1
Exhibit 4 (c)
U.S. $1,000,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 20, 1996
Among
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
NORTHWEST PIPELINE CORPORATION
TRANSCONTINENTAL GAS PIPE LINE CORPORATION
TEXAS GAS TRANSMISSION CORPORATION
▇▇▇▇▇▇▇▇ PIPE LINE COMPANY
▇▇▇▇▇▇▇▇ HOLDINGS OF DELAWARE, INC.
as Borrowers
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.04. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 1.05. Ratings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.02. Making the A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.03. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.04. Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.05. Repayment of A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.06. Interest on A Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.07. Additional Interest on Eurodollar Rate Advances . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.08. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.09. Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.10. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.11. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.12. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.13. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.14. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.15. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.16. The B Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.17. Optional Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.18. Extension of Termination Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.19. Voluntary Conversion of Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.20. Automatic Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE III
CONDITIONS
Section 3.01. Conditions Precedent to Initial Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.02. Additional Conditions Precedent to Each A Borrowing . . . . . . . . . . . . . . . . . . . . . 27
Section 3.03. Conditions Precedent to Each B Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers . . . . . . . . . . . . . . . . . . . . . . . ▇▇
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▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ OF THE BORROWERS
Section 5.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VII
THE AGENT
Section 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 7.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 7.03. Citibank and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.04. Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 8.04. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 8.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 8.06. Binding Effect; Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 8.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 8.08. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 8.09. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.10. Survival of Agreements, Representations and Warranties, Etc. . . . . . . . . . . . . . . . . 49
Section 8.11. Borrowers' Right to Apply Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.13. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.14. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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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
Schedule VIII - Permitted WHD Liens
Schedule IX - Commitments
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 ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
Exhibit D - Opinion of Special Counsel to Agent
Exhibit E - Existing Transfer Restrictions
Exhibit F - Form of Transfer Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 20, 1996
This Amended and Restated Credit Agreement dated as of December 20,
1996, 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.
PRELIMINARY STATEMENTS
1. The Borrowers, the Agent and the Banks are parties to the
Credit Agreement dated as of February 23, 1995 (as previously amended, the
"1995 Credit Agreement").
2. The Borrowers have requested that the 1995 Credit Agreement be
further amended and, as so further amended, be restated in its entirety, and
the parties hereto have agreed to do so on the terms and conditions set forth
herein.
3. The parties hereto have agreed to restate the 1995 Credit
Agreement in its entirety for convenience, and this Amended and Restated Credit
Agreement constitutes for all purposes an amendment to the 1995 Credit
Agreement, and each reference to an Advance or Borrowing herein shall include
each advance or borrowing made heretofore under the 1995 Credit Agreement as
well as each Advance or Borrowing made hereafter under this Agreement.
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.
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"Agreement" means this Amended and Restated Credit Agreement
dated as of December 20, 1996 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, 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 Eurodollar Rate 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 Rating Category applicable to
such Borrower from time to time:
Rating Applicable
Category Margin
------------------ ----------------
One .25%
Two .30%
Three .35%
Four .45%
Five .65%
Six .75%
Seven 1.00%
and (ii) for each day during such times as WPL is Unrated, as to any
Eurodollar Rate Advance to WPL, the rate per annum set forth in the
following table for the relevant amount of the Applicable WPL Debt to
TNW Ratio for such day:
Applicable
WPL Debt to Applicable
TNW Ratio Margin
----------- --------------
Less than .55 .35%
.55 or greater and
less than .60 .45%
.60 or greater .75%
The Applicable Margin determined pursuant to clause (i) of this
definition for any Eurodollar Rate 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
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Rate Advance with a three month Interest Period and WPL is Unrated
from September 15 through October 15 of such year 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 .65% from October 16
through October 20 and .45% 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,
(or, in the case of B Advances outstanding on December 20, 1996, in
substantially the form of Exhibit A-2 to the 1995 Credit Agreement)
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.
"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:
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(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, WHD, 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.
"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 Schedule IX hereof as
such amount may be terminated, reduced or increased after December 20,
1996 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.
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"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, paragraph (h) of Schedule VII or paragraph (y) of Schedule VIII or
under or resulting from any 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, paragraph
(j) of Schedule VII or paragraph (aa) of Schedule VIII.
"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.
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"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.
"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 office of Citibank in London, England to prime banks in
the London interbank market at 11:00 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 WHD, NWP, WPL,
TGPL and TGT is a Subsidiary of
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TWC, any Event of Default that exists as to any of WHD, 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 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 (it being agreed that selection of a subsequent Interest Period
for an outstanding Eurodollar Rate Advance does not require that a
Notice of A Borrowing be given, inasmuch as no Advance is being
requested or made as a result of such selection); provided, however,
that:
(i) Interest Periods commencing on the same date
for A Advances comprising part of the same A Borrowing shall
be of the same duration;
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(ii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided that if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding
Business Day;
(iii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month in which it would have
ended if there were a numerically corresponding day in such
calendar month; and
(iv) no Borrower may select any Interest Period
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 ▇▇▇▇▇'▇ 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 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.
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13
"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.
"1995 Credit Agreement" has the meaning specified in the
preliminary statements of this Agreement.
"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 WHD Liens" means Liens specifically described on
Schedule VIII.
"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.
"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 Filings" means TWC's, NWP's, TGPL's and TGT's
respective annual reports on Form 10-K for the year ended December 31,
1995 and TWC's, NWP's, TGPL's and TGT's respective quarterly reports
on Form 10-Q for the quarters ended March 31, 1996, June 30, 1996 and
September 30, 1996.
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14
"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 ▇▇▇▇▇'▇.
"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 Baa1 by ▇▇▇▇▇'▇.
"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 ▇▇▇▇▇'▇.
"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 ▇▇▇▇▇'▇.
"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 ▇▇▇▇▇'▇.
"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 Borrower and (ii) the senior unsecured
long-term debt of such Borrower is rated BB by S&P or Ba2 by ▇▇▇▇▇'▇.
"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
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15
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
▇▇-▇▇▇▇ ▇▇▇▇, 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.
"Stated Termination Date" means October 31, 2001 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.
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16
"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 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ Energy Ventures, Inc., a Delaware
corporation.
"WFS" means ▇▇▇▇▇▇▇▇ Field Services Group, Inc., a Delaware
corporation.
"WHD" means ▇▇▇▇▇▇▇▇ Holdings of Delaware, Inc., a Delaware
corporation.
"WNG" means ▇▇▇▇▇▇▇▇ Natural Gas Company, a Delaware
corporation.
"WPL" means ▇▇▇▇▇▇▇▇ 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
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17
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.
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.
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
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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 make such funds available to the
Borrower requesting such A Borrowing at the Agent's aforesaid address.
Notwithstanding the other provisions hereof, each Bank that is to be paid by
any Borrower on December 20, 1996 any principal amount outstanding under the
1995 Credit Agreement as contemplated by Section 8.14 shall apply the proceeds
of any Advance to be made by it to such Borrower on such date to pay such
amount and only an amount equal to the difference (if any) between the amount
of such Advance and the principal amount being so paid shall be made available
by such Bank to the Agent as provided herein, or remitted by such Borrower to
the Agent as provided in Section 2.13, as the case may be.
(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;
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(iii) if the Majority Banks shall notify the Agent
that either (A) the Eurodollar Rate for any Interest Period for any
Eurodollar Rate Advances will not adequately reflect the cost to such
Banks of making or funding their respective Eurodollar Rate Advances
for such Interest Period, or (B) that U.S. dollar deposits for the
relevant amounts and Interest Period for their respective Advances are
not available to them in the London interbank market, or it is
otherwise impossible to have Eurodollar Rate Advances, the Agent shall
forthwith so notify the Borrowers and the Banks, whereupon (I) each
Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance, and (II) the obligations of the Banks to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Agent, at the request of the Majority Banks, shall notify the
Borrowers and the Banks that the circumstances causing such suspension
no longer exist, and, except as provided in Section 2.02(b)(v), each
Advance comprising any requested A Borrowing shall be a Base Rate
Advance;
(iv) if the Agent is unable to determine the
Eurodollar Rate for Eurodollar Rate Advances, the obligation of the
Banks to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrowers and the
Banks that the circumstances causing such suspension no longer exist,
and, except as provided in Section 2.02(b)(v), each Advance comprising
any requested A Borrowing shall be a Base Rate Advance; and
(v) if a Borrower has requested a proposed A
Borrowing consisting of Eurodollar Rate Advances and as a result of
circumstances referred to in Section 2.02(b)(iii) or (iv) such A
Borrowing would not consist of Eurodollar Rate Advances, such Borrower
may, by notice given not later than 3:00 P.M. (New York City time) at
least one Business Day prior to the date such proposed A Borrowing
would otherwise be made, cancel such A Borrowing, in which case such A
Borrowing shall be cancelled and no Advances shall be made as a result
of such requested A Borrowing, but such Borrower shall indemnify the
Banks in connection with such cancellation as contemplated by Section
2.02(c).
(c) Each Notice of A Borrowing shall be irrevocable and
binding on the Borrowers, except as set forth in Section 2.02(b)(v). In the
case of any A Borrowing requested by a Borrower which the related Notice of A
Borrowing specifies is to be comprised of Eurodollar Rate Advances, such
Borrower shall indemnify each Bank against any loss, cost or expense incurred
by such Bank as a result of any failure to fulfill on or before the date
specified in such Notice of A Borrowing for such A Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(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
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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.
(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, .08%, (ii) at such times as
Rating Category Two is applicable to TWC, .10%, (iii) at such times as Rating
Category Three is applicable to TWC, .11%, (iv) at such times as Rating
Category Four is applicable to TWC, .15%, (v) at such times as Rating Category
Five is applicable to TWC, .20%, (vi) at such times as Rating Category Six is
applicable to TWC, .25% and (vii) at such times as Rating Category Seven is
applicable to TWC, .375%, 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
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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 at least three Business Days notice to the Agent, to elect
to cease to be a Borrower hereunder, except for purposes of the definition
herein of Majority Banks and for purposes of Sections 2.11, 2.14 and 8.04.
Section 2.05. Repayment of A Advances. Each Borrower shall
repay, on the Stated Termination Date or such earlier date as the Notes may be
declared due pursuant to Article VI, the unpaid principal amount of each A
Advance made by each Bank to such Borrower.
Section 2.06. Interest on A Advances. Each Borrower shall
pay interest on the unpaid principal amount of each A Advance made by each Bank
to such Borrower from the date of such A Advance until such principal amount
shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. At such times as such A Advance
is a Base Rate Advance, a rate per annum equal at all times to the
Base Rate in effect from time to time, payable quarterly in arrears on
the last day of each March, June, September and December and on the
date such Advance shall be Converted or paid in full; provided that
any amount of principal of any Base Rate Advance, interest, fees and
other amounts payable hereunder (other than principal of any
Eurodollar Rate Advance) which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest, from the
date on which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to the sum
of the Base Rate in effect from time to time plus 2% per annum.
(b) Eurodollar Rate Advances. At such times as such A
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such A Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin in
effect from time to time for such A Advance, payable on the last day
of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day which occurs during such Interest
Period every three months from the first day of such Interest Period;
provided that any amount of principal of any Eurodollar Rate Advance
which is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which
such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to the greater of (x)
the sum of the Base Rate 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 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
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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 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 (v) 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,
(vi) such replacement bank shall be reasonably satisfactory to the Agent and
the Majority Banks, (vii) 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
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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 (viii) 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 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.
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(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.
(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.
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(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.
(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.
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Section 2.16. The B Advances.
(a) Each Bank severally agrees that each Borrower may
make B Borrowings under this Section 2.16 from time to time on any Business Day
during the period from the date hereof until the earlier of (I) the Termination
Date or (II) the date occurring 30 days prior to the Stated Termination Date in
the manner set forth below; provided that, 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 $2000.
(ii) Each Bank may, if in its sole discretion it elects to
do so, irrevocably offer to make one or more B Advances to a Borrower
as part of such proposed B Borrowing at a rate or rates of interest
specified by such Bank in its sole discretion, by notifying the Agent
(which shall give prompt notice thereof to such Borrower), before
10:00 A.M. (New York City time) (x) on the date of such proposed B
Borrowing, in the case of a Notice of B Borrowing delivered pursuant
to clause (A) of paragraph (i) above, and (y) three Business Days
before the date of such proposed B Borrowing in the case of a Notice
of B Borrowing delivered pursuant to clause (B) of paragraph (i)
above, of the minimum amount and maximum amount of each B Advance
which such Bank would be willing to make as part of such proposed B
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.16(a), exceed such Bank's Commitment to
such Borrower), the rate or rates of interest therefor and such Bank's
Applicable Lending Office with respect to such B Advance; provided
that if the Agent in its capacity as a Bank shall, in its sole
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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.
(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
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shall, before 12:00 noon (New York City time) on the date of such B
Borrowing specified in the notice received from the Agent pursuant to
clause (A) of the preceding sentence or any later time when such Bank
shall have received notice from the Agent pursuant to clause (C) of
the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at its New York address
referred to in Section 8.02 such Bank's portion of such B Borrowing,
in same day funds. Upon fulfillment of the applicable conditions set
forth in Article III and after receipt by the Agent of such funds, the
Agent will make such funds available to such Borrower at the Agent's
aforesaid address. Promptly after each B Borrowing the Agent will
notify each Bank of the amount of the B Borrowing, the Borrower to
which such B Borrowing was made, the consequent B Reduction and the
dates upon which such B Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount of
not less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof. Each Borrower agrees that it will not request a B
Borrowing unless, upon the making of such B Borrowing, the limitations
set forth in the proviso to the first sentence of Section 2.16(a) are
complied with.
(c) Within the limits and on the conditions set forth in
this Section 2.16, each Borrower may from time to time borrow under
this Section 2.16, repay or prepay pursuant to subsection (d) below,
and reborrow under this Section 2.16, provided that a B Borrowing
shall not be made by any Borrower within three Business Days of the
date of another B Borrowing to such Borrower.
(d) Each Borrower shall repay to the Agent for the
account of each Bank which has made a B Advance to such Borrower, or
each other holder of a B Note of such Borrower, on the maturity date
of each B Advance made to such Borrower (such maturity date being that
specified by such Borrower for repayment of such B Advance in the
related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above and provided 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.
