1
EXHIBIT 4(b)
U.S. $800,000,000
CREDIT AGREEMENT
Dated as of February 23, 1995
Among
THE WILLIAMS COMPANIES, INC.
NORTHWEST PIPELINE CORPORATION
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
TEXAS GAS TRANSMISSION CORPORATION
WILLIAMS PIPE LINE COMPANY
as Borrowers
and
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Agent
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1.04. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1.05. Ratings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.02. Making the A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.03. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.04. Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.05. Repayment of A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.06. Interest on A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.07. Additional Interest on Eurodollar Rate Advances . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.08. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.09. Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.10. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.11. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.12. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.13. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.14. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.15. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.16. The B Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.17. Optional Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.18. Extension of Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.19. Voluntary Conversion of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.20. Automatic Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE III
CONDITIONS
Section 3.01. Conditions Precedent to Initial Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.02. Additional Conditions Precedent to Each A Borrowing . . . . . . . . . . . . . . . . . . . . 33
Section 3.03. Conditions Precedent to Each B Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE V
COVENANTS OF THE BORROWERS
Section 5.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VII
THE AGENT
Section 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.03. Citibank and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.04. Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 8.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.04. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.06. Binding Effect; Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 8.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.08. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.09. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.10. Survival of Agreements, Representations and Warranties, Etc. . . . . . . . . . . . . . . . . 61
Section 8.11. Borrowers' Right to Apply Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.13. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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Schedule I - Bank Information
Schedule II - Borrower Information
Schedule III - Permitted NWP Liens
Schedule IV - Permitted TGPL Liens
Schedule V - Permitted TGT Liens
Schedule VI - Permitted TWC Liens
Schedule VII - Permitted WPL Liens
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Notice of A Borrowing
Exhibit B-2 - Notice of B Borrowing
Exhibit C - Opinion of J. Furman Lewis
Exhibit D - Opinion of William G. von Glahn
Exhibit E - Opinion of David E. Varner
Exhibit F - Opinion of Special Counsel to Agent
Exhibit G - Existing Transfer Restrictions
Exhibit H - Form of Transfer Agreement
Exhibit I - Additional Disclosures
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CREDIT AGREEMENT
Dated as of February 23, 1995
This Credit Agreement dated as of February 23, 1995, is by and among
the Borrowers, the Agent and the Banks. In consideration of the mutual
covenants and agreements contained herein, the Borrowers, the Agent and the
Banks hereby agree as set forth herein.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"A Advance" means an advance by a Bank to a Borrower as part
of an A Borrowing and refers to a Base Rate Advance or a Eurodollar
Rate Advance, each of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A
Advances of the same Type to the same Borrower made by each of the
Banks pursuant to Section 2.01.
"A Note" means a promissory note of a Borrower payable to the
order of any Bank, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Bank
resulting from the A Advances to such Borrower owed to such Bank.
"Advance" means an A Advance or a B Advance.
"Agent" means Citibank, N.A. in its capacity as agent pursuant
to Article VII hereof and any successor Agent pursuant to Section
7.06.
"Agreement" means this Credit Agreement dated as of February
23, 1995 among the Borrowers, the Agent and the Banks, as amended or
modified from time to time.
"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of a Base Rate Advance
and such Bank's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance and,
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in the case of a B Advance, the office of such Bank notified by such
Bank to the Agent as its Applicable Lending Office with respect to
such B Advance.
"Applicable Margin" means
(i) as to any A Advance to any Borrower (other than WPL during such
times as WPL is Unrated), the rate per annum set forth in the
following table for the relevant Type of such A Advance and for the
relevant Rating Category applicable to such Borrower from time to
time:
Rating Eurodollar Rate Base
Category Advance Rate Advance
-------- --------------- ------------
One .35% 0
Two .40% 0
Three .45% 0
Four .55% 0
Five .75% .25%
Six 1.125% .50%
Seven 1.50% .75%
and (ii) for each day during such times as WPL is Unrated, as to any A
Advance to WPL, the rate per annum set forth in the following table
for the relevant Type of such A Advance and for the relevant amount of
the Applicable WPL Debt to TNW Ratio for such day:
Applicable
WPL Debt to Eurodollar Rate Base
TNW Ratio Advance Rate Advance
---------- --------------- ------------
Less than .55 .45% 0
.55 or greater and
less than .60 .55% 0
.60 or greater .75% .25%
The Applicable Margin determined pursuant to clause (i) of this
definition for any A Advance to any Borrower shall change when and as
the relevant Rating Category applicable to such Borrower changes.
Furthermore, the applicability of clause (i) or (ii) of this
definition to WPL shall change when and as the status of WPL as
Unrated or not Unrated changes. For example, if WPL borrows on
September 15 of a year a Eurodollar Rate Advance with a three month
Interest Period and WPL is Unrated from September 15 through October
15 of such year
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and is not Unrated thereafter, then the Applicable Margin for such
Advance will be determined (1) pursuant to the foregoing clause (ii)
from September 15 through October 15 of such year (and the Applicable
WPL Debt to TNW Ratio (a) for the days from September 15 through
September 30 will be the WPL Debt to TNW Ratio on March 31 of such
year and (b) for the days after September 30 will be the WPL Debt to
TNW Ratio on June 30 of such year), and (2) pursuant to the foregoing
clause (i) during the other days of such Interest Period. Furthermore
if, in such example, the Rating Category applicable to WPL from
October 16 through October 20 was Rating Category Five and thereafter
was Rating Category Four, the Applicable Margin for such Advance would
be .75% from October 16 through October 20 and .55% thereafter.
"Applicable WPL Debt to TNW Ratio" for any day means the WPL
Debt to TNW Ratio as of the end of the calendar quarter which is the
second calendar quarter prior to such day. For example, the Applicable
WPL Debt to TNW Ratio for any day in the calendar quarter ending
September 30 of a year will be the WPL Debt to TNW Ratio as of March
31 of such year.
"Arranger" means Citicorp Securities, Inc.
"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).
"B Advance" means an advance by a Bank to a Borrower as part
of a B Borrowing resulting from the auction bidding procedure
described in Section 2.16.
"B Borrowing" means a borrowing consisting of simultaneous B
Advances to the same Borrower from each of the Banks whose offer to
make one or more B Advances as part of such borrowing has been
accepted by such Borrower under the auction bidding procedure
described in Section 2.16.
"B Note" means a promissory note of a Borrower payable to the
order of any Bank, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of such Borrower to such Bank resulting
from a B Advance made to such Borrower by such Bank.
"B Reduction" has the meaning specified in Section 2.01.
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"Banks" means the lenders listed on the signature pages hereof
and each other Person that becomes a Bank pursuant to the last
sentence of Section 8.06(a).
"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; or
(b) 1/2 of one percent per annum above 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 being determined weekly on each
Monday (or, if any 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, in either case adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent, to the
next higher 1/4 of one percent; or
(c) 1/2 of one percent per annum above the
Federal Funds Rate in effect from time to time.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.06(a).
"Borrowers" means TWC, NWP, TGPL, TGT and WPL.
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or
relates to any B Advance as to which the related Notice of B Borrowing
is delivered pursuant to clause (B) of Section 2.16(a)(i), on which
dealings are carried on in the London interbank market.
"Citibank" means Citibank, N.A.
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"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.
"Commitment" of any Bank to any Borrower means at any time the
lesser of (i) the amount set opposite or deemed (pursuant to clause
(vii) of the last sentence of Section 8.06(a) and as reflected in the
relevant Transfer Agreement referred to in such sentence) to be set
opposite such Bank's name for such Borrower on the signature pages
hereof as such amount may be terminated, reduced or increased pursuant
to Section 2.04, Section 2.17, Section 6.01 or Section 8.06(a), or
(ii) the amount of the Commitment of such Bank to TWC at such time.
"Consolidated" refers to the consolidation of the accounts of
any Person and its subsidiaries in accordance with generally accepted
accounting principles.
"Consolidated Net Worth" of any Person means the Net Worth of
such Person and its Subsidiaries on a Consolidated basis.
"Consolidated Tangible Net Worth" of any Person means the
Tangible Net Worth of such Person and its Subsidiaries on a
Consolidated basis.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.02, Section 2.19 or Section 2.20.
"Debt" means, in the case of any Person, (i) indebtedness of
such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures or notes, (iii) obligations of such
Person to pay the deferred purchase price of property or services,
(iv) monetary obligations of such Person as lessee under leases which
are, in accordance with generally accepted accounting principles,
recorded as capital leases, (v) obligations of such Person under
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (iv) or clause (vii) of
this definition, (vi) indebtedness or obligations of others of the
kinds referred to in clauses (i) through (v) or clause (vii) of this
definition secured by any Lien on or in respect of any property of
such Person, and (vii) all liabilities of such Person in respect of
unfunded vested benefits under any Plan; provided, however, that Debt
shall not include any obligation under or resulting from any agreement
referred to in paragraph (y) of Schedule III, paragraph (y) of
Schedule IV, paragraph (y) of Schedule V, paragraph (y) of Schedule VI
or paragraph (h) of Schedule VII or under or resulting from any
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sale and leaseback referred to in paragraph (aa) of Schedule III,
paragraph (aa) of Schedule IV, paragraph (aa) of Schedule V, paragraph
(bb) of Schedule VI or paragraph (j) of Schedule VII.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or pursuant to Section 8.06(a),
or such other office of such Bank as such Bank may from time to time
specify to the Borrowers and the Agent.
"Environment" shall have the meaning set forth in 42 U.S.C.
Section 9601(8) as defined on the date of this Agreement, and
"Environmental" shall mean pertaining or relating to the Environment.
"Environmental Protection Statute" shall mean any United
States local, state or federal, or any foreign, law, statute,
regulation, order, consent decree or other agreement or Governmental
Requirement arising from or in connection with or relating to the
protection or regulation of the Environment, including, without
limitation, those laws, statutes, regulations, orders, decrees,
agreements and other Governmental Requirements relating to the
disposal, cleanup, production, storing, refining, handling,
transferring, processing or transporting of Hazardous Waste, Hazardous
Substances or any pollutant or contaminant, wherever located.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder from time to time.
"ERISA Affiliate" of any Borrower means any trade or business
(whether or not incorporated) which is a member of a group of which
such Borrower is a member and which is under common control within the
meaning of the regulations under Section 414 of the Code.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or pursuant to Section 8.06(a)
(or, if no such office is specified, its Domestic Lending Office) or
such other office of such Bank as such Bank may from time to time
specify to the Borrowers and the Agent.
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"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing, an
interest rate per annum (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such rate is not such a multiple) equal to
the rate per annum at which deposits in U.S. dollars are offered by
the principal off-ice of Citibank in London, England to prime banks in
the London interbank market at I 1:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount
substantially equal to the amount of the Eurodollar Rate Advance of
Citibank comprising part of such A Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest Period.
"Eurodollar Rate Advance" means an A Advance which bears
interest as provided in Section 2.06(b).
"Eurodollar Rate Reserve Percentage" of any Bank for any
Interest Period for any Eurodollar Rate Advance means the reserve
percentage applicable during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Bank with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
For purposes of clause (iv) of the definition herein of "Interest
Period", Section 2.19 and Section 6.01, an Event of Default exists as
to a particular Borrower if such Event of Default exists wholly or in
part as a result of any event, condition, action, inaction,
representation or other matter of, by or otherwise directly or
indirectly pertaining to such Borrower or any Subsidiary of such
Borrower. Without limiting the foregoing and for purposes of further
clarification, it is agreed that inasmuch as each of NWP, WPL, TGPL
and TGT is a Subsidiary of TWC, any Event of Default that exists as to
any of NWP, WPL, TGPL or TGT also exists as to TWC.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on
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such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Governmental Requirements" means all judgments, orders,
writs, injunctions, decrees, awards, laws, ordinances, statutes,
regulations, rules, franchises, permits, certificates, licenses,
authorizations and the like and any other requirements of any
government or any commission, board, court, agency, instrumentality or
political subdivision thereof.
"Hazardous Substance" shall have the meaning set forth in 42
U.S.C. 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, without limitation 40 C.F.R. Section 261.3).
"Insufficiency means, with respect to any Plan, the amount, if
any, by which the present value of the vested benefits under such Plan
exceeds the fair market value of the assets of such Plan allocable to
such benefits.
"Interest Period" means, for each A Advance to a Borrower
comprising part of the same A Borrowing, the period commencing on the
date of such A Advance or the date of the Conversion of any Base Rate
Advance into a Eurodollar Rate Advance and ending on the last day of
the period selected by such Borrower pursuant to the provisions below
and, thereafter, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day
of the period selected by such Borrower pursuant to the provisions
below. The duration of each Interest Period shall be one, two, three
or six months, in each case as such Borrower may, upon notice received
by the Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(i) Interest Periods commencing on the same date
for A Advances comprising part of the same A Borrowing shall
be of the same duration;
(ii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided that if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the
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last day of such Interest Period shall occur on the next
preceding Business Day;
(iii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month in which it would have
ended if there were a numerically corresponding day in such
calendar month; and
(iv) no Borrower may select any Interest Period
which ends after the Termination Date, and no Borrower may
select any Interest Period if any Event of Default exists as
to such Borrower.
"Lien" means any mortgage, lien, pledge, charge, deed of
trust, security interest, encumbrance or other type of preferential
arrangement to secure or provide for the payment of any obligation of
any Person, whether arising by contract, operation of law or otherwise
(including, without limitation, the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title
retention agreement).
"Majority Banks" means at any time Banks holding at least
66-2/3% of the then aggregate unpaid principal amount of the A Notes
held by Banks, or, if no such principal amount is then outstanding,
Banks having at least 66-2/3% of the Commitments or, if no such
principal amount is then outstanding and all Commitments have
terminated, Banks holding at least 66-2/3% of the then aggregate
unpaid principal amount of the B Notes held by Banks (provided that
for purposes of this definition and Sections 2.17, 6.01 and 7.01
neither any Borrower nor any Subsidiary or Related Party of any
Borrower, if a Bank, shall be included in (i) the Banks holding the A
Notes or B Notes or (ii) determining the aggregate unpaid principal
amount of the A Notes or the B Notes or the amount of the
Commitments).
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which any Borrower or any ERISA
Affiliate of any Borrower is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
"Multiple Employer Plan" means an employee benefit plan, other
than a Multiemployer Plan, subject to Title IV of ERISA to which any
Borrower or any ERISA Affiliate of any Borrower, and one or more
employers other than any
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Borrower or an ERISA Affiliate of any Borrower, is making or accruing
an obligation to make contributions or, in the event that any such
plan has been terminated. to which any Borrower or any ERISA Affiliate
of any Borrower made or accrued an obligation to make contributions
during any of the five plan years preceding the date of termination of
such plan.
"Net Worth" of any Person means, as of any date of
determination, the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to
be determined in accordance with generally accepted accounting
principles.
"Non-Borrowing Subsidiary" of any Borrower means a Subsidiary
of such Borrower which Subsidiary is not itself a Borrower.
"Note" means an A Note or a B Note.
"Notice of A Borrowing," has the meaning specified in Section
2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.16(a).
"NWP" means Northwest Pipeline Corporation, a Delaware
corporation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted NWP Liens" means Liens specifically described on
Schedule III.
"Permitted TGPL Liens" means Liens specifically described on
Schedule IV.
"Permitted TGT Liens" means Liens specifically described on
Schedule V.
"Permitted TWC Liens" means Liens specifically described on
Schedule VI.
"Permitted WPL Liens" means Liens specifically described on
Schedule VII.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any
political subdivision or agency thereof.
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"Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) as defined in Section 3(2) of ERISA currently
maintained by, or to which contributions have been made at any time
after December 31, 1984 by, any Borrower or any ERISA Affiliate of any
Borrower for employees of a Borrower or any such ERISA Affiliate and
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code.
