granted in connection with the Master Agreement dated as of March 6,
2000, among TWC, as Guarantor, Williams TravelCenters, Inc., as Lessee, Atlantic
Financial Group, Ltd., as Lessor, SunTrust Bank, as Agent, and the Lenders named
therein, as amended, and related transaction documents.
3. Liens granted in connection with the Joint Venture Sponsor Agreement dated as
of December 28, 2000, among TWC, as Sponsor and Williams Field Services Company,
in favor of Prairie Wolf Investors ("Investor"), Arctic Fox Assets, L.L.C.,
Williams Energy (Canada), Inc. and the other Indemnified Persons listed therein,
as amended, and related transaction documents.
4. Liens granted in connection with the PPH Sponsor Agreement dated as of
December 31, 2001, by TWC, as Sponsor, in favor of Piceance Production Holdings
LLC, Plowshare Investors LLC ("Investor"), and other Indemnified Persons listed
in the agreement, as amended, and related transaction documents.
5. Liens granted in connection with the Parent Support Agreement dated as of
December 23, 1998, made by TWC in favor of Castle Associates L. P. "(Castle")
and Colchester LLC ("Investor") and the other Indemnified Persons listed
therein, as amended, and related transaction documents.
6. Liens granted in connection with the Loan Agreement dated as of March 17,
1998 Pine Needle LNG Company, LLC among Pine Needle LNG Company, LLC and Central
Commercial Lending Institutions as the Lenders and Bank of Montreal as the agent
for the Lenders, and related transaction documents.
7. Liens granted in connection Finance Agreement among WilPro Energy Services
(El Furrial) Limited, Overseas Private Investment Corporation dated as of
January 31, 1999, and related transaction documents.
SCHEDULE X
MIDSTREAM SUBSIDIARIES
Delaware
- --------
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.
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
- ------
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
- -----
Black Marlin Pipeline Company
Rio Grande Pipeline Company
Kansas
- ------
Nebraska Energy, L.L.C.
SCHEDULE XI
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.
$611,788,868 Joint Venture Sponsor Agreement dated as of December 28, 2000,
among The Williams Companies, Inc., 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 listed therein, as
amended.
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.
Outstanding letters of credit as of July 31, 2002 (as set forth on Schedule
XIII) to the extent they have not been Cash Collateralized.
All documents, instruments, agreements, certificates and notices at any time
executed and/or delivered in connection with any of the foregoing.
SCHEDULE XII
POST-CLOSING ITEMS
1. Consents, 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 WITH RESPECT TO THE ABOVE LISTED STATES AND 15
DAYS AFTER THE REQUEST THEREFOR BY THE AGENT WITH RESPECT TO ANY OTHER STATE.
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 (ii) the real property owned by Borrower
and the Midstream Subsidiaries located in the States of Alaska, Arkansas,
Colorado, New Mexico, Tennessee and Wyoming, other than the Gathering Systems
which boundary line surveys shall in each case be (A) dated a date reasonably
close to the date of 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 THEREFOR.
5. Flood Insurance. If requested by the Agent, the Agent shall
have received a policy of flood insurance in form and substance satisfactory to
the Agent. TO BE COMPLETED 60 DAYS AFTER 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 (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. The
Company shall use its best efforts to obtain all third party consents necessary
to pledge the Excluded Equity Interests (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.
EXHIBIT A
TO
CREDIT AGREEMENT
OPINION OF WILLIAM G. VON GLAHN
EXHIBIT B-1
TO
CREDIT AGREEMENT
OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
(ENFORCEABILITY)
EXHIBIT B-2
TO
CREDIT AGREEMENT
OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
(PERFECTION)
EXHIBIT C
TO
CREDIT AGREEMENT
EXISTING LOANS AND INVESTMENTS IN WGC SUBSIDIARIES
<Table>
<Caption>
TWC CONTINUING CONTRACTS TO WHICH WCG IS A PARTY
------------------------------------------------
AGREEMENT DATE PARTIES
--------- ---- -------
Amended and Restated Administrative Services
Agreement but excluding all Service
Level Agreements included therein other
than those listed below
23-Apr-01 TWC and WCG
Amended and Restated Administrative Services
Agreement -- Cafeteria Card (SLA No. ASF-11)
Amended and Restated Administrative Services
Agreement -- Catering Services (SLA No. ASF-3)
Amended and Restated Administrative Services
Agreement -- Data Center Floor Space (SLA No.