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(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 (ix) 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 (x) during any period of up to 24 consecutive months, commencing before or
after the date of this Agreement, individuals who at the beginning of such
24-month period were directors of TWC or who were elected by individuals who at
the beginning of such period were such directors or by individuals elected in
accordance with this clause (ii) shall cease for any reason to constitute a
majority of the board of directors of TWC, or (xi) 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 October 1 of any year after 1999, 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
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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 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 on or after the date hereof
is subject to the condition precedent that the Agent shall have received on or
before the date hereof, each dated on or before such date, in form and
substance satisfactory to the Agent and (except for the Notes) 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
authorizing the execution of 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) all changes, if any, that
have been made to the Certificate of Incorporation or Bylaws of such
Borrower on or after June 15, 1995, 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., special
counsel to the Agent, substantially in the form of Exhibit D hereto.
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(f) A certificate of an officer of each Borrower (other
than WPL) stating the respective ratings by each of S&P and ▇▇▇▇▇'▇ 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, 1996.
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 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):
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(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 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.
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(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
▇▇▇▇▇▇, ▇▇▇▇ 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 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, 1995, 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, 1996 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, 1996 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, 1996, there has been no material adverse
change in the condition or operations of TWC or its Subsidiaries.
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(ii) The consolidating balance sheets of TWC and
its Subsidiaries as at December 31, 1995 and September 30, 1996
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, 1996 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, 1996, there has been no material adverse change in the
condition or operations of NWP or its Subsidiaries.
(iii) The Consolidated balance sheet of WPL and its
Subsidiaries as at December 31, 1995, and the related Consolidated
statement of income and cash flows of WPL and its Subsidiaries for the
fiscal year then ended, copies of which have been furnished to each
Bank, and the Consolidated balance sheet of WPL and its Subsidiaries
as at September 30, 1996 and the related Consolidated statement of
income and cash flows of WPL and its Subsidiaries for the nine months
then ended, duly certified by an authorized financial officer of WPL,
copies of which have been furnished to each Bank, fairly present,
subject, in the case of such balance sheet as at September 30, 1996
and such statement 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, 1996, there has been no material adverse
change in the condition or operations of WPL or its Subsidiaries.
(iv) The Consolidated balance sheet of TGPL and
its Subsidiaries as at December 31, 1995, 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, 1996 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, 1996 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, 1996, there has
been no material adverse change in the condition or operations of TGPL
or its Subsidiaries.
(v) The Consolidated balance sheet of TGT and its
Subsidiaries as at December 31, 1995, 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, 1996, and the related Consolidated statement of
income and cash flows of
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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, 1996 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, 1996, there has been no material adverse change in the
condition or operations of TGT or its Subsidiaries.
(vi) The Consolidated balance sheet of WHD and its
Subsidiaries as at December 31, 1995, and the related Consolidated
statement of income and cash flows of WHD and its Subsidiaries for the
fiscal year then ended, copies of which have been furnished to each
Bank, and the Consolidated balance sheet of WHD and its Subsidiaries
as at September 30, 1996 and the related Consolidated statement of
income and cash flows of WHD and its Subsidiaries for the nine months
then ended, duly certified by an authorized financial officer of WHD,
copies of which have been furnished to each Bank, fairly present,
subject, in the case of such balance sheet as at September 30, 1996
and such statement of income and cash flows for the nine months then
ended, to year-end audit adjustments, the Consolidated financial
condition of WHD and its Subsidiaries as at such dates and the
Consolidated results of operations of WHD 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, 1996, there has been no material adverse
change in the condition or operations of WHD or its Subsidiaries.
(f) Except as set forth in the Public Filings or as
otherwise disclosed in writing by a Borrower to the Banks and the
Agent after the date hereof and approved by the Majority Banks, there
is, as to each Borrower, no pending or, to the knowledge of such
Borrower, threatened action or proceeding affecting such Borrower or
any 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.
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(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 (other than WHD) and the
Subsidiaries of each Borrower (other than Subsidiaries not in
existence on December 31, 1989) 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 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).
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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 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);
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(iii) as soon as available and in any event not
later than 105 days after the end of each fiscal year of such
Borrower, a copy of the annual audit report for such year for
such Borrower and its Subsidiaries, including therein
Consolidated and, in the case of TWC, consolidating balance
sheets of such Borrower and its Subsidiaries as of the end of
such fiscal year and Consolidated and, in the case of TWC,
consolidating statements of income and cash flows of such
Borrower and its Subsidiaries for such fiscal year, in each
case prepared in accordance with generally accepted accounting
principles and certified by Ernst & Young 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 final reports and final 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 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;
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(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 ▇▇▇▇▇'▇ 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
(xi) promptly after any withdrawal or termination of
the letter referred to in the second to last sentence of
Section 1.05 or any change in the indicated rating set forth
therein or any change in, or issuance, withdrawal or
termination of, the rating of any senior unsecured long-term
debt of such Borrower by S&P or ▇▇▇▇▇'▇, 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
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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;
(ii) WHD and its Non-Borrowing Subsidiaries which
are not Subsidiaries of any other Borrower (other than TWC)
may create, incur, assume or suffer to exist Permitted WHD
Liens;
(iii) NWP and its Non-Borrowing Subsidiaries may
create, incur, assume or suffer to exist Permitted NWP Liens;
(iv) TGPL and its Non-Borrowing Subsidiaries may
create, incur, assume or suffer to exist Permitted TGPL Liens;
(v) TGT and its Non-Borrowing Subsidiaries may
create, incur, assume or suffer to exist Permitted TGT Liens;
and
(vi) WPL and its Non-Borrowing 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;
(ii) In the case of WHD, permit the ratio of (A) the aggregate
amount of all Debt of WHD and its Subsidiaries on a Consolidated basis
to (B) the sum of the Consolidated Net
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Worth of WHD plus the aggregate amount of all Debt of WHD and its
Subsidiaries on a Consolidated basis to exceed 0.55 to 1.0 at any
time; and
(iii) In the case of any Borrower (other than TWC and WHD),
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;
(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
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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
(iii) 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 (iv) 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 E,
(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 E,
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).
(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) WHD, 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 WHD,
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.
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(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 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 ▇▇▇▇▇▇▇▇ 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, (v) paragraph (i) of Schedule VII in the
case of WPL and its Subsidiaries and (vi) paragraph (z) of Schedule
VIII in the case of WHD and its Subsidiaries.
(k) Use of Proceeds. Use any proceeds of any Advance for
any purpose other than general corporate purposes (including, without
limitation, repurchases by TWC of its capital stock, working capital
and capital expenditures) or use any such proceeds in any manner which
violates or results in a violation of law; provided, howeverthat 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
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the Board of Governors of the Federal Reserve System), except
purchases by TWC of its capital stock if, after giving effect thereto,
none of the Advances would constitute purpose credit within the
meaning of such Regulation U or purpose credit within the meaning of
such Regulation G.
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 illegality
event of the type set forth in Section 2.12), prior to the stated
maturity thereof; or
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(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 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 $15,000,000
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
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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.
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.
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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, 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,
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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 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
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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 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
(telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇ ▇▇▇▇, with a copy to
Citicorp North America, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇; telex number 127001 (Attn: Route Code
HOUAA)), Attention: The ▇▇▇▇▇▇▇▇ 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 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.
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(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 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
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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 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 or such lesser amount as may be approved in writing by the Agent and
TWC for such assignment) of each of the Commitments of such assigning Bank to
the respective Borrowers (either all of each such Commitment shall be assigned
or the percentage portion of each such Commitment assigned shall be the same as
to each Borrower) by executing a document in the form of Exhibit F (or with
such changes thereto as have been approved in writing by the Agent in its sole
discretion as evidenced by its execution thereof) duly executed by the Agent,
the Borrowers (unless an Event of Default exists 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
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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 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
Commitment to each of the respective Borrowers so assumed shall be deemed to be
the amount for such Borrower set opposite such assigning Bank's name on
Schedule IX for purposes of this Agreement, and (viii) if such assignee is not
a Bank hereunder prior to such assignment, such assignee shall be deemed to
have specified the offices of such assignee named in the respective Transfer
Agreement as its "Domestic Lending Office" and "Eurodollar Lending Office" for
all purposes of this Agreement and to have specified for purposes of Section
8.02 the notice information set forth in such Transfer Agreement; and the Agent
shall promptly after execution of any Transfer Agreement by the Agent and the
other parties thereto notify the Banks of the parties to such Transfer
Agreement and the amounts of the assigning Bank's Commitments assumed thereby.
(b) 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
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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 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 (I) 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 any 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
owed to the
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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 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
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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.
Section 8.14. Miscellaneous. This Agreement shall become
effective in accordance with the first sentence of Section 8.06(a). Subject to
compliance with such sentence, the amendments to the 1995 Credit Agreement
effected by this Agreement (including, without limitation, the amendments to
the definition of "Applicable Margin") shall for all purposes be effective as
of December 20, 1996. On December 20, 1996, each Borrower will pay in full all
principal, interest and fees owed by it outstanding under the 1995 Credit
Agreement.
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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 ▇▇▇▇▇▇▇▇ COMPANIES, INC. NORTHWEST PIPELINE CORPORATION
By: By:
---------------------------- ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
---------------------------- ----------------------------
TRANSCONTINENTAL GAS PIPE LINE TEXAS GAS TRANSMISSION
CORPORATION CORPORATION
By: By:
---------------------------- ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
---------------------------- ----------------------------
▇▇▇▇▇▇▇▇ HOLDINGS OF DELAWARE, INC. ▇▇▇▇▇▇▇▇ PIPE LINE COMPANY
By: By:
---------------------------- ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
---------------------------- ----------------------------
-53-
58
AGENT:
-----
CITIBANK, N.A., as Agent
By:
-----------------------------------
J ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
BANKS:
CITIBANK, N.A.
By:
-----------------------------------
J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
-----------------------------------
Authorized Officer
THE CHASE MANHATTAN BANK
By:
-----------------------------------
Authorized Officer
CIBC INC.
By:
-----------------------------------
Authorized Officer
-54-
59
CREDIT LYONNAIS NEW YORK BRANCH
By:
-----------------------------------
Authorized Officer
THE FIRST NATIONAL BANK OF CHICAGO
By:
-----------------------------------
Authorized Officer
BANK OF MONTREAL
By:
-----------------------------------
Authorized Officer
THE BANK OF NEW YORK
By:
-----------------------------------
Authorized Officer
THE BANK OF NOVA SCOTIA
By:
-----------------------------------
Authorized Officer
BARCLAYS BANK PLC
By:
-----------------------------------
Authorized Officer
-55-
60
BOATMEN'S NATIONAL BANK
OF OKLAHOMA
By:
-----------------------------------
Authorized Officer
THE FIRST NATIONAL BANK OF BOSTON
By:
-----------------------------------
Authorized Officer
THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By:
-----------------------------------
Authorized Officer
MELLON BANK, N.A.
By:
-----------------------------------
Authorized Officer
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By:
-----------------------------------
Authorized Officer
ROYAL BANK OF CANADA
By:
-----------------------------------
Authorized Officer
-56-
61
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
-----------------------------------
Authorized Officer
▇▇▇▇▇ FARGO BANK, N.A.
By:
-----------------------------------
Authorized Officer
BANK OF OKLAHOMA, N.A.
By:
-----------------------------------
Authorized Officer
COMMERCE BANK, N.A.
By:
-----------------------------------
Authorized Officer
-57-
62
SCHEDULE I
APPLICABLE LENDING OFFICES
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
Citibank N.A. Citibank N.A. Citibank N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notices: Citibank, N.A. Notices: Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: None Telex: None
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dept: Medium Term Finance Dept: Medium Term Finance
with copies to: with copies to:
Citicorp North America, Inc. Citicorp North America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 127001 Telex: 127001
(Attn. Route Code HOUAA) (Attn. Route Code HOUAA)
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc. Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Account Officer Account Officer
Bank of America National Bank of America National Trust and Bank of America National Trust and
Trust and Savings Savings Association Savings Association
Association Corporate Service Center #1233 Corporate Service Center #1233
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 34346 Telex: 34346
Attn: ▇▇▇▇▇▇▇ Gabby Attn: ▇▇▇▇▇▇▇ Gabby
Bank of Montreal Bank of Montreal Bank of Montreal
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ 700 Louisiana, Suite 4400
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 77-5640 Telex: 77-5640
Attn: ▇▇▇▇ Deal Attn: ▇▇▇▇ Deal
The Bank of New York The Bank of New York The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 420268 Telex: 420268
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Administrator Administrator
63
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
The Bank of Nova Scotia The Bank of Nova Scotia The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 30308 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 00542319 Telex: 00542319
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to: with a copy to:
The Bank of Nova Scotia The Bank of Nova Scotia
Houston Representative Office Houston Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 3000
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: RCA 216312 Telex: RCA 216312
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Bank of Oklahoma, N.A. Bank of Oklahoma, N.A. Bank of Oklahoma, N.A.
Bank of Oklahoma Tower Bank of Oklahoma Tower
Tulsa, Oklahoma 74192 ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: None Telex: None
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 126195 Telex: 126195
Answerback: BARCLADOM NYK Answerback: BARCLADOM NYK
Attn: ▇▇▇▇▇ ▇▇▇▇▇-Sui Attn: ▇▇▇▇▇ ▇▇▇▇▇-Sui
Boatmen's National Bank of Boatmen's National Bank of Oklahoma Boatmen's National Bank of Oklahoma
Oklahoma ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 796112 Telex: 796112
Answerback: FIRSTINTLOKC Answerback: FIRSTINTLOKC
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
The Chase Manhattan Bank The Chase Manhattan Bank The Chase Manhattan Bank
270 Park Avenue, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telex: None Telex: None
Attn: ▇▇▇▇ ▇▇▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
-2-
64
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
CIBC Inc. CIBC Inc. CIBC Inc.