"Public Filing" means TWC'S, NWP'S, TGPL's and TGT's
respective annual reports on Form 10-K for the year ended December 31,
1993, and TWC'S, NWP'S, TGPL's and TGT's respective quarterly reports
on Form 10-Q for the quarters ended March 31, 1994, June 30, 1994 and
September 30, 1994.
"Rating Category" means any of Rating Category One, Rating
Category Two, Rating Category Three, Rating Category Four, Rating
Category Five, Rating Category Six or Rating Category Seven.
"Rating Category One" is applicable to a Borrower at such
times as the senior unsecured long-term debt of such Borrower is rated
A- or better by S&P or A3 or better by Moody's.
"Rating Category Two" is applicable to a Borrower at such
times as (i) Rating Category One is not applicable to such Borrower
and (ii) the senior unsecured long-term debt of such Borrower is rated
BBB+ by S&P or Baal by Moody's.
"Rating, Category Three" is applicable to a Borrower at such
times as (i) neither Rating Category One nor Rating Category Two is
applicable to such Borrower and (ii) the senior unsecured long-term
debt of such Borrower is rated BBB by S&P or Baa2 by Moody's.
"Rating Category Four" is applicable to a Borrower at such
times as (i) neither Rating Category One nor Rating Category Two nor
Rating Category Three is applicable to such Borrower and (ii) the
senior unsecured long-term debt of such Borrower is rated BBB- by S&P
or Baa3 by Moody's.
"Rating, Category Five" is applicable to a Borrower at such
times as (i) neither Rating Category One nor Rating Category Two nor
Rating Category Three nor Rating Category Four is applicable to such
Borrower and (ii) the senior unsecured long-term debt of such Borrower
is rated BB+ by S&P or Ba1 by Moody's.
"Rating Category Six" is applicable to a Borrower at such
times as (i) neither Rating Category One nor Rating Category Two nor
Rating Category Three nor Rating Category Four nor Rating Category
Five is applicable to such
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Borrower and (ii) the senior unsecured long-term debt of such Borrower
is rated BB by S&P or Ba2 by Moody's.
"Rating Category Seven" is applicable to a Borrower at such
times as neither Rating Category One nor Rating Category Two nor
Rating Category Three nor Rating Category Four nor Rating Category
Five nor Rating Category Six is applicable to such Borrower.
"Related Party" of any, Person means any corporation,
partnership, joint venture or other entity of which more than 10% of
the outstanding capital stock or other equity interests having
ordinary voting power to elect a majority of the board of directors of
such corporation, partnership, joint venture or other entity or others
performing similar functions (irrespective of whether or not at the
time capital stock or other equity, interests of any other class or
classes of such corporation, partnership, joint venture or other
entity shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such
Person or which owns at the time directly or indirectly more than 10%
of the outstanding capital stock or other equity interests having
ordinary voting power to elect a majority of the board of directors of
such Person or others performing similar functions (irrespective of
whether or not at the time capital stock or other equity interests of
any other class or classes of such corporation, partnership, joint
venture or other entity shall or might have voting power upon the
occurrence of any contingency); provided, however, that neither TWC
nor any Subsidiary of TWC shall be considered to be a Related Party of
TWC or any Subsidiary of TWC.
"S&P" means Standard & Poor's Ratings Group, a division of
Mc-Graw Hill, Inc. on the date hereof.
"Sale and Lease-Back Transaction" of any Person means any
arrangement entered into by such Person or any Subsidiary of such
Person, directly or indirectly, whereby such Person or any Subsidiary
of such Person shall sell or transfer any property, whether now owned
or hereafter acquired, and whereby such Person or any Subsidiary of
such Person shall then or thereafter rent or lease as lessee such
property or any part thereof or other property which such Person or
any Subsidiary of such Person intends to use for substantially the
same purpose or purposes as the property sold or transferred;
provided, however, that any sale and lease-back of cushion gas,
whether now or hereafter existing, shall not be considered to be a
Sale and Lease-Back Transaction and any sale and lease-back of
inventory, whether now or hereafter existing, by WPL or any of its
Subsidiaries (other than another Borrower) shall not be considered to
be a Sale and Lease-Back Transaction.
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"Stated Termination Date" means February 29, 2000 or such
later date, if any as may be agreed to by the Borrowers and the Banks
pursuant to Section 2.18.
"Subordinated Debt" means any Debt of any Borrower which is
effectively subordinated to the obligations of such Borrower hereunder
and under the Notes.
"Subsidiary" of any Person means any corporation, partnership,
joint venture or other entity of which more than 50% of the
outstanding capital stock or other equity interests having ordinary
voting power to elect a majority of the board of directors of such
corporation, partnership, joint venture or other entity or others
performing similar functions (irrespective of whether or not at the
time capital stock or other equity interests of any other class or
classes of such corporation, partnership, joint venture or other
entity shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such
Person.
"Tangible Net Worth" of any Person means, as of any date of
determination, the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to
be determined in accordance with generally accepted accounting
principles, excluding, however, from the determination of total assets
(i) patents, patent applications, trademarks, copyrights and trade
names, (ii) goodwill, organizational, experimental, research and
development expense and other like intangibles, (iii) treasury stock,
(iv) monies set apart and held in a sinking or other analogous fund
established for the purchase, redemption or other retirement of
capital stock or Subordinated Debt, and (v) unamortized debt discount
and expense.
"Termination Date" means the earlier of (i) the Stated
Termination Date or (ii) the date of termination in whole of the
Commitments pursuant to Section 2.04, 2.17 or 6.01.
"Termination Event" means (i) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a "reportable
event" not subject to the provision for 30-day notice to the PBGC), or
an event described in Section 4062(f) of ERISA, or (ii) the withdrawal
of any Borrower or any ERISA Affiliate of any Borrower from a Multiple
Employer Plan during a plan year in which it was a "substantial
employer", as such term is defined in Section 4001(a)(2) of ERISA, or
the incurrence of liability by any Borrower or any ERISA Affiliate of
any Borrower under Section 4064 of ERISA upon the termination of a
Plan or Multiple Employer Plan, or (iii) the distribution of a notice
of intent to terminate a Plan pursuant to Section 4041(a)(2) of ERISA
or the treatment of a Plan amendment as a termination under Section
4041 of
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ERISA, or (iv) the institution of proceedings to terminate a Plan by
the PBGC under Section 4042 of ERISA, or (v) any other event or
condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer,
any Plan.
"TGPL" means Transcontinental Gas Pipe Line Corporation, a
Delaware corporation.
"TGT" means Texas Gas Transmission Corporation, a Delaware
corporation.
"Transfer Agreement" has the meaning specified in Section 8.06.
"TWC" means The Williams Companies, Inc., a Delaware
corporation.
"Type" has the meaning set forth in the definition herein
of A Advance.
"Unrated" means, as to any Borrower, that no senior unsecured
long-term debt of such Borrower is rated by S&P and no senior
unsecured long-term debt of such Borrower is rated by Moody's.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary
of such Person all of the capital stock and other equity interests of
which is owned by such Person or any Wholly-Owned Subsidiary of such
Person.
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of ERISA.
"WEV" means Williams Energy Ventures, Inc., a Delaware
corporation.
"WFS" means Williams Field Services Group, Inc., a Delaware
corporation.
"WNG" means Williams Natural Gas Company, a Delaware
corporation.
"WPL" means Williams Pipe Line Company, a Delaware corporation.
"WPL Debt to TNW Ratio" means at any date the ratio of (i) the
aggregate amount at such date of all Debt of WPL and its Subsidiaries
on a Consolidated basis to (ii) the sum of the Consolidated Tangible
Net Worth at such date of WPL plus the aggregate amount at such date
of all Debt of WPL and its Subsidiaries on a Consolidated basis.
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Section 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding."
Section 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles, and each reference herein to "generally
accepted accounting principles" shall mean generally accepted accounting
principles consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e)(i).
Section 1.04. Miscellaneous. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule and Exhibit references are to
Articles and Sections of and Schedules and Exhibits to this Agreement, unless
otherwise specified.
Section 1.05. Ratings. A rating, whether public or private,
by S&P or Moody's shall be deemed to be in effect on the date of announcement
or publication by S&P or Moody's, as the case may be, of such rating, or, in
the absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or
in the absence of such announcement or publication, the effective date of, any
change in, or withdrawal or termination of, such rating. In the event the
standards for any rating by Moody's or S&P are revised, or any such rating is
designated differently (such as by changing letter designations to different
letter designations or to numerical designations), the references herein to
such rating shall be deemed to refer to the revised or redesignated rating for
which the standards are closest to, but not lower than, the standards at the
date hereof for the rating which has been revised or redesignated, all as
determined by the Majority Banks in good faith. Long-term debt supported by a
letter of credit, guaranty, insurance or other similar credit enhancement
mechanism shall not be considered as senior unsecured long-term debt. If either
Moody's or S&P has at any time more than one rating applicable to senior
unsecured long-term debt of a Borrower, the lowest such rating shall be
applicable for purposes hereof. For example, if Moody's rates some senior
unsecured long-term debt of a Borrower Ba1 and other such debt of such Borrower
Ba2, the senior unsecured long-term debt of such Borrower shall be deemed to be
rated Ba2 by Moody's.
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The A Advances. Each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make A Advances to each
Borrower from time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate amount outstanding not to
exceed at any time such Bank's Commitment to such Borrower, provided that the
aggregate amount of the Commitments of the Banks to any Borrower shall, except
for purposes of Section 2.03(a), be deemed used from time to time to the extent
of the aggregate amount of the B Advances then outstanding to, such Borrower
and such deemed use of the aggregate amount of such Commitments shall be
applied to the Banks ratably according to their respective Commitments to such
Borrower (such deemed use of the aggregate amount of the Commitments of any
Borrower being a "B Reduction"), and provided further that the aggregate amount
of all A Advances to all Borrowers by any Bank shall not exceed at any time
outstanding such Bank's Commitment to TWC (determined after giving effect to
such Bank's ratable share of all B Reductions). Each A Borrowing shall be in
an aggregate amount not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, and shall consist of A Advances of the same Type
made to the same Borrower on the same day by the Banks ratably according to
their respective Commitments. Within the limits of each Bank's Commitment to a
Borrower, such Borrower may borrow, prepay pursuant to Section 2.10 and
reborrow under this Section 2.01.
Section 2.02. Making the A Advances. (a) Each A Borrowing
shall be made on notice, given not later than (1) in the case of a proposed
Borrowing comprised of Eurodollar Rate Advances, 11:00 A.M. (New York City
time) at least three Business Days prior to the date of the proposed Borrowing,
and (2) in the case of a proposed Borrowing comprised of Base Rate Advances,
10:00 A.M. (New York City time) on the date of the proposed Borrowing, by the
Borrower requesting such A Borrowing to the Agent, which shall give to each
Bank prompt notice thereof by telecopy, telex or cable. Each such notice of an
A Borrowing (a "Notice of A Borrowing") shall be by telecopy, telex or cable,
confirmed immediately in writing, in substantially the form of Exhibit B-1
hereto, executed by the Borrower requesting such A Borrowing and specifying
therein the requested (i) date of such A Borrowing (which shall be a Business
Day), (ii) initial Type of A Advances comprising such A Borrowing, (iii)
aggregate amount of such A Borrowing, and (iv) in the case of an A Borrowing
comprised of Eurodollar Rate Advances, initial Interest Period for each such A
Advance. Each Bank shall, before 11:00 A.M. (New York City time) on the date of
such A Borrowing, make available for the account of its Applicable Lending
Office to the Agent at its New York address referred to in Section 8.02, in
same day funds, such Bank's ratable portion of such A Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will
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make such funds available to the Borrower requesting such A Borrowing at the
Agent's aforesaid address.
(b) Anything herein to the contrary notwithstanding:
(i) at no time shall there be outstanding to any one
Borrower more than six A Borrowings comprised of Eurodollar Rate
Advances;
(ii) no Borrower may select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than
(x) if such Borrowing is made by WPL, $5,000,000, and (y) if such
Borrowing is made by any other Borrower, $20,000,000;
(iii) if the Majority Banks shall notify the Agent that
either (A) the Eurodollar Rate for any Interest Period for any
Eurodollar Rate Advances will not adequately reflect the cost to such
Banks of making or funding their respective Eurodollar Rate Advances
for such Interest Period, or (B) that U.S. dollar deposits for the
relevant amounts and Interest Period for their respective Advances are
not available to them in the London interbank market, or it is
otherwise impossible to have Eurodollar Rate Advances, the Agent shall
forthwith so notify the Borrowers and the Banks, whereupon (1) each
Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance, and (II) the obligations of the Banks to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Agent, at the request of the Majority Banks, shall notify the
Borrowers and the Banks that the circumstances causing such suspension
no longer exist, and, except as provided in Section 2.02(b)(v), each
Advance comprising any requested A Borrowing shall be a Base Rate
Advance;
(iv) if the Agent is unable to determine the Eurodollar
Rate for Eurodollar Rate Advances, the obligation of the Banks to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrowers and the Banks
that the circumstances causing such suspension no longer exist, and,
except as provided in Section 2.02(b)(v), each Advance comprising any
requested A Borrowing shall be a Base Rate Advance; and
(v) if a Borrower has requested a proposed A Borrowing
consisting of Eurodollar Rate Advances and as a result of
circumstances referred to in Section 2.02(b)(iii) or (iv) such A
Borrowing would not consist of Eurodollar Rate Advances, such Borrower
may, by notice given not later than 3:00 P.M. (New York City time) at
least one Business Day prior to the date such proposed A Borrowing
would otherwise be made, cancel such A Borrowing, in which case such A
Borrowing shall be cancelled and no Advances shall be made as a
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result of such requested A Borrowing, but such Borrower shall
indemnify the Banks in connection with such cancellation as
contemplated by Section 2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrowers, except as set forth in Section 2.02(b)(v). In the
case of any A Borrowing requested by a Borrower which the related Notice of A
Borrowing specifies is to be comprised of Eurodollar Rate Advances, such
Borrower shall indemnify each Bank against any loss, cost or expense incurred
by such Bank as a result of any failure to fulfill on or before the date
specified in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of reasonably anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such Bank to fund the A Advance to be made by such Bank as part of such A
Borrowing when such A Advance, as a result of such failure, is not made on such
date. A certificate in reasonable detail as to the basis for and the amount of
such loss, cost or expense submitted to such Borrower and the Agent by such
Bank shall be prima facie evidence of the amount of such loss, cost or expense.
If an A Borrowing requested by a Borrower which the related Notice of A
Borrowing specifies is to be comprised of Eurodollar Rate Advances is not made
as an A Borrowing comprised of Eurodollar Rate Advances as a result of Section
2.02(b), such Borrower shall indemnify each Bank against any loss (excluding
loss of profits), cost or expense incurred by such Bank by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank
prior to the time such Bank is actually aware that such A Borrowing will not be
so made to fund the A Advance to be made by such Bank as part of such A
Borrowing. A certificate in reasonable detail as to the basis for and the
amount of such loss, cost or expense submitted to such Borrower and the Agent
by such Bank shall be prima facie evidence of the amount of such loss, cost or
expense.
(d) Unless the Agent shall have received notice from a
Bank prior to the date of any A Borrowing to a Borrower that such Bank will not
make available to the Agent such Bank's ratable portion of such A Borrowing,
the Agent may assume that such Bank has made such portion available to the
Agent on the date of such A Borrowing in accordance with subsection (a) of this
Section 2.02 and the Agent may, in reliance upon such assumption, make
available to such Borrower requesting such A Borrowing on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such ratable portion available to the Agent, such Bank and such Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to such Borrower until the date such amount is repaid to the
Agent, at (i) in the case of such Borrower, the interest rate applicable at the
time to A Advances comprising such A Borrowing and (ii) in the case of such
Bank, the Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's A
Advance as part of such A Borrowing for purposes of this Agreement.