IT-23)
Amended and Restated Administrative Services
Agreement -- Security System Administration (SLA
No. ASR-2)
Amended and Restated Administrative Services
Agreement -- Telecommunications Support (PBX)
(SLA No. IT-19)
Amended and Restated Administrative Services
Agreement -- Warren Clinic (SLA No. HR-17)
Amended and Restated Administrative Services
Agreement -- Records Management (Revised) (SLA
No. ASF-9)
Amended and Restated Confidentiality and 1-Feb-02 TWC and WCG
Nondisclosure Agreement
Amended and Restated Cross-License Agreement 23-Apr-01 TWC and WCG
Amended and Restated Employee Benefits Agreement 23-Apr-01 TWC and WCG
Amended and Restated Separation Agreement 23-Apr-01 TWC and WCG
Amendment of State of Oklahoma OIC Agreement 23-Apr-01 TWC and WCG
ITWill Assignment and Assumption Agreement 23-Apr-01 TWC and WCG
Mutual Waiver, dated April 23, 2001 23-Apr-01 TWC and WCG
Professional Services Agreement 23-Apr-01 TWC, WCG, The Feinberg Group, LLP
Relocation Services Agreement 2-Jan-02 Williams Relocation Management, Inc.
(a TWC subsidiary) and WCG
Restructuring Support Agreement 23-Feb-02 TWC and WCG
Shareholder Agreement 23-Apr-01 TWC and WCG
Trademark License Agreement 23-Apr-01 TWC and WCG
All agreements and exhibits related to or incorporated by the foregoing that
were entered into to implement the transactions contemplated thereby, e.g.
Assignment and Assumption Agreements, Bills of Sale.
</Table>
<Table>
<Caption>
TWC CONTINUING CONTRACTS TO WHICH WCG IS NOT A PARTY
----------------------------------------------------
AGREEMENT DATE PARTIES
--------- ---- --------
Agreement Of Purchase And Sale And Construction 26-Feb-01 (as amended Williams Headquarters Building Company
Completion 13-Mar-01, and WCL
13-April-01,
13-Sep-01, 30-Apr-02
Agreement To Terminate Aircraft Dry Lease -- N352WC 27-Mar-02 Williams Aircraft Leasing, LLC (a TWC
subsidiary) and WCL
Aircraft Dry Lease -- N358WC 13-Sep-01 Williams Communications Aircraft, LLC
(a TWC subsidiary) and WCL
Aircraft Dry Lease -- N359WC 13-Sep-01 Williams Communications Aircraft, LLC
(a TWC subsidiary) and WCL
Bank of Oklahoma Tower Use Agreement 23-Apr-01 Williams Headquarters Building Company
and WCL
Central Plant Lease Agreement 23-Apr-01 (as amended Williams Headquarters Building Company
13-Sep-01) and Williams Technology Center, LLC (a
WCL subsidiary)
Construction, Operating and Maintenance Agreement 1-Jan-97 (as amended Transcontinental Gas Pipe Line
19-Feb-99) Corporation (a TWC subsidiary) and WCL
Consulting Services Agreement 29-Oct-01 Williams Pipe Line Company (a TWC
subsidiary) and WCL
Co-Occupancy Agreement 18-Feb-99 Northwest Pipeline Corporation (a TWC
subsidiary) and WCL
Co-Occupancy Agreement 22-Feb-99 Williams Gas Pipelines Central, Inc.