Two Paces West Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇ 2727 Paces Ferry Road., Suite 1200
Atlanta, Georgia 30339 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 542413 Telex: 542413
Answerback: CANBANK ATL Answerback: CANBANK ATL
Attn: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Commerce Bank, N.A. Commerce Bank, N.A. Commerce Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 17th Floor ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: None Telex: None
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Credit Lyonnais New York Credit Lyonnais New York Branch Credit Lyonnais New York Branch
Branch 1000 Louisiana, Suite 5360 1000 Louisiana, Suite 5360
Houston, Texas 77002 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 6868674 Telex: 6868674
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, A.S. Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, A.S.
The First National Bank of The First National Bank of Chicago The First National Bank of Chicago
Chicago Two First National Plaza, Suite 0363 Two First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 4330253 Telex: 4330253
Answerback: FNBCUI Answerback: FNBCUI
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with copies to: with copies to:
The First National Bank of Chicago The First National Bank of Chicago
One First National Plaza, Suite 0363 One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 4330253 Telex: 4330253
Answerback: FNBCUI Answerback: FNBCUI
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
The First National Bank of The First National Bank of Boston The First National Bank of Boston
Boston ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M/S 01-08-04 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, M/S 01-08-04
Boston, MA 02110 ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/9820 Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/9820
Telex: 4996527 Telex: 4996527
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-3-
65
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
The Fuji Bank, Limited, The Fuji Bank, Limited, Houston The Fuji Bank, Limited, Houston
Houston Agency Agency Agency
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ Center ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 790026 Telex: 790026
Attn: ▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ Guaranty Trust ▇▇▇▇▇▇ Guaranty Trust Company of ▇▇▇▇▇▇ Guaranty Trust Company of
Company of New York New York New York
60 Wall Street Nassau, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Corp.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Euro-Loan Servicing Unit
Telex: 177 615 902 Market Street
Answerback: MTG UI ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Loan Department Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 0835 383
Answerback: JPM DELA WIL
Attn: Multi-Options Facilities Unit
Royal Bank of Canada Royal Bank of Canada Cayman Branch Royal Bank of Canada Cayman Branch
c/o Royal Bank of Canada c/o Royal Bank of Canada
1 Financial Square, 24th Floor 1 Financial Square, 24th Floor
New York, New York 10005-3531 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 420464 Telex: 420464
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
with copies to: with copies to:
Royal Bank of Canada Royal Bank of Canada
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇▇ Attn: ▇. ▇. ▇▇▇▇▇
Mellon Bank, ▇.▇. ▇▇▇▇▇▇ Bank, ▇.▇. ▇▇▇▇▇▇ Bank, N.A.
Three Mellon Bank Center, Room 2332 Three Mellon Bank Center, Room 2332
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 812 367 Telex: 812 367
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Loan Administrator Loan Administrator
Societe Generale, Societe Generale, Southwest Agency Societe Generale, Southwest Agency
Southwest Agency ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 170494 Telex: 170494
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Loan Specialist Loan Specialist
-4-
66
Domestic Eurodollar
Name of Bank Lending Office Lending Office
------------ -------------- --------------
▇▇▇▇▇ Fargo Bank, ▇.▇. ▇▇▇▇▇ Fargo Bank, ▇.▇. ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: None Telex: None
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇
-5-
67
SCHEDULE II
BORROWER INFORMATION
Name of Borrower Information for Notices
---------------- -----------------------
The ▇▇▇▇▇▇▇▇ Companies, Inc. The ▇▇▇▇▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: ▇▇▇-▇▇▇-▇▇▇▇
Answerback: ▇▇▇▇▇▇▇▇-TUL
▇▇▇▇▇▇▇▇ Holdings of Delaware, Inc. ▇▇▇▇▇▇▇▇ Holdings of Delaware, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: ▇▇▇-▇▇▇-▇▇▇▇
Answerback ▇▇▇▇▇▇▇▇-TUL
Northwest Pipeline Corporation Northwest Pipeline Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Transcontinental Gas Pipe Line Corporation Transcontinental Gas Pipe Line Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 792013
Answerback: TRANSCO HOU A
Texas Gas Transmission Corporation Texas Gas Transmission Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ Pipe Line Company ▇▇▇▇▇▇▇▇ Pipe Line Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: ▇▇▇-▇▇▇-▇▇▇▇
Answerback: ▇▇▇▇▇▇▇▇-TUL
68
SCHEDULE III
PERMITTED NWP LIENS
(a) Any purchase money Lien created by NWP or any of its
Subsidiaries to secure all or part of the purchase price of any property (or to
secure a loan made to enable NWP or any of its Subsidiaries to acquire the
property secured by such Lien), provided that the principal amount of the Debt
secured by any such Lien, together with all other Debt secured by a Lien on
such property, shall not exceed the purchase price of the property acquired.
(b) Any Lien existing on any property at the time of the
acquisition thereof by NWP or any of its Subsidiaries, whether or not assumed
by NWP or any of its Subsidiaries, and any Lien on any property acquired or
constructed by NWP or any of its Subsidiaries and created not later than 12
months after (i) such acquisition or completion of such construction or (ii)
commencement of full operation of such property, whichever is later; provided,
however, that if assumed or created by NWP or any of its Subsidiaries, the
principal amount of the Debt secured by such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase price of the
property acquired and/or the cost of the property constructed.
(c) Any Lien created or assumed by NWP or any of its Subsidiaries
on any contract for the sale of any product or service or any rights thereunder
or any proceeds therefrom, including accounts and other receivables, related to
the operation or use of any property acquired or constructed by NWP or any of
its Subsidiaries and created not later than 12 months after (i) such
acquisition or completion of such construction or (ii) commencement of full
operation of such property, whichever is later; provided, however, that the
principal amount of the Debt secured by such mortgage together with all other
Debt secured by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the property
constructed.
(d) Any Lien existing on any property of a Subsidiary of NWP at
the time it becomes a Subsidiary of NWP.
(e) Any refunding or extension of maturity, in whole or in part,
of any Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below, provided that the principal amount of
the Debt secured by such refunding Lien or extended Lien shall not exceed the
principal amount of the Debt secured by the Lien to be refunded or extended
outstanding at the time of such refunding or extension and that such refunding
Lien or extended Lien shall be limited to the same property that secured the
Lien so refunded or extended.
(f) Mechanics' or materialmen's liens arising in the ordinary
course of business which are not more than 90 days past due or are being
contested in good faith by appropriate proceedings or any Lien arising by
reason of pledges or deposits to secure payment of workmen's compensation or
other insurance, good faith deposits in connection with tenders or leases of
real estate, bids or contracts (other than contracts for the payment of money),
in each case to secure obligations of TWC or any of its Subsidiaries.
(g) Deposits to secure public or statutory obligations, deposits
to secure or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other
69
similar charges, in each case to secure obligations of TWC or any of its
Subsidiaries; provided, however, that the aggregate amount of obligations
secured by Liens permitted by this paragraph (g) shall not exceed 10% of
Consolidated Tangible Net Worth of TWC.
(h) Any Lien arising by reason of deposits with or the giving of
any form of security to any governmental agency or any body created or approved
by law or governmental regulation for any purpose at any time as required by
law or governmental regulation (i) as a condition to the transaction by TWC or
any of its Subsidiaries of any business or the exercise by TWC or any of its
Subsidiaries of any privilege or license, (ii) to enable TWC or any of its
Subsidiaries to maintain self-insurance or to participate in any fund for
liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to TWC or any of its Subsidiaries or to enable TWC or any of its
Subsidiaries to share in the privileges or benefits required for companies
participating in such arrangements.
(i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other minerals or
timber to be produced from the property subject thereto and to be sold or
delivered by NWP or any of its Subsidiaries, including any interest of the
character commonly referred to as a "production payment".
(j) Any Lien created or assumed by a Subsidiary of NWP on oil,
gas, coal or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of developing
such properties, including any interest of the character commonly referred to
as a "production payment"; provided, however, that neither NWP nor any other
Subsidiary of NWP shall assume or guarantee such loans or otherwise be liable
in respect thereto.
(k) Liens incurred in the ordinary course of business upon
rights-of-way.
(l) Undetermined mortgages and charges incidental to construction
or maintenance arising in the ordinary course of business which are not more
than 90 days past due or are being contested in good faith by appropriate
proceedings.
(m) The right reserved to, or vested in, any municipality or
governmental or other public authority or railroad by the terms of any right,
power, franchise, grant, license, permit or by any provision of law, to
terminate or to require annual or other periodic payments as a condition to the
continuance of such right, power, franchise, grant, license or permit.
(n) The Lien of taxes and assessments which are not at the time
delinquent.
(o) The Lien of specified taxes and assessments which are
delinquent but the validity of which is being contested in good faith by NWP or
any of its Subsidiaries by appropriate proceedings and with respect to which
reserves in conformity with generally accepted accounting principles, if
required by such principles, have been provided on the books of NWP or the
relevant Subsidiary of NWP, as the case may be.
-2-
70
(p) The Lien reserved in leases entered into in the ordinary
course of business for rent and for compliance with the terms of the lease in
the case of real property leasehold estates.
(q) Defects and irregularities in the titles to any property
(including rights-of-way and easements) which are not material to the business,
assets, operations or financial condition of NWP and its Subsidiaries
considered as a whole.
(r) Any Liens securing Debt neither assumed nor guaranteed by NWP
or any of its Subsidiaries nor on which any of them customarily pays interest,
existing upon real estate or rights in or relating to real estate (including
rights-of-way and easements) acquired by NWP or any of its Subsidiaries for
pipeline, metering station or right-of-way purposes, which Liens were not
created in anticipation of such acquisition and do not materially impair the
use of such property for the purposes for which it is held by NWP or such
Subsidiary.
(s) Easements, exceptions or reservations in any property of NWP
or any of its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication equipment and
cable, streets, alleys, highways, railroads, the removal of oil, gas, coal or
other minerals or timber, and other like purposes, or for the joint or common
use of real property, facilities and equipment, which do not materially impair
the use of such property for the purposes for which it is held by NWP or such
Subsidiary.
(t) Rights reserved to or vested in any municipality or public
authority to control or regulate any property of NWP or any of its
Subsidiaries, or to use such property in any manner which does not materially
impair the use of such property for the purposes for which it is held by NWP or
such Subsidiary.
(u) Any obligations or duties, affecting the property of NWP or
any of its Subsidiaries, to any municipality or public authority with respect
to any franchise, grant, license or permit.
(v) (i) The Liens of any judgments in an aggregate amount for NWP
and all of its Subsidiaries not in excess of $5,000,000, the execution of which
has not been stayed and (ii) the Liens of any judgments in an aggregate amount
for NWP and all of its Subsidiaries not in excess of $25,000,000, the execution
of which has been stayed and which have been appealed and secured, if necessary
and permitted hereby, by the filing of an appeal bond.
(w) Zoning laws and ordinances.
(x) Any Lien existing on any office equipment, data processing
equipment (including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation equipment.
(y) Any Lien consisting of interests in receivables in connection
with agreements for sales of receivables of any kind by NWP or any of its
Subsidiaries for cash.
-3-
71
(z) Any Lien not permitted by paragraphs (a) through (y) above or
(aa) below securing Debt of NWP and its Subsidiaries or securing any Debt of
NWP and its Subsidiaries which constitutes a refunding or extension of any such
Debt if at the time of, and after giving effect to, the creation or assumption
of any such Lien, the sum of the aggregate of all Debt of NWP and its
Subsidiaries secured by all such Liens not so permitted by paragraphs (a)
through (y) above or (aa) below plus the amount of Attributable Obligations of
NWP and its Subsidiaries in respect of Sale and Lease-Back Transactions
permitted by Section 5.02(j) does not exceed 10% of the sum of (i)
Consolidated Tangible Net Worth of NWP plus (ii) Debt of NWP and its
Subsidiaries on a Consolidated basis.
(aa) Any Lien resulting from any sale and lease-back of cushion gas
by NWP or any of its Subsidiaries.
-4-
72
SCHEDULE IV
PERMITTED TGPL LIENS
(a) Any purchase money Lien created by TGPL or any of its
Subsidiaries to secure all or part of the purchase price of any property (or to
secure a loan made to enable TGPL or any of its Subsidiaries to acquire the
property secured by such Lien), provided that the principal amount of the Debt
secured by any such Lien, together with all other Debt secured by a Lien on
such property, shall not exceed the purchase price of the property acquired.
(b) Any Lien existing on any property at the time of the
acquisition thereof by TGPL or any of its Subsidiaries, whether or not assumed
by TGPL or any of its Subsidiaries, and any Lien on any property acquired or
constructed by TGPL or any of its Subsidiaries and created not later than 12
months after (i) such acquisition or completion of such construction or (ii)
commencement of full operation of such property, whichever is later; provided,
however, that if assumed or created by TGPL or any of its Subsidiaries, the
principal amount of the Debt secured by such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase price of the
property acquired and/or the cost of the property constructed.
(c) Any Lien created or assumed by TGPL or any of its Subsidiaries
on any contract for the sale of any product or service or any rights thereunder
or any proceeds therefrom, including accounts and other receivables, related to
the operation or use of any property acquired or constructed by TGPL or any of
its Subsidiaries and created not later than 12 months after (i) such
acquisition or completion of such construction or (ii) commencement of full
operation of such property, whichever is later; provided, however, that the
principal amount of the Debt secured by such mortgage together with all other
Debt secured by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the property
constructed.
(d) Any Lien existing on any property of a Subsidiary of TGPL at
the time it becomes a Subsidiary of TGPL.
(e) Any refunding or extension of maturity, in whole or in part,
of any Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below, provided that the principal amount of
the Debt secured by such refunding Lien or extended Lien shall not exceed the
principal amount of the Debt secured by the Lien to be refunded or extended
outstanding at the time of such refunding or extension and that such refunding
Lien or extended Lien shall be limited to the same property that secured the
Lien so refunded or extended.
(f) Mechanics' or materialmen's liens arising in the ordinary
course of business which are not more than 90 days past due or are being
contested in good faith by appropriate proceedings or any Lien arising by
reason of pledges or deposits to secure payment of workmen's compensation or
other insurance, good faith deposits in connection with tenders or leases of
real estate, bids or contracts (other than contracts for the payment of money),
in each case to secure obligations of TWC or any of its Subsidiaries.