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(e) The failure of any Bank to make the A Advance to be
made by it as part of any A Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its A Advance on the date of such A
Borrowing, but no Bank shall be responsible for the failure of any other Bank
to make the A Advance to be made by such other Bank on the date of any A
Borrowing.
Section 2.03. Fees.
(a) Commitment Fee. TWC agrees to pay to the Agent for
the account of each Bank a commitment fee on the average daily unused (for the
purposes of this Section 2.03(a) A Advances made to any Borrower shall be
considered to have been made to TWC, but B Advances to any Borrower shall not,
for purposes of this Section 2.03(a), be considered to be usage of any
Commitment) portion of such Bank's Commitment to TWC from the date hereof until
the Termination Date at a rate per annum from time to time equal to (i) at such
times as Rating Category One is applicable to TWC, .10%, (ii) at such times as
Rating Category Two is applicable to TWC, .125%, (iii) at such times as Rating
Category Three is applicable to TWC, .15%, (iv) at such times as Rating
Category Four is applicable to TWC, .20%, (v) at such times as Rating Category
Five is applicable to TWC, .30%, (vi) at such times as Rating Category Six is
applicable to TWC, .375% and (vii) at such times as Rating Category Seven is
applicable to TWC, .50%, payable in arrears on the last day of each March,
June, September and December during the term such Bank has any Commitment to
any Borrower and on the Termination Date.
(b) Agent's Fees. TWC agrees to pay to the Agent, for its
sole account, such fees as may be separately agreed to in writing by TWC and
the Agent.
Section 2.04. Reduction of the Commitments. (a) Optional.
Each Borrower shall have the right, upon at least three Business Days notice to
the Agent, to terminate in whole or reduce ratably in part the unused portions
of the respective Commitments of the Banks to such Borrower, provided that each
partial reduction shall be in the aggregate amount of at least $20,000,000, and
provided further, that the aggregate amount of the Commitments of the Banks to
any Borrower shall not be reduced to an amount which is less than the aggregate
principal amount of the Advances then outstanding to such Borrower, and
provided further, that the aggregate amount of the Commitments of the Banks to
TWC shall not be reduced to an amount which is less than the aggregate
principal amount of the Advances then outstanding to the Borrower as to which
the aggregate outstanding principal amount of Advances is then the largest.
(b) Termination. If all of the Commitments of the Banks
to a Borrower (other than TWC) are terminated pursuant to Section 2.04(a) and
such Borrower has paid all principal, interest, fees, costs and other amounts
owed by it hereunder and under the Notes executed by it, such Borrower shall
have the right, upon
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at least three Business Days notice to the Agent, to elect to cease to be a
Borrower hereunder, except for purposes of the definition herein of Majority
Banks and for purposes of Sections 2.11, 2.14 and 8.04.
Section 2.05. Repayment of A Advances. Each Borrower shall
repay, on the Stated Termination Date or such earlier date as the Notes may be
declared due pursuant to Article VI, the unpaid principal amount of each A
Advance made by each Bank to such Borrower.
Section 2.06. Interest on A Advances. Each Borrower shall pay
interest on the unpaid principal amount of each A Advance made by each Bank to
such Borrower from the date of such A Advance until such principal amount shall
be paid in full, at the following rates per annum:
(a) Base Rate Advances. At such times as such A Advance
is a Base Rate Advance, a rate per annum equal at all times to the
Base Rate in effect from time to time plus the Applicable Margin in
effect from time to time for such A Advance, payable quarterly in
arrears on the last day of each March, June, September and December
and on the date such Advance shall be Converted or paid in full;
provided that any amount of principal of any Base Rate Advance,
interest, fees and other amounts payable hereunder (other than
principal of any Eurodollar Rate Advance) which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until such amount
is paid in full, payable on demand, at a rate per annum equal at all
times to the sum of the Base Rate in effect from time to time plus the
Applicable Margin for Base Rate Advances to such Borrower in effect
from time to time plus 2% per annum.
(b) Eurodollar Rate Advances. At such times as such A
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such A Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin in
effect from time to time for such A Advance, payable on the last day
of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day which occurs during such Interest
Period every three months from the first day of such Interest Period;
provided that any amount of principal of any Eurodollar Rate Advance
which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which
such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to the greater of (x)
the sum of the Base Rate in effect from time to time plus the
Applicable Margin for Base Rate Advances to such Borrower in effect
from time to time plus 2% per annum and (y) the sum of the rate per
annum required to be paid on such A Advance immediately prior to the
date on which such amount became due plus 2% per annum.
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Section 2.07. Additional Interest on Eurodollar Rate
Advances. Each Borrower shall pay to each Bank, so long as such Bank shall be
required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Bank to such Borrower,
from the date of such Advance until such principal amount is paid in full, at
an interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for the Interest Period for such Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Bank for
such Interest Period, payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by such Bank and
notified to such Borrower through the Agent. A certificate as to the amount of
such additional interest submitted to such Borrower and the Agent by such Bank
shall be conclusive and binding for all purposes, absent manifest error. No
Bank shall have the right to recover any additional interest pursuant to this
Section 2.07 for any period more than 90 days prior to the date such Bank
notifies the Borrowers that additional interest may be charged pursuant to this
Section 2.07.
Section 2.08. Interest Rate Determination. The Agent shall
give prompt notice to the Borrower to which an A Advance is made and the Banks
of the applicable interest rate for each Eurodollar Rate Advance determined by
the Agent for purposes of Section 2.06(b).
Section 2.09. Evidence of Debt. The indebtedness of each
Borrower resulting from the A Advances owed to each Bank by such Borrower shall
be evidenced by an A Note of such Borrower payable to the order of such Bank.
Section 2.10. Prepayments.
(a) No Borrower shall have any right to prepay any
principal amount of any A Advance except as provided in this Section 2.10.
(b) Any Borrower may, in respect of Base Rate Advances
upon notice to the Agent before 10:00 A.M. (New York City time) on the date of
prepayment, and in respect of Eurodollar Rate Advances upon at least three
Business Days' notice to the Agent, in each case stating the proposed date
(which shall be a Business Day) and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amounts of the A Advances comprising part of the same A
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid and amounts, if any,
required to be paid pursuant to Section 8.04(b) as a result of such prepayment;
provided, however, that each partial prepayment pursuant to this Section
2.10(b) shall be in an aggregate principal amount not less than $5,000,000 and
in an aggregate
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principal amount such that after giving effect thereto no A Borrowing comprised
of Base Rate Advances shall have a principal amount outstanding of less than
$5,000,000 and no A Borrowing comprised of Eurodollar Rate Advances shall have
a principal amount outstanding of less than (i) if such A Borrowing was made by
WPL, $5,000,000, and (ii) if such A Borrowing was made by any other Borrower,
$20,000,000.
(c) Each Borrower will give notice to the Agent at or
before the time of each prepayment by such Borrower of Advances pursuant to
this Section 2.10 specifying the Advances which are to be prepaid and the
amount of such prepayment to be applied to such Advances, and each payment of
any Advance pursuant to this Section 2.10 or any other provision of this
Agreement shall be made in a manner such that all Advances comprising part of
the same Borrowing are paid in whole or ratably in part.
Section 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation, application or applicability of any
law or regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Bank of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances to any
Borrower, then such Borrower shall from time to time, upon demand by such Bank
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Bank additional amounts sufficient to compensate such Bank for such
increased cost. A certificate as to the amount of such increased cost,
submitted to such Borrower and the Agent by such Bank, shall be prima facie
evidence of the amount of such increased cost. No Bank shall have the right to
recover any such increased costs for any period more than 90 days prior to the
date such Bank notifies the Borrowers of any such introduction, change,
compliance or proposed compliance.
(b) If any Bank determines that compliance with any law
or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Bank or any corporation controlling such Bank and that the amount of such
capital is increased by or based upon the existence of such Bank's commitment
to lend to any Borrower hereunder and other commitments of this type, then,
upon demand by such Bank (with a copy of such demand to the Agent), such
Borrower shall immediately pay to the Agent for the account of such Bank, from
time to time as specified by such Bank, additional amounts sufficient to
compensate such Bank or such corporation in the light of such circumstances, to
the extent that such Bank reasonably determines such increase in capital to be
allocable to the existence of such Bank's commitment to lend hereunder. A
certificate as to the amount of such additional amounts, submitted to such
Borrower and the Agent by such
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Bank, shall be prima facie evidence of the amount of such additional amounts.
No Bank shall have any right to recover any additional amounts under this
Section 2.11(b) for any period more than 90 days prior to the date such Bank
notifies the Borrower of any such compliance.
(c) In the event that any Bank makes a demand for payment
under Section 2.07 or this Section 2.11, TWC may within ninety days of such
demand, if no Event of Default or event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default then exists,
replace such Bank with another commercial bank in accordance with all of the
provisions of the last sentence of Section 8.06(a) (including execution of an
appropriate Transfer Agreement) provided that (i) all obligations of such Bank
to lend hereunder shall be terminated and the Notes payable to such Bank and
all other obligations owed to such Bank hereunder shall be purchased in full
without recourse at par plus accrued interest at or prior to such replacement,
(ii) such replacement bank shall be reasonably satisfactory to the Agent and
the Majority Banks, (iii) such replacement bank shall, from and after such
replacement, be deemed for all purposes to be a "Bank" hereunder with a
Commitment to each Borrower in the amount of the respective Commitment of such
Bank to such Borrower immediately prior to such replacement (plus, if such
replacement bank is already a Bank prior to such replacement the respective
Commitment of such Bank to such Borrower prior to such replacement), as such
amount may be changed from time to time pursuant hereto, and shall have all of
the rights, duties and obligations hereunder of the Bank being replaced, and
(iv) such other actions shall be taken by the Borrowers, such Bank and such
replacement bank as may be appropriate to effect the replacement of such Bank
with such replacement bank on terms such that such replacement bank has all of
the rights, duties and obligations hereunder as such Bank (including, without
limitation, execution and delivery of new Notes of each Borrower to such
replacement bank, redelivery to each Borrower in due course of the Notes of
such Borrower payable to such Bank and specification of the information
contemplated by Schedule I as to such replacement bank).
Section 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Bank shall notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or that any central bank or other
governmental authority shall assert that it is unlawful, for any Bank or its
Eurodollar Lending Office to perform its obligations hereunder to make, or
Convert a Base Rate Advance into, a Eurodollar Rate Advance or to continue to
fund or maintain any Eurodollar Rate Advance, then, on notice thereof to the
Borrowers by the Agent, (i) the obligation of each of the Banks to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Agent, at the request of the Majority Banks, shall notify the Borrowers and the
Banks that the circumstances causing such suspension no longer exist, and (ii)
the Borrowers shall forthwith prepay in full all Eurodollar Rate Advances of
all Banks then outstanding together with all accrued interest thereon and all
amounts payable pursuant to Section 8.04(b), unless
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each Bank shall determine in good faith in its sole opinion that it is lawful
to maintain the Eurodollar Rate Advances made by such Bank to the end of the
respective Interest Periods then applicable thereto or unless the Borrower,
within five Business Days of notice from the Agent, Converts all Eurodollar
Rate Advances of all Banks then outstanding into Base Rate Advances in
accordance with Section 2.19.
Section 2.13. Payments and Computations. (a) Each Borrower
shall make each payment hereunder and under the Notes to be made by it not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Agent at its New York address referred to in Section 8.02 in same day
funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest or commitment fees ratably
(other than amounts payable pursuant to Section 2.07, 2.11, 2.14, 2.16 or
8.04(b)) to the Banks for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Bank to such Bank for the account of its Applicable Lending Office, in each
case to be applied in accordance with the terms of this Agreement. In no event
shall any Bank be entitled to share any fee paid to the Agent pursuant to
Section 2.03(b), any auction fee paid to the Agent pursuant to Section
2.16(a)(i) or any other fee paid to the Agent, as such.
(b) Each Borrower hereby authorizes each Bank, if and to
the extent payment owed to such Bank by such Borrower is not made when due
hereunder or under any Note of such Borrower held by such Bank, to charge from
time to time against any or all of such Borrower's accounts with such Bank any
amount so due.
(c) All computations of interest based on clause (a) or
clause (b) of the definition herein of Base Rate and of commitment fees shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate, the Federal
Funds Rate or clause (c) of the definition herein of Base Rate shall be made
by the Agent, and all computations of interest pursuant to Section 2.07
shall be made by a Bank, on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or commitment fees are payable.
Each determination by the Agent (or, in the case of Section 2.07, by a Bank) of
an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
commitment fee, as the case may be; provided, however, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
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(e) Unless the Agent shall have received notice from a
Borrower prior to the date on which any payment is due by such Borrower to any
Bank hereunder that such Borrower will not make such payment in full, the Agent
may assume that such Borrower has made such payment in full to the Agent on
such date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent such Borrower shall not have so made such
payment in full to the Agent, each Bank shall repay to the Agent forthwith on
demand such amount distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such Bank until the date
such Bank repays such amount to the Agent, at the Federal Funds Rate.
Section 2.14. Taxes. (a) Any and all payments by any
Borrower hereunder or under the Notes shall be made, in accordance with Section
2.13, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings with respect
thereto, and all liabilities with respect thereto, excluding in the case of
each Bank and the Agent, 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, in the case of each Bank, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Bank's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If any Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note to
any Bank or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Bank or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, each Borrower agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made by such Borrower
hereunder or under the Notes executed by it or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or such Notes
(hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) owed and paid by such Bank or the Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days
from the date such Bank or the Agent (as the case may be) makes written demand
therefor.
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(d) Within 30 days after the date of the payment of Taxes
by or at the direction of any Borrower, such Borrower will furnish to the
Agent, at its address referred to in Section 8.02, the original or a certified
copy of a receipt evidencing payment thereof. Should any Bank or the Agent
ever receive any refund, credit or deduction from any taxing authority to which
such Bank or the Agent would not be entitled but for the payment by a Borrower
of Taxes as required by this Section 2.14 (it being understood that the
decision as to whether or not to claim, and if claimed, as to the amount of any
such refund, credit or deduction shall be made by such Bank or the Agent, as
the case may be, in its sole discretion), such Bank or the Agent, as the case
may be, thereupon shall repay to such Borrower an amount with respect to such
refund, credit or deduction equal to any net reduction in taxes actually
obtained by such Bank or the Agent, as the case may be, and determined by such
Bank or the Agent, as the case may be, to be attributable to such refund,
credit or deduction.
(e) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 2.14 shall survive the payment in full of
principal and interest hereunder and under the Notes.
Section 2.15. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary or involuntary, or through the exercise
of any right of set-off or otherwise) on account of the A Advances made by it
(other than pursuant to Section 2.07, 2.11, 2.14 or 8.04(b)) in excess of its
ratable share of payments on account of the A Advances obtained by all the
Banks, such Bank shall forthwith purchase from the other Banks such
participations in the A Advances owed to them as shall be necessary to cause
such purchasing Bank to share the excess payment ratably with each of them,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each Bank
shall be rescinded and such Bank shall repay to the purchasing Bank the
purchase price to the extent of such Bank's ratable share (according to the
proportion of (i) the amount of the participation purchased from such Bank as a
result of such excess payment to (ii) the total amount of such excess payment)
of such recovery together with an amount equal to such Bank's ratable share
(according to the proportion of (i) the amount of such Bank's required
repayment to (ii) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the purchasing
Bank in respect of the total amount so recovered. Each Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to
this Section 2.15 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of such
Borrower in the amount of such participation.