(a TWC subsidiary) and WCL
Co-Occupancy Agreement 1-May-00 Williams Pipe Line Company (a TWC
subsidiary) and WCL
Co-Occupancy Agreement 5-Mar-99 (as amended Mid-America Pipeline Company (a TWC
23-Apr-01) subsidiary) and WCL
Co-Occupancy Agreement 5-Mar-99 (as amended Williams Field Services Company (a TWC
23-Apr-01) subsidiary) and WCL
Dark Fiber IRU Agreement 26-Feb-01 Transcontinental Gas Pipe Line
Corporation (a TWC Subsidiary) and WCL
Fairfax Terminal Station Site Lease 26-Aug-96 Williams Pipe Line Company (a TWC
subsidiary) and WCL
First Amendment to Level 3 Sublease Agreement 1-Jan-99 (as amended TWC and WCL
31-Dec-00 and assigned
23-Apr-01)
</Table>
2
<Table>
<Caption>
AGREEMENT DATE PARTIES
--------- ---- -------
Lease Agreement 1-Jan-97 Williams Natural Gas Company (a TWC
subsidiary now known as Williams Gas
Pipelines Central, Inc.) and WCL
Lease Agreement 1-Sep-95 Transcontinental Gas Pipe Line
Corporation (a TWC subsidiary) and WCL
Lease Agreement 1-Mar-97 Texas Gas Transmission Corporation and
WCL
Management Services Agreement 23-Apr-01 (as amended Williams Headquarters Building Company
13-Sep-01) and Williams Technology Center, LLC (a
WCL subsidiary)
Master Agreement 23-Feb-99 (as amended Williams Pipe Line Company (a TWC
23-Apr-01) subsidiary) and WCL
Nondisclosure Agreement 29-Oct-01 TWC and WCL
Northwest Plaza Level Amended and Restated Lease 1-Jan-99 (as amended Original Amended and Restated Lease
Agreement 31-Dec-00) Agreement between Williams
Headquarters Building Company,
Landlord, and WCL, Tenant;
amendment between TWC,
Sublessor, and WCG, Sublessee
Operation, Maintenance and Repair Agreement 19-Feb-99 (as amended Mid-America Pipeline Company,
31-Aug-99) Northwest Pipeline Corporation, Texas
Gas Transmission Corporation,
Transcontinental Gas Pipe Line
Corporation, Williams Field Services
Company, Williams Gas Pipelines
Central, Inc. and Williams Pipe Line
Company and WCL
Partial Assignment and Assumption Agreement 26-Feb-01 Williams Headquarters Building Company
and Williams Technology Center, LLC (a
WCL subsidiary)
Sale Agreement 14-Feb-97 Williams Pipe Line Company (a TWC
subsidiary) and WCL
Southwest Plaza Level Amended and Restated Lease 1-Jan-99 Williams Headquarters Building Company
Agreement and WCL
Sublease Agreement 1-May-00 Williams Pipe Line Company (a TWC
subsidiary) and WCG; WCG assigned its
rights to WCL on 2-Apr-02
Technical Services Agreement 1998 Spectrum Network Systems Limited (now
known as PowerTel Limited, a 45% WCG
subsidiary) and Williams International
Services Company (a TWC subsidiary)
Teleport Services Agreement 9-Oct-01 Williams Energy Marketing & Trading
co. (a TWC subsidiary and WCL
The Depot Amended and Restated Lease Agreement 1-Jan-99 (as amended Williams Headquarters Building Company
31-Dec-00 and assigned and WCL
23-Apr-01)
TWC Corporate Guarantee 23-Apr-01 TWC guaranteed a TWC subsidiary in
favor of a WCL subsidiary
TWC Corporate Guarantee 23-Apr-01 TWC guaranteed a TWC subsidiary in
</Table>
3
<Table>
favor of a WCL subsidiary
TWC Guaranty 23-Apr-01 TWC guaranteed a TWC subsidiary in
favor of a WCL subsidiary
User Agreement for Pipe 5-Mar-99 (as amended Williams Pipe Line Company (a TWC
23-Apr-01) subsidiary) and WCL
Utility Service Agreement 23-Apr-01 (as amended Williams Headquarters Building Company
13-Sep-01) and Williams Technology Center, LLC (a
WCL subsidiary)
Web Hosting and Streaming Services Agreement 2-Oct-00 Williams Energy Services, Inc. (a TWC
subsidiary) and WCL
Weld County Sublease Agreement 19-Apr-96 Williams Natural Gas Company (a TWC
subsidiary) and WCL
All agreement and exhibits related to or incorporated by the foregoing that were
entered into to implement the transactions contemplated thereby, e.g. Assignment
and Assumption Agreements, Bills of Sale.