(g) Deposits to secure public or statutory obligations, deposits
to secure or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other similar charges, in each case
to secure obligations of TWC or any of its Subsidiaries; provided,
73
however, that the aggregate amount of obligations secured by Liens permitted by
this paragraph (g) shall not exceed 10% of Consolidated Tangible Net Worth of
TWC.
(h) Any Lien arising by reason of deposits with or the giving of
any form of security to any governmental agency or any body created or approved
by law or governmental regulation for any purpose at any time as required by
law or governmental regulation (i) as a condition to the transaction by TWC or
any of its Subsidiaries of any business or the exercise by TWC or any of its
Subsidiaries of any privilege or license, (ii) to enable TWC or any of its
Subsidiaries to maintain self-insurance or to participate in any fund for
liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to TWC or any of its Subsidiaries or to enable TWC or any of its
Subsidiaries to share in the privileges or benefits required for companies
participating in such arrangements.
(i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other minerals or
timber to be produced from the property subject thereto and to be sold or
delivered by TGPL or any of its Subsidiaries, including any interest of the
character commonly referred to as a "production payment".
(j) Any Lien created or assumed by a Subsidiary of TGPL on oil,
gas, coal or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of developing
such properties, including any interest of the character commonly referred to
as a "production payment"; provided, however, that neither TGPL nor any other
Subsidiary of TGPL shall assume or guarantee such loans or otherwise be liable
in respect thereto.
(k) Liens incurred in the ordinary course of business upon
rights-of-way.
(l) Undetermined mortgages and charges incidental to construction
or maintenance arising in the ordinary course of business which are not more
than 90 days past due or are being contested in good faith by appropriate
proceedings.
(m) The right reserved to, or vested in, any municipality or
governmental or other public authority or railroad by the terms of any right,
power, franchise, grant, license, permit or by any provision of law, to
terminate or to require annual or other periodic payments as a condition to the
continuance of such right, power, franchise, grant, license or permit.
(n) The Lien of taxes and assessments which are not at the time
delinquent.
(o) The Lien of specified taxes and assessments which are
delinquent but the validity of which is being contested in good faith by TGPL
or any of its Subsidiaries by appropriate proceedings and with respect to which
reserves in conformity with generally accepted accounting principles, if
required by such principles, have been provided on the books of TGPL or the
relevant Subsidiary of TGPL, as the case may be.
-2-
74
(p) The Lien reserved in leases entered into in the ordinary
course of business for rent and for compliance with the terms of the lease in
the case of real property leasehold estates.
(q) Defects and irregularities in the titles to any property
(including rights-of-way and easements) which are not material to the business,
assets, operations or financial condition of TGPL and its Subsidiaries
considered as a whole.
(r) Any Liens securing Debt neither assumed nor guaranteed by TGPL
or any of its Subsidiaries nor on which any of them customarily pays interest,
existing upon real estate or rights in or relating to real estate (including
rights-of-way and easements) acquired by TGPL or any of its Subsidiaries for
pipeline, metering station or right-of-way purposes, which Liens were not
created in anticipation of such acquisition and do not materially impair the
use of such property for the purposes for which it is held by TGPL or such
Subsidiary.
(s) Easements, exceptions or reservations in any property of TGPL
or any of its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication equipment and
cable, streets, alleys, highways, railroads, the removal of oil, gas, coal or
other minerals or timber, and other like purposes, or for the joint or common
use of real property, facilities and equipment, which do not materially impair
the use of such property for the purposes for which it is held by TGPL or such
Subsidiary.
(t) Rights reserved to or vested in any municipality or public
authority to control or regulate any property of TGPL or any of its
Subsidiaries, or to use such property in any manner which does not materially
impair the use of such property for the purposes for which it is held by TGPL
or such Subsidiary.
(u) Any obligations or duties, affecting the property of TGPL or
any of its Subsidiaries, to any municipality or public authority with respect
to any franchise, grant, license or permit.
(v) (i) The Liens of any judgments in an aggregate amount for TGPL
and all of its Subsidiaries not in excess of $5,000,000, execution of which has
not been stayed and (ii) the Liens of any judgments in an aggregate amount for
TGPL and all of its Subsidiaries not in excess of $25,000,000, the execution of
which has been stayed and which have been appealed and secured, if necessary
and permitted hereby, by the filing of an appeal bond.
(w) Zoning laws and ordinances.
(x) Any Lien existing on any office equipment, data processing
equipment (including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation equipment.
(y) Any Lien consisting of interests in receivables in connection
with agreements for sales of receivables of any kind by TGPL or any of its
Subsidiaries for cash.
-3-
75
(z) Any Lien not permitted by paragraphs (a) through (y) above or
(aa) below securing Debt of TGPL and its Subsidiaries or securing any Debt of
TGPL and its Subsidiaries which constitutes a refunding or extension of any
such Debt if at the time of, and after giving effect to, the creation or
assumption of any such Lien, the sum of the aggregate of all Debt of TGPL and
its Subsidiaries secured by all such Liens not so permitted by paragraphs (a)
through (y) above or (aa) below plus the amount of Attributable Obligations of
TGPL and its Subsidiaries in respect of Sale and Lease-Back Transactions
permitted by Section 5.02(j) does not exceed 5% of the sum of (i) Consolidated
Tangible Net Worth of TGPL plus (ii) Debt of TGPL and its Subsidiaries on a
Consolidated basis.
(aa) Any Lien resulting from any sale and lease-back of cushion gas
by TGPL or any of its Subsidiaries.
-4-
76
SCHEDULE V
PERMITTED TGT LIENS
(a) Any purchase money Lien created by TGT or any of its
Subsidiaries to secure all or part of the purchase price of any property (or to
secure a loan made to enable TGT or any of its Subsidiaries to acquire the
property secured by such Lien), provided that the principal amount of the Debt
secured by any such Lien, together with all other Debt secured by a Lien on
such property, shall not exceed the purchase price of the property acquired.
(b) Any Lien existing on any property at the time of the
acquisition thereof by TGT or any of its Subsidiaries, whether or not assumed
by TGT or any of its Subsidiaries, and any Lien on any property acquired or
constructed by TGT or any of its Subsidiaries and created not later than 12
months after (i) such acquisition or completion of such construction or (ii)
commencement of full operation of such property, whichever is later; provided,
however, that if assumed or created by TGT or any of its Subsidiaries, the
principal amount of the Debt secured by such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase price of the
property acquired and/or the cost of the property constructed.
(c) Any Lien created or assumed by TGT or any of its Subsidiaries
on any contract for the sale of any product or service or any rights thereunder
or any proceeds therefrom, including accounts and other receivables, related to
the operation or use of any property acquired or constructed by TGT or any of
its Subsidiaries and created not later than 12 months after (i) such
acquisition or completion of such construction or (ii) commencement of full
operation of such property, whichever is later; provided, however, that the
principal amount of the Debt secured by such mortgage together with all other
Debt secured by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the property
constructed.
(d) Any Lien existing on any property of a Subsidiary of TGT at
the time it becomes a Subsidiary of TGT.
(e) Any refunding or extension of maturity, in whole or in part,
of any Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below, provided that the principal amount of
the Debt secured by such refunding Lien or extended Lien shall not exceed the
principal amount of the Debt secured by the Lien to be refunded or extended
outstanding at the time of such refunding or extension and that such refunding
Lien or extended Lien shall be limited to the same property that secured the
Lien so refunded or extended.
(f) Mechanics' or materialmen's liens arising in the ordinary
course of business which are not more than 90 days past due or are being
contested in good faith by appropriate proceedings or any Lien arising by
reason of pledges or deposits to secure payment of workmen's compensation or
other insurance, good faith deposits in connection with tenders or leases of
real estate, bids or contracts (other than contracts for the payment of money),
in each case to secure obligations of TWC or any of its Subsidiaries.
(g) Deposits to secure public or statutory obligations, deposits
to secure or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other similar charges, in each case
to secure obligations of TWC or any of its Subsidiaries; provided,
77
however, that the aggregate amount of obligations secured by Liens permitted by
this paragraph (g) shall not exceed 10% of Consolidated Tangible Net Worth of
TWC.
(h) Any Lien arising by reason of deposits with or the giving of
any form of security to any governmental agency or any body created or approved
by law or governmental regulation for any purpose at any time as required by
law or governmental regulation (i) as a condition to the transaction by TWC or
any of its Subsidiaries of any business or the exercise by TWC or any of its
Subsidiaries of any privilege or license, (ii) to enable TWC or any of its
Subsidiaries to maintain self-insurance or to participate in any fund for
liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to TWC or any of its Subsidiaries or to enable TWC or any of its
Subsidiaries to share in the privileges or benefits required for companies
participating in such arrangements.
(i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other minerals or
timber to be produced from the property subject thereto and to be sold or
delivered by TGT or any of its Subsidiaries, including any interest of the
character commonly referred to as a "production payment".
(j) Any Lien created or assumed by a Subsidiary of TGT on oil,
gas, coal or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of developing
such properties, including any interest of the character commonly referred to
as a "production payment"; provided, however, that neither TGT nor any other
Subsidiary of TGT shall assume or guarantee such loans or otherwise be liable
in respect thereto.
(k) Liens incurred in the ordinary course of business upon
rights-of-way.
(l) Undetermined mortgages and charges incidental to construction
or maintenance arising in the ordinary course of business which are not more
than 90 days past due or are being contested in good faith by appropriate
proceedings.
(m) The right reserved to, or vested in, any municipality or
governmental or other public authority or railroad by the terms of any right,
power, franchise, grant, license, permit or by any provision of law, to
terminate or to require annual or other periodic payments as a condition to the
continuance of such right, power, franchise, grant, license or permit.
(n) The Lien of taxes and assessments which are not at the time
delinquent.
(o) The Lien of specified taxes and assessments which are
delinquent but the validity of which is being contested in good faith by TGT or
any of its Subsidiaries by appropriate proceedings and with respect to which
reserves in conformity with generally accepted accounting principles, if
required by such principles, have been provided on the books of TGT or the
relevant Subsidiary of TGT, as the case may be.
(p) The Lien reserved in leases entered into in the ordinary
course of business for rent and for compliance with the terms of the lease in
the case of real property leasehold estates.
(q) Defects and irregularities in the titles to any property
(including rights-of-way and easements) which are not material to the business,
assets, operations or financial condition of TGT and its Subsidiaries
considered as a whole.
-2-
78
(r) Any Liens securing Debt neither assumed nor guaranteed by TGT
or any of its Subsidiaries nor on which any of them customarily pays interest,
existing upon real estate or rights in or relating to real estate (including
rights-of-way and easements) acquired by TGT or any of its Subsidiaries for
pipeline, metering station or right-of-way purposes, which Liens were not
created in anticipation of such acquisition and do not materially impair the
use of such property for the purposes for which it is held by TGT or such
Subsidiary.
(s) Easements, exceptions or reservations in any property of TGT
or any of its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication equipment and
cable, streets, alleys, highways, railroads, the removal of oil, gas, coal or
other minerals or timber, and other like purposes, or for the joint or common
use of real property, facilities and equipment, which do not materially impair
the use of such property for the purposes for which it is held by TGT or such
Subsidiary.
(t) Rights reserved to or vested in any municipality or public
authority to control or regulate any property of TGT or any of its
Subsidiaries, or to use such property in any manner which does not materially
impair the use of such property for the purposes for which it is held by TGT or
such Subsidiary.
(u) Any obligations or duties, affecting the property of TGT or
any of its Subsidiaries, to any municipality or public authority with respect
to any franchise, grant, license or permit.
(v) (i) The Liens of any judgments in an aggregate amount for TGT
and all of its Subsidiaries not in excess of $5,000,000, execution of which has
not been stayed and (ii) the Liens of any judgments in an aggregate amount for
TGT and all of its Subsidiaries not in excess of $25,000,000, the execution of
which has been stayed and which have been appealed and secured, if necessary
and permitted hereby, by the filing of an appeal bond.
(w) Zoning laws and ordinances.
(x) Any Lien existing on any office equipment, data processing
equipment (including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation equipment.
(y) Any Lien consisting of interests in receivables in connection
with agreements for sales of receivables of any kind by TGT or any of its
Subsidiaries for cash.
(z) Any Lien not permitted by paragraphs (a) through (y) above or
(aa) below securing Debt of TGT and its Subsidiaries or securing any Debt of
TGT and its Subsidiaries which constitutes a refunding or extension of any such
Debt if at the time of, and after giving effect to, the creation or assumption
of any such Lien, the sum of the aggregate of all Debt of TGT and its
Subsidiaries secured by all such Liens not so permitted by paragraphs (a)
through (y) above or (aa) below plus the amount of Attributable Obligations of
TGT and its Subsidiaries in respect of Sale and Lease-Back Transactions
permitted by Section 5.02(j) does not exceed 5% of the sum of (i) Consolidated
Tangible Net Worth of TGT plus (ii) Debt of TGT and its Subsidiaries on a
Consolidated basis.
(aa) Any Lien resulting from any sale and lease-back of cushion gas
by TGT or any of its Subsidiaries.
-3-
79
SCHEDULE VI
PERMITTED TWC LIENS
(a) Any purchase money Lien created by TWC or any of its
Subsidiaries to secure all or part of the purchase price of any property (or to
secure a loan made to enable TWC or any of its Subsidiaries to acquire the
property secured by such Lien), provided that the principal amount of the Debt
secured by any such Lien, together with all other Debt secured by a Lien on
such property, shall not exceed the purchase price of the property acquired.
(b) Any Lien existing on any property at the time of the
acquisition thereof by TWC or any of its Subsidiaries, whether or not assumed
by TWC or any of its Subsidiaries, and any Lien on any property acquired or
constructed by TWC or any of its Subsidiaries and created not later than 12
months after (i) such acquisition or completion of such construction or (ii)
commencement of full operation of such property, whichever is later; provided,
however, that if assumed or created by TWC or any of its Subsidiaries, the
principal amount of the Debt secured by such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase price of the
property acquired and/or the cost of the property constructed.
(c) Any Lien created or assumed by TWC or any of its Subsidiaries
on any contract for the sale of any product or service or any rights thereunder
or any proceeds therefrom, including accounts and other receivables, related to
the operation or use of any property acquired or constructed by TWC or any of
its Subsidiaries and created not later than 12 months after (i) such
acquisition or completion of such construction or (ii) commencement of full
operation of such property, whichever is later; provided, however, that the
principal amount of the Debt secured by such mortgage together with all other
Debt secured by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the property
constructed.