Section 2.16. The B Advances. (a) Each Bank severally agrees
that each Borrower may make B Borrowings under this Section 2.16 from time to
time on any Business Day during the period from the date hereof until the
earlier of (I) the
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Termination Date or (II) the date occurring 30 days prior to the Stated
Termination Date in the manner set forth below; provided that, following the
making of each B Borrowing, the aggregate amount of the Advances then
outstanding to such Borrower shall not exceed the aggregate amount of the
Commitments of the Banks to such Borrower (computed without regard to any B
Reduction) and the aggregate amount of all Advances then outstanding shall not
exceed the aggregate amount of the Commitments of the Banks to TWC (computed
without regard to any B Reduction).
(i) A Borrower may request a B Borrowing under this
Section 2.16 by delivering to the Agent, by telecopier, telex or
cable, confirmed immediately in writing, a notice of a B Borrowing (a
"Notice of B Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying the date and aggregate amount of the proposed B
Borrowing, the maturity date for repayment of each B Advance to be
made as part of such B Borrowing (which maturity date may not be
earlier than the date occurring 14 days after the date of such B
Borrowing or later than the earlier of (x) 6 months after the date of
such B Borrowing or (y) the Stated Termination Date), the interest
payment date or dates relating thereto, and any other terms to be
applicable to such B Borrowing (including, without limitation, the
basis to be used by the Banks in determining the rate or rates of
interest to be offered by them as provided in paragraph (ii) below and
prepayment terms, if any, but excluding any waiver or other
modification to any of the conditions set forth in Article III), not
later than 10:00 A.M. (New York City time) (A) at least one Business
Day prior to the date of the proposed B Borrowing, if such Borrower
shall specify in the Notice of B Borrowing that the rates of interest
to be offered by the Banks shall be fixed rates per annum and (B) at
least five Business Days prior to the date of the proposed B
Borrowing, if the Borrower shall instead specify in the Notice of B
Borrowing the basis to be used by the Banks in determining the rates
of interest to be offered by them. The Agent shall in turn promptly
notify each Bank of each request for a B Borrowing received by it from
a Borrower by sending such Bank a copy of the related Notice of B
Borrowing. Each time that a Borrower gives a Notice of B Borrowing,
such Borrower shall pay to the Agent an auction fee equal to $250
times the number of Banks at such time.
(ii) Each Bank may, if in its sole discretion it elects to
do so, irrevocably offer to make one or more B Advances to a Borrower
as part of such proposed B Borrowing at a rate or rates of interest
specified by such Bank in its sole discretion, by notifying the Agent
(which shall give prompt notice thereof to such Borrower), before
10:00 A.M. (New York City time) (x) on the date of such proposed B
Borrowing, in the case of a Notice of B Borrowing delivered pursuant
to clause (A) of paragraph (i) above, and (y) three Business Days
before the date of such proposed B Borrowing in the case of a Notice
of B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, of the minimum amount and maximum amount of each B Advance
which such Bank
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would be willing to make as part of such proposed B Borrowing (which
amounts may, subject to the proviso to the first sentence of this
Section 2.16(a), exceed such Bank's Commitment to such Borrower), the
rate or rates of interest therefor and such Bank's Applicable Lending
Office with respect to such B Advance; provided that if the Agent in
its capacity as a Bank shall, in its sole discretion, elect to make
any such offer, it shall notify such Borrower of such offer before
9:45 A.M. (New York City time) on the date on which notice of such
election is to be given to the Agent by the other Banks. If any Bank
shall elect not to make such an offer, such Bank shall so notify the
Agent, before 10:00 A.M. (New York City time) on the date on which
notice of such election is to be given to the Agent by the other
Banks, and such Bank shall not be obligated to, and shall not, make
any B Advance as part of such B Borrowing; provided that the failure
by any Bank to give such notice shall not cause such Bank to be
obligated to make any B Advance as part of such proposed B Borrowing.
(iii) The Borrower requesting such proposed B Borrowing
shall, in turn, before 11:00 A.M. (New York City time) (x) on the
date of such proposed B Borrowing in the case of a Notice of B
Borrowing delivered pursuant to clause (A) of paragraph (i) above and
(y) three Business Days before the date of such proposed B Borrowing
in the case of a Notice of B Borrowing delivered pursuant to clause
(B) of paragraph (i) above, either
(A) cancel such B Borrowing by giving the
Agent notice to that effect, or
(B) accept one or more of the offers made
by any Bank or Banks pursuant to paragraph (ii) above, in
order of the lowest to highest rates of interest or margins
(or, if two or more Banks bid at the same rates of interest,
and the amount of accepted offers is less than the aggregate
amount of such offers, the amount to be borrowed from such
Banks as part of such B Borrowing shall be allocated among
such Banks pro rata on the basis of the maximum amount offered
by such Banks at such rates or margin in connection with such
B Borrowing), in any aggregate amount up to the aggregate
amount initially requested by the Borrower in the relevant
Notice of B Borrowing, by giving notice to the Agent of the
amount of each B Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to such Borrower by the Agent on
behalf of such Bank for such B Advance pursuant to paragraph
(ii) above) to be made by each Bank as part of such B
Borrowing, and reject any remaining offers made by Banks
pursuant to paragraph (ii) above by giving the Agent notice to
that effect.
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(iv) If the Borrower requesting such B Borrowing notifies
the Agent that such B Borrowing is cancelled pursuant to paragraph
(iii)(A) above, the Agent shall give prompt notice thereof to the
Banks and such B Borrowing shall not be made.
(v) If the Borrower requesting such B Borrowing accepts
one or more of the offers made by any Bank or Banks pursuant to
paragraph (iii)(B) above, the Agent shall in turn promptly notify (A)
each Bank that has made an offer as described in paragraph (ii) above,
of the date and aggregate amount of such B Borrowing and whether or
not any offer or offers made by such Bank pursuant to paragraph (ii)
above have been accepted by such Borrower, (B) each Bank that is to
make a B Advance as part of such B Borrowing, of the amount of each B
Advance to be made by such Bank as part of such B Borrowing, and (C)
each Bank that is to make a B Advance as part of such B Borrowing,
upon receipt, that the Agent has received forms of documents appearing
to fulfill the applicable conditions set forth in Article III. Each
Bank that is to make a B Advance as part of such B Borrowing shall,
before 12:00 noon (New York City time) on the date of such B Borrowing
specified in the notice received from the Agent pursuant to clause (A)
of the preceding sentence or any later time when such Bank shall have
received notice from the Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending
Office to the Agent at its New York address referred to in Section
8.02 such Bank's portion of such B Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Agent of such funds, the Agent will make such
funds available to such Borrower at the Agent's aforesaid address.
Promptly after each B Borrowing the Agent will notify each Bank of the
amount of the B Borrowing, the Borrower to which such B Borrowing was
made, the consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount of
not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof. Each Borrower agrees that it will not request a B
Borrowing unless, upon the making of such B Borrowing, the limitations
set forth in the proviso to the first sentence of Section 2.16(a) are
complied with.
(c) Within the limits and on the conditions set forth in
this Section 2.16, each Borrower may from time to time borrow under
this Section 2.16, repay or prepay pursuant to subsection (d) below,
and reborrow under this Section 2.16, provided that a B Borrowing
shall not be made by any Borrower within three Business Days of the
date of another B Borrowing to such Borrower.
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(d) Each Borrower shall repay to the Agent for the
account of each Bank which has made a B Advance to such Borrower, or
each other holder of a B Note of such Borrower, on the maturity date
of each B Advance made to such Borrower (such maturity date being that
specified by such Borrower for repayment of such B Advance in the
related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above and provided in the B Note evidencing such B Advance) the then
unpaid principal amount of such B Advance. No Borrower shall have any
right to prepay any principal amount of any B Advance unless, and then
only on the terms, specified by such Borrower for such B Advance in
the related Notice of B Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the B Note evidencing such B Advance.
(e) Each Borrower shall pay interest on the unpaid
principal amount of each B Advance made to such Borrower from the date
of such B Advance to the date the principal amount of such B Advance
is repaid in full, at the rate of interest for such B Advance
specified by the Bank making such B Advance in its notice with respect
thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by such Borrower for such B
Advance in the related Notice of B Borrowing delivered pursuant to
subsection (a)(i) above, as provided in the B Note evidencing such B
Advance.
(f) The indebtedness of each Borrower resulting from each
B Advance made to such Borrower as part of a B Borrowing shall be
evidenced by a separate B Note of such Borrower payable to the order
of the Bank making such B Advance.
(g) The failure of any Bank to make the B Advance to be
made by it as part of any B Borrowing shall not relieve any other Bank
of its obligation, if any, hereunder to make its B Advance on the date
of such B Borrowing, but no Bank shall be responsible for the failure
of any other Bank to make the B Advance to be made by such other Bank
on the date of any B Borrowing.
Section 2.17. Optional Termination. Notwithstanding anything
to the contrary in this Agreement, if (i) any Person (other than a trustee or
other fiduciary holding securities under an employee benefit plan of TWC or of
any Subsidiary of TWC) or two or more Persons acting in concert (other than any
group of employees of TWC or of any of its Subsidiaries) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of securities of TWC (or other securities convertible into such
securities) representing 20% or more of the combined voting power of all
securities of TWC entitled to vote in the election of directors, other than
securities having such power only by reason of the happening of a contingency,
or (ii) during any period of up to 24 consecutive months, commencing before or
after the date of this Agreement, individuals who at the beginning of such
24-month period were
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directors of TWC or who were elected by individuals who at the beginning of
such period were such directors or by individuals elected in accordance with
this clause (ii) shall cease for any reason to constitute a majority of the
board of directors of TWC, or (iii) any Person (other than TWC or a
Wholly-Owned Subsidiary of TWC) or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into a contract
or arrangement which upon consummation will result in its or their acquisition
of, the power to exercise, directly or indirectly, a controlling influence over
the management or policies of any Borrower; then the Agent shall at the
request, or may with the consent, of the holders of at least 66-2/3% in
principal amount of the A Notes then outstanding or, if no A Notes are then
outstanding, Banks having at least 66-2/3% of the Commitments, by notice to the
Borrowers, declare all of the Commitments and the obligation of each Bank to
make Advances to be terminated, whereupon all of the Commitments and each such
obligation shall forthwith terminate, and no Borrower shall have any further
right to borrow hereunder.
Section 2.18. Extension of Termination Date. By notice given to the
Agent and the Banks, at least thirty days but not more than forty-five days
before February 1 of any year after 1998, the Borrowers may request the Banks
to extend the Stated Termination Date for an additional year to a date which is
an anniversary date of the Stated Termination Date. Within thirty days after
receipt of such request, each Bank that agrees, in its sole and absolute
discretion, to so extend the Stated Termination Date shall notify the Borrowers
and the Agent that it so agrees, and if all Banks so agree the Stated
Termination Date shall be so extended.
Section 2.19. Voluntary Conversion of Advances. Any Borrower may on
any Business Day, if no Event of Default then exists as to such Borrower, upon
notice (which shall be irrevocable) given to the Agent not later than 11:00
A.M. (x) in the case of a proposed Conversion into Eurodollar Rate Advances,
on the third Business Day prior to the date of the proposed conversion, and (y)
in the case of a proposed Conversion into Base Rate Advances, on the date of
the proposed Conversion, and subject to the provisions of Sections 2.02 and
2.12, Convert all Advances of one Type comprising the same A Borrowing into
Advances of the other Type; provided that (i) no Conversion of any Eurodollar
Rate Advances shall occur on a day other than the last day of an Interest
Period for such Eurodollar Rate Advances, except as contemplated by Section
2.12, and (ii) Advances may not be Converted into Eurodollar Rate Advances if
the aggregate unpaid principal amount of the Advances is less than $20,000,000.
Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the A Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the Interest Period for each such Advance.
Section 2.20. Automatic Provisions. (a) If any Borrower shall fail to
select the duration of any Interest Period for Eurodollar Rate Advances in
accordance with the provisions contained in the definition of "Interest Period"
in Section 1.01, the
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Agent will forthwith so notify such Borrower and the Lenders, and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, Convert into Base Rate Advances.
(b) On the date on which the aggregate unpaid principal
amount of the Eurodollar Rate Advances of any Borrower shall be
reduced to less than $20,000,000, all of such Eurodollar Rate Advances
shall automatically Convert into Base Rate Advances.
ARTICLE III
CONDITIONS
Section 3.01. Conditions Precedent to Initial Advances. The
obligation of each Bank to make its initial Advance is subject to the condition
precedent that the Agent shall have received on or before the day of the
initial Borrowing, each dated on or before such day, in form and substance
satisfactory to the Agent and (except for the Notes) in sufficient copies for
each Bank:
(a) The A Notes executed severally by each of the
respective Borrowers to the order of each of the respective Banks and
this Agreement executed by the Borrowers.
(b) Certified copies of the resolutions of the Board of
Directors, or the Executive Committee thereof, of each Borrower
approving this Agreement and the Notes to be executed by such
Borrower.
(c) A certificate of the Secretary or an Assistant
Secretary of each Borrower certifying (i) that attached thereto are
true and complete copies of the Certificate of Incorporation and
Bylaws of such Borrower as in effect on the date hereof, and (ii) the
names and true signatures of the officers of such Borrower authorized
to sign this Agreement, Notices of A Borrowing, Notices of B Borrowing
and the Notes to be executed by such Borrower and any other documents
to be delivered hereunder by such Borrower.
(d) An opinion of J. Furman Lewis, Esq., General Counsel
of TWC, substantially in the form of Exhibit C hereto and as to such
other matters as any Bank through the Agent may reasonably request.
(e) An opinion of William G. von Glahn, Associate General
Counsel of TWC, substantially in the form of Exhibit D and as to such
other matters as any Bank through the Agent may reasonably request.
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(f) An opinion of David E. Varmer, counsel for TGPL and
TGT, substantially in the form of Exhibit E and as to such other
matters as any Bank through the Agent may reasonably request.
(g) An opinion of Messrs. Bracewell & Patterson, counsel
for the Agent, substantially in the form of Exhibit F hereto.
(h) A statement executed by TWC confirming that the
Credit Agreement dated as of December 23, 1992 among the Borrowers,
Citibank, N.A., as agent, and the lenders parties thereto, as amended,
has been terminated (except as contemplated by the last sentence of
Section 8.10 thereof) and that all principal, interest and other
amounts owed thereunder have been paid in full. Each Bank hereby
waives the requirement of notice of termination contemplated by
Section 2.04(a) of such Credit Agreement, as amended.
(i) A certificate of an officer of each Borrower (other
than WPL) stating the respective ratings by each of S&P and Moody's of
the senior unsecured long-term debt of such Borrower as in effect on
the date of this Agreement and a certificate of an officer of WPL
stating (and showing the calculation of) the WPL Debt to TNW Ratio as
of September 30, 1994.
Section 3.02. Additional Conditions Precedent to Each A
Borrowing. The obligation of each Bank to make an A Advance to a Borrower on
the occasion of any A Borrowing (including the initial A Borrowing) shall be
subject to the further conditions precedent that on the date of such A
Borrowing (a) the following statements shall be true (and each of the giving of
the applicable Notice of A Borrowing and the acceptance by such Borrower of the
proceeds of such A Borrowing shall constitute a representation and warranty by
such Borrower that on the date of such A Borrowing such statements are true):
(i) The representations and warranties contained in
Section 4.01 pertaining to such Borrower and its Subsidiaries are
correct on and as of the date of such A Borrowing, before and after
giving effect to such A Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(ii) No event has occurred and is continuing, or would
result from such A Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both, and
(iii) After giving effect to such A Borrowing and all other
Borrowings which have been requested on or prior to such date but
which have not been made prior to such date, the aggregate principal
amount of all Advances will not
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exceed the aggregate of the Commitments of the Banks to TWC (computed
without regard to any B Reduction);
and (b) the Agent shall have received such other approvals, opinions or
documents as any Bank through the Agent may reasonably request.
Section 3.03. Conditions Precedent to Each B Borrowing.