</Table>
4
EXHIBIT D
TO
CREDIT AGREEMENT
FORM OF TRANSFER AGREEMENT
Dated __________, 20__
Reference is made to the Credit Agreement, dated as of July
31, 2002 (such Credit Agreement, as amended or otherwise modified from time to
time, being herein referred to as the "Credit Agreement"), among The Williams
Companies, Inc., as Borrower, Citicorp USA, Inc., as Agent and Collateral Agent
for the Banks, Bank of America N.A., as Syndication Agent, the Banks and Issuing
Banks parties thereto and Salomon Smith Barney Inc., as Arranger. Terms defined
in the Credit Agreement are used herein with the same meaning.
_________________________ (the "Assignor") and
__________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse, and the Assignee hereby purchases and assumes from
the Assignor, an interest in and to all of the Assignor's rights and
obligations under the Credit Agreement and the other Credit Documents
executed in connection therewith as of the date hereof equal to the
percentage interest specified on Schedule 1 hereto of all outstanding
rights and obligations under the Credit Agreement. After giving effect
to such sale and assignment, the Assignee's and Assignor's respective
Letter of Credit Commitments and LC Participation Percentage will be as
set forth in Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, the
other Credit Documents or other instrument or document furnished
pursuant thereto or in connection therewith, the perfection, existence,
sufficiency or value of any Collateral, guaranty or insurance or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, any of the other Credit Documents or
any other instrument or document furnished pursuant thereto or in
connection therewith; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrower or any other Person or the performance or observance by
the Borrower or any other Person of any of its respective obligations
under the Credit Agreement, the other Credit Documents or any other
instrument or document furnished pursuant thereto or in connection
therewith.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.1(e) of the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Transfer
5
Agreement; (ii) agrees that it will, independently and without reliance
upon the Agent, the Collateral Agent, any Issuing Bank, the Assignor or
any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement, any other
Credit Document, or any other instrument or document; (iii) confirms
that it is an Eligible Assignee; (iv) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Bank;
and (vi) specifies as its Lending Office (and address for notices) the
office set forth beneath its name on the signature pages hereof.
4. Following the execution of this Transfer Agreement by the
Assignor and the Assignee, this Transfer Agreement will be delivered to
the Agent for acceptance and recording by the Agent. The effective date
of this Transfer Agreement (the "Effective Date") shall be the date of
acceptance thereof by the Agent, unless otherwise specified on Schedule
1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Transfer Agreement, have
the rights and obligations of a Bank thereunder and under the other and
(ii) the Assignor shall, to the extent provided in this Transfer
Agreement, relinquish its rights and be released from its obligations
under the Credit Agreement and under the other Credit Documents.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent
shall make all payments under the Credit Agreement and the other
instrument or document furnished pursuant thereto or in connection
therewith in respect of the interest assigned hereby (including all
payments of principal, interest and fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the other
instrument or document furnished pursuant thereto or in connection
therewith for periods prior to the Effective Date directly between
themselves.
7. This Transfer Agreement by, and construed in accordance
with, the laws of the State of New York.
8. This Transfer Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of Schedule 1 to this
Transfer Agreement by telecopier shall be as effective as delivery of a
manually executed counterpart of this Transfer Agreement.
6
IN WITNESS WHEREOF, the parties hereto have caused this
Transfer Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
7
Schedule 1
to
Transfer Agreement
<Table>
Section 1.
- ---------
LC Participation Percentage interest assigned: ____________%
Assignee's LC Participation Percentage interest before giving effect to this
Transfer Agreement: ____________%
Assignee's LC Participation Percentage interest after giving effect to this
Transfer Agreement: ____________%
Assignor's remaining LC Participation Percentage interest after
giving effect to this Transfer Agreement: ____________%
Section 2.
- ---------
Letter of Credit Commitment interest assigned: $_____________
Assignee's Letter of Credit Commitment before giving effect to this
Transfer Agreement: $_____________
Assignee's Letter of Credit Commitment after giving effect to this
Transfer Agreement: $_____________
Assignor's remaining Letter of Credit Commitment after
giving effect to this Transfer Agreement: $_____________
Section 3.