(d) Any Lien existing on any property of a Subsidiary of TWC at
the time it becomes a Subsidiary of TWC.
(e) Any refunding or extension of maturity, in whole or in part,
of any Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below, provided that the principal amount of
the Debt secured by such refunding Lien or extended Lien shall not exceed the
principal amount of the Debt secured by the Lien to be refunded or extended
outstanding at the time of such refunding or extension and that such refunding
Lien or extended Lien shall be limited to the same property that secured the
Lien so refunded or extended.
(f) Mechanics' or materialmen's liens arising in the ordinary
course of business which are not more than 90 days past due or are being
contested in good faith by appropriate proceedings or any Lien arising by
reason of pledges or deposits to secure payment of workmen's compensation or
other insurance, good faith deposits in connection with tenders or leases of
real estate, bids or contracts (other than contracts for the payment of money),
in each case to secure obligations of TWC or any of its Subsidiaries.
(g) Deposits to secure public or statutory obligations, deposits
to secure or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other
80
similar charges, in each case to secure obligations of TWC or any of its
Subsidiaries; provided, however, that the aggregate amount of obligations
secured by Liens permitted by this paragraph (g) shall not exceed 10% of
Consolidated Tangible Net Worth of TWC.
(h) Any Lien arising by reason of deposits with or the giving of
any form of security to any governmental agency or any body created or approved
by law or governmental regulation for any purpose at any time as required by
law or governmental regulation (i) as a condition to the transaction by TWC or
any of its Subsidiaries of any business or the exercise by TWC or any of its
Subsidiaries of any privilege or license, (ii) to enable TWC or any of its
Subsidiaries to maintain self-insurance or to participate in any fund for
liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to TWC or any of its Subsidiaries or to enable TWC or any of its
Subsidiaries to share in the privileges or benefits required for companies
participating in such arrangements.
(i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other minerals or
timber to be produced from the property subject thereto and to be sold or
delivered by TWC or any of its Subsidiaries, including any interest of the
character commonly referred to as a "production payment".
(j) Any Lien created or assumed by a Subsidiary of TWC on oil,
gas, coal or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of developing
such properties, including any interest of the character commonly referred to
as a "production payment"; provided, however, that neither TWC nor any other
Subsidiary of TWC shall assume or guarantee such loans or otherwise be liable
in respect thereto.
(k) Liens incurred in the ordinary course of business upon
rights-of-way.
(l) Undetermined mortgages and charges incidental to construction
or maintenance arising in the ordinary course of business which are not more
than 90 days past due or are being contested in good faith by appropriate
proceedings.
(m) The right reserved to, or vested in, any municipality or
governmental or other public authority or railroad by the terms of any right,
power, franchise, grant, license, permit or by any provision of law, to
terminate or to require annual or other periodic payments as a condition to the
continuance of such right, power, franchise, grant, license or permit.
(n) The Lien of taxes and assessments which are not at the time
delinquent.
(o) The Lien of specified taxes and assessments which are
delinquent but the validity of which is being contested in good faith by TWC or
any of its Subsidiaries by appropriate proceedings and with respect to which
reserves in conformity with generally accepted accounting principles, if
required by such principles, have been provided on the books of TWC or the
relevant Subsidiary of TWC, as the case may be.
(p) The Lien reserved in leases entered into in the ordinary
course of business for rent and for compliance with the terms of the lease in
the case of real property leasehold estates.
-2-
81
(q) Defects and irregularities in the titles to any property
(including rights-of-way and easements) which are not material to the business,
assets, operations or financial condition of TWC and its Subsidiaries
considered as a whole.
(r) Any Liens securing Debt neither assumed nor guaranteed by TWC
or any of its Subsidiaries nor on which any of them customarily pays interest,
existing upon real estate or rights in or relating to real estate (including
rights-of-way and easements) acquired by TWC or any of its Subsidiaries, which
Liens were not created in anticipation of such acquisition and do not
materially impair the use of such property for the purposes for which it is
held by TWC or such Subsidiary.
(s) Easements, exceptions or reservations in any property of TWC
or any of its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication equipment and
cable, streets, alleys, highways, railroads, the removal of oil, gas, coal or
other minerals or timber, and other like purposes, or for the joint or common
use of real property, facilities and equipment, which do not materially impair
the use of such property for the purposes for which it is held by TWC or such
Subsidiary.
(t) Rights reserved to or vested in any municipality or public
authority to control or regulate any property of TWC or any of its
Subsidiaries, or to use such property in any manner which does not materially
impair the use of such property for the purposes for which it is held by TWC or
such Subsidiary.
(u) Any obligations or duties, affecting the property of TWC or
any of its Subsidiaries, to any municipality or public authority with respect
to any franchise, grant, license or permit.
(v) (i) The Liens of any judgments in an aggregate amount for TWC
and all of its Subsidiaries not in excess of $5,000,000, the execution of which
has not been stayed and (ii) the Liens of any judgments in an aggregate amount
for TWC and all of its Subsidiaries not in excess of $25,000,000, the execution
of which has been stayed and which have been appealed and secured, if necessary
and permitted hereby, by the filing of an appeal bond.
(w) Zoning laws and ordinances.
(x) Any Lien existing on any office equipment, data processing
equipment (including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation equipment.
(y) Any Lien consisting of interests in receivables in connection
with agreements for sales of receivables of any kind by TWC or any of its
Subsidiaries for cash.
(z) Any Lien not permitted by paragraphs (a) through (y) above or
(aa) or (bb) below securing Debt of TWC and its Subsidiaries or securing any
Debt of TWC and its Subsidiaries which constitutes a refunding or extension of
any such Debt if at the time of, and after giving effect to, the creation or
assumption of any such Lien, the sum of the aggregate of all Debt of TWC and
its Subsidiaries secured by all such Liens not so permitted by paragraphs (a)
through (y) above or (aa) or (bb) below plus the amount of Attributable
Obligations of TWC and its Subsidiaries in respect
-3-
82
of Sale and Lease-Back Transactions permitted by Section 5.02(j) does not
exceed 5% of the sum of (i) Consolidated Tangible Net Worth of TWC plus (ii)
Debt of TWC and its Subsidiaries on a Consolidated basis.
(aa) Any overriding royalties or other rights of Pacific Northwest
Pipeline Corporation, a Delaware corporation ("Pacific") and ▇▇▇▇▇▇▇▇ Petroleum
Company ("▇▇▇▇▇▇▇▇") or their respective successors in interest under a
contract dated January 9, 1953, as amended, between ▇▇▇▇▇▇▇▇ and Pacific, to
which TWC is successor in interest; and the obligations of TWC to surrender,
transfer, release or reassign the leases or interests or rights to which said
instruments relate under the conditions and upon the occurrence of the events
specified in said instruments.
(bb) Any Lien resulting from any sale and lease-back of cushion gas
by TWC or any of its Subsidiaries or from any sale and lease-back of inventory
by WPL or any of its Subsidiaries (other than another Borrower).
-4-
83
SCHEDULE VII
PERMITTED WPL LIENS
(a) Any liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary course of
business which are not more than 90 days past due or are being contested in
good faith by appropriate proceedings or any Lien arising by reason of pledges
or deposits to secure payment of workmen's compensation, unemployment
insurance, old age pensions or other social security or retirement benefits or
benefits under similar legislation, in each case to secure obligations of TWC
or any of its Subsidiaries.
(b) Liens for taxes, assessments or governmental charges or levies
which are not delinquent or thereafter can be paid without penalty or which are
being contested in good faith by WPL or any of its Subsidiaries by appropriate
proceedings and with respect to which reserves in conformity with generally
accepted accounting principles, if required by such principles, have been
provided on the books of WPL or the relevant Subsidiary of WPL, as the case may
be.
(c) Other Liens incidental to the conduct of the business of, or
the ownership of the property and assets of, WPL or any of its Subsidiaries
which do not secure Debt, which were incurred in the ordinary course of
business and which do not in the aggregate materially detract from the value of
such property or assets or materially impair the use thereof in the operation
of such business.
(d) Liens on the assets or properties of a Subsidiary of WPL in
favor of WPL to secure Debt of such Subsidiary to WPL.
(e) Liens existing on any property of any corporation at the time
it becomes a Subsidiary of WPL, or existing prior to the time of acquisition,
upon any property acquired by WPL or any of its Subsidiaries through purchase,
merger, consolidation or otherwise, whether or not assumed by WPL or any of its
Subsidiaries, to secure a portion of the purchase price thereof; provided that
(i) any such Lien shall not encumber any other property of WPL or any of its
Subsidiaries, (ii) the aggregate principal amount of Debt secured by all Liens
permitted by this clause (e) and any Liens permitted by clause (f) below does
not exceed an amount equal to 20% of Consolidated Tangible Net Worth of WPL
and, provided further that the Debt secured thereby is permitted hereby.
(f) Any Lien renewing, extending or refunding any Lien permitted
by clause (e) above, provided that the principal amount secured is not
increased, and the Lien is not extended to any other property.
(g) Any Lien created by any Person other than WPL or any of its
Subsidiaries or any renewal or extension of any such Lien which is a Lien upon
the lands over which easements or rights-of-way for pipeline purposes are held,
securing Debt which has not been assumed or
84
guaranteed by WPL or any of its Subsidiaries and on which Debt neither WPL nor
any of its Subsidiaries pays interest charges.
(h) Any Lien consisting of interests in receivables in connection
with agreements for sales of receivables of any kind by WPL or any of its
Subsidiaries for cash.
(i) Any Lien not permitted by paragraphs (a) through (h) above or
(j) below securing Debt of WPL and its Subsidiaries or securing any Debt of WPL
and its Subsidiaries which constitutes a refunding or extension of any such
Debt if at the time of, and after giving effect to, the creation or assumption
of any such Lien, the sum of the aggregate of all Debt of WPL and its
Subsidiaries secured by all such Liens not so permitted by paragraphs (a)
through (h) above or (j) below plus Debt secured by Liens permitted by
paragraph (e) or by paragraph (f) of this Schedule VI plus the amount of
Attributable Obligations of WPL and its Subsidiaries in respect of Sale and
Lease-Back Transactions permitted by Section 5.02(j) does not exceed 10% of
the sum of (i) Consolidated Tangible Net Worth of WPL plus (ii) Debt of WPL and
its Subsidiaries on a Consolidated basis.
(j) Any Lien resulting from any sale and lease-back of inventory
by WPL or any of its Subsidiaries (other than another Borrower).
-2-
85
SCHEDULE VIII
PERMITTED WHD LIENS
(a) Any purchase money Lien created by WHD or any of its
Subsidiaries to secure all or part of the purchase price of any property (or to
secure a loan made to enable WHD or any of its Subsidiaries to acquire the
property secured by such Lien), provided that the principal amount of the Debt
secured by any such Lien, together with all other Debt secured by a Lien on
such property, shall not exceed the purchase price of the property acquired.
(b) Any Lien existing on any property at the time of the
acquisition thereof by WHD or any of its Subsidiaries, whether or not assumed
by WHD or any of its Subsidiaries, and any Lien on any property acquired or
constructed by WHD or any of its Subsidiaries and created not later than 12
months after (i) such acquisition or completion of such construction or (ii)
commencement of full operation of such property, whichever is later; provided,
however, that if assumed or created by WHD or any of its Subsidiaries, the
principal amount of the Debt secured by such Lien, together with all other Debt
secured by a Lien on such property, shall not exceed the purchase price of the
property acquired and/or the cost of the property constructed.
(c) Any Lien created or assumed by WHD or any of its Subsidiaries
on any contract for the sale of any product or service or any rights thereunder
or any proceeds therefrom, including accounts and other receivables, related to
the operation or use of any property acquired or constructed by WHD or any of
its Subsidiaries and created not later than 12 months after (i) such
acquisition or completion of such construction or (ii) commencement of full
operation of such property, whichever is later; provided, however, that the
principal amount of the Debt secured by such mortgage together with all other
Debt secured by any such contract, rights or property, shall not exceed the
purchase price of the property acquired and/or the cost of the property
constructed.
(d) Any Lien existing on any property of a Subsidiary of WHD at
the time it becomes a Subsidiary of WHD.
(e) Any refunding or extension of maturity, in whole or in part,
of any Lien created or assumed in accordance with the provisions of paragraph
(a), (b), (c) or (d) above or (j) below, provided that the principal amount of
the Debt secured by such refunding Lien or extended Lien shall not exceed the
principal amount of the Debt secured by the Lien to be refunded or extended
outstanding at the time of such refunding or extension and that such refunding
Lien or extended Lien shall be limited to the same property that secured the
Lien so refunded or extended.
(f) Mechanics' or materialmen's liens arising in the ordinary
course of business which are not more than 90 days past due or are being
contested in good faith by appropriate proceedings or any Lien arising by
reason of pledges or deposits to secure payment of workmen's compensation or
other insurance, good faith deposits in connection with tenders or leases of
real estate, bids or contracts (other than contracts for the payment of money),
in each case to secure obligations of TWC or any of its Subsidiaries.
86
(g) Deposits to secure public or statutory obligations, deposits
to secure or in lieu of surety, stay or appeal bonds and deposits as security
for the payment of taxes or assessments or other similar charges, in each case
to secure obligations of TWC or any of its Subsidiaries; provided, however,
that the aggregate amount of obligations secured by Liens permitted by this
paragraph (g) shall not exceed 10% of Consolidated Tangible Net Worth of TWC.
(h) Any Lien arising by reason of deposits with or the giving of
any form of security to any governmental agency or any body created or approved
by law or governmental regulation for any purpose at any time as required by
law or governmental regulation (i) as a condition to the transaction by TWC or
any of its Subsidiaries of any business or the exercise by TWC or any of its
Subsidiaries of any privilege or license, (ii) to enable TWC or any of its
Subsidiaries to maintain self-insurance or to participate in any fund for
liability on any insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other social security
with respect to TWC or any of its Subsidiaries or to enable TWC or any of its
Subsidiaries to share in the privileges or benefits required for companies
participating in such arrangements.