The obligation of each Bank which is to make a B Advance to a Borrower on the
occasion of a B Borrowing (including the initial B Borrowing) to make such B
Advance as part of such B Borrowing is subject to the further conditions
precedent that (i) at or before the time required by paragraph (iii) of Section
2.16(a), the Agent shall have received the written confirmatory notice of such
B Borrowing contemplated by such paragraph, (ii) on or before the date of such
B Borrowing, but prior to such B Borrowing, the Agent shall have received a B
Note executed by such Borrower payable to the order of such Bank for each of
the one or more B Advances to be made by such Bank as part of such B Borrowing,
in a principal amount equal to the principal amount of the B Advance to be
evidenced thereby and otherwise on such terms as were agreed to for such B
Advance in accordance with Section 2.16, and (iii) on the date of such B
Borrowing (a) the following statements shall be true (and each of the giving of
the applicable Notice of B Borrowing and the acceptance by such Borrower of the
proceeds of such B Borrowing shall constitute a representation and warranty by
such Borrower that on the date of such B Borrowing such statements are true):
(1) The representations and warranties contained in
Section 4.01 pertaining to such Borrower and its Subsidiaries are
correct on and as of the date of such B Borrowing, before and after
giving effect to such B Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(2) No event has occurred and is continuing, or would
result from such B Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both,
(3) Following the making of such B Borrowing and all
other Borrowings to be made on the same day to such Borrower under
this Agreement, the aggregate principal amount of all Advances to such
Borrower then outstanding will not exceed the aggregate amount of the
Commitments to such Borrower (computed without regard to any B
Reduction), and
(4) After giving effect to such B Borrowing and all other
Borrowings which have been requested on or prior to such date but
which have not been made prior to such date, the aggregate principal
amount of all Advances will not
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exceed the aggregate of the Commitments of the Banks to TWC (computed
without regard to any B Reduction);
and (b) the Agent shall have received such other approvals, opinions or
documents as any Bank through the Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as to itself and its Subsidiaries as
follows:
(a) Each Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and has all corporate powers and all governmental licenses,
authorizations, certificates, consents and approvals required to carry
on its business as now conducted in all material respects, except for
those licenses, authorizations, certificates, consents and approvals
the failure to have which could not reasonably be expected to have a
material adverse effect on the business, assets, condition or
operation of such Borrower and its Subsidiaries taken as a whole.
Each Subsidiary of each Borrower is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, except where the failure to be so
organized, existing and in good standing could not reasonably be
expected to have a material adverse effect on the business, assets,
condition or operations of such Borrower and its Subsidiaries taken as
a whole. Each Subsidiary of a Borrower has all corporate powers and
all governmental licenses, authorizations, certificates, consents and
approvals required to carry on its business as now conducted in all
material respects, except for those licenses, authorizations,
certificates, consents and approvals the failure to have which could
not reasonably be expected to have a material adverse effect on the
business, assets, condition or operation of such Borrower and its
Subsidiaries taken as a whole.
(b) The execution, delivery and performance by each
Borrower of this Agreement and the Notes and the consummation of the
transactions contemplated by this Agreement are within such Borrower's
corporate powers, have been duly authorized by all necessary corporate
action, do not contravene (i) such Borrower's charter or by-laws or
(ii) law or any contractual restriction binding on or affecting such
Borrower and will not result in or require the creation or imposition
of any Lien prohibited by this Agreement. At the time of each
borrowing of any Advance by a Borrower, such borrowing and the use of
the proceeds of such Advance will be within such Borrower's corporate
powers, will have been duly authorized by all necessary corporate
action, will not contravene (i) such Borrower's charter or by-laws or
(ii) law or any
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contractual restriction binding on or affecting such Borrower and will
not result in or require the creation or imposition of any Lien
prohibited by this Agreement.
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by
any Borrower of this Agreement or the Notes or the consummation of the
transactions contemplated by this Agreement. At the time of each
borrowing of any Advance by a Borrower, no authorization or approval
or other action by, and no notice to or filing with, any governmental
authority or regulatory body will be required for such borrowing or
the use of the proceeds of such Advance.
(d) This Agreement has been duly executed and delivered
by each Borrower. This Agreement is the legal, valid and binding
obligation of each Borrower enforceable against each Borrower in
accordance with its terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and by
general principles of equity. The A Notes of each Borrower are, and
when executed the B Notes of such Borrower will be, the legal, valid
and binding obligations of such Borrower enforceable against such
Borrower in accordance with their respective terms, except as such
enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and by general principles of equity.
(e) (i) The Consolidated and consolidating balance sheets
of TWC and its Subsidiaries as at December 31, 1993, and the related
Consolidated and consolidating statements of income and cash flows of
TWC and its Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, and the Consolidated and
consolidating balance sheets of TWC and its Subsidiaries as at
September 30, 1994, and the related Consolidated and consolidating
statements of income and cash flows of TWC and its Subsidiaries for
the nine months then ended, duly certified by an authorized financial
officer of TWC, copies of which have been furnished to each Bank,
fairly present, subject, in the case of such balance sheets as at
September 30, 1994 and such statements of income and cash flows for
the nine months then ended, to year-end audit adjustments, the
Consolidated and consolidating financial condition of TWC and its
Subsidiaries as at such dates and the Consolidated and consolidating
results of operations of TWC and its Subsidiaries for the year and
nine month period, respectively, ended on such dates, all in
accordance with generally accepted accounting principles consistently
applied. Since September 30, 1994, there has been no material adverse
change in the condition or operations of TWC or its Subsidiaries. It
is agreed that the sale of Williams
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Telecommunications Group, Inc., a Delaware corporation, and its
Subsidiaries and the purchase of Transco Energy Company, a Delaware
corporation, and its Subsidiaries (and (i) payment of cash by TWC and
issuance of shares by TWC in connection with such purchase, (ii)
assumption by TWC of debt of Transco Energy Company and its
Subsidiaries outstanding on the date hereof, (iii) the proposed merger
related to such purchase with a Subsidiary of TWC that is not a
Borrower, and (iv) contributions of capital to and loans to Transco
Energy Company and its Subsidiaries by TWC in an aggregate amount of
up to $950,000,000) do not constitute a material adverse change with
respect to any Borrower; provided, however, that this sentence shall
not be applicable to any adverse change resulting from or arising in
connection with any event, circumstance or condition (other than those
listed in clauses (i) through (iv) of this sentence) occurring or
existing after the date hereof.
(ii) The consolidating balance sheets of TWC and its
Subsidiaries as at December 31, 1993 and September 30, 1994 referred
to in Section 4.01(e)(i), and the related consolidating statements of
income and cash flows of TWC and its Subsidiaries for the fiscal year
and nine months, respectively, then ended referred to in Section
4.01(e)(i), to the extent such balance sheets and statements pertain
to NWP, fairly present (subject, in the case of such balance sheet as
at September 30, 1994 and such statements of income and cash flows for
the nine months then ended, to year-end audit adjustments) the
Consolidated financial condition of NWP and its Subsidiaries as at
such dates and the Consolidated results of operations of NWP and its
Subsidiaries for the year and nine month period, respectively, ended
on such dates, all in accordance with generally accepted accounting
principles consistently applied. Since September 30, 1994, there has
been no material adverse change in the condition or operations of NWP
or its Subsidiaries.
(iii) The consolidating balance sheets of TWC and its
Subsidiaries as at December 31, 1993 and September 30, 1994 referred
to in Section 4.01(e)(i), and the related consolidating statements of
income and cash flows of TWC and its Subsidiaries for the fiscal year
and nine months, respectively, then ended referred to in Section 4.01
(e)(i), to the extent such balance sheets and statements pertain to
WPL, fairly present (subject, in the case of such balance sheet as at
September 30, 1994 and such statements of income and cash flows for
the nine months then ended, to year-end audit adjustments) the
Consolidated financial condition of WPL and its Subsidiaries as at
such dates and the Consolidated results of operations of WPL and its
Subsidiaries for the year and nine month period, respectively, ended
on such dates, all in accordance with generally accepted accounting
principles consistently applied. Since September 30, 1994, there has
been no material adverse change in the condition or operations of WPL
or its Subsidiaries. It is agreed that the Minneapolis terminal fire
(involving an
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estimated uninsured loss of approximately $750,000) is not a material
adverse change.
(iv) The Consolidated balance sheet of TGPL and its
Subsidiaries as at December 31, 1993, and the related Consolidated
statement of income and cash flows of TGPL and its Subsidiaries for
the fiscal year then ended, copies of which have been furnished to
each Bank, and the Consolidated balance sheet of TGPL and its
Subsidiaries as at September 30, 1994, and the related Consolidated
statement of income and cash flows of TGPL and its Subsidiaries for
the nine months then ended, duly certified by an authorized financial
officer of TGPL, copies of which have been furnished to each Bank,
fairly present, subject, in the case of such balance sheet as at
September 30, 1994 and such statement of income and cash flows for the
nine months then ended, to year-end audit adjustments, the
Consolidated financial condition of TGPL and its Subsidiaries as at
such dates and the Consolidated results of operations of TGPL and its
Subsidiaries for the year and nine month period, respectively, ended
on such dates, all in accordance with generally accepted accounting
principles consistently applied. Since September 30, 1994, there has
been no material adverse change in the condition or operations of TGPL
or its Subsidiaries. It is agreed that the $6,000,000 increase in the
reserve for refund obligations that has been made since September 30,
1994 but prior to the date hereof is not a material adverse change.
(v) The Consolidated balance sheet of TGT and its
Subsidiaries as at December 31, 1993, and the related Consolidated
statement of income and cash flows of TGT and its Subsidiaries for the
fiscal year then ended, copies of which have been furnished to each
Bank, and the Consolidated balance sheet of TGT and its Subsidiaries
as at September 30, 1994, and the related Consolidated statement of
income and cash flows of TGT and its Subsidiaries for the nine months
then ended, duly certified by an authorized financial officer of TGT,
copies of which have been furnished to each Bank, fairly present,
subject, in the case of such balance sheet as at September 30, 1994
and such statement of income and cash flows for the nine months then
ended, to year-end audit adjustments, the Consolidated financial
condition of TGT and its Subsidiaries as at such dates and the
Consolidated results of operations of TGT and its Subsidiaries for the
year and nine month period, respectively, ended on such dates, all in
accordance with generally accepted accounting principles consistently
applied. Since September 30, 1994, there has been no material adverse
change in the condition or operations of TGT or its Subsidiaries.
(f) Except as set forth in the Public Filings or in
Exhibit I or as otherwise disclosed in writing by a Borrower to the
Banks and the Agent after the date hereof and approved by the Majority
Banks, there is, as to each Borrower, no pending or, to the knowledge
of such Borrower, threatened action
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or proceeding affecting such Borrower or any Subsidiary of such
Borrower before any court, governmental agency or arbitrator, which
could reasonably be expected to materially and adversely affect the
financial condition or operations of such Borrower and its
Subsidiaries taken as a whole or which purports to affect the
legality, validity, binding effect or enforceability of this Agreement
or any Note.
(g) No proceeds of any Advance will be used for any
purpose or in any manner not permitted by Section 5.02(k).
(h) No Borrower is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used
to purchase or carry any such margin stock (other than purchases of
common stock expressly permitted by Section 5.02(k)) or to extend
credit to others for the purpose of purchasing or carrying any such
margin stock. Following the application of the proceeds of each
Advance, not more than 25% of the value of the assets of any Borrower
will be represented by such margin stock and not more than 25% of the
value of the assets of any Borrower and its Subsidiaries will be
represented by such margin stock.
(i) No Borrower is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(j) No Termination Event has occurred or is reasonably
expected to occur with respect to any Plan for which an Insufficiency
exists. No Borrower nor any ERISA Affiliate of any Borrower has
received any notification that any Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV
of ERISA, and no Borrower is aware of any reason to expect that any
Multiemployer Plan is to be in reorganization or to be terminated
within the meaning of Title IV of ERISA.
(k) As of the date of this Agreement, the United States
federal income tax returns of each Borrower and the Subsidiaries of
each Borrower have been examined through the fiscal year ended
December 31, 1989. Each Borrower and the Subsidiaries of each Borrower
have filed all United States Federal income tax returns and all other
material domestic tax returns which are required to be filed by them
and have paid, or provided for the payment before the same become
delinquent of, all taxes due pursuant to such returns or pursuant to
any assessment received by any Borrower or any such Subsidiary, other
than those taxes contested in good faith by appropriate proceedings.
The charges, accruals
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and reserves on the books of each Borrower and the Subsidiaries of
each Borrower in respect of taxes are adequate.
(l) No Borrower is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company"' of a "holding company", or a
"public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(m) Except as set forth in the Public Filings or as
otherwise disclosed in writing by a Borrower to the Banks and the
Agent after the date hereof and approved by the Majority Banks, the
Borrowers and their respective Subsidiaries are in compliance in all
material respects with all Environmental Protection Statutes to the
extent material to their respective operations or financial condition.
Except as set forth in the Public Filings or as otherwise disclosed in
writing by a Borrower to the Banks and the Agent after the date hereof
and approved by the Majority Banks, the aggregate contingent and
non-contingent liabilities of each Borrower and its Subsidiaries
(other than those reserved for in accordance with generally accepted
accounting principles and set forth in the financial statements
regarding such Borrower referred to in Section 4.01(e) and delivered
to each Bank) which are reasonably expected to arise in connection
with (i) the requirements of Environmental Protection Statutes or (ii)
any obligation or liability to any Person in connection with any
Environmental matters (including, without limitation, any release or
threatened release (as such terms are defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980) of any
Hazardous Waste, Hazardous Substance, other waste, petroleum or
petroleum products into the Environment) does not exceed 10% of the
Consolidated Tangible Net Worth of such Borrower (excluding
liabilities to the extent covered by insurance if the insurer has
confirmed that such insurance covers such liabilities or which such
Borrower reasonably expects to recover from ratepayers).
ARTICLE V
COVENANTS OF THE BORROWERS
Section 5.01. Affirmative Covenants. So long as any Note shall
remain unpaid or any Bank shall have any Commitment to any Borrower hereunder,
each 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
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operations of such Borrower and its Subsidiaries taken as a whole),
such compliance to include, without limitation, the payment and
discharge before the same become delinquent of all taxes, assessments
and governmental charges or levies imposed upon it or any of its
Subsidiaries or upon any of its property or any property of any of its
Subsidiaries, and all lawful claims which, if unpaid, might become a
Lien upon any property of it or any of its Subsidiaries, provided
that no Borrower nor any Subsidiary of a Borrower shall be required
to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings and with respect to
which reserves in conformity with generally accepted accounting
principles, if required by such principles, have been provided on the
books of such Borrower or such Subsidiary, as the case may be.