- ---------
Effective Date: _____________________, 20____
</Table>
[NAME OF ASSIGNOR], as Assignor
By:
-----------------------------------
Name:
Title:
Dated:
[NAME OF ASSIGNEE], as Assignee
By:
-----------------------------------
Name:
Title:
Dated:
Lending Office (and address for notices):
[Address]
[Approved this ___ day of ______, _______
THE WILLIAMS COMPANIES, INC.
By:
-----------------------------------------
Name:
Title:]
[Approved this ___ day of ______, _______
[NAME OF [ISSUING BANK][BANK]], as [Issuing Bank][Bank]
By:
-----------------------------------------
Name:
Title:]
[Approved this ___ day of ______, _______
CITICORP USA, INC., as Agent
By:
-----------------------------------------
Name:
Title:]
2
EXHIBIT E
TO
CREDIT AGREEMENT
FORM OF NOTICE OF LETTER OF CREDIT
[Date]
Citicorp USA, Inc., as Agent
for the Banks parties to the Credit
Agreement referred to below
399 Park Avenue
New York, New York 10043
Attention: Williams Account Officer
Ladies and Gentlemen:
The undersigned, The Williams Companies, Inc. (the "Borrower"), (a) refers to
that certain Credit Agreement, dated as of July 31, 2002 (as amended or
otherwise modified from time to time, the "Credit Agreement"; the terms defined
therein and not defined herein being used herein as therein defined), among The
Williams Companies, Inc., as Borrower, Citicorp USA, Inc., as Agent and
Collateral Agent for the Banks, Bank of America N.A., as Syndication Agent, the
Banks and Issuing Banks parties thereto and Salomon Smith Barney Inc., as
Arranger; (b) hereby gives you notice, irrevocably, pursuant to Section 2.10 of
the Credit Agreement that the undersigned hereby requests you to issue an
irrevocable standby Letter of Credit as set forth below in such language as you
may deem appropriate and (c) in that connection sets forth below the information
relating to such standby Letter of Credit (the "Standby Letter of Credit") as
required by Section 2.10 of the Credit Agreement:
(i) The Business Day upon which the Standby Letter of Credit will
be issued is ______________, 20____ (the "Issuance Date").
(ii) The account party for the Standby Letter of Credit is the
undersigned.
(iii) Attached hereto as Exhibit A are the proposed terms of the
Standby Letter of Credit (including the beneficiary thereof
and the nature of the transactions or obligations proposed to
be supported thereby).
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the Issuance Date:
(a) the representations and warranties contained in Section 4.1 of
the Credit Agreement are correct on and as of the Issuance
Date, before and after the issuance of the Standby Letter of
Credit, as though made on and as of such date;
3
(b) no event has occurred and is continuing, or would result from
the issuance of the Standby Letter of Credit, which
constitutes a Default or Event of Default;
(c) after giving effect to the Standby Letter of Credit and all
Letters of Credit which have been requested on or prior to the
date hereof but which have not been made or issued prior to
the date hereof, the sum of the aggregate principal amount of
all Letter of Credit Liabilities will not exceed the aggregate
of the Letter of Credit Commitments; and
(d) after giving effect to the Standby Letter of Credit and all
Letters of Credit issued on or prior to the date hereof, the
sum of the aggregate principal amount of all Letters of Credit
issued by the Issuing Bank to which this issuance request is
being made will not exceed the aggregate of the Letter of
Credit Commitments of such Issuing Bank.
Very truly yours,
THE WILLIAMS COMPANIES, INC.
By:
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Name:
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Title:
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cc: Citicorp North America, Inc.
1200 Smith Street, Suite 2000
Houston, Texas 77002
Attn: The Williams Companies, Inc.
Account Officer
[Issuing Bank]
EXHIBIT F
TO
CREDIT AGREEMENT
FORM OF SECURITY AGREEMENT
EXHIBIT G
TO
CREDIT AGREEMENT
FORM OF LLC GUARANTY
6
EXHIBIT H
TO
CREDIT AGREEMENT
FORM OF MIDSTREAM GUARANTY
7
EXHIBIT I
TO
CREDIT AGREEMENT
FORM OF PLEDGE AGREEMENT
8
EXHIBIT J
TO
CREDIT AGREEMENT
FORM OF HOLDINGS GUARANTY
9