(i) Any Lien which is payable, both with respect to principal and
interest, solely out of the proceeds of oil, gas, coal or other minerals or
timber to be produced from the property subject thereto and to be sold or
delivered by WHD or any of its Subsidiaries, including any interest of the
character commonly referred to as a "production payment".
(j) Any Lien created or assumed by a Subsidiary of WHD on oil,
gas, coal or other mineral or timber property, owned or leased by such
Subsidiary to secure loans to such Subsidiary for the purposes of developing
such properties, including any interest of the character commonly referred to
as a "production payment"; provided, however, that neither WHD nor any other
Subsidiary of WHD shall assume or guarantee such loans or otherwise be liable
in respect thereto.
(k) Liens incurred in the ordinary course of business upon
rights-of-way.
(l) Undetermined mortgages and charges incidental to construction
or maintenance arising in the ordinary course of business which are not more
than 90 days past due or are being contested in good faith by appropriate
proceedings.
(m) The right reserved to, or vested in, any municipality or
governmental or other public authority or railroad by the terms of any right,
power, franchise, grant, license, permit or by any provision of law, to
terminate or to require annual or other periodic payments as a condition to the
continuance of such right, power, franchise, grant, license or permit.
(n) The Lien of taxes and assessments which are not at the time
delinquent.
(o) The Lien of specified taxes and assessments which are
delinquent but the validity of which is being contested in good faith by WHD or
any of its Subsidiaries by appropriate proceedings and with respect to which
reserves in conformity with generally accepted accounting principles, if
required by such principles, have been provided on the books of WHD or the
relevant Subsidiary of WHD, as the case may be.
(p) The Lien reserved in leases entered into in the ordinary
course of business for rent and for compliance with the terms of the lease in
the case of real property leasehold estates.
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87
(q) Defects and irregularities in the titles to any property
(including rights-of-way and easements) which are not material to the business,
assets, operations or financial condition of WHD and its Subsidiaries
considered as a whole.
(r) Any Liens securing Debt neither assumed nor guaranteed by WHD
or any of its Subsidiaries nor on which any of them customarily pays interest,
existing upon real estate or rights in or relating to real estate (including
rights-of-way and easements) acquired by WHD or any of its Subsidiaries for
pipeline, metering station or right-of-way purposes, which Liens were not
created in anticipation of such acquisition and do not materially impair the
use of such property for the purposes for which it is held by WHD or such
Subsidiary.
(s) Easements, exceptions or reservations in any property of WHD
or any of its Subsidiaries granted or reserved in the ordinary course of
business for the purpose of pipelines, roads, telecommunication equipment and
cable, streets, alleys, highways, railroads, the removal of oil, gas, coal or
other minerals or timber, and other like purposes, or for the joint or common
use of real property, facilities and equipment, which do not materially impair
the use of such property for the purposes for which it is held by WHD or such
Subsidiary.
(t) Rights reserved to or vested in any municipality or public
authority to control or regulate any property of WHD or any of its
Subsidiaries, or to use such property in any manner which does not materially
impair the use of such property for the purposes for which it is held by WHD or
such Subsidiary.
(u) Any obligations or duties, affecting the property of WHD or
any of its Subsidiaries, to any municipality or public authority with respect
to any franchise, grant, license or permit.
(v) (i) The Liens of any judgments in an aggregate amount for WHD
and all of its Subsidiaries not in excess of $5,000,000, execution of which has
not been stayed and (ii) the Liens of any judgments in an aggregate amount for
WHD and all of its Subsidiaries not in excess of $25,000,000, the execution of
which has been stayed and which have been appealed and secured, if necessary
and permitted hereby, by the filing of an appeal bond.
(w) Zoning laws and ordinances.
(x) Any Lien existing on any office equipment, data processing
equipment (including computer and computer peripheral equipment), motor
vehicles, aircraft, marine vessels or similar transportation equipment.
(y) Any Lien consisting of interests in receivables in connection
with agreements for sales of receivables of any kind by WHD or any of its
Subsidiaries for cash.
(z) Any Lien not permitted by paragraphs (a) through (y) above or
(aa) below securing Debt of WHD and its Subsidiaries or securing any Debt of
WHD and its Subsidiaries which constitutes a refunding or extension of any such
Debt if at the time of, and after giving effect to, the creation or assumption
of any such Lien, the sum of the aggregate of all Debt of WHD and its
Subsidiaries secured by all such Liens not so permitted by paragraphs (a)
through (y) above or (aa) below plus the amount of Attributable Obligations of
WHD and its Subsidiaries in respect of Sale and Lease-Back Transactions
permitted by Section 5.02(j) does not exceed 5% of the sum of (i) Consolidated
Tangible Net Worth of WHD plus (ii) Debt of WHD and its Subsidiaries on a
Consolidated basis.
-3-
88
(aa) Any Lien resulting from any sale and lease-back of cushion gas
by WHD or any of its Subsidiaries.
(bb) Any Lien created by WHD or any of its Subsidiaries on any
contract (or any rights thereunder or proceeds therefrom) providing for
advances by WHD or any of its Subsidiaries to finance gas exploration and
development, which Lien is created to secure only indebtedness incurred to
finance such advances.
-4-
89
SCHEDULE IX
COMMITMENTS
as of December 20, 1996
=================================================================================================================================
TWC WHD NWP TGPL TGT WPL
Banks Commitment Commitment Commitment Commitment Commitment Commitment
---------------------------------------------------------------------------------------------------------------------------------
Citibank, N.A. $ 65,000,000 $ 39,000,000 $ 26,000,000 $ 26,000,000 $ 13,000,000 6,500,000
---------------------------------------------------------------------------------------------------------------------------------
Bank of America 60,000,000 36,000,000 24,000,000 24,000,000 12,000,000 6,000,000
National Trust and
Savings Association
---------------------------------------------------------------------------------------------------------------------------------
The Chase Manhattan 60,000,000 36,000,000 24,000,000 24,000,000 12,000,000 6,000,000
Bank
---------------------------------------------------------------------------------------------------------------------------------
CIBC Inc. 60,000,000 36,000,000 24,000,000 24,000,000 12,000,000 6,000,000
---------------------------------------------------------------------------------------------------------------------------------
Credit Lyonnais New 60,000,000 36,000,000 24,000,000 24,000,000 12,000,000 6,000,000
York Branch
---------------------------------------------------------------------------------------------------------------------------------
The First National Bank 60,000,000 36,000,000 24,000,000 24,000,000 12,000,000 6,000,000
of Chicago
Bank of Montreal 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
---------------------------------------------------------------------------------------------------------------------------------
The Bank of New York 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
---------------------------------------------------------------------------------------------------------------------------------
The Bank of Nova 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
Scotia
---------------------------------------------------------------------------------------------------------------------------------
Barclays Bank Plc 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
---------------------------------------------------------------------------------------------------------------------------------
Boatmen's National 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
Bank of Oklahoma
---------------------------------------------------------------------------------------------------------------------------------
The First National Bank 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
of Boston
---------------------------------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited, 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
Houston Agency
---------------------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
---------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Guaranty Trust 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
Company of New York
---------------------------------------------------------------------------------------------------------------------------------
Royal Bank of Canada 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
---------------------------------------------------------------------------------------------------------------------------------
Societe Generale, 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
Southwest Agency
---------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ Fargo Bank, N.A. 50,000,000 30,000,000 20,000,000 20,000,000 10,000,000 5,000,000
---------------------------------------------------------------------------------------------------------------------------------
Bank of Oklahoma, N.A. 20,000,000 12,000,000 8,000,000 8,000,000 4,000,000 2,000,000
---------------------------------------------------------------------------------------------------------------------------------
Commerce Bank, N.A. 15,000,000 9,000,000 6,000,000 6,000,000 3,000,000 1,500,000
COMMITMENTS $1,000,000,000 $600,000,000 $400,000,000 $400,000,000 $200,000,000 $100,000,000
=================================================================================================================================
90
EXHIBIT A-1
A PROMISSORY NOTE
U.S. $_______________________________ Dated: ________________________, ____
FOR VALUE RECEIVED, the undersigned, [Borrower] , a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
__________________________________________________ (the "Bank"), for the
account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below), on the Stated Termination Date (as defined in the Credit
Agreement referred to below), the principal amount of $_______________________,
or, if less, the aggregate principal amount of the A Advances (as defined in
the Credit Agreement referred to below) owed to the Bank by the Borrower on
such Stated Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
hereof until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement referred to
below. Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each A Advance owed to the Bank by the
Borrower, and all payments made on account of principal thereof, shall be
recorded by the Bank and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this A Promissory Note.
This A Promissory Note is one of the A Notes referred to in, and is
subject to and entitled to the benefits of, the Amended and Restated Credit
Agreement dated as of December 20, 1996 (as amended or otherwise modified from
time to time, the "Credit Agreement") among the Borrower, the Bank, certain
other borrowers parties thereto, certain other banks parties thereto and
Citibank, N.A., as Agent for the Bank and such other banks. The Credit
Agreement, among other things, (i) provides for the making of advances to the
Borrower from time to time pursuant to Section 2.01 of the Credit Agreement in
an aggregate outstanding amount not to exceed at any time the U.S. dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
each such advance owed to the Bank being evidenced by this A Promissory Note,
and (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. Capitalized terms used herein which are not defined herein
and are defined in the Credit Agreement are used herein as therein defined.
The Borrower hereby waives presentment, demand, protest, notice of
intent to accelerate, notice of acceleration and any other notice of any kind,
except as provided in the Credit Agreement. No failure to exercise, and no
delay in exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This A Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[BORROWER]
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
91
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount Principal Unpaid
of Paid or Principal Notation
Date Advance Prepaid Balance Made By
---- ------- ------- ------- -------
92
EXHIBIT A-2
B PROMISSORY NOTE
U.S. $_______________ Dated: __________, ____
FOR VALUE RECEIVED, the undersigned, [Borrower] , a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
__________________________ (the "Bank") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below), on
_____________, the principal amount of ____________________ U.S. Dollars
($__________).
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: _____% per annum (calculated on the basis of a year of
____ days for the actual number of days elapsed).
Interest Payment Date or Dates: ______________________
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, for the account of the
Bank at the office of Citibank, N.A., at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, in same day funds.
This B Promissory Note is one of the B Notes referred to in,
and is entitled to the benefits of, the Amended and Restated Credit Agreement
dated as of December 20, 1996 (as amended or otherwise modified from time to
time, the "Credit Agreement") among the Borrower, the Bank, certain other
borrowers parties thereto, certain other banks parties thereto and Citibank,
N.A., as Agent for the Bank and such other banks. The Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events. Capitalized terms used herein which
are not defined herein and are defined in the Credit Agreement are used herein
as therein defined.
The Borrower hereby waives presentment, demand, protest,
notice of intent to accelerate, notice of acceleration and any other notice of
any kind, except as provided in the Credit Agreement. No failure to exercise,
and no delay in exercising, any rights hereunder on the part of the holder
hereof shall operate as a waiver of such rights.
This B Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[BORROWER]
________________________________________
By:_____________________________________
Name:___________________________________
Title: _________________________________
93
EXHIBIT B-1
NOTICE OF A BORROWING
Citibank, N.A., as Agent
for the Banks parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: ▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
The undersigned, [Borrower] (the "Borrower"), refers to the
Amended and Restated Credit Agreement, dated as of December 20, 1996 (as
amended or otherwise modified from time to time, the "Credit Agreement"; the
terms defined therein and not defined herein being used herein as therein
defined), among the undersigned, certain other borrowers parties thereto,
certain Banks parties thereto and Citibank, N.A., as Agent for such Banks, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests an A Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such A Borrowing (the "Proposed A Borrowing") as required by Section 2.02(a) of
the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is
________________, 19___.
(ii) The Type of A Advances comprising the Proposed A
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is
$____________.
[(iv) The Interest Period for each A Advance made as part
of the Proposed A Borrowing is _______ months.]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed A
Borrowing:
(a) the representations and warranties contained in
Section 4.01 of the Credit Agreement as to the Borrower and its
Subsidiaries are correct on and as of the date of the Proposed A
Borrowing, before and after giving effect to the Proposed A Borrowing
and to the application of the proceeds therefrom, as though made on
and as of such date;
(b) no event has occurred and is continuing, or would
result from the Proposed A Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or which
would constitute an Event of Default but for the requirement that
notice be given or time elapse or both; and
(c) after giving effect to the Proposed A Borrowing and
all other Borrowings which have been requested on or prior to the date
of the Proposed A Borrowing but which have not been made
94
Citibank, N.A., as Agent
__________, ____
Page 2
prior to such date, the aggregate principal amount of all Advances
will not exceed the aggregate of the Commitments of the Banks to TWC
(computed without regard to any B Reduction).
Very truly yours,
[BORROWER]
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
cc: Citicorp North America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Account Officer
95
EXHIBIT B-2
NOTICE OF B BORROWING
Citibank, N.A., as Agent
for the Banks parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ [Date]
Attention: ▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
The undersigned, [Borrower] (the "Borrower"), refers to the
Amended and Restated Credit Agreement, dated as of December 20, 1996 (as
amended or otherwise modified from time to time, the "Credit Agreement"; the
terms defined therein and not defined herein being used herein as therein
defined), among the undersigned, certain other borrowers parties thereto,
certain Banks parties thereto and Citibank, N.A., as Agent for such Banks, and
hereby gives you notice, irrevocably, pursuant to Section 2.16 of the Credit
Agreement that the undersigned hereby requests a B Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such B
Borrowing (the "Proposed B Borrowing") is requested to be made:
(A) Date of B Borrowing __________________________________
(B) Amount of B Borrowing __________________________________
(C) Maturity Date __________________________________
(D) Interest Rate Basis __________________________________
(E) Interest Payment Date(s) __________________________________
(F) Prepayment Permitted [Yes/No] [Conditions]
(G) __________________________ __________________________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed B
Borrowing:
(a) the representations and warranties contained in
Section 4.01 of the Credit Agreement as to the Borrower and its
Subsidiaries are correct on and as of the date of the Proposed B
Borrowing, before and after giving effect to the Proposed B Borrowing
and to the application of the proceeds therefrom, as though made on
and as of such date;
(b) no event has occurred and is continuing, or would
result from the Proposed B Borrowing or from the application of the
proceeds therefrom, which constitutes an Event of Default or which
would constitute an Event of Default but for the requirement that
notice be given or time elapse or both;
(c) following the making of the Proposed B Borrowing and
all other Borrowings to be made on the same day under the Credit
Agreement, the aggregate principal amount of all
96
___________, ____
Page 2
Advances of the Banks to the Borrower then outstanding will not exceed
the aggregate amount of the Commitments of the Banks to the Borrower
(computed without regard to any B Reduction); and
(d) after giving effect to the Proposed B Borrowing and
all other Borrowings which have been requested on or prior to the date
of the Proposed B Borrowing but which have not been made prior to such
date, the aggregate principal amount of all Advances will not exceed
the aggregate of the Commitments of the Banks to TWC (computed without
regard to any B Reduction).