(b) Reporting Requirements. Furnish to each of the Banks:
(i) as soon as possible and in any event within
five days after the occurrence of each Event of Default or
each event which, with the giving of notice or lapse of time
or both, would constitute an Event of Default, continuing on
the date of such statement, a statement of an authorized
financial officer of such Borrower setting forth the details
of such Event of Default or event and the actions, if any,
which such Borrower has taken and proposes to take with
respect thereto;
(ii) as soon as available and in any event not
later than 60 days after the end of each of the first three
quarters of each fiscal year of such Borrower, the
Consolidated and, in the case of TWC, consolidating balance
sheets of such Borrower and its Subsidiaries as of the end of
such quarter and the Consolidated and, in the case of TWC,
consolidating statements of income and cash flows of such
Borrower and its Subsidiaries for the period commencing at the
end of the previous year and ending with the end of such
quarter, all in reasonable detail and duly certified (subject
to year-end audit adjustments) by an authorized financial
officer of such Borrower as having been prepared in accordance
with generally accepted accounting principles, together with a
certificate of said officer (a) stating that he has no
knowledge that an Event of Default, or an event which, with
notice or lapse of time or both, would constitute an Event of
Default has occurred and is continuing or, if an Event of
Default or such an event has occurred and is continuing, a
statement as to the nature thereof and the action, if any,
which such Borrower proposes to take with respect thereto, and
(b) showing in detail the calculation supporting such
statement in respect of Section 5.02(b);
(iii) as soon as available and in any event not
later than 105 days after the end of each fiscal year of such
Borrower, a copy of the
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annual audit report for such year for such Borrower and its
Subsidiaries, including therein Consolidated and, in the case
of TWC, consolidating balance sheets of such Borrower and its
Subsidiaries as of the end of such fiscal year and
Consolidated and, in the case of TWC, consolidating statements
of income and cash flows of such Borrower and its Subsidiaries
for such fiscal year, in each case prepared in accordance with
generally accepted accounting principles and certified by
Ernst & Young or other independent certified public
accountants of recognized standing acceptable to the Majority
Banks, together with a certificate of such accounting firm to
the Banks (a) stating that, in the course of the regular audit
of the business of such Borrower and its Subsidiaries, which
audit was conducted by such accounting firm in accordance with
generally accepted auditing standards, such accounting firm
has obtained no knowledge that an Event of Default or an
event which, with notice or lapse of time or both, would
constitute an Event of Default, has occurred and is
continuing, or if, in the opinion of such accounting firm, an
Event of Default or such an event has occurred and is
continuing, a statement as to the nature thereof, and (b)
showing in detail the calculations supporting such statement
in respect of Section 5.02(b); provided, however, that in the
case of NWP the primary audited financial statements required
by this Section 5.01(b)(iii) may be presented on a historical
cost basis, but such audited financial statements shall
include, as additional information, on a push-down basis
reflecting the purchase price of NWP paid by TWC, a
Consolidated balance sheet, a Consolidated statement of income
and a Consolidated cash flow statement of NWP and its
Subsidiaries as of the end of and for the relevant fiscal
year, all prepared in accordance with generally accepted
accounting principles but excluding footnotes for the
push-down financial statements;
(iv) such other information respecting the
business or properties, or the condition or operations,
financial or otherwise, of such Borrower or any of its
Subsidiaries as any Bank through the Agent may from time to
time reasonably request;
(v) promptly after the sending or filing thereof,
copies of all proxy material, reports and other information
which such Borrower sends to any of its security holders, and
copies of all reports and registration statements which such
Borrower or any Subsidiary of such Borrower files with the
Securities and Exchange Commission or any national securities
exchange;
(vi) as soon as possible and in any event (A)
within 30 Business Days after such Borrower or any ERISA
Affiliate of such Borrower
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knows or has reason to know that any Termination Event
described in clause (i) of the definition of Termination Event
with respect to any Plan has occurred and (B) within 30
Business Days after such Borrower or any ERISA Affiliate of
such Borrower knows or has reason to know that any other
Termination Event with respect to any Plan has occurred or is
reasonably expected to occur, a statement of the chief
financial officer or chief accounting officer of such Borrower
describing such Termination Event and the action, if any,
which such Borrower or such ERISA Affiliate of such Borrower
proposes to take with respect thereto;
(vii) promptly and in any event within 25 Business
Days after receipt thereof by such Borrower or any ERISA
Affiliate of such Borrower, copies of each notice received by
such Borrower or any ERISA Affiliate of such Borrower from the
PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(viii) within 30 days following request therefor by
any Bank, copies of each Schedule B (Actuarial Information) to
each annual report (Form 5500 Series) of such Borrower or any
ERISA Affiliate of such Borrower with respect to each Plan;
(ix) promptly and in any event within 25 Business
Days after receipt thereof by such Borrower or any ERISA
Affiliate of such Borrower from the sponsor of a Multiemployer
Plan, a copy of each notice received by such Borrower or any
ERISA Affiliate of such Borrower concerning (A) the imposition
of a Withdrawal Liability by a Multiemployer Plan, (B) the
determination that a Multiemployer Plan is, or is expected to
be, in reorganization within the meaning of Title IV of ERISA,
(C) the termination of a Multiemployer Plan within the meaning
of Title IV of ERISA, or (D)the amount of liability incurred,
or expected to be incurred, by such Borrower or any ERISA
Affiliate of such Borrower in connection with any event
described in clause (A), (B) or (C) above;
(x) not more than 45 days (or 90 days in the case
of the last fiscal quarter of a fiscal year of such Borrower)
after the end of each fiscal quarter of such Borrower, a
certificate of an authorized financial officer of such
Borrower (a) stating the respective ratings, if any, by each
of S&P and Moody's of the senior unsecured long-term debt of
such Borrower as of the last day of such quarter, and (b) if
such Borrower is WPL, stating (and showing the calculation
of) the WPL Debt to TNW Ratio on the last day of such
quarter; and
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(xi) promptly after any change in, or withdrawal
or termination of, the rating of any senior unsecured
Iong-term debt of such Borrower by S&P or Moody's, notice
thereof.
(c) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which such
Borrower or its Subsidiaries operate, provided that such Borrower or
any of its Subsidiaries may self-insure to the extent and in the
manner normal for companies of like size, type and financial
condition.
(d) Preservation of Corporate Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence, rights, franchises and privileges
in the jurisdiction of its incorporation, and qualify and remain
qualified, and cause each Subsidiary to qualify and remain qualified,
as a foreign corporation in each jurisdiction in which qualification
is necessary or desirable in view of its business and operations or
the ownership of its properties, except (1) in the case of any
Non-Borrowing Subsidiary of such Borrower, where the failure of such
Subsidiary to so preserve, maintain, qualify and remain qualified
could not reasonably be expected to have a material adverse effect on
the business, assets, condition or operations of such Borrower and its
Subsidiaries taken as a whole and (2) in the case of such Borrower,
where the failure of such Borrower to preserve and maintain such
rights, franchises and privileges and to so qualify and remain
qualified could not reasonably be expected to have a material adverse
effect on the business, assets, condition or operations of such
Borrower and its Subsidiaries taken as a whole.
Section 5.02. Negative Covenants. So long as any Note shall
remain unpaid or any Bank shall have any Commitment to any Borrower hereunder,
no Borrower will, 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 of any Person, except that:
(i) TWC and its Non-Borrowing Subsidiaries which
are not Subsidiaries of any other Borrower may create, incur,
assume or suffer to exist Permitted TWC Liens;
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(ii) NWP and its Subsidiaries may create, incur,
assume or suffer to exist Permitted NWP Liens;
(iii) TGPL and its Subsidiaries may create, incur,
assume or suffer to exist Permitted TGPL Liens;
(iv) TGT and its Subsidiaries may create, incur,
assume or suffer to exist Permitted TGT Liens; and
(v) WPL and its Subsidiaries may create, incur,
assume or suffer to exist Permitted WPL Liens.
(b) Debt. (i) In the case of TWC, permit the ratio of (A)
the aggregate amount of all Debt of TWC and its Subsidiaries on a
Consolidated basis to (B) the sum of the Consolidated Net Worth of TWC
plus the aggregate amount of all Debt of TWC and its Subsidiaries on a
Consolidated basis to exceed 0.65 to 1.0 at any time; and
(ii) In the case of any Borrower (other than TWC), permit
the ratio of (A) the aggregate amount of all Debt of such Borrower and
its Subsidiaries on a Consolidated basis to (B) the sum of the
Consolidated Net Worth of such Borrower plus the aggregate amount of
all Debt of such Borrower and its Subsidiaries on a Consolidated basis
to exceed 0.60 to 1.0 at any time.
(c) Merger and Sale of Assets. Merge or consolidate with
or into any other Person, or sell, lease or otherwise transfer all or
substantially all of its assets, or permit any of its Subsidiaries
(except immaterial Subsidiaries (other than WNG and WFS) that are not
Borrowers) to merge or consolidate with or into any other Person, or
sell, lease or otherwise transfer all or substantially all of its
assets, except that this Section 5.02(c) shall not prohibit:
(i) any Borrower and its Subsidiaries from
selling, leasing or otherwise transferring their respective
assets in the ordinary course of business;
(ii) if, but only if, (x) there shall not exist or
result an Event of Default or an event which with notice or
lapse of time or both would constitute an Event of Default and
(y) in the case of each transaction referred to in this
paragraph (ii) involving any Borrower or any of its
Subsidiaries, such transaction could not reasonably be
expected to impair materially the ability of such Borrower to
perform its obligations hereunder and under the Notes and such
Borrower shall continue to exist, any merger, consolidation or
sale, lease or other transfer of assets that does not involve
any Person other than TWC and its Subsidiaries;
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(iii) if, but only if,, there shall not exist or
result an Event of Default or an event which with notice or
lapse of time or both would constitute an Event of Default,
any Borrower and its Subsidiaries from selling, leasing or
otherwise transferring their respective gathering assets and
other production area facilities, or the stock of any Person
substantially all of the assets of which are gathering assets
and other production area facilities, to TWC or to any
Subsidiary of TWC for consideration that is not materially
less than the net book value of such assets and facilities;
(iv) any sale and lease-back of cushion gas by any
Borrower or any of its Subsidiaries or any sale and lease-back
of inventory by WPL or any of its Subsidiaries (other than
another Borrower);
(v) sales of receivables of any kind; or
(vi) if, but only if, there shall not exist or
result an Event of Default or an event which with notice or
lapse of time or both would constitute an Event of Default,
any sale, lease or other transfer of any stock or assets of
Transco Energy Company and its Subsidiaries so long as prior
to the time of such sale, lease or other transfer Transco
Energy Company and its Subsidiaries shall have transferred to
TWC all of their respective interests in TGPL and TGT and
shall not have reacquired any such interest.
(d) Agreements to Restrict Dividends and Certain
Transfers. Enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any consensual
encumbrance or restriction on the ability of any Subsidiary of TWC (i)
to pay, directly or indirectly, dividends or make any other
distributions in respect of its capital stock or pay any Debt or other
obligation owed to TWC or to any Subsidiary of TWC; or (ii) to make
loans or advances to TWC or any Subsidiary of TWC, except (1)
encumbrances and restrictions on any immaterial Non-Borrowing
Subsidiary of TWC (other than WNG and WFS), (2) those encumbrances and
restrictions existing on the date hereof and described in Exhibit G,
(3) other encumbrances and restrictions now or hereafter existing of
any Borrower or any of its Subsidiaries that are not more restrictive
in any material respect than the encumbrances and restrictions with
respect to such Borrower or its Subsidiaries described in Exhibit G,
and (4) any encumbrances and restrictions created in connection with
any sale and lease-back of cushion gas by any Borrower or any
Subsidiary of any Borrower or any sale and lease-back of inventory by
WPL or any of its Subsidiaries (other than another Borrower).
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(e) Loans and Advances. Borrow or otherwise receive any
loan or advance from TWC, and TWC will not make or permit to remain
outstanding any loan or advance to, or own, purchase or acquire any
obligations or debt securities of, any Subsidiary of TWC, except that
TWC may make and permit to remain outstanding loans and advances to
its Subsidiaries (and such Subsidiaries may borrow or otherwise
receive such loans and advances) if each such loan or advance
(excluding loans and advances to a Subsidiary of TWC if the aggregate
principal amount of all such excluded loans and advances to such
Subsidiary does not exceed $100,000) is evidenced by a written
instrument duly executed by the Subsidiary of TWC to which such loan
or advance is made, bears interest at TWC's or such Subsidiary's
market rate of interest and matures on or before the Termination Date.
(f) Maintenance of Ownership of Certain Subsidiaries.
Sell, issue or otherwise dispose of, or create, assume, incur or
suffer to exist any Lien on or in respect of, or permit any of its
Subsidiaries to sell, issue or otherwise dispose of or create, assume,
incur or suffer to exist any Lien on or in respect of, any shares of
or any interest in any shares of the capital stock of (1) WNG, WFS,
WPL, TGPL, TGT or NWP or any of their respective material Subsidiaries
or (2) any Subsidiary of TWC at the time it owns any shares of or any
interest in any shares of the capital stock of WNG, WFS, WPL, TGPL,
TGT or NWP or any of their respective material Subsidiaries; provided,
however, that if, but only if, (x) there shall not exist or result an
Event of Default or an event which with notice or lapse of time or
both would constitute an Event of Default and (y) in the case of each
sale or other disposition referred to in this proviso involving any
Borrower or any of its Subsidiaries, such sale or other disposition
could not reasonably be expected to impair materially the ability of
such Borrower to perform its obligations hereunder and under the Notes
and such Borrower shall continue to exist, this Section 5.02(f) shall
not prohibit the sale or other disposition of the stock of any
Subsidiary of TWC to TWC or any Wholly-Owned Subsidiary of TWC.
(g) Compliance with ERISA. (i) Terminate, or permit any
ERISA Affiliate of such Borrower to terminate, any Plan so as to
result in any liability of such Borrower or any such ERISA Affiliate
to the PBGC in excess of $5,000,000, or (ii) permit to exist any
occurrence of any Termination Event with respect to a Plan for which
there is an Insufficiency in excess of $5,000,000.
(h) Transactions with Related Parties. Make any sale to,
make any purchase from, extend credit to, make payment for services
rendered by, or enter into any other transaction with, or permit any
Subsidiary of such Borrower to make any sale to, make any purchase
from, extend credit to, make payment for services rendered by, or
enter into any other transaction with, any Related Party
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of such Borrower or of such Subsidiary unless as a whole such sales,
purchases, extensions of credit, rendition of services and other
transactions are (at the time such sale, purchase, extension of
credit, rendition of services or other transaction is entered into) on
terms and conditions reasonably fair in all material respects to such
Borrower or such Subsidiary in the good faith judgment of such
Borrower.
(i) Guarantees. Guarantee or otherwise become
contingently liable for, or permit any of its Subsidiaries to
guarantee or otherwise become contingently liable for, Debt of any
Subsidiary of TWC (other than Williams Energy Company and its
Subsidiaries which are not Borrowers) while an Event of Default is
continuing.
(j) Sale and Lease-Back Transactions. Enter into, or
permit any of its Subsidiaries to enter into, any Sale and Lease-Back
Transaction, if after giving effect thereto such Borrower would not be
permitted to incur at least $1.00 of additional Debt secured by a Lien
permitted by (i) paragraph (z) of Schedule III in the case of NWP and
its Subsidiaries, (ii) paragraph (z) of Schedule VI in the case of TWC
and its Non-Borrowing Subsidiaries which are not Subsidiaries of any
other Borrower, (iii) paragraph (z) of Schedule IV in the case of TGPL
and its Subsidiaries, (iv) paragraph (z) of Schedule V in the case of
TGT and its Subsidiaries, and (v) paragraph (i) of Schedule VII in the
case of WPL and its Subsidiaries.
(k) Use of Proceeds. Use any proceeds of any Advance for
any purpose other than general corporate purposes (including, without
limitation, working capital and capital expenditures) or use any such
proceeds in any manner which violates or results in a violation of
law; provided, however that no proceeds of any Advance will be used to
acquire any equity security of a class which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended,
(other than any purchase of common stock of any corporation, if such
purchase is not subject to Sections 13 and 14 of the Securities
Exchange Act of 1934 and is not opposed, resisted or recommended
against by such corporation or its management or directors, provided
that the aggregate amount of common stock of any corporation (other
than Apco Argentina Inc., a Cayman Islands corporation) purchased
during any calendar year shall not exceed 1% of the common stock of
such corporation issued and outstanding at the time of such purchase)
or in any manner which contravenes law, and no proceeds of any Advance
will be used to purchase or carry any margin stock (within the meaning
of Regulation G or Regulation U issued by the Board of Governors of
the Federal Reserve System).
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ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any
Note executed by it when the same becomes due and payable, or shall
fail to pay any interest on any such Note or any fee or other amount
to be paid by it hereunder within ten days after the same becomes due
and payable; or
(b) Any certification, representation or warranty made by
any Borrower herein or by any Borrower (or any officer of any
Borrower) in writing under or in connection with any Note or this
Agreement (including, without limitation, representations and
warranties deemed made pursuant to Section 3.02 or 3.03) shall prove
to have been incorrect in any material respect when made or deemed
made; or
(c) Any Borrower shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(b) on its part
to be performed or observed and such failure shall continue for five
Business Days after the earlier of the date notice thereof shall have
been given to such Borrower by the Agent or any Bank or the date such
Borrower shall have knowledge of such failure, or (ii) any term,
covenant or agreement contained in this Agreement (other than a term,
covenant or agreement contained in Section 5.01(b)) or any Note on its
part to be performed or observed; or
(d) Any Borrower or any Subsidiary of any Borrower shall
fail to pay any principal of or premium or interest on any Debt which
is outstanding in a principal amount of at least $20,000,000 in the
aggregate (excluding Debt evidenced by the Notes) of such Borrower 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 or as required pursuant to an
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illegality event of the type set forth in Section 2.12), prior to the
stated maturity thereof; or
(e) Any Borrower or any Subsidiary of any Borrower
(except any immaterial Subsidiary of such Borrower other than WNG, WEV
and WFS) shall generally not pay its debts as such debts become due,
or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Borrower or any
Subsidiary of any Borrower (except any immaterial Subsidiary of such
Borrower other than WNG, WEV and WFS) 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 30 days; or any Borrower or any Subsidiary
of any Borrower (except any immaterial Subsidiary of such Borrower
other than WNG, WEV and WFS) shall take any corporate 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 $20,000,000 shall be rendered against any Borrower or any
Subsidiary of any Borrower (except any immaterial Subsidiary of such
Borrower other than WEV, WNG and WFS) and remain unsatisfied and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g) Any Termination Event with respect to a Plan shall
have occurred and, 30 days after notice thereof shall have been given
to any Borrower by the Agent, (i) such Termination Event shall still
exist and (ii) the sum (determined as of the date of occurrence of
such Termination Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which a
Termination Event shall have occurred and then exist (or in the case
of a Plan with respect to which a Termination Event described in
clause (ii) of the definition of Termination Event shall have occurred
and then exist, the liability related thereto) is equal to or greater
than $5,000,000; or
(h) Any Borrower or any ERISA Affiliate of any Borrower
shall have been notified by the sponsor of a Multiemployer Plan that
it has incurred
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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 $715,000,000
in the aggregate or requires payments exceeding $10,000,000 per annum;
or
(i) Any Borrower or any ERISA Affiliate of any Borrower
shall have been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of
the Borrowers and their respective ERISA Affiliates to all
Multiemployer Plans which are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan years which
include the date hereof by an amount exceeding $5,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the holders of at least 66-2/3% in principal amount of the A
Notes then outstanding or, if no A Notes are then outstanding, Banks having at
least 66-2/3% of the Commitments, by notice to the Borrowers, declare all of
the Commitments and the obligation of each Bank to make Advances to be
terminated, whereupon all of the Commitments and each such obligation shall
forthwith terminate, and (ii) shall at the request, or may with the consent,
of the holders of at least 66-2/3% in principal amount of the A Notes then
outstanding or if no A Notes are then outstanding, Banks having at least
66-2/3% of the Commitments, or, if no A Notes are then outstanding and all
Commitments have terminated, the holders of at least 66-2/3% in principal
amount of the B Notes then outstanding, by notice to the Borrower as to which
an Event of Default exists (determined as contemplated by the definition herein
of Events of Default), declare the Notes of such Borrower, all interest thereon
and all other amounts payable by such Borrower under this Agreement to be
forthwith due and payable, whereupon such Notes, such interest and all such
amounts shall become and be forthwith due and payable, without requirement of
any presentment, demand, protest, notice of intent to accelerate, further
notice of acceleration or other further notice of any kind (other than the
notice expressly provided for above), all of which are hereby expressly waived
by each Borrower; provided, however, that in the event of any Event of Default
described in Section 6.01(e), (A)the obligation of each Bank to make Advances
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or any other notice of any kind, all of which are hereby expressly
waived by each Borrower.
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ARTICLE VII
THE AGENT
Section 7.01. Authorization and Action. Each Bank hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), 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
holders of at least 66-2/3% in principal amount of the A Notes then outstanding
or, if no A Notes are then outstanding, Banks having at least 66-2/3% of the
Commitments (or, if no A Notes are then outstanding and all Commitments have
terminated, upon the instructions of holders of at least 66-2/3% in principal
amount of the B Notes then outstanding), and such instructions shall be binding
upon all Banks and all holders of Notes; provided, however, that the Agent
shall not be required to take any action which exposes the Agent to personal
liability or which is contrary to any Note, this Agreement or applicable law.
The Agent agrees to give to each Bank prompt notice of each notice given to it
by any Borrower pursuant to the terms of this Agreement.
Section 7.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
any Note or this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the
Agent: (i) may treat the payee of any Note as the holder thereof until the
Agent receives and accepts a Transfer Agreement executed by a Borrower, the
Bank which is the payee of such Note, as assignor, and the assignee in
accordance with the last sentence of Section 8.06(a); (ii) may consult with
legal counsel (including counsel for any Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with any Note or this Agreement; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of any Note or this Agreement on the part of any
Borrower or to inspect the property (including the books and records) of any
Borrower; (v) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Note or this Agreement or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of any Note or
this Agreement by acting upon any notice, consent,
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certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
Section 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Citibank shall
have the same rights and powers under any Note and this Agreement as any other
Bank and may exercise the same as though it was not the Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated, include Citibank
in its individual capacity. Citibank and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage
in any kind of business with, any Borrower, any Subsidiary of any Borrower, any
Person who may do business with or own, directly or indirectly, securities of
any Borrower or any such Subsidiary and any other Person, all as if Citibank
were not the Agent and without any duty to account therefor to the Banks.
Section 7.04. Bank Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Agent or any other
Bank and based on the financial statements referred to in Section 4.01(e) and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the
Agent or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under any Note or this Agreement.
Section 7.05. Indemnification. The Banks agree to indemnify
the Agent (to the extent not reimbursed by the Borrowers), ratably according to
the respective principal amounts of the A Notes then held by each of them (or
if no A Notes are at the time outstanding or if any A Notes are held by Persons
which are not Banks, ratably according to either (i) the respective amounts of
their Commitments to TWC, or (ii) if all Commitments to TWC have terminated,
the respective amounts of the Commitments to TWC immediately prior to the time
the Commitments to TWC terminated), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or
arising out of any Note or this Agreement or any action taken or omitted by the
Agent under any Note or this Agreement, provided that no Bank shall be liable
to the Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank agrees to reimburse the Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of
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rights or responsibilities under, any Note or this Agreement to the extent that
the Agent is not reimbursed for such expenses by the Borrowers.
Section 7.06. Successor Agent. The Agent may resign at any
time as Agent under this Agreement by giving written notice thereof to the
Banks and the Borrowers and may be removed at any time with or without cause by
the Majority Banks. Upon any such resignation or removal, the Majority
Banks shall have the right to appoint, with the consent of TWC (which consent
shall not be unreasonably withheld), a successor Agent from among the Banks.
If no successor Agent shall have been so appointed by the Majority Banks with
such consent, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Majority Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a Bank which is a commercial
bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent under this Agreement by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
and shall function as the Agent under this Agreement, and the retiring Agent
shall be discharged from its duties and obligations as Agent under this
Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc. No amendment or waiver of any
provision of any Note or this Agreement, nor consent to any departure by any
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Banks, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Banks, do any of the following: (a)
waive any of the conditions specified in Article III, (b) increase the
Commitments of the Banks or subject the Banks to any additional obligations,
(c) reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes 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 percentage of the
Commitments or of the aggregate unpaid principal amount of the A Notes or B
Notes, or the number of Banks, which shall be
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required for the Banks or any of them to take any action under this Agreement,
or (g) amend this Section 8.01; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Banks required above to take such action, affect the rights or duties of
the Agent under any Note or this Agreement.
Section 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopy,
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered, if to any Bank, as specified opposite its name on
Schedule I hereto or specified pursuant to Section 8.06(a); if to any Borrower,
as specified opposite its name on Schedule II hereto; and if to Citibank, as
Agent, to its address at 399 Park Avenue, New York, New York 10043, (telecopier
number: (212) 527-1084), Attention: John Sahr, with a copy to Citicorp North
America, Inc., 1200 Smith Street, Suite 2000, Houston, Texas 77002
(telecopier number: (713) 654-2849; telex number 127001 (Attn: Route Code
HOUAA)), Attention: The Williams Companies, Inc. Account Officer; or, as to
any Borrower or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrowers and the Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed, telexed or cabled, be effective when received
in the mail, sent by telecopier to any party to the telecopier number as set
forth herein or on Schedule I or Schedule II or specified pursuant to Section
8.06(a) (or other telecopy number specified by such party in a written notice
to the other parties hereto), delivered to the telegraph company, telexed to
any party to the telex number set forth herein or on Schedule I or Schedule II
or specified pursuant to Section 8.06(a) (or other telex number designated by
such party in a written notice to the other parties hereto), confirmed by telex
answerback, or delivered to the cable company, respectively, except that
notices and communications to the Agent shall not be effective until received
by the Agent.
Section 8.03. No Waiver; Remedies. No failure on the part of
any Bank or the Agent to exercise, and no delay in exercising, any right under
any Note or this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided in
any Note and this Agreement are cumulative and not exclusive of any remedies
provided by law.
Section 8.04. Costs, Expenses and Taxes. (a) (i) TWC agrees to
pay on demand all reasonable out-of-pocket costs and expenses of the Arranger
and the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered under this Agreement, including, without
limitation, the reasonable fees and out-of-pocket
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expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under any Note and
this Agreement, and (ii) each Borrower agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses, which may include allocated costs of in-house counsel), of the Agent
and each Bank in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) against such Borrower of any Note of such
Borrower or this Agreement and the other documents to be delivered by such
Borrower under this Agreement.
(b) If any payment (or purchase pursuant to Section
2.11(c) or Section 8.06(b)) of principal of, or Conversion of, any Eurodollar
Rate Advance or B Advance made to any Borrower is made other than on the last
day of an Interest Period relating to such Advance (or in the case of a B
Advance, other than on the original scheduled maturity date thereof), as a
result of a payment pursuant to Section 2.10 or 2.12 or acceleration of the
maturity of the Notes pursuant to Section 6.01 or for any other reason or as a
result of any such purchase or any Conversion, such Borrower shall, upon demand
by any Bank (with a copy of such demand to the Agent), pay to the Agent for
the account of such Bank any amounts required to compensate such Bank for any
additional losses, costs or expenses which it may reasonably incur as a result
of any such payment, purchase or Conversion, including, without limitation, any
loss, cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund or maintain such Advance.
(c) Each Borrower agrees, to the fullest extent permitted
by law, to indemnify and hold harmless the Agent, the Arranger and each Bank
and each of their respective directors, officers, employees and agents from and
against any and all claims, damages, liabilities and out-of-pocket expenses
(including, without limitation, reasonable fees and disbursements of counsel)
for which any of them may become liable or which may be incurred by or asserted
against the Agent, the Arranger or such Bank or any such director, officer,
employee or agent (other than by another Bank or any successor or assign of
another Bank), in each case in connection with or arising out of or by reason
of any investigation, litigation, or proceeding, whether or not the Agent, the
Arranger or such Bank or any such director, officer, employee or agent is a
party thereto, arising out of, related to or in connection with this Agreement
or the Notes or any transaction in which any proceeds of all or any part of the
Advances are applied (other than any such claim, damage, liability or expense
to the extent attributable to the gross negligence or willful misconduct of, or
violation of any law or regulation by, either the party seeking indemnity under
this Section 8.04(c) or any of its directors, officers, employees or agents).
Section 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes of
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a Borrower due and payable pursuant to the provisions of Section 6.01, each
Bank is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of such Borrower against any and all of the obligations of such Borrower now or
hereafter existing under this Agreement and the Notes held by such Bank,
irrespective of whether or not such Bank shall have made any demand under this
Agreement or such Notes and although such obligations may be unmatured. Each
Bank agrees promptly to notify such Borrower after such set-off and application
made by such Bank, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Bank
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which such Bank may have.
Section 8.06. Binding Effect; Transfers. (a) This
Agreement shall become effective when it shall have been executed by the
Borrowers and the Agent and when each Bank listed on the signature pages hereof
has delivered an executed counterpart hereof to the Agent, has sent to the
Agent a facsimile copy of its signature hereon or has notified the Agent that
such Bank has executed this Agreement and thereafter shall be binding upon and
inure to the benefit of the Borrowers, the Agent and each Bank and their
respective successors and assigns, except that the Borrowers shall not have the
right to assign any of their respective rights hereunder or any interest herein
without the prior written consent of the Banks. Each Bank may assign to one or
more banks, financial institutions or government entities all or any part of,
or may grant participations to one or more banks, financial institutions or
government entities in or to all or any part of, any Advance or Advances owing
to such Bank, any Note or Notes held by such Bank and all or any portion of
such Bank's Commitments, and to the extent of any such assignment or
participation (unless otherwise stated therein) the assignee or purchaser of
such assignment or participation shall, to the fullest extent permitted by law,
have the same rights and benefits hereunder and under such Note or Notes as it
would have if it were such Bank hereunder, provided that, except in the case
of an assignment meeting the requirements of the next sentence hereof, (1) such
Bank's obligations under this Agreement, including, without limitation, its
Commitments to the Borrowers hereunder, shall remain unchanged, such Bank shall
remain responsible for the performance thereof, such Bank shall remain the
holder of any such Note or Notes for all purposes under this Agreement, and the
Borrowers, the other Banks and the Agent shall continue to deal solely with and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement; and (2) no Bank shall assign or grant a participation
that conveys to the assignee or participant the right to vote or consent under
this Agreement, other than the right to vote upon or consent to (i) any
increase in the amount of any Commitment of such Bank; (ii) any reduction of
the principal amount of, or interest to be paid on, such Bank's Advance or
Advances or Note or Notes; (iii) any reduction of any fee or other amount
payable hereunder to such
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Bank; or (iv) any postponement of any date fixed for any payment of principal
of, or interest on, such Bank's Advance or Advances or Note or Notes or any fee
or other amount payable hereunder to such Bank.