The undersigned hereby confirms that the Proposed B Borrowing is to be
made available to it in accordance with Section 2.16(a)(v) of the Credit
Agreement.
Very truly yours,
[BORROWER]
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
cc: Citicorp North America, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: The ▇▇▇▇▇▇▇▇ Companies, Inc.
Account Officer
97
EXHIBIT C
December 20, 1996
To each of the Banks parties to the Amended and
Restated Credit Agreement, dated as of December 20,
1996 among The ▇▇▇▇▇▇▇▇ Companies, Inc., Northwest
Pipeline Corporation, Transcontinental Gas Pipe
Line Corporation, Texas Gas Transmission Corporation,
▇▇▇▇▇▇▇▇ Pipe Line Company, ▇▇▇▇▇▇▇▇ Holdings of
Delaware, Inc., the Banks and Citibank, N.A., as
Agent for the Banks, and to Citibank, N.A., as Agent
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(d) of the Amended and
Restated Credit Agreement dated as of December 20, 1996 (the "Credit
Agreement"), among The ▇▇▇▇▇▇▇▇ Companies, Inc. ("TWC"), Northwest Pipeline
Corporation, Transcontinental Gas Pipe Line Corporation, Texas Gas Transmission
Corporation, ▇▇▇▇▇▇▇▇ Holdings of Delaware, Inc., and ▇▇▇▇▇▇▇▇ Pipe Line
Company, each a Delaware corporation (collectively, the "Borrowers"), the Banks
parties thereto and Citibank, N.A., as Agent for the Banks. Terms defined in
the Credit Agreement are used herein as therein defined.
I am General Counsel of TWC, and I have acted as counsel for the Borrowers in
connection with the preparation, execution and delivery of the Credit Agreement
and the A Notes.
In that connection, I or attorneys acting under my supervision have examined:
(1) Original counterparts of the Credit Agreement
executed by the Agent and the Borrowers and one hundred twenty
original A Notes dated December 20, 1996 executed by the respective
Borrowers, consisting of one A Note executed severally by each
Borrower payable to each Bank ("Executed Notes").
(2) The documents furnished by the Borrowers pursuant to
Section 3.01 of the Credit Agreement.
(3) The Certificate of Incorporation of each Borrower and
all amendments thereto (the "Charter" of such Borrower).
(4) The by-laws of each Borrower and all amendments
thereto (the "By-laws" of such Borrower).
(5) Certificates of the Secretary of State of the State
of Delaware, dated December ___, 1996, attesting to the continued
corporate existence and good standing of each of the Borrowers in that
State.
98
December 20, 1996
Page 2
I have also examined the originals, or copies certified to my satisfaction, of
such corporate records of the Borrowers, certificates of public officials and
of officers of the Borrowers, and agreements, instruments, and other documents,
as I have deemed necessary as a basis for the opinions expressed below. As to
questions of fact material to such opinions, I have, when relevant facts were
not independently established by me, relied upon certificates of officers of
the Borrowers or of public officials. I have assumed (i) the genuineness of
all signatures of the Banks and the Agent, (ii) the capacity of the signing
officers of each of the Banks and the Agent, (iii) the authenticity of all
documents submitted to me as original and the conformity with the authentic
originals of all documents submitted to me as copies and (iv) the due execution
and delivery, pursuant to due authorization, of the Credit Agreement by the
Banks and the Agent and the enforceability (subject to limitations on
enforceability of the types referred to in paragraphs (a) through (c) of this
opinion) of the Credit Agreement against the Banks and the Agent.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
(1) Each of the Borrowers is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware.
(2) The execution, delivery, and performance by each
Borrower of the Credit Agreement, the Executed Notes executed by such
Borrower, and the Notes to be executed by such Borrower and the
consummation of the transactions contemplated by the Credit Agreement
are within such Borrower's corporate powers, have been duly authorized
by all necessary corporate action, do not contravene (i) the Charter
or the By-laws of such Borrower or (ii) any law, rule, or regulation
applicable to such Borrower (including, without limitation, Regulation
X of the Board of Governors of the Federal Reserve System) or (iii)
any contractual or legal restriction and will not result in or require
the creation or imposition of any Lien prohibited by the Credit
Agreement. With respect to the Notes to be executed after the date
hereof by any Borrower, this opinion is limited to law, the Charter
and By-laws of such Borrower and restrictions in effect on the date
hereof. The Credit Agreement has been duly executed and delivered by
each of the Borrowers and each of the Executed Notes has been duly
executed and delivered by the appropriate Borrower. Each Borrower has
duly executed and delivered to the Agent an A Note payable to each
Bank.
(3) No authorization, approval, or other action by, and
no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery, and performance by
any of the Borrowers of the Credit Agreement and the respective Notes
or the consummation of the transactions contemplated by the Credit
Agreement except in the case of such performance (A) for such
authorizations, approvals, actions, notices, and filings which have
been made or obtained and (B) such authorizations, approvals, actions,
notices, and filings that are required by the terms of the Credit
Agreement (such as filings made under the Securities Exchange Act of
1934) which would not customarily be made or obtained prior to the
time when they are required.
(4) Each of the Executed Notes executed by, and the other
Notes when funded and when executed and delivered by a Borrower and
the Credit Agreement constitute a legal, valid
99
December 20, 1996
Page 3
and binding obligation of such Borrower enforceable against such
Borrower in accordance with its respective terms.
(5) Except as set forth in the Public Filings, to my
knowledge there are no pending or overtly threatened actions or
proceedings against any Borrower or any of its Subsidiaries before any
court, governmental agency or arbitrator that purport to affect the
legality, validity, binding effect, or enforceability of the Credit
Agreement or any of the Notes or that could reasonably be expected to
have a materially adverse effect upon the financial condition or
operations of such Borrower and its Subsidiaries, taken as a whole.
(6) No Borrower is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. No Borrower is a "holding
company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a
"holding company," or a "public utility" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(7) In any action or proceeding arising out of or
relating to the Credit Agreement or any of the Notes in any court of
the State of Oklahoma or in any Federal court sitting in the State of
Oklahoma, assuming proper venue, jurisdiction, and a full and proper
presentation of the issue and the law to the court, assuming such
action or proceeding is not dismissed on the basis of an inconvenient
forum and assuming that the court properly applies Oklahoma law, such
court would recognize and give effect to the provisions of Section
8.07 of the Credit Agreement, and construe the Credit Agreement and
the Notes in accordance with the internal laws of the State of New
York. Subject to the foregoing and without limiting the generality
thereof, a court of the State of Oklahoma or a Federal court sitting
in the State of Oklahoma would apply the usury law of the State of New
York, and would not apply the usury law of the State of Oklahoma, to
the Credit Agreement and the Notes. However, if a court were to hold
that the Credit Agreement or any of the Notes are governed by, or to
be construed in accordance with, the laws of the State of Oklahoma,
the Credit Agreement, the Executed Notes, and the other Notes, when
executed, delivered and funded, would be, under the laws of the State
of Oklahoma, legal, valid and binding obligations of the Borrower
signatory thereto enforceable against such Borrower in accordance with
their respective terms.
(8) In any action or proceeding arising out of or
relating to the Credit Agreement or any of the Notes in any court of
the State of Utah or in any Federal court sitting in the State of
Utah, assuming proper venue, jurisdiction and a full and proper
presentation of the issue and the law to the court, assuming such
action or proceeding is not dismissed on the basis of an inconvenient
forum and assuming the court properly applies Utah law, such court
would recognize and give effect to the provisions of Section 8.07 of
the Credit Agreement wherein the parties thereto agree that the Credit
Agreement and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York. Subject to the
foregoing and without limiting the generality thereof, a court of the
State of Utah or a Federal court sitting in the State of Utah would
apply the usury law of the State of New York, and would not apply the
usury law of the State Utah to the Credit Agreement and the Notes.
However, if a court were to hold that the Credit Agreement or any of
the Notes are governed by, or to be construed in
100
December 20, 1996
Page 4
accordance with, the laws of the State of Utah, the Credit Agreement,
the Executed Notes and other Notes, when executed, delivered and
funded, would be, under the laws of the State of Utah, legal, valid
and binding obligations of the Borrower signatory thereto enforceable
against such Borrower in accordance with their respective terms.
The opinions set forth above are subject to the following qualifications:
(a) My opinions in paragraph 4 above and my opinion in
the last sentence of each of paragraph 7 and paragraph 8 above are
subject, insofar as enforceability is concerned, to the effect of any
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar law affecting creditors' rights and
remedies generally.
(b) My opinions in paragraph 4 above and my opinion in
the last sentence of each of paragraph 7 and paragraph 8 above are
subject, insofar as enforceability is concerned, to the effect of
general principles of equity including principles of commercial
reasonableness, good faith, and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(c) I express no opinion with respect to the
enforceability of any of the following: indemnification provisions to
the extent same are violative of federal or state securities laws,
rules, or regulations or of public policy, clauses waiving right to
trial by jury, exculpation clauses, or clauses granting offset rights
to the Banks or against any deposits or in respect of matured claims,
clauses relating to recovery of attorney's fees in connection with the
enforcement of obligations, clauses relating to release of unmatured
claims, integration clauses to the effect that no representation was
made other than as appears in the Credit Agreement, clauses purporting
to waive unmatured rights, representations, warranties or affirmative
or negative covenants to the extent such representations, warranties,
or covenants can be construed to be independent clauses which purport
to be legal, valid, binding, and enforceable by themselves, as
distinguished from being clauses that trigger an event of default, and
severability and similar clauses, and clauses that incorporate by
reference a document or instrument or agreement not in existence on
the date hereof to the extent that any such document, instrument, or
agreement is the basis of an effort to enforce the Notes or Credit
Agreement, insofar as any of the foregoing are contained in the Credit
Agreement or the Notes.
(d) I express no opinion as to the effect on the opinions
herein stated of compliance or non-compliance by any Bank with any
applicable state, federal, or other laws or regulations applying only
to banks, or the legal or regulatory status of any Bank.
(e) My opinion in paragraph 4 above and my opinion in
each of paragraph 7 and paragraph 8 above assumes (i) application of
New York law would not be found to be contrary to a fundamental policy
of a state with a materially greater interest in determining the
question presented and the laws of which would govern in absence of an
effective choice of law, (ii) Citibank, N.A. has a place of business
located in the State of New York, and (iii) the Borrowers are required
to perform a part of their respective obligations relating to the
transaction contemplated by the Credit Agreement, such as delivery of
payment, in the State of New York.
101
December 20, 1996
Page 5
(f) I am admitted to practice law in the State of
Oklahoma and the State of New York, and, accordingly, the opinions
expressed herein are based upon and limited exclusively to the laws of
the State of Oklahoma, the laws of the State of New York, the General
Corporation Law of the State of Delaware and the laws of the United
States of America insofar as any of such laws are applicable, and I
render no opinion with respect to any other laws except the laws of
Utah, insofar as such laws are applicable to the matters opined upon
herein. In giving the opinions expressed herein as to the laws of the
State of Utah, I have, with your approval and without independent
investigation, relied solely upon attorneys acting under my
supervision admitted to practice law in that State.
(g) My opinion in paragraph 1 above as to the due
qualification and good standing of the Borrowers in based solely on
certificates, dated as of December __, 1996, from the Secretary of
State of the State of Delaware certifying as to such matters.
This opinion is solely for the benefit of the Banks, the Agent, their
respective successors, assigns, participants, and other transferees and counsel
for the Persons referred to in this sentence, and may be relied upon only by
such Persons and such counsel. This opinion speaks as of its date, and I
undertake no, and hereby expressly disclaim any, duty to advise you as to any
changes of fact or law coming to my attention after the date hereof.
Very truly yours,
▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
102
EXHIBIT D
December 20, 1996
To each of the Banks party to
the Credit Agreement described
below and to Citibank, N.A., as Agent
Ladies and Gentlemen:
We have acted as special counsel to Citibank, N.A., acting for itself and as
Agent, in connection with the preparation, execution and delivery of the
Amended and Restated Credit Agreement, dated as of December 20, 1996 (the
"Credit Agreement"), among The ▇▇▇▇▇▇▇▇ Companies, Inc., ▇▇▇▇▇▇▇▇ Holdings of
Delaware, Inc., Northwest Pipeline Corporation, Transcontinental Gas Pipe Line
Corporation, Texas Gas Transmission Corporation, ▇▇▇▇▇▇▇▇ Pipe Line Company,
each a Delaware corporation (collectively, the "Borrowers"), and each of you.
Terms defined in the Credit Agreement are used herein as therein defined.
In that connection, we have examined the following documents:
(1) Counterparts of the Credit Agreement, executed
by the Agent and the Borrowers, respectively.
(2) The documents furnished by the Borrowers
pursuant to Section 3.01 of the Credit Agreement and listed on
Annex A hereto, including the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
("Opinion").
In our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the
genuineness of all signatures and the conformity to the originals of all such
documents submitted to us as copies. We have also assumed the accuracy of all
matters set forth in the certificates referred to on Annex A hereto and assumed
that each of the Borrowers, the Banks and the Agent has duly executed and
delivered, with all necessary power and authority (corporate and otherwise),
the Credit Agreement and that each of the Borrowers has duly executed and
delivered, with all necessary power and authority (corporate and otherwise),
the respective A Notes. We have also assumed that no Bank has requested that
the opinion required by Section 3.01(d) of the Credit Agreement contain any
matter not contained in the form of opinion set forth as Exhibit C to the
Credit Agreement.