If (I) the assignee of any Bank either (1) is another Bank or (2) is
approved in writing by the Agent and the Borrowers or (3) is approved in
writing by the Agent and either an Event of Default exists or the Borrowers
have relinquished the right to approve the assignment pursuant to Section
8.06(b), and (II) such assignee assumes all or any portion (which portion shall
be a constant, and not a varying, percentage, and the amount of the Commitment
to TWC assigned, whether all or a portion, shall be in a minimum amount of
$5,000,000) of each of the Commitments of such assigning Bank to the respective
Borrowers (either all of each such Commitment shall be assigned or the
percentage portion of each such Commitment assigned shall be the same as to
each Borrower) by executing a document in the form of Exhibit H (or with such
changes thereto as have been approved in writing by the Agent in its sole
discretion as evidenced by its execution thereof duly executed by the Agent,
the Borrowers (unless an Event of Default exists or the Borrowers have
relinquished the right to approve the assignment pursuant to Section 8.06(b)),
such assigning Bank and such assignee and delivered to the Agent ("Transfer
Agreement"), then upon such delivery, (i) such assigning Bank shall be released
from its obligations under this Agreement with respect to all or such portion,
as the case may be, of its Commitments, (ii) such assignee shall become
obligated for all or such portion, as the case may be, of such Commitments and
all other obligations of such assigning Bank hereunder with respect to or
arising as a result of all or such portion, as the case may be, of such
Commitments, (iii) such assignee shall be assigned the right to vote or consent
under this Agreement, to the extent of all or such portion, as the case may be,
of such Commitments, (iv) each Borrower shall deliver, in replacement of the A
Note of such Borrower to such assigning Bank then outstanding (a) to such
assignee, a new A Note of such Borrower in the amount of the Commitment of such
assigning Bank to such Borrower which is being so assumed by such assignee
plus, in the case of any assignee which is already a Bank hereunder, the amount
of such assignee's Commitment to such Borrower immediately prior to such
assignment (any such assignee which is already a Bank hereunder agrees to
cancel and return to such Borrower, with reasonable promptness following the
delivery of such new A Note, the A Note being replaced thereby), (b) to such
assigning Bank, a new A Note in the amount of the balance, if any, of the
Commitment of such assigning Bank to such Borrower (without giving effect to
any B Reduction) retained by such assigning Bank (and such assigning Bank
agrees to cancel and return to such Borrower, with reasonable promptness
following delivery of such new A Notes, the A Note being replaced thereby), and
(c) to the Agent, photocopies of such new A Notes, (v) if such assignment is of
all of such assigning Bank's Commitments to the Borrowers, all of the
outstanding A Advances made by such assigning Bank shall be transferred to such
assignee, (vi) if such assignment is not of all of such Commitments, a part of
each A Advance to each Borrower equal to the
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amount of such Advance multiplied by a fraction, the numerator of which is the
amount of such portion of such assigning Bank's Commitment to such Borrower so
assumed and the denominator of which is the amount of the Commitment of such
assigning Bank to such Borrower (without giving effect to any B Reduction)
immediately prior to such assumption, shall be transferred to such assignee and
evidenced by such assignee's A Note from such Borrower, and the balance of such
A Advance shall be evidenced by such assigning Bank's new A Note from such
Borrower delivered pursuant to clause (iv)(b) of this sentence, (vii) if such
assignee is not a "Bank" hereunder prior to such assignment, such assignee
shall become a party to this Agreement as a Bank and shall be deemed to be a
"Bank" hereunder, and the amount of all or such portion, as the case may be, of
the Commitments to the respective Borrowers so assumed shall be deemed to be
the amount set opposite such assignee's name on the signature pages hereof for
purposes of this Agreement, and (viii) if such assignee is not a Bank hereunder
prior to such assignment, such assignee shall be deemed to have specified the
offices of such assignee named in the respective Transfer Agreement as its
"Domestic Lending Office" and "Eurodollar Lending Office" for all purposes of
this Agreement and to have specified for purposes of Section 8.02 the notice
information set forth in such Transfer Agreement; and the Agent shall promptly
after execution of any Transfer Agreement by the Agent and the other parties
thereto notify the Bank's of the parties to such Transfer Agreement and the
amounts of the assigning Bank's Commitments assumed thereby.
(b) If the Borrowers do not consent to a proposed assignment by a
Bank pursuant to the last sentence of Section 8.06(a), TWC may, within 15 days
of its receipt of a request that it consent to such assignment nominate by
notice to the Agent and such Bank a bank which, if it is not a Bank, is
acceptable to the Agent, and which unconditionally offers in writing (with a
copy to the Agent) to purchase and assume, to the extent of the amount of such
proposed assignment, in accordance with all of the provisions of the last
sentence of Section 8.06(a) (including execution of an appropriate Transfer
Agreement), all of such Bank's rights and obligations (including, without
limitation, its Commitments) hereunder and interest in the Advances owing to
such Bank and the Notes held by such Bank without recourse at par plus interest
accrued thereon to the date of such purchase on a date therein specified (not
less than three nor greater than five Business Days after such nomination).
Such Bank at its option may elect to accept or not accept such purchase offer.
If a Bank accepts such an offer and the bank first nominated by TWC pursuant to
this Section 8.06(b) fails to purchase such rights and interest on such
specified date in accordance with the terms of such offer, TWC may, within 15
days of such failure, repeat the process contemplated by the first sentence of
this Section 8.06(b) by nominating another bank for purposes of this Section
8.06(b) by notice to the Agent and such Bank. If TWC does not so nominate such
a bank within 15 days of its receipt of such request that it consent to such
assignment or if TWC fails to nominate another bank following such a failure to
purchase or if such second nominated bank fails to purchase in accordance with
the
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terms of an offer complying with the first sentence of this Section 8.06(b),
the Borrowers shall be deemed to have relinquished their right to consent to
such assignment. If such Bank elects to not accept such a purchase offer under
this Section 8.06(b) as to a particular proposed assignment, the Borrowers
shall not be deemed to have relinquished their right to consent to such
assignment.
(c) The Borrowers agree to promptly execute the Transfer Agreement
pertaining to any assignment as to which approval by the Borrowers of the
assignee is not required by clause (1) of the last sentence of Section 8.06(a).
(d) Any Bank may assign, as collateral or otherwise, any of its
rights (including, without limitation, rights to payments of principal of
and/or interest on the Notes) under this Agreement or an), of the Notes to any
Federal Reserve Bank without notice to or consent of any Borrower or the Agent.
Section 8.07. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
Section 8.08. Interest. It is the intention of the parties
hereto that the Agent and each Bank shall conform strictly to usury laws
applicable to it, if any. Accordingly, if the transactions with the Agent or
any Bank, contemplated hereby would be usurious under applicable law, then, in
that event, notwithstanding anything to the contrary in the Notes, this
Agreement or any other agreement entered into in connection with or as security
for this Agreement or the Notes, it is agreed as follows: (i) the aggregate of
all consideration which constitutes interest under applicable law that is
contracted for, taken, reserved, charged or received by the Agent or such Bank,
as the case may be, under the Notes, this Agreement or under any other
agreement entered into in connection with or as security for this Agreement or
the Notes shall under no circumstances exceed the maximum amount allowed by
such applicable law and any excess shall be cancelled automatically and, if
theretofore paid, shall at the option of the Agent or such Bank, as the case
may be, be credited by the Agent or such Bank, as the case may be, on the
principal amount of the obligations owed to the Agent or such Bank, as the
case may be, by the appropriate Borrower or refunded by the Agent or such
Bank, as the case may be, to the appropriate Borrower, and (ii) in the event
that the maturity of any Note or other obligation payable to the Agent or such
Bank, as the case may be, is accelerated or in the event of any required or
permitted prepayment, then such consideration that constitutes interest under
law applicable to the Agent or such Bank, as the case may be, may never
include more than the maximum amount allowed by such applicable law and excess
interest, if any, to the Agent or such Bank, as the case may be, provided for
in this Agreement or otherwise shall be cancelled automatically as of the date
of such acceleration or prepayment and, if theretofore paid, shall, at the
option of the Agent or such Bank, as the case may be, be credited by the Agent
or such Bank, as the case may be, on the principal amount of the obligations
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owed to the Agent or such Bank, as the case may be, by the appropriate Borrower
or refunded by the Agent or such Bank, as the case may be, to the appropriate
Borrower.
Section 8.09. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
Section 8.10. Survival of Agreements, Representations and
Warranties, Etc. All warranties, representations and covenants made by any
Borrower or any officer of any Borrower 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 and the making of the Advances regardless of any investigation.
The indemnities and other payment obligations of each Borrower contained in
this Agreement, and the indemnities by the Banks in favor of the Agent and its
officers, directors, employees and agents, will survive the repayment of the
Advances and the termination of this Agreement.
Section 8.11. Borrowers' Right to Apply Deposits. In the
event that any Bank is placed in receivership or enters a similar proceeding,
each Borrower may, to the full extent permitted by law, make any payment due to
such Bank hereunder, to the extent of finally collected unrestricted deposits
of such Borrower in U.S. dollars held by such Bank, by giving notice to the
Agent and such Bank directing such Bank to apply such deposits to such
indebtedness. If the amount of such deposits is insufficient to pay such
indebtedness then due and owing in full, such Borrower shall pay the balance of
such insufficiency in accordance with this Agreement.
Section 8.12. Confidentiality. Each Bank agrees that it will
use best efforts, to the extent not inconsistent with practical business
requirements, not to disclose without the prior consent of TWC -(other than to
employees, auditors, accountants, counsel or other professional advisors of the
Agent or any Bank) any information with respect to the Borrowers or their
Subsidiaries which is furnished pursuant to this Agreement and which (i) the
Borrowers in good faith consider to be confidential and (ii) is either clearly
marked confidential or is designated by the Borrowers to the Agent or the Banks
in writing as confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to or
required by any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over such Bank or submitted to or required by the Board of
Governors of the Federal Reserve System or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or
elsewhere) or their successors, (c) as may be required or appropriate in
response to any summons or subpoena in connection with any litigation, (d) in
order to comply with any law, order, regulation
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or ruling applicable to such Bank, (e) to the prospective transferee in
connection with any contemplated transfer of any of the Notes or any interest
therein by such Bank, provided that such prospective transferee executes an
agreement with or for the benefit of the Borrowers containing provisions
substantially identical to those contained in this Section 8.12, and provided
further that if the contemplated transfer is a grant of a participation in a
Note (and not an assignment), no such information shall be authorized to be
delivered to such participant pursuant to this clause (e) except (i) such
information delivered pursuant to Section 4.01(e) or Section 5.01(b) (other
than paragraph (iv) thereof), and (ii) if prior notice of the delivery thereof
is given to TWC, such information as may be required by law or regulation to be
delivered, (f) in connection with the exercise of any remedy by such Bank
pertaining to this Agreement, any of the Notes or any other document delivered
in connection herewith, (g) in connection with any litigation involving such
Bank pertaining to this Agreement, any of the Notes or any other document
delivered in connection herewith, (h) to any Bank or the Agent, or (i) to any
affiliate of any Bank, provided that such affiliate executes an agreement with
or for the benefit of the Borrowers containing provisions substantially
identical to those contained in this Section 8.12.
Section 8.13. WAIVER OF JURY TRIAL. THE BORROWERS,
THE AGENT, AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
ANY NOTE OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWERS
THE WILLIAMS COMPANIES, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
NORTHWEST PIPELINE CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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TRANSCONTINENTAL GAS PIPE LINE
CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
TEXAS GAS TRANSMISSION
CORPORATION
By: /s/ E.J. Ralph
------------------------------
Name:
----------------------------
Title:
---------------------------
WILLIAMS PIPE LINE COMPANY
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
AGENT:
CITIBANK, N.A., as Agent
By:
------------------------------
Authorized Officer
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Commitments BANKS
TWC Commitment $60,000,000 CITIBANK, N.A.
NWP Commitment $30,000,000
TGPL Commitment $30,000,000
TGT Commitment $15,000,000 By:
WPL Commitment $ 7,500,000 ------------------------------
Authorized Officer
TWC Commitment $50,000,000 BANK OF AMERICA NATIONAL TRUST
NWP Commitment $25,000,000 AND SAVINGS ASSOCIATION
TGPL Commitment $25,000,000
TGT Commitment $12,500,000
WPL Commitment $ 6,250,000 By:
------------------------------
Authorized Officer
TWC Commitment $50,000,000 CHEMICAL BANK
NWP Commitment $25,000,000
TGPL Commitment $25,000,000
TGT Commitment $12,500,000 By:
WPL Commitment $ 6,250,000 ------------------------------
Authorized Officer
TWC Commitment $50,000,000 CIBC INC.
NWP Commitment $25,000,000
TGPL Commitment $25,000,000
TGT Commitment $12,500,000 By:
WPL Commitment $ 6,250,000 ------------------------------
Authorized Officer
TWC Commitment $42,000,000 BARCLAYS BANK PLC
NWT Commitment $21,000,000
TGPL Commitment $21,000,000
TGT Commitment $10,500,000 By:
WPL Commitment $ 5,250,000 ------------------------------
Authorized Officer
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TWC Commitment $42,000,000 THE FIRST NATIONAL BANK OF
NWP Commitment $21,000,000 CHICAGO
TGPL Commitment $21,000,000
TGT Commitment $10,500,000
WPL Commitment $ 5,250,000 By:
------------------------------
Authorized Officer
TWC Commitment $42,000,000 FIRST INTERSTATE BANK OF
NWP Commitment $21,000,000 CALIFORNIA
TGPL Commitment $21,000,000
TGT Commitment $10,500,000
WPL Commitment $ 5,250,000 By:
------------------------------
Authorized Officer
TWC Commitment $42,000,000 MORGAN GUARANTY TRUST
NWP Commitment $21,000,000 COMPANY OF NEW YORK
TGPL Commitment $21,000,000
TGT Commitment $10,500,000
WPL Commitment $ 5,250,000 By:
------------------------------
Authorized Officer
TWC Commitment $42,000,000 ROYAL BANK OF CANADA
NWP Commitment $21,000,000
TGPL Commitment $21,000,000
TGT Commitment $10,500,000 By:
WPL Commitment $ 5,250,000 ------------------------------
Authorized Officer
TWC Commitment $35,000,000 THE FIRST NATIONAL BANK
NWP Commitment $17,500,000 OF BOSTON
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000
WPL Commitment $ 4,375,000 By:
------------------------------
Authorized Officer
TWC Commitment $35,000,000
NWP Commitment $17,500,000 THE BANK OF NEW YORK
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000
WPL Commitment $ 4,375,000 By:
------------------------------
Authorized Officer
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TWC Commitment $35,000,000 THE BANK OF NOVA SCOTIA
NWP Commitment $17,500,000
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000 By:
WPL Commitment $ 4,375,000 ------------------------------
Authorized Officer
TWC Commitment $35,000,000 THE CHASE MANHATTAN BANK, N.A.
NWP Commitment $17,500,000
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000 By:
WPL Commitment $ 4,375,000 ------------------------------
Authorized Officer
TWC Commitment $35,000,000 CREDIT LYONNAIS
NWP Commitment $17,500,000 CAYMAN ISLAND BRANCH
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000
WPL Commitment $ 4,375,000 By:
------------------------------
Authorized Officer
TWC Commitment $35,000,000 THE FUJI BANK, LIMITED
NWP Commitment $17,500,000
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000 By:
WPL Commitment $ 4,375,000 ------------------------------
Authorized Officer
TWC Commitment $35,000,000 MELLON BANK, N.A.
NWP Commitment $17,500,000
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000 By:
WPL Commitment $ 4,375,000 ------------------------------
Authorized Officer
TWC Commitment $35,000,000 SOCIETE GENERALE
NWP Commitment $17,500,000 SOUTHWEST AGENCY
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000
WPL Commitment $ 4,375,000 By:
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Authorized Officer
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TWC Commitment $35,000,000 BANK OF SCOTLAND
NWP Commitment $17,500,000
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000 By:
WPL Commitment $ 4,375,000 ------------------------------
Authorized Officer
TWC Commitment $35,000,000 BANK OF MONTREAL
NWP Commitment $17,500,000
TGPL Commitment $17,500,000
TGT Commitment $ 8,750,000 By:
WPL Commitment $ 4,375,000 ------------------------------
Authorized Officer
TWC Commitment $10,000,000 BANK OF OKLAHOMA, N.A.
NWP Commitment $ 5,000,000
TGPL Commitment $ 5,000,000
TGT Commitment $ 2,500,000 By:
WPL Commitment $ 1,250,000 ------------------------------
Authorized Officer
TWC Commitment $10,000,000 COMMERCE BANK, N.A.
NWP Commitment $ 5,000,000
TGPL Commitment $ 5,000,000
TGT Commitment $ 2,500,000 By:
WPL Commitment $ 1,250,000 ------------------------------
Authorized Officer
TWC Commitment $10,000,000 BANK IV OKLAHOMA, N.A.
NWP Commitment $ 5,000,000
TGPL Commitment $ 5,000,000
TGT Commitment $ 2,500,000 By:
WPL Commitment $ 1,250,000 ------------------------------
Authorized Officer
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$800,000,000 Total of the TWC Commitments
$400,000,000 Total of the NWP Commitments
$400,000,000 Total of the TGPL Commitments
$200,000,000 Total of the TGT Commitments
$100,000,000 Total of the WPL Commitments
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