Based upon the foregoing examination of documents and assumptions and upon such
other investigation as we have deemed necessary, we are of the opinion that the
Opinion and the other documents referred to in item (2) above are substantially
responsive to the requirements of the Credit Agreement.
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This opinion is solely for the benefit of the Banks, the Agent, their
respective successors, assigns, participants and other transferees and may be
relied upon only by such Persons.
Very truly yours,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P.
104
ANNEX A
(1) The respective A Notes dated December 20, 1996 of each of the
Borrowers payable to the order of the respective Banks.
(2) Certified copies of resolutions of the Board of Directors of each
Borrower pertaining to the Credit Agreement and the respective A Notes
of such Borrower.
(3) A certificate of the Secretary or an Assistant Secretary of each
Borrower certifying the name and the signature of an officer of such
Borrower authorized to sign the Credit Agreement and the respective A
Notes of such Borrower and certifying copies of the Certificate of
Incorporation and Bylaws of such Borrower.
(4) The opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, Esq., substantially in the form
of Exhibit C to the Credit Agreement.
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EXHIBIT E
RESTRICTIONS DESCRIBED IN
PARAGRAPH 5.02(d) OF THE CREDIT AGREEMENT
1. Transco Energy Company Indenture dated as of May 1, 1990, as amended
by the First Supplemental Indenture dated as of June 20, 1990, the
Second Supplemental Indenture dated as of November 29, 1990, the Third
Supplemental Indenture dated as of April 23, 1991, the Fourth
Supplemental Indenture dated as of August 22, 1991 and the Fifth
Supplemental Indenture dated as of May 1, 1995, which has been assumed
by The ▇▇▇▇▇▇▇▇ Companies, Inc. as of May 1, 1995.
2. Northwest Pipeline Corporation Note Purchase Agreement dated as of
April 15, 1982.
3. Northwest Pipeline Corporation Debenture Agreement dated as of June 6,
1986.
4. Northwest Pipeline Corporation Indenture dated as of November 15,
1988.
5. Northwest Pipeline Corporation Senior Indenture dated as of August 1,
1992.
6. Texas Gas Transmission Corporation Indenture dated as of July 1, 1992.
7. Texas Gas Transmission Corporation Indenture dated as of April 11,
1994.
8. Transcontinental Gas Pipeline Corporation Indenture dated as of June
1, 1983, as amended by the First Supplemental Indenture dated as of
September 20, 1984, the Second Supplemental Indenture dated as of May
31, 1985, the Third Supplemental Indenture dated as of December 3,
1985, the Fourth Supplemental Indenture dated as of November 7, 1986,
the Fifth Supplemental Indenture dated as of January 15, 1987 and the
Sixth Supplemental Indenture dated as of September 15, 1987.
9. Transcontinental Gas Pipeline Corporation Indenture dated as of
September 15, 1992.
10. ▇▇▇▇▇▇▇▇ Natural Gas Company $130,000,000 Credit Agreement dated as of
November 14, 1994.
11. ▇▇▇▇▇▇▇▇ Pipe Line Company Senior Note Agreement dated July 28, 1986.
12. ▇▇▇▇▇▇▇▇ Pipe Line Company Senior Note Agreement dated July 13, 1990.
13. Kern River Funding Corporation Trust Indenture dated as of March 15,
1996.
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EXHIBIT F
TRANSFER AGREEMENT
This Transfer Agreement dated as of ________________ (this
"Agreement"), is made by and among The ▇▇▇▇▇▇▇▇ Companies, Inc. ("TWC"),
▇▇▇▇▇▇▇▇ Holdings of Delaware, Inc. ("WHD"), Northwest Pipeline Corporation
("NWP"), Transcontinental Gas Pipe Line Corporation ("TGPL"), Texas Gas
Transmission Corporation ("TGT"), ▇▇▇▇▇▇▇▇ Pipe Line Company ("WPL"), each a
Delaware corporation (TWC, WHD, NWP, TGPL, TGT and WPL being each a "Borrower"
and collectively, the "Borrowers"), Citibank, N.A., as Agent for the banks
party to the Amended and Restated Credit Agreement dated as of December 20,
1996 (as may be amended from time to time, the "Credit Agreement") among the
Borrowers, such Agent and such banks, __________________ ("Assignor") and
___________________ ("Assignee"). In consideration of the mutual covenants
herein contained, the parties hereto agree as set forth herein.
1. Transfer. Pursuant to the last sentence of Section 8.06(a) of the
Credit Agreement, Assignor hereby assigns to Assignee (without representation
or warranty to Assignee and without Assignee having recourse against Assignor
as a result of such assignment), and Assignee hereby assumes, a constant _____%
of each of the Assignor's Commitments (such term used throughout this Agreement
without giving effect to any B Reduction) to each of the Borrowers under the
Credit Agreement, such assignment from Assignor to Assignee being [all of
Assignor's Commitments to each of the Borrowers] [(a) $__________ of Assignor's
$__________ Commitment to TWC, (b) $____________ of Assignor's Commitment to
WHD, (c) $__________ of Assignor's $__________ Commitment to NWP, (d)
$__________ of Assignor's $__________ Commitment to TGPL, (e) $__________
Assignor's $___________ Commitment to TGT, and (f) $__________ of Assignor's
$__________ Commitment to WPL, (the amount of each such Commitment to a
Borrower so assigned is called the "Assigned Portion" of such Commitment).
[The Assignee is already a Bank under the Credit Agreement with a Commitment of
$_________, $________, $________, $________, $__________ and $________, to TWC,
WHD, NWP, TGPL, TGT and WPL, respectively, prior to the assumption contemplated
hereby.] [The Assignee is hereby approved by the Agent [and the Borrowers] for
purposes of the assignment and assumption contemplated hereby.] As
contemplated by such Section 8.06, it is hereby agreed that:
(i) the Assignor is hereby released from all of its obligations
under the Credit Agreement with respect to or arising as a
result of the Assigned Portions of its Commitments assigned
hereby;
(ii) the Assignee hereby becomes obligated for the Assigned
Portions of such Commitments and all other obligations of
the Assignor (including, without limitation, obligations to
the Agent under Section 7.05 of the Credit Agreement or
otherwise) under the Credit Agreement with respect to or
arising as a result of the Assigned Portions of such
Commitments;
(iii) the Assignee is hereby assigned the right to vote or consent
under the Credit Agreement and the other rights and
obligations of the Assignor under the Credit Agreement, in
each case to the extent of the Assigned Portions of such
Commitments;
(iv) TWC, contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note of the
Assignor currently outstanding [(and in replacement
107
of Assignee's existing $____________ A Note)] (a) to the
Assignee, a new A Note in the amount of $__________, [(and
the Assignee agrees to cancel and return to TWC, with
reasonable promptness following such delivery, the A Note of
the Assignee being replaced thereby)] (b) to the Assignor, a
new A Note in the amount of $____________ (and the Assignor
agrees to cancel and return to TWC, with reasonable
promptness following delivery of such new A Note, the A Note
of the Assignor being replaced thereby), and (c) to the
Agent, photocopies of all such new A Notes and of all such
cancelled A Notes;
(v) WHD, contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note of the
Assignor currently outstanding [(and in replacement of
Assignee's existing $____________ A Note)] (a) to the
Assignee, a new A Note in the amount of $__________, [(and
the Assignee agrees to cancel and return to WHD, with
reasonable promptness following such delivery, the A Note of
the Assignee being replaced thereby)] (b) to the Assignor, a
new A Note in the amount of $____________ (and the Assignor
agrees to cancel and return to WHD, with reasonable
promptness following delivery of such new A Note, the A Note
of the Assignor being replaced thereby), and (c) to the
Agent, photocopies of all such new A Notes and of all such
cancelled A Notes;
(vi) NWP, contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note of the
Assignor currently outstanding [(and in replacement of
Assignee's existing $____________ A Note)] (a) to the
Assignee, a new A Note in the amount of $__________, [(and
the Assignee agrees to cancel and return to NWP, with
reasonable promptness following such delivery, the A Note of
the Assignee being replaced thereby)] (b) to the Assignor, a
new A Note in the amount of $____________ (and the Assignor
agrees to cancel and return to NWP, with reasonable
promptness following delivery of such new A Note, the A Note
of the Assignor being replaced thereby), and (c) to the
Agent, photocopies of all such new A Notes and of all such
cancelled A Notes;
(vii) TGPL, contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note of the
Assignor currently outstanding [(and in replacement of
Assignee's existing $____________ A Note)] (a) to the
Assignee, a new A Note in the amount of $__________, [(and
the Assignee agrees to cancel and return to TGPL, with
reasonable promptness following such delivery, the A Note of
the Assignee being replaced thereby)] (b) to the Assignor, a
new A Note in the amount of $____________ (and the Assignor
agrees to cancel and return to TGPL, with reasonable
promptness following delivery of such new A Note, the A Note
of the Assignor being replaced thereby), and (c) to the
Agent, photocopies of all such new A Notes and of all such
cancelled A Notes;
(viii) TGT, contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note of the
Assignor currently outstanding [(and in replacement of
Assignee's existing $____________ A Note)] (a) to the
Assignee, a new A Note in the amount of $__________, [(and
the Assignee agrees to cancel and return to TGT, with
reasonable promptness following such delivery, the A Note of
the Assignee being replaced thereby)] (b) to the Assignor, a
new A Note in the amount of $____________ (and the Assignor
agrees to cancel and return to TGT, with reasonable
promptness following delivery of such new A Note, the A Note
of the Assignor being replaced
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108
thereby), and (c) to the Agent, photocopies of all such new
A Notes and of all such cancelled A Notes;
(ix) WPL, contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the A Note of the
Assignor currently outstanding [(and in replacement of
Assignee's existing $____________ A Note)] (a) to the
Assignee, a new A Note in the amount of $__________, [(and
the Assignee agrees to cancel and return to WPL, with
reasonable promptness following such delivery, the A Note of
the Assignee being replaced thereby)] (b) to the Assignor, a
new A Note in the amount of $____________ (and the Assignor
agrees to cancel and return to WPL, with reasonable
promptness following delivery of such new A Note, the A Note
of the Assignor being replaced thereby), and (c) to the
Agent, photocopies of all such new A Notes and of all such
cancelled A Notes;
[(x) in as much as there are currently no outstanding A Advances,
no transfer of A Advances is hereby made];
[(x) $____________, $____________, $____________, $_____________,
$__________ and $____________, of the Assignor's outstanding
A Advances to TWC, WHD, NWP, TGPL, TGT and WPL,
respectively, are hereby transferred to the Assignee, which
amounts represent [the aggregate amount of all of the
Assignor's outstanding A Advances to TWC, WHD, NWP, TGPL,
TGT and WPL, respectively,] [the amount of the assigned
portions of the outstanding A Advances of the Assignor to
TWC, WHD, NWP, TGPL, TGT and WPL, respectively, there being
hereby assigned to Assignee a portion of each such A Advance
with the assigned portion of each such A Advance being equal
to the amount of such A Advance multiplied by a fraction,
the numerator of which is the amount of the Assignor's
Commitments assumed hereby by the Assignee and the
denominator of which is the amount of the Assignor's
Commitments (without giving effect to any B Reduction)
immediately prior to such assumption]; [and]
(xi) the Assignee hereby confirms that it is a party to the
Credit Agreement as a Bank and agrees that after giving
effect to this Agreement its Commitments will be
$____________, $____________, $____________________,
$____________, $_____________ and $____________, to TWC,
WHD, NWP, TGPL, TGT and WPL; [and]
[(xii) the Assignee hereby specifies the following offices as its
Applicable Lending Offices under the Credit Agreement:
Domestic Eurodollar
Lending Office Lending Office
-------------- --------------
----------------------------- -------------------------
Attention: Attention:
------------------ --------------
Telephone: Telephone:
------------------ --------------
Telecopy: Telecopy:
------------------- --------------
Telex: Telex:
---------------------- ------------------
Answerback: Answerback:
----------------- -------------
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109
[(xiii) the Assignee hereby specifies the following as its address
for notices and communications under the Credit Agreement:
[Assignee]
-----------------------------
Attention:
------------------
Telephone:
------------------
Telecopy:
-------------------
Telex:
----------------------
Answerback:
-----------------
2. Miscellaneous.
2.1 Amendments, Etc. This Agreement shall not be amended,
waived or otherwise modified except in writing executed by the parties hereto.
2.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
2.3 Definitions. Capitalized terms used herein which are
defined in the Credit Agreement and not defined herein are used herein as
defined in the Credit Agreement.
2.4. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
2.5. Effective Date. This Agreement shall be effective as of
the date first above written for purposes of computation of commitment fees
under the Credit Agreement and for all other relevant purposes.
2.6. Assignee Credit Decision. The Assignee acknowledges that
it has, independently and without reliance upon the Agent or any other Bank and
based on such financial statements and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. The Assignee also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
any Note, the Credit Agreement or this Agreement.
2.7. Indemnity. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including
without limitation reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
performance or non-performance of obligations assumed by Assignee under this
Agreement.
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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.
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC. NORTHWEST PIPE LINE CORPORATION
By: By:
------------------------- ----------------------------
Name: Name:
----------------------- --------------------------
Title: Title:
---------------------- -------------------------
TRANSCONTINENTAL GAS TEXAS GAS TRANSMISSION
PIPE LINE CORPORATION CORPORATION
By: By:
------------------------- ----------------------------
Name: Name:
----------------------- --------------------------
Title: Title:
---------------------- -------------------------
▇▇▇▇▇▇▇▇ PIPE LINE COMPANY ▇▇▇▇▇▇▇▇ HOLDINGS OF DELAWARE, INC.
By: By:
------------------------- ----------------------------
Name: Name:
----------------------- --------------------------
Title: Title:
---------------------- -------------------------
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
------------------------- ----------------------------
Name: Name:
----------------------- --------------------------
Title: Title:
---------------------- -------------------------
CITIBANK, N.A., as Agent
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